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McDonald v Dods

McDonald v Dods

Case [2017] VSCA 129 2 June 2017

Defamation

Aggravated & Exemplary Damages

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0068

MICHAEL MCDONALD	Applicant
v
COLIN DODS	Respondent

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JUDGES:	WARREN CJ, WHELAN JA and CAMERON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 April 2017
DATE OF JUDGMENT:	2 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 129
JUDGMENT APPEALED FROM:	[2016] VSC 200 (Bell J); [2016] VSC 201 (Bell J)

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DEFAMATION – Internet page – Whether sufficient evidence for inference of publication to unknown individuals – Whether damages excessive given scope of publication – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Greenway with Mr N Andreou	BDG Legal
For the Respondent	Mr J Ruskin QC with Mr D Bracken	Tony Hargreaves & Partners

WARREN CJ
WHELAN JA
CAMERON AJA:

This application for leave to appeal arises from a matter heard in the Trial Division where a verdict was returned that the applicant, Michael McDonald, had defamed the respondent, Colin Dods. An order was made for damages of $150,000.

The applicant seeks leave to appeal on the basis that there was insufficient evidence to infer publication was made to a broad pool of people and that damages should be reduced accordingly.

Factual background

The applicant, Michael McDonald, is the administrator and author of the website ‘ He is a barrister by profession. From December 2008 to October 2012, the applicant maintained a website which discussed a death by police shooting.

The respondent, Colin Dods, is a police sergeant. He was one of four Victoria Police officers at All Nations Park in Northcote attempting to contain Tyler Cassidy, an aggravated 15 year old carrying a knife, when the boy was shot dead by the police. The incident was of considerable notoriety and media coverage. It was the subject of a contested coronial inquest.

By way of background, set out below is the summary of events around Tyler Cassidy’s death drawn from the 2011 report of the Coroner:

Tyler Jordan Cassidy was shot dead by police on the evening of 11 December 2008 at All Nations Park, Northcote. He was 15 years and 8 months old at the time of his death.
Ten shots were fired by three of the four police officers present in the park at the time of his death. Five of those shots struck Tyler, one of them fatally entering his body below his left clavicle and causing significant internal bleeding and the collapse of his right lung. He died within minutes at the scene.
About 11 minutes and 25 seconds before this shooting, Tyler had armed himself with two large knives he had very publicly stolen from a Kmart store inside the Northcote Plaza Shopping Centre which is adjacent to All Nations Park. He had then moved swiftly through the shopping centre, and adjoining shops and car park, pointing the knives at people and demanding that the police be called or people would die that night.
Indeed about three minutes and two seconds before entering the Kmart store he had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McDonald v Dods

Details

AGLC: McDonald v Dods [2017] VSCA 129
Case: [2017] VSCA 129
Decision Date: 2 June 2017

CaseChat Overview and Summary

The case of McDonald v Dods involved a dispute over defamatory statements published on an internet page. The plaintiff, Mr McDonald, sought to hold the defendant, Mr Dods, responsible for the publication of these statements and the consequent damages. The court was required to determine whether there was sufficient evidence to infer that the publication had reached unknown individuals and whether the damages awarded were excessive in relation to the scope of the publication. The case was heard by the Supreme Court of Victoria, which was tasked with resolving these issues in the context of internet defamation.

The primary legal issues before the court were whether the evidence presented was sufficient to prove that the defamatory statements had been published to unknown individuals, and if the damages awarded to the plaintiff were commensurate with the extent of the publication. The court had to consider the principles of defamation law, particularly the requirement for publication to a third party, and the assessment of damages in relation to internet defamation cases. The court also had to evaluate the scope of the publication and the reach of the internet page in question.

In its reasoning, the court determined that there was indeed sufficient evidence to infer that the defamatory statements had been published to unknown individuals, as the internet page in question had a broad audience reach. However, the court found that the damages awarded were excessive given the scope of the publication. The court concluded that the amount awarded did not align with the extent of the harm caused by the defamatory statements. Consequently, the court refused leave to appeal, upholding the decision that the damages were excessive.

The final orders of the court maintained the decision to refuse leave to appeal, thereby upholding the assessment that the damages awarded were excessive in relation to the scope of the publication. The court's decision emphasised the importance of proportionality in defamation damages, particularly in internet-based cases where the reach and impact of the publication can be significant.

Orders