Restaurant’s Three Hats from the Court of Appeal: Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362

In September 2003, a new swank restaraunt, Coco Roco opened to public fanfare in Sydney, with views over the Harbour. It had a $3 million fitout, it was expensive and it was going to set the new standard in fine dining in Sydney. As the owners hoped, it was to be “Sydney’s most glamorous restaurant”.In walked Matthew Evans, chief restaraunt reviewer for The Sydney Morning Herald. Given that the parties have now been locked in serious defamation proceedings for many years, with appearances all the way to the High Court and back, one can assume that the review was not altogether good.

Here are some of the highlights:

Evans did not eat this dish

  •  The cover stated “Matthew Evans fails Coco Roco”;
  • The article entitled “Crash and Burn”;

Evans then said:

  • More than half the dishes were simply unpalatable;
  • Value: A shocker.
  • A bleak spot on the culinary landscape;
  • Its business cards stated that “A new level of dining comes to Sydney’s King Street Wharf”: “I couldn’t agree more.”
  • 9 out of 20.

The plaintiffs, who were the owners and operators of the restaurant were devastated. They watched the restaurant fail, companies went into administration and eventually Coco Roco closed in March 2004. They blamed the reviewer. They sued him. They sued the paper. They asserted the following imputations:

  1. The plaintiffs sell unpalatable food at Coco Roco;
  2. The plaintiffs provide some bad service;
  3. The plaintiffs are incompetent as restaraunteurs.

At trial, the defendants succeeded in their defences of fair comment and justification.

The plaintiffs appealed to the NSW Court of Appeal. On the whole, their argument was a simple one: the restaurant was actually 2 restaraunts: the upstairs expensive option was Coco, and downstairs was cheaper – Roco. Evans only ate at Coco, so how could he have an opinion on Roco? As a result, they said that the fair comment and justification defences had to fail. Indeed under cross-examination, Evans bluntly admitted he had no opinion about Roco because he had never eaten there.

One never quite knows with expensive food

The trial judge went on to consider the plaintiffs’ own promotional material and the apology they sought after the review. There were no references to 2 restaraunts in those, so the trial judge concluded that the plaintiffs ought to forget that cutesy argument. Harrison J found the imputations were fair comment and justified. The food was at times unpalatable and the service, well Evans could not get a waiter for 15 minutes and when the garden salad was served, the leaves were not served equally to the two diners. Outrageous. So the plaintiffs’ case was dismissed.

But the plaintiffs did not forget about the argument that Evans never ate at Roco.

They ran it again, and the results were startling. The NSW Court of Appeal thought the argument was delicious. Appeal allowed. No fair comment or justification defences. And the case was sent back to the Supreme Court for an assessment of damages.

If only Evans had tried the garden salad downstairs.

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