The unpalatable truth

By Legal Eagle

I was interested to read about a recent High Court decision, John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, concerning an allegation that a restaurant review was defamatory. A majority has found that a September 2003 review of Sydney habourside restaurant Coco Roco was defamatory. The restaurateurs claimed they lost 2700 customers immediately after the story, with most citing the review as the reason why. Shortly afterwards, Coco Roco was in liquidation.

Of course, the first thing I wanted to do after hearing that was to read the review. Here are some choice extracts:

If a restaurant serves good as well as bad food, do you give it the benefit of the doubt? I wouldn’t do that with a three chef’s hat restaurant, so why should I do it here? Especially when more than half the dishes I’ve tried at Coco Roco are simply unpalatable.

Coco Roco is the swank new eatery at King Street Wharf. The opening was touted as ‘Sydney’s most glamorous restaurant’. If glamour peaked at about 1985, then perhaps they’re right. Something about the polished stainless steel around the open kitchen and the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie. Maybe it’s just me.

What isn’t disputable is that this place has had a $3 million fitout, has views westwards over the water and scored Sarah O’Hare as its official guest at the opening. It has set itself up as a flash restaurant with big-end-of-town prices. Its business card even boasts that ‘A new level of dining comes to Sydney’s King Street Wharf.’ I couldn’t agree more.

Coco Roco is actually two restaurants: Coco, the posh place upstairs off Lime Street, and sibling Roco, also smartly fitted out on the foreshore. Forever in pursuit of excellence, we chose the more expensive option.

Expensive is right. Mains skid dizzily from a vegetarian dish at just under $30 and crash over the $50 mark. It’s a brave restaurateur who tries that without the goods to back it up.

A degustation of oysters ($28 for six/$40 for 12) arrives as different flavoured bivalves, rather than as oysters from various regions. There’s a saffron infused gin one. There’s a seafood foam which looks like it’s been piped on top. The texture is scary and, let’s be polite, not to my tastes. The limoncello, however, is worse – flavours jangle like a car crash; all at once it’s sickly sweet, overtly alcoholic, slippery, salty and bitter.

On a side dish, three house-made mustards – milk, Guinness and lavender – prove that some things are better left alone.

I’ve never had pork belly that could almost be described as dry. Until tonight. A generous square of pig’s paunch ($33) is snuggled into a mass of starchy lentils. The meat is unevenly spiced with Moorish flavours and the lentils are poor. Texturally, it brings to mind the porcine equal of a parched weetbix.

In a city where harbourside dining has improved out of sight in recent years, Coco Roco is a bleak spot on the culinary landscape.

Whew! Yep, that’s pretty full on. If I had a booking there (unlikely, I think the concept of a $50 main is ridiculous), I would cancel it after reading that review.

Prior to trial, it was held that there were four potentially defamatory imputations that could be drawn from the review:

(a) The respondents sell unpalatable food at Coco Roco.

(b) The respondents charge excessive prices at Coco Roco.

(c) The respondents provide some bad service at Coco Roco.

(d) The respondents are incompetent as restaurant owners because she/he employs a chef at Coco Roco who makes poor quality food.

The trial of the proceeding was conducted pursuant to s 7A of the Defamation Act 1974 (NSW) which applied at that time. According to s 7A(3), if the court decided that the defamatory material was capable of holding the alleged imputations, and that the imputations were defamatory, then the jury was to decide whether this was in fact the case. Only imputations (a) and (c) were considered before the High Court. A majority of the High Court found that the review did carry the imputations that the respondents sold unpalatable food and that the respondents provided bad service, and that these imputations were defamatory.

The defamation in question was said to be “business defamation”. Gleeson CJ and Crennan J explain this concept as follows at paragraph [2]:

Suppose someone says: “X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble.” That would not be a reflection on X’s character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person’s professional reputation.

The issue which was the subject of the appeal was the test put to the jury. Ordinarily, the test for finding whether material is defamatory is whether that it would lower a person in the eyes of ordinary, right-thinking members of the community. However, because the case concerned business defamation, the test was different. It was whether the material would be likely to injure a person in his or her trade or profession by reason of suggesting unfitness or incompetence or something of that nature.

The jury found that imputations (a) and (c) were conveyed but were not defamatory, and that imputations (b) and (d) were not conveyed. Judgment was entered for the appellants. The plaintiffs (the restaurateurs) then appealed to the Court of Appeal. The Court of Appeal held that the trial judge’s direction was not adequate, in that she failed to draw the necessary distinction between business defamation and personal defamation. The tests were entirely different. The Court of Appeal found that no reasonable, properly directed jury could have decided that the imputations in (a) and (c) were not defamatory, having regard to the test for business defamation.

The defendants (the newspaper) then appealed to the High Court. There were a number of matters which were at issue before the High Court. First, there was the question of whether the Court of Appeal was entitled to substitute its judgment of fact for the judgment of the jury. The High Court concluded that it was entitled to do so pursuant to s 108(3) of the Supreme Court Act 1970 (NSW). Secondly, there was a question of whether the jury were entitled to take community standards into account when deciding whether imputations (a) and (c) were defamatory. The majority rejected this submission. For example, at [190], Callinan and Heydon JJ concluded:

Business capacity and reputation are different from personal reputation. Harm to the former can be, as here, inflicted more directly and narrowly than harm to a person’s reputation. A person who does not have an admirable character may be a very good restaurateur. It might be possible to say things about him or her personally that are not defamatory, but not about that person as a restaurateur in relation to the conduct of the restaurant. Restaurant standards rather than community ones are the relevant standards in that situation. No community standard or value could obliterate or alter the defamatory meaning of the imputations in this case. It is unimaginable, in any event, that the estimation of the respondents in the mind of any adult person, let alone a reasonable reader, would not be lowered by a statement that they sold unpalatable food and provided bad service at their restaurant, and did so for considerable sums of money.

Kirby J dissented on both questions. The nub of his dissent, at [143], is worth reading:

Moreover, on subjects such as a criticism of a restaurant’s food and service, lay jurors are much more likely to reflect community standards than judges, many of whom, like myself, have no special interest in culinary matters, expensive restaurants or cuisine generally. Astonishing as it may seem, judges may occasionally lack a sense of irony or humour. Some may undervalue “free speech” or sometimes even feel hostility to a “free press”. In such matters, therefore, there is safety in the numbers of a jury. It was an error of the Court of Appeal to consider that community standards were insignificant in judging the suggested defamatory character of the review of the respondents’ restaurant. With all respect, such an attitude contradicts the legislative preservation by s 7A(3) of the function of a jury. That function is not unreviewable. It does not exclude a proper role for the Court of Appeal. But the jury’s function is still very important. Because Parliament exceptionally provided for it, it is to be respected in defamation actions.

I rest my case: Kirby J is a hip cat. It is, as his Honour suggests, a instance where Parliament has required that the lawyers refer a matter to the general public to see what they think of a matter. The general public answers in a way which leads lawyers to think, “That’s not the right answer!”, and then proceed to argue that the “right (lawyerly) answer” should be substituted.

What, then, is the point of asking a jury what it thinks about a matter if judges are just going to overrule the jury when they don’t come up with the answer that a lawyer would come up with? Isn’t that the whole point of a jury? I understand that it is scary for lawyers to put things in the hands of the hoi polloi, but for goodness sakes’, sometimes we lawyers need a reality check. I have described in a previous post how lawyers see things quite differently to the rest of humanity. Sometimes that’s a good thing, but sometimes, it means that we are “out of touch”. We can make the illogical seem perfectly illogical.

I’m going to try to take off my wig and gown here and put on my “foodie” hat. I’ll try to think with my stomach. Speaking as someone who loves her food, I would like food critics to be able to write honestly about restaurants. Who wants to read a review where the reviewer pussyfoots around because he is worried about making a defamatory comment? What about an unfavourable review of a book? Or a CD? Where do we draw the line? Aren’t we entitled to make public criticisms of someone’s work when they put it out there for us to judge?

Of course, it has to be noted that the trial isn’t over yet. The defendant newspaper still has to file its defences. Perhaps it will be able to establish a defence on the basis that the review was truthful, or that freedom of speech requires that the review be published.

Still, the decision represents a worrying tendency for lawyers to presume that we know better than anyone else, even when we ask ordinary people to make a judgment for us.


  1. marcellous
    Posted June 18, 2007 at 12:42 pm | Permalink

    I was going to comment on this but as a starting point it is easier to refer you to David Marr’s piece in today’s SMH. Though he steps rather discreetly over why, given what he says, Fairfax should have appealed against the Court of Appeal judgment, I think he is correct to say that the decision is not a rewriting of the proper bounds of restaurant criticism.

    Actually, it is a case about whether, if the jury has been perverse in a civil trial, an appellant can hold on to part of the jury’s verdict by means of an appellant court deciding which part of the verdict is perverse and substituting its own decision.

    The issue on appeal was not whether the decision of this jury should stand, but whether the Court of Appeal should have substituted its own verdict for that of the jury (and specifically, not the jury’s verdict on what the article meant, but on whether that meaning was defamatory) on two of the imputations, rather than sending them back to a fresh jury for redetermination (the decision to send another imputation back to a fresh jury was not subject to appeal).

    Given that the role of the jury in defamation trials has now been changed again, I was at first surprised that the High Court gave Fairfax leave to appeal on this one. The nub of the difference between Kirby and the rest of the court was whether the jury’s decision about whether the imputation (which they found to be make out) was a question of fact or a question of law.

    Kirby’s decision seems to rest on the rather circular proposition that, because it was a decision made by the jury, it must have been a question of fact (see paragraph 95 of his judgment). In theory, that may be right, but in substance (and in this particular case) I think that exposes the unsatisfactory point about the role that the jury was required to perform under the now superseded form of the law.

  2. Posted June 18, 2007 at 11:19 pm | Permalink

    I think I just don’t like business defamation full stop. I think that if you put yourself out there, people should be able to comment critically on your services. Okay, the press has an immense power to affect your business, but so does word of mouth – a dissatisfied customer is supposed to tell 10 other people – will they be sued for defamation too?

    I also noted that the law was superseded – I’m glad it has been replaced – it seemed like it was “doubling up” by making both a judge and a jury make an assessment. As you say, seems like it was a badly drafted law anyway.

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