Restaurant rules

I'm Damien Carrick and you're listening to the Law Report on ABC RN, News Radio, and Radio Australia, or you might be listening online at abc.net.au/rn, or perhaps listening on a podcast.

Now to a restaurant review that spiralled into a 10-year legal battle. Damages have been finalised in the Gacic defamation dispute which was between the Sydney Morning Herald and the owners of a pair of now-defunct Sydney harbourside restaurants, downstairs bistro Roco, and upstairs fine dining restaurant Coco. A court recently ruled that the three plaintiffs should collectively receive a total of $623,000, plus legal costs. The court decided that the trio who had previously been awarded $160,000 each should have this figure increased by 3% interest for each year since the publication of the review, which was way back in September 2003.

Associate Professor David Rolph is an expert in media law, based at the University of Sydney Law School.

David Rolph: The restaurant review was published in the Good Living section back in 2003, and the restaurant, or restaurants in fact we should say, were two restaurants at the King Street wharf in Sydney. So there was a restaurant called Coco and a restaurant called Roco, and the restaurant Coco was the one that was purportedly under review, so the high-end restaurant. And Matthew Evans, who was the reviewer at the time, wrote an unflattering review of Coco. Unfortunately, and this was one of the live issues as the case played out in the ensuing decade, there were some references to Coco Roco, as well as simply to Coco, so it was somewhat unclear as to which a restaurant or restaurants were being reviewed.

Damien Carrick: I should point out the reviewer is Matthew Evans who is now the presenter of the SBS series Gourmet Farmer that follows Matthew's attempt to build a gourmet farm in rural Tasmania.

David Rolph: Matthew Evans gave Coco ultimately a score of 9/20, and so according to Good Living had failed the restaurant.

Damien Carrick: Indeed, that was the caption on the front page of the Good Living section of the Sydney Morning Herald, 'Matthew Evans Fails Coco Roco'. The review inside was titled 'Crash and Burn', so it was a pretty damning review. What were some of the things he said about the food and the service?

David Rolph: Well, he describes the restaurant Coco Roco, and I quote, as 'a bleak spot on the culinary landscape'. He referred to more than half the dishes as being 'simply unpalatable'. He was highly critical of the selection of oysters, he found particularly the Limoncello infused oyster as 'jangling' in the mouth, 'flavours jangling like a car crash'. He seemed to encounter a large number of salads which had wilted leaves. He noted that they were able to cook steak very well, but all of their selections of sources that went with them were unusual or poorly executed. So I think he had a steak with a rubbery and tasteless apricot sauce over the top of it. Matthew Evans of course didn't just go to the restaurant once, he went back twice, and so on both of his trips to the restaurant he had found that what he thought…more than half of the dishes that he had tried were simply unpalatable.

Damien Carrick: This review gets published, the restaurant subsequently says it loses an enormous amount of business and closes down I think a number of months after the review. The people who own and run the restaurant launched defamation proceedings. It took something like 10 years for this to go through the system. Why was the Sydney Morning Herald found liable and why weren't the defences of, say, fair comment or truth held up by the court?

David Rolph: Initially a jury found way back I think in 2004 at the first trial that the review wasn't defamatory, so none of the pleaded imputations were conveyed or were defamatory. This then went all the way to the High Court and the jury verdict was then found to be unreasonable, so it was sent back for trial. Justice Harrison at trial found that the defensive comment had been made out. That was then set aside by the New South Wales Court of Appeal, and so damages was sent back to be assessed.

This is a very long, procedurally complex matter. It was fascinating to me that the jury initially found that this wasn't defamatory and yet over a decade later we end up having a very large amount of damages awarded. One of the reasons for that is the complexity of the way in which defamation is pleaded, and one of the crucial facts here I suppose is that the imputations that were pleaded by the restaurateurs referred to Coco Roco, and the article in question seemed to refer at points to Coco Roco but at times just Coco.

If you read the review closely, Matthew Evans is actually only reviewing Coco and not Roco. And so the problem is the Sydney Morning Herald can have a defence in relation to Coco, but because Matthew Evans didn't in fact dine at and wasn't purporting to review Roco, it can't have a defence of comment in relation to Roco.

So it's a fairly technical approach to the defence of comment, which I think demonstrates something about the complexity of defamation law when you try and apply it to basic everyday types of exercises of comment that we ordinarily see.

Damien Carrick: So we're talking here about a restaurant review. This isn't one out of the box, there have in fact been other cases like it in the past, haven't there?

David Rolph: Yes. Look, we've done a nice line in these sorts of cases in the Supreme Court of New South Wales. So I suppose the very famous case is the Leo Schofield review of the Blue Angel from 1984 which involved Leo Schofield in typically colourful fashion describing the Blue Angel as being cruel and inhumane to lobsters, charging prices that weren't good value. And he also complained that he'd received charred lobster that had been cooked for 45 minutes, and overcooked garlic prawns. And a jury in that particular case awarded, from memory, the Blue Angel $100,000 by way of damages.

There was also the Blues Point Cafe case, a restaurant review published in 1989 and eventually determined by a jury in 1997. In that particular case the operator of the Blues Point Cafe got $180,000 damages, and the allegations that were relied upon there was that the cafe had served substandard food and provided grubby cutlery and was really a cafeteria not a cafe. While this is not the first case, these cases only occur probably now once every decade, but when they do occur they of course occur in a very high profile sort of way.

Damien Carrick: Finally, do you think the Gacic ruling at the end of the day was the right one?

David Rolph: Well, I think it's disappointing that a case like this has been dragged out for over a decade based on a review that was published in 2003 in circumstances where the lives of many of the participants have moved on. And what I think is particularly interesting here is if you go back to the original jury verdict, the jury in that particular case at first instance found that the article was not in fact defamatory. I think these cases are rare, and I would hope that a case like this is not repeated at any time in the future. I feel sorry for the Gacics and their restaurant. On the other hand I also feel sorry for the Sydney Morning Herald having to have gone through over a decade of litigation as well.

Damien Carrick: Associate Professor David Rolph. And it's not just a big media outlets that have to worry about reviews. David says that overseas there have been defamation cases involving negative comments on websites like TripAdvisor and the business review site Yelp. And recently a New South Wales court threw out a defamation case which was brought by a business that sells on eBay. They brought an action against a buyer based in WA because they didn't like a negative review posted on the eBay website and also five posts on a separate forum.

Thanks to producer Anita Barraud, and also to audio engineer John Jacobs. Do visit us online at abc.net.au/rn. Talk to you next week with more law.