A recently concluded Australian case is a useful reminder for food reviewers not to fudge the facts or overcook the goose.
The case of Gacic v Fairfax began with a Serbian trio – as all good stories begin – who, in September 2003, opened Coco Roco, a A$3m two-in-one restaurant complex on Sydney’s waterfront. The upstairs restaurant, Coco, served $50 main courses, while Roco, downstairs, was more moderately priced.
The restaurant enjoyed initial success, but, following a review by The Sydney Morning Herald’s chief restaurant reviewer, Matthew Evans – who visited upstairs Coco twice within a week – Coco Roco’s doors closed within 6 months.
The Serbian trio blamed Mr Evans’ review for Coco Roco’s failure, suing him and his publisher for defamation.
The review was clearly scathing, some memorable tidbits including “flavours jangle like a car crash”, “it brings to mind the porcine equal of a parched Weetbix”, “jangles the mouth like a gamelon concert”, and “more than half the dishes I've tried at Coco Roco are simply unpalatable”. (The full review is available here, though the original title “Crash and Burn” has been removed. DU expressly condemns the defamatory imputations the review contains, but it is helpful, for educational purposes, to see it as it was published.)
The plaintiffs contended that the review bore the following natural and ordinary meanings:
- that they sold unpalatable food at Coco Roco,
- that they provided some bad service at Coco Roco, and
- that they were incompetent as restaurant owners because they employed a chef at Coco Roco who made poor quality food.
Mr Evans defended his review on the basis of truth and honest opinion.
However, while the review itself was rather caustic, the case actually turned on a fine point – whether Mr Evans’ criticisms of Coco could fairly extend to Roco, the lower-priced downstairs restaurant, which Mr Evans did not attend. The plaintiffs argued that if the review was understood by readers to refer to both restaurants, the defendants’ defences were crippled: i.e. that Mr Evans could not honestly express negative opinions about Roco if he had never eaten there.
The New South Wales Supreme Court (sort of equivalent to New Zealand’s High Court) held that no distinction could be drawn between Coco upstairs, and Roco downstairs; that criticisms of Coco could also fairly be made of Roco. The Judge stated:
Coco and Roco were no more individual, separate and distinct restaurants than the fifth and sixth floors of David Jones Market Street store are two individual, separate and distinct department stores. A hypothetical review based upon the quality of the service on the fifth floor of that David Jones store would not fail to qualify as an opinion about the service at that David Jones store in general simply because it was written by someone who had not shopped, and so could not speak about the service, on the sixth floor.
The trial judge also stressed factors pointing towards Coco and Roco being a single restaurant as including their common wine menu, single executive chef, and promotional material depicting them as a single restaurant with flexible dining options.
However, the New South Wales Court of Appeal overturned the judgment, albeit on a rather technical point. The appellate-court judges held that, because the plaintiffs had sued upon “natural and ordinary meanings” attributed to Mr Evans’ review, and not “innuendo meanings” (see DU’s Guide to Defamation Law for this distinction), the trial judge had improperly considered extrinsic material – evidence outside the words complained of – to conclude that Coco Roco should ultimately be considered a single restaurant.
The Court of Appeal’s basis for overturning the decision, then, was that the review itself did not make a sufficient distinction between Coco and Roco, which meant that ordinary readers would have viewed Mr Evans’ criticism of Coco as pertaining also to Roco.
The Court of Appeal, having overturned the judgment, sent back to the Supreme Court the case for assessment of damages. In a judgment dated 6 June 2014, the Supreme Court assessed damages payable to the plaintiffs at a tick over A$620,000. The judge also slapped the defendants with partial indemnity costs (i.e. full legal fees for certain steps in the proceeding) as punishment for unreasonably failing to make a settlement offer.
For John Fairfax Publications, dining at Coco Roco proved an expensive meal, indeed.