Gacic v John Fairfax Publications Pty Ltd

The case of *Gacic v John Fairfax Publications Pty Ltd* concerned a defamation action brought by the respondents against the appellants. The dispute arose from a restaurant review published by the appellants, which the respondents alleged conveyed defamatory imputations about their two restaurants, both trading under the same name. The core of the disagreement at trial, before a judge alone, centred on the meaning of the imputations pleaded as false innuendos and whether extrinsic evidence was permissible in determining this meaning, or if it was confined to how a jury would infer it.

The legal issues before the court included whether the defence of comment was available when the reviewer did not hold an opinion concerning one of the two restaurants reviewed, and whether this defence was properly made out when no facts were expressly stated or notorious in the review to form the basis for the imputations concerning that restaurant. Furthermore, the court had to consider whether the defence of substantial truth was established, given the absence of evidence regarding the facts pertaining to one of the restaurants. The adequacy of damages was also a point of contention.

The court reasoned that the meaning of the imputations, particularly in the context of a review of two restaurants under one name, could be inferred by an ordinary reasonable reader to refer to each establishment. It was held that for the defence of comment to succeed, the reviewer must have held the opinion concerning the subject matter being commented upon. The court found that the primary judge erred in concluding that each imputation would have been understood as a statement of opinion, particularly in relation to the restaurant where the reviewer had not dined and no specific facts were provided. Consequently, the defence of comment was not properly open on the evidence. Similarly, the defence of substantial truth could not be established without evidence relating to the specific restaurant in question.

The appeal was allowed, the orders of the primary judge were set aside, and a verdict was entered for the appellants. The respondents were ordered to pay the costs of the proceedings before the primary judge, and the matter was remitted to the Common Law Division for the assessment of damages.