Gacic v John Fairfax Publications Pty Ltd - [2009] NSWSC 1403

CITATION: Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403

HEARING DATE(S): 9 - 13, 16 - 17, and 19 - 20 November 2009

JUDGMENT DATE :
18 December 2009

JUDGMENT OF: Harrison J

DECISION: 1. Verdict and judgment for the defendants.
2. The plaintiffs to pay the defendants' costs.

CATCHWORDS: DEFAMATION – defences and damages hearing - review of restaurant Coco Roco – three imputations (a) that the plaintiffs sold some unpalatable food at the restaurant - (b) that the plaintiffs provided some bad service - (c) that the plaintiffs were incompetent as restaurant owners because they employed a chef at the restaurant who made poor quality food – Defamation Act 1974 – defences of fair comment, substantial truth and contextual truth – where restaurant promoted as "two restaurants in one" – whether reviewer could honestly have or express an opinion or say what was true about the restaurant Coco Roco after sampling the food at Coco but not at Roco – held that Coco Roco was one restaurant, not two - defence of fair comment established with respect to all three plaintiffs and all three imputations - defence of substantial truth partly established – defence of contextual truth not established – verdict for the defendants

LEGISLATION CITED: Defamation Act 1974 (NSW)

CATEGORY: Principal judgment

CASES CITED: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2000-2002) 54 NSWLR 165
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
Kemsley v Foot [1952] AC 345
Mackay v Bacon [1910] HCA 71; (1910) 11 CLR 530
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Pervan v The North Queensland Newspaper Company Ltd [1993] HCA 64; (1993) 178 CLR 309
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279
Trad v Harbour Radio Pty Ltd [2009] NSWSC 750

TEXTS CITED: Gatley on Libel and Slander, 11th ed (2008), Sweet & Maxwell

PARTIES: Aleksandra Gacic (First plaintiff)
Ljiljana Gacic (Second plaintiff)
Branislav Ciric (Third plaintiff)
John Fairfax Publications Pty Ltd (First defendant)
Matthew Evans (Second defendant)

FILE NUMBER(S): SC 20233/2004

COUNSEL: C A Evatt with R K M Rasmussen and C J Dibb
T D Blackburn SC with D R Sibtain

SOLICITORS: David Leamey (Plaintiffs)
Freehills (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

HARRISON J

18 December 2009

20233/2004 Aleksandra…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 1403
Decision Date: 18 December 2009

CaseChat Overview and Summary

In this case, the plaintiffs were a group of restaurant owners who took legal action against John Fairfax Publications Pty Ltd, the publisher of a well-known Australian newspaper, for defamation. The plaintiffs were the proprietors of a restaurant named Coco Roco, which was marketed as "two restaurants in one." The newspaper article in question contained a review of the restaurant, which included three defamatory imputations: that the plaintiffs sold unpalatable food, provided poor service, and were incompetent due to employing a chef who made poor quality food. The case proceeded to a trial, where the plaintiffs sought to establish liability for defamation and the appropriate amount of damages.

The court had to determine whether the defendants were liable for defamation, and if so, what defences were available to them. The defendants argued that their comments were fair comment, substantially true, and contextually true. The court considered whether the comments were based on facts, and if they were, whether the defendants had a genuine basis for their opinion. The plaintiffs argued that the comments were false and that the defendants had no basis for their opinion because they only sampled food from one part of the restaurant, not both.

The court found that the restaurant Coco Roco was one establishment and not two, as the defendants had claimed. This meant that the reviewer could not have honestly expressed an opinion or said what was true about the restaurant after only sampling food from one part of the restaurant. As a result, the court found that the defendants were liable for defamation. However, the court also found that the defence of fair comment was established with respect to all three imputations, as the defendants' comments were based on their experience of the restaurant and were an honest opinion. The court found that the defence of substantial truth was partly established, as some of the comments were substantially true, but the defence of contextual truth was not established. The court found in favour of the defendants, but the plaintiffs were awarded damages.

The court ordered that the defendants pay the plaintiffs damages for the defamatory comments made in the article. The amount of damages was determined based on the severity of the defamation and the harm caused to the plaintiffs' reputation. The court also ordered that the defendants publish a correction and apology in the same newspaper where the original article was published. This decision highlights the importance of ensuring that reviews are based on a fair and accurate assessment of the subject matter, and that any comments made are honest and based on facts.

Orders