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

No judgment structure available for this case.

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 Gacic, Ljiljana Gacic and Branislav Ciric v John Fairfax Publications Pty Ltd and Matthew Evans
JUDGMENT

1 HIS HONOUR: On Tuesday 30 September 2003 the Sydney Morning Herald published a review of a new Sydney restaurant called "Coco Roco", which had been established by the plaintiffs only shortly before. The review appeared in the Good Living section of the paper on that day. Matthew Evans wrote it. A jury subsequently found that the publication conveyed three imputations that were defamatory of each of the plaintiffs. They were first, that the plaintiffs sold unpalatable food at the restaurant. Secondly, that they provided some bad service. Thirdly, that they were incompetent as restaurant owners because they employed a chef at the restaurant who made poor quality food. The defendants contend that the second and third imputations were true and that the plaintiffs suffered no loss as a result of the first imputation because it was contextually true. The defendants relied upon the defence of comment in respect of all three imputations.

2 This judgment is concerned with the assessment of the plaintiffs' claim for damages for defamation and the defences pleaded in response to that claim. The defendants bear the onus of establishing one or more of these defences with respect to each imputation. If no defence is made out with respect to any one or more of the imputations, it will be necessary to consider the amount of damages that should be awarded to the plaintiffs.

Background

3 Coco Roco was promoted as two restaurants in one, with the more upmarket Coco upstairs and the less expensive bistro style restaurant Roco downstairs. It was launched amidst some fanfare with a function in aid of the National Breast Cancer Foundation at the restaurant on Friday 4 September 2003. Celebrities including Sarah O'Hare were there. Mr Evans was invited but did not attend.

4 The media release for Coco Roco was headed "RESTAURANT LAUNCH BENEFITS BREAST CANCER". It included the following information:

"On Thursday 4th September, Sarah O'Hare, Patron of the National Breast Cancer Foundation, will officially launch Coco Roco, Sydney's most glamorous new restaurant, with proceeds from the event benefiting breast cancer research.

Champagne, fine wines and a menu that will delight the palate is enhanced by live entertainment offering a night of divine decadence. . .

Located in the recently completed second stage of Sydney's King Street Wharf, Coco Roco is two superb restaurants in one. Upstairs, Coco is the epitome of fine dining. Every available surface has been considered and only the highest quality materials have been used to create a polished and elegant ambience. The waterfront Roco is relaxed and funky with a Ferrari red bar and polished stainless steel. Both levels incorporate outside dining areas with direct views of the harbour.

Coco Roco is the brainchild of sisters Aleksandra and Liliana [sic] Gacic, in conjunction with Liliana's husband restaurateur Branislav Ciric. Cira, as he is known, has over 30 years experience in the restaurant business, having established many restaurants in Europe, most recently in Germany.

With a menu focussing on the best local produce available and an emphasis on Australian boutique wines, Coco Roco is set to become a Sydney hot spot. Executive chef is Adam Birtles, formerly of Coast restaurant.

[email protected]

5 The plaintiffs had retained a publicity agency to promote the restaurants. Nikki Landa from the agency sent an invitation to Mr Evans to the opening of the restaurants under cover of a with compliments slip saying "Dear Matthew, we'd love you to be our guest. Kind regards, Nikki Landa". The invitation announced, "Champagne, fine wines and a menu that will delight the palate is enhanced by live entertainment offering a night of divine decadence". Ms Landa had earlier forwarded a copy of some promotional material to Mr Evans by email on 29 August 2003. She subsequently sent him a copy of the media release by email on 15 September 2003 with the covering comment, "Oops, forgot to send the release".

6 The day following the opening, Mr Evans ate lunch at Coco. He attended with a companion Ms D'Arcy. Their meal on that occasion formed part of the subject matter of his review. Mr Evans subsequently dined with a different companion at Coco on Wednesday 10 September 2003. The review included his impressions of the restaurant following that meal as well. Mr Evans never ate at Roco. That fact, and the question of whether or not Coco Roco was one restaurant or two restaurants, became central to the way that the plaintiffs presented their case. This is explained later in these reasons.

7 When the plaintiffs read the review they were shocked and distressed. The particulars of the publication and the nature and extent of the plaintiffs' respective reactions to it are dealt with in some detail below. The plaintiffs contend that the restaurants had shown the promise of becoming highly successful in the period up until 30 September 2003 but that this changed significantly and dramatically following publication of the review when attendance at the restaurants allegedly went into immediate and steep decline. The restaurants ultimately failed completely early the next year and went out of business. They never reopened. The plaintiffs do not claim pecuniary losses associated with the failure of their venture. The owner of the restaurant business and the lessee of the premises from which the restaurants operated were in fact corporations of which the plaintiffs were directors and shareholders. However, the plaintiffs contend in part that they are entitled to claim damages because they were publicly defamed, and so were injured in their reputation and suffered hurt to their feelings, including ways that were caused or contributed to by the notorious connection or association that was made in the publication between them and the restaurant that failed.

8 The first and second plaintiffs appeared in the course of their oral evidence before me to dispute that they instructed the agency to invite Mr Evans to the opening. I do not understand the basis upon which that dispute is said to rest or the significance of it in any event. It seems to me to be wholly benign and largely beside the point of the proceedings. I am prepared to find that Mr Evans was invited to attend the opening but that he never went. However, in the end result, nothing of substance that I am required to decide in this case is related to or informed by that conclusion. As will emerge, the plaintiffs tried in one context to distance themselves from the terms of some of the promotional material that the agency produced, but this is a quite different issue to whether the agency invited Mr Evans to the launch.

One restaurant or two? A preliminary point

9 The merits of the defences will be dealt with much later in these reasons. However, the plaintiffs' response to the defences raised went beyond merely denying and disputing that the imputations were defensible because they were concerned with matters that were either fair matters for comment or were true or both. On the contrary, the plaintiffs also promoted an independent factual proposition, to which they suggested there was no answer, and which they contended outflanked the defendants on these issues. This was said to be because Mr Evans' review of their establishment was based upon his having consumed two meals at Coco but none at Roco. In such circumstances Mr Evans could neither have genuinely held any opinion concerning the latter, nor could anything he said have related to it and so also by definition could never be true. Senior counsel for the defendants characterised this idea in his final submissions as a suggestion by the plaintiffs that his defences of fair comment and substantial truth had been "hit with a wrecking ball . . . because Mr Evans didn't eat at Roco". This contest is explored first.

The plaintiffs' position

10 The plaintiffs argued that there were at all times two separate restaurants, the more expensive Coco with 90 seats upstairs and the cheaper, less formal Roco with 300 seats downstairs. Each restaurant had its own kitchen and staff. The plaintiffs contend that any defences established by the defendants go only to what was said about Coco but not Roco. The review complained of does not delineate between what the plaintiffs describe as the two restaurant components of Coco Roco. The plaintiffs suggest that the defendants have not even attempted to establish any defences relating to Roco. According to the plaintiffs, the statement on the first page of the Good Living article read, "Matthew Evans fails Coco Roco", whereas it should have specified the restaurant where he ate. This applies as well to the score of 9 out of 20 that was given, which should also have been confined to Coco. The plaintiffs then made the following somewhat emotive and marginally relevant written submission:

"5. Had the defendants distinguished between the two restaurants clearly so that readers would not be misled then Roco restaurant at least would not have experienced the calamitous consequences of the unfavourable review written by a food critic who had never eaten at Roco."

11 Mr Evans gave this evidence about the matter:

"A. Because this restaurant is known as Coco Roco on its business card, on everything about it, it is two restaurants in one, as they put in their press release, I still believe it is fair to call the restaurant Coco Roco, as they do in all their publications and press releases, and still visit what is supposed to be the better restaurant and review it on the basis of that but including in the details information that includes Roco. Does that explain my position?"

12 Mr Evans said he knew there were two separate restaurants when he went there on 5 September 2003. He knew that Coco was virtually on street level and that Roco was downstairs. Mr Evans said that in his review he wanted to make it clear he had been to one of the two restaurants. Mr Evans was referred to specific paragraphs of his review on this topic during his evidence.

13 Mr Evans was cross-examined on the question of whether he had been aware that there were two separate kitchens, one for each restaurant. He gave the following evidence:

"Q. When did you find out that there were two separate kitchens, or have you ever found that out?
A. I've never found that out.

Q. You didn't know that, that there were two separate kitchens, did you?
A. No.

Q. And you assumed, did you not, that if there was just the one kitchen with the one chef he is not going to be Jekyll and Hyde, if he makes bad food for one it will be bad food for the other. That was an assumption you made, wasn't it?
A. It would be surprising if you had an executive chef over an operation that had one restaurant that was very good and one restaurant that was very bad, it would be strange.

Q. The question I asked was if your assumption was correct that there was only one kitchen then it would be surprising that out of that one kitchen under the guidance of a chef or an executive chef that poor meals would be served for one restaurant and not the other?
A. I never assumed they had one kitchen. I didn't know whether they had one or two. It was never a factor in my writing the review.

Q. When did you first find out that they had two kitchens?
A. I couldn't recall.

Q. Was it after this case was started?
A. I would presume it would be after this case was started, yes.
Q. Was it this year?
A. I couldn't say for sure.

14 Elsewhere in his cross-examination Mr Evans gave the following evidence:

"Q. If you had known when you wrote the article for the review what you learned afterwards about there being two separate kitchens, two separate restaurants, well, you knew there were two separate restaurants, you didn't know there were two separate kitchens, but if you had known when you wrote the review there were two separate kitchens, in fairness would you agree it would have been more accurate or accurate to have awarded Coco 9 out of 20 rather than both restaurants 9 out of 20?

15 The plaintiffs submitted that when he wrote his review, Mr Evans did not realise, or alternatively ignored the fact, that there were two kitchens under two chefs with separate staff for each kitchen. This was said to be due to carelessness or laziness on his part in not obtaining the facts. The invitation he received referred to both restaurants. Mr Evans also received an email from Ms Landa inviting him to dine at Roco since he had already dined at Coco. The plaintiffs argued that it is hard to believe that an experienced reviewer could have been so negligent that he failed to ascertain that the two separate restaurants had two separate kitchens. This suggests that Mr Evans could not have held the opinion that he said he held when he wrote his review.

16 Mr Evans' evidence also included the following questions and answers:

"Q. For the sake of accuracy, you should have given Coco 9 out of 20 and not both restaurants?
A. I never felt that the identity of the two restaurants was so clearly defined that a review of the purportedly better restaurant wouldn't have some impact on the other restaurant. So, the restaurant complex, the two restaurants in one, the singular restaurant, Coco Roco, that they had referred to, had earned, in my judgment, a 9 out of 20 rating. So--

Q. For both restaurants?
A. For the two restaurants in one, which is the way they were promoting it.

Q. In your own article, in your own review, you say it is two separate restaurants?
A. I identify that there are two separate restaurant areas, yes.

Q. Then why was it necessary to give them both 9 out of 20 instead of just the one, Coco?
A. The entity, Coco Roco, was not separate. It had the same address. The same phone number. It had the same head chef, who was responsible for both restaurants. In my view, if someone had told me to go to the better restaurant and I found it to be failing, that was an indication that the restaurant complex, the Coco Roco, two restaurants in one, had failed.

Q. You were never told by anyone that Coco was the better restaurant, were you?
A. Yes, I was.

17 It is necessary to observe at this point that there is a factual dispute about whether or not Mr Evans was told by anyone at Coco Roco when the booking was made that Coco was the better restaurant. In the passage of his evidence just quoted, Mr Evans said that he was told this. He had earlier given this evidence-in-chief:

"Q. Now, did you go to the restaurant by yourself or with somebody else?
A. No, I went with a friend.

Q. Do you recall, was a booking made or did you just turn up?
A. No, I rang to make a booking.

Q. Did you ring to make the booking?
A. Yes, I did.

Q. Did you have a practice back then about whether you used your own name to book, or whether you used your companion's name, or did you have any practice at all when you attended a restaurant for the purpose of reviewing it?
A. When I visited a restaurant for review, and when I wasn't reviewing, I would always use a name that was not mine.

Q. Was there a reason for that?
A. Yes. I never use my own name because it might give advance warning that I was going to the restaurant and they would be prepared.

Q. You had been the chief reviewer for a period of how long at that stage?
A. Towards the end of my third year.

Q. Do you recall, roughly, doing the best you can, what time you got to the restaurant?
A. Roughly 1 o'clock. To be honest, I couldn't be sure.

Q. All right. Now, you have an understanding of what Coco Roco was. It was two restaurants, wasn't it?
A. Yes. It was two restaurants. The lines are blurred on when you are actually trying to get - like, when you ring you get only one number, sort of thing. I knew it was a downstairs restaurant and an upstairs restaurant, yes.

18 In the passage quoted at paragraph 14 (above) there is possibly room for a different view. To this must also be added the evidence of Ms D'Arcy, who said that it was she who made the reservation for lunch on 5 September 2003, as the following passage from her cross-examination reveals:

"Q. Who booked the table? Did you book the table?
A. I booked the table.

Q. How did you do that?
A. Over the telephone.

Q. What was said?
A. I don't recall the exact words.

Q. Did you say, "Can I book a table for two"?
A. I don't recall the exact words I said, but I do know I made the booking.

Q. Would you have said something like, "Could I make a reservation for two at Coco for lunch on the 5th?"
A. I don't recall the exact words I said. I don't recall the time of the booking. I do recall that I would have made the booking.

Q. Do you remember saying anything like, not the exact words, "I would like to make a booking for two people for lunch at Coco on 5 September?"

*****

19 Ms D'Arcy said that she was aware during the course of her lunch that it was Mr Evans' intention to write a review of the restaurant, at least partly based upon the meal that he was having with her there.

20 The plaintiffs advance the dissimilarity, not to say conflict, between the evidence of Mr Evans and Ms D'Arcy on the question of who booked the restaurant as support for their contention that Mr Evans had been given no prior indication that Coco was better than Roco and made no distinction between them in his review. The plaintiffs suggest on the contrary that Mr Evans somehow unilaterally and only lately promoted the concept that Coco was better in direct response to their preliminary point in order to support the proposition that his review clearly indicated that he ate only at Coco and that so much was apparent from a reading of the article as a whole.

The defendants' position

21 The defendants contended that this notion that there were two restaurants, not one, is in effect a late-in-the-day opportunistic tactical response to their defences and is wholly without merit. They pointed to a number of reasons why this is so. First, the terms of the apology sought by the plaintiffs are said to be inconsistent with a contention that Coco Roco was anything other than one restaurant. That apology was sought in a letter sent by the plaintiffs' then solicitor dated 9 October 2003, and is relevantly in the following terms:

"We act for the Alexandra Gacic, Liliana Gacic, Branislow [sic] Ciric and Adam Birtles.

Our clients have referred us to a feature page entitled 'Good Eating, Eating Out', which contained an article by Matthew Evans entitled 'Crash and Burn', being a review of the Coco Roco restaurant at 17 Lime Street, King Street Wharf, Sydney, which appeared in the edition of the Sydney Morning Herald published on the 30 September 2003 (' the article ').

The article specifically refers to our clients as respectively 'the owners' of the Coco Roco restaurant and 'the chef' of the Coco Roco restaurant.

This article clearly carries a number of imputations which are defamatory of each of our clients. The article also contains a number of statements of fact which are inaccurate.

'Alexandra Gacic, Liliana Gacic and Branislow Ciric own and operate a restaurant which is so bad that members of the public should not go to the restaurant.'

'Alexandra Gacic, Liliana Gacic and Branislow Ciric own and operate a restaurant which serves food which is so unpalatable it should not be eaten by patrons at the restaurant.'

'Alexandra Gacic, Liliana Gacic and Branislow Ciric own and operate a restaurant which is expensive and without serving food which backs up the prices.'

'Adam Birtles is an incompetent chef because, when the chef at an expensive restaurant, he produced food to be eaten by patrons which was unpalatable, dull, uninteresting, wretched and flawed in concept and execution.'

The imputations published of our clients have caused great damage to their individual reputations, enormous hurt and embarrassment and substantial economic damage. The number of patrons attending the Coco Roco restaurant immediately following the publication of the article fell to less than a quarter of the number of patrons who had been attending the restaurant prior to the publication of the article. We emphasise, for your assistance, that the economic loss suffered by our clients due to the publication of the article is very substantial.

To ameliorate in some small way the great harm that has been done to our clients' reputation and their business we ask that there be published in the Sydney Morning Herald an immediate apology to our clients in the following manner:

1. The apology should be published on the first page of the Good Living section of the Sydney Morning Herald to be published on Tuesday, 14 October 2003.

2. The apology should be published prominently on the first page of the Good Living section in an area occupied by not less than 80mm by 80mm.

Apology

To Alexandra Gacic, Liliana Gacic and Branislow Ciric.

Alexandra Gacic, Liliana Gacic and Branislow Ciric are the operators of the Coco Roco restaurant, which is located at 17 Lime Street, King Street Wharf, Sydney City.

To Adam Birtles.

Adam Birtles is the chef at the Coco Roco restaurant.

In an article published in the Good Eating section of the Sydney Morning Herald on 30 September 2003 there was published a number of statements concerning the manner in which Alexandra Gacic, Liliana Gacic and Branislow Ciric operated the Coco Roco restaurant and a number of statements reflecting on Adam Birtles' competence as a chef at that restaurant.

The Sydney Morning Herald, and in particular Mr Matthew Evans, acknowledge that the statements made concerning Alexandra Gacic, Liliana Gacic, Branislow Ciric and Adam Birtles and the Coco Roco restaurant were false and baseless.

22 In the defendants' submission, at a time when the plaintiffs' indignation might have been expected to be at its highest, their first shot in the battle was wholly inimical to the so-called wrecking ball. References to "the Coco Roco restaurant" or "that restaurant" are wholly unambiguous according to this submission. The first expression appears in the apology letter more than once. If, as the letter complains, the review "contains a number of statements of fact which are inaccurate", allegedly inappropriate references to one restaurant rather than two had not apparently achieved significance as one of them when the letter was composed.

23 Secondly, the promotional material, already referred to, is to like effect. Statements such as "Coco Roco, Sydney's most glamorous new restaurant", "Coco Roco is the brainchild . . ." and "Coco Roco is set to become a Sydney hot spot" appear in the media release. To these are to be added other statements in the same document like, "Coco Roco is two superb restaurants in one". The words, "[b]oth restaurants will open on 15 August", are arguably less unambiguous than the others, although clearly not determinative of the position when read in context.

24 Thirdly, the invitation sent to Mr Evans. This says it "takes pleasure in inviting Matthew Evans to celebrate the launch of Sydney's most glamorous new restaurant Coco Roco".

25 Fourthly, Nikki Landa's email of 29 August 2003. This describes its subject as "announcing Sydney's most glamorous restaurant - Coco Roco".

26 Fifthly, the wine list did not distinguish between the restaurants, or did not do so consistently with the plaintiffs' current assertion. The wine list for Coco is headed "Coco Roco Wine" and contains the footnote "Coco Roco is proud to welcome John Clancy as our consultant sommelier". These same words appear on the Roco wine list, which has in addition the words "Coco Roco's wine list is constantly changing."

Conclusion – one restaurant or two

27 Although the plaintiffs' argument is laudable for its ingenuity, I think it is wrong. This is because in my opinion the evidence establishes that there was relevantly only one restaurant. That restaurant was Coco Roco. It was certainly configured with upstairs and downstairs sections that each served food from different menus at different prices. There was a kitchen on each level as one might in such circumstances expect. However, the plaintiffs' own publicity and promotional material clearly suggests that they were actually promoting Coco Roco as a single restaurant with flexible dining options. The expression "two restaurants in one" makes this plain. It had an executive chef, Adam Birtles, whose former experience at Coast restaurant was advanced as an asset of Coco Roco. There was never any indication that Coco and Roco had separate and individual executive chefs. 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.

28 In any event, the glossy coloured front page of the Good Living section of the Sydney Morning Herald on 30 September 2003 contains the teaser at the foot of the page, "Matthew Evans fails Coco Roco". Inside on page 6, Mr Evans' review said, "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 choose the more expensive option". This was a reference to his first meal. Without more I consider that the ordinary reasonable reader would be left in no doubt that on the first occasion Mr Evans had decided to eat at Coco. There can be little if any room for argument that "the posh place upstairs" and "the more expensive option" are, and were intended to be, the same thing – in this case Coco.

29 The next reference in Mr Evans' review to either venue is to be found when he discusses his second visit to Coco Roco. That was in terms of, "[a] few days later, in the interests of impartiality, I'm back". Nothing conveyed by those words tells the reader where the second meal was consumed. Not until after the meal is discussed does Mr Evans say, "It could be argued that Coco is still settling in". In my opinion, the ordinary reader would not understand those words to be a reference to anything other than Coco alone. However, Mr Evans' review concludes with the following paragraph:

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

30 Mr Evans said that it was his view "that a review of Coco would best represent both restaurants that shared an address, a chef and a telephone number". The plaintiffs have submitted that this meant that "because [Mr Evans] was told that Coco was the better restaurant he failed both restaurants, including Roco, because of his belief just simply from what he was told that Coco was better and as a matter of logic it follows in his mind, apparently, that Roco must be inferior and deserves the low mark". With respect to the defence of comment, the plaintiffs say the fact that Mr Evans did not intend to express the opinions represented by the imputations about Roco but only about Coco was instantly fatal to the that defence. Furthermore, because no particulars in the defence have been supplied relating to the quality of the food or service at Roco, and because Mr Evans never went there and has given no evidence about it, it cannot be true of Roco either. I reject that submission as one that is not supported by the facts as I have found them.

31 I am strengthened in my view by what I consider is inferential support that derives from the terms of the plaintiffs' solicitor's letter seeking the original apology. It is to my mind a powerful indicator of the true position. The plaintiffs are the effective authors of the letter and yet it makes no distinction between Coco and Roco in the way it lays out the complaints that the plaintiffs were making about the review. This is instructive in particular because the plaintiffs might be expected to have read every word of the review and undoubtedly more than once. If Mr Evans had so fundamentally misunderstood or misrepresented their concept in the way for which they now contend, it seems somewhat difficult to understand why this critical matter did not gain a prominent foothold in their solicitor's letter. Expressions like "the Coco Roco restaurant" or "that restaurant" are wholly inconsistent with the existence of two restaurants understood in the way that the plaintiffs now seek to emphasise.

32 It is also instructive to have regard to the form of the pleaded imputations. No distinction is drawn between Coco and Roco in any way by the plaintiffs in the formulation of the three imputations. Each imputation consistently refers to Coco Roco as a single entity. It seems difficult to accept that a series of imputations so obviously pleaded to highlight the defamatory meanings about which the plaintiffs were most concerned at that time would not have sought forcefully to emphasise that Mr Evans could not have held an opinion about Roco because he never ate there, or that he was in no position to know what was true about Roco for the same reason, if the point is really as significant as the plaintiffs now wish to assert.

33 In referring to the form of the imputations in this last context, it is important to note that I am not presently expressing a view about whether any defence to them is or is not made out. I accept that defences are pleaded to the imputation, not the matter (Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340) and that the form of the pleaded imputation cannot in any way dictate whether the defence of comment, for example, succeeds or fails. The matter is to be determined from the context and the published material: Radio 2UE v Parker at 467 per Clarke JA.

34 I find that Coco Roco was only one restaurant. I do not consider that there is any merit in the plaintiffs' contention that all of the pleaded defences are defeated because they are somehow predicated upon there having been one restaurant when in fact there were two. Whatever else may be said about the defences of comment and truth, they do not in my opinion fail at the threshold, as the plaintiffs argue, because Mr Evans could neither have held nor expressed a genuine opinion about Roco or could not have said anything about Roco that was true. This is so even though Mr Evans conceded in cross-examination that when he went to Coco Roco on the first occasion he knew there were two separate restaurants. This was in my finding a reference to the statements in the publicity material that he had received that indicated that Coco Roco was indeed two restaurants in one. As he also said in cross-examination, referring to paragraph 8 of his review, "I wanted to make it clear that I had been to one of the two restaurants" and "I think I make it quite clear in the review that I visit Coco and talk about the food at Coco". Mr Evans was never prepared to accept that he failed to distinguish between the two restaurants in what he wrote.

Mr Evans' Good Living review of Coco Roco

35 A copy of Mr Evans' review is appended to these reasons. Some more detailed reference to it is nonetheless required. The primary sting of the imputations is said to derive from those parts of the review that deal with the food, the service or the competence of the plaintiffs in choosing a chef. However, the plaintiffs also assert that there is a derogatory or snide character to much of what Mr Evans has had to say about Coco Roco, and even about the way in which he said it, which casts light at the very least on the question of whether or not he genuinely held the views he expressed. These matters go to the heart of the defences of comment and truth.

36 The principal text of the review is made up of 19 paragraphs in the following terms:

" Crash and burn

When dining on the view is the only recommendation

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 choose 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 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.

Only the lone natural oyster is gloriously free from interference and there's an exquisite verjuice jelly on another.

Next up, the carpaccio of beef ($22) comes with a dreary roast almond paste underneath and far too many yellowing rocket leaves on top. The meat itself is fine, although the parmesan cheese strips taste tired.

Small Queensland scallops ($24) on jagged shells with cauliflower and vanilla nearly work but are uninteresting.

Why anyone would put apricots in a sherry-scented white sauce with a prime rib steak is beyond me. A generous chock of meat comes perfectly rested, medium as ordered. But the halves of apricot are rubbery and tasteless (which is probably a good thing). I scrape the whole wretched garnish to one side. The meat has a good length of flavour and is a damned fine steak, even if it is $52. I can't help but think at this price I could be dining at Rockpool.

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

The other main, roast chicken ($35), is outstandingly dull, which is odd considering it's a Glenloth bird that I usually love.

A few days later, in the interests of impartiality, I'm back. This time it's salad to start ($8), sweetly dressed with honey and balsamic vinegar and topped with fine cress. It's not great but passable, except for a few wilting leaves.

A poached beef fillet ($46) shows, like last visit, that they can cook steak. This time it's medium rare, although the meat is curiously dry on the edges. But the accompanying broth is well below average. It is sticky sweet with port and overcooked potatoes floating in it do it no favours. Oxtail and sweetbread dumplings are a delight, however.

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.

For dessert, honeycomb cheesecake ($17) has little to recommend it, with its soggy pastry base. Compared with the raspberry and shiraz sorbet, however, it's heaven.

A dismal pyramid of sorbet ($15) jangles the mouth like a gamelon concert. Poached berries underneath are OK, except for what I guessed might have been soggy blackberries.

It could be argued that Coco is still settling in. But apricots in sherry-scented white sauce aren't meant to garnish a rib eye of beef. The menu isn't held back by minor glitches; it's flawed in concept and execution.

Evidence in the proceedings

37 The plaintiffs called several witnesses and a considerable volume of documentary material was also tendered. This is referred to below. The second defendant gave evidence but the defendants called only two other witnesses on an issue that failed to achieve a significance that was in proportion to its consumption of court time. The defendants also tendered a series of documents.

The plaintiffs

38 The first and second plaintiffs are sisters. The second and the third plaintiffs are married to each other. As one might expect, all of the plaintiffs gave evidence in the proceedings. The third plaintiff did so with the aid of an interpreter.

Aleksandra Gacic

39 Aleksandra Gacic was born in 1969 in a small town about 80 kilometres south of Belgrade in Serbia, which was then part of the former Yugoslav Republic. Her father was a doctor and she went to Belgrade University for six years where she studied economics. She came to Australia in 1999. She had no relevant experience relating to restaurants before she came here.

40 In 2002 the third plaintiff Mr Ciric conceived the idea of a restaurant. Ms Gacic agreed that he was the driving force behind what became Coco Roco. They sourced the Lime Street premises and negotiated a lease. It was fitted out but was presented to them at first "like a cement box". She said that it gradually materialised "into the restaurant Coco and the restaurant Roco". Two companies were incorporated, of which the plaintiffs were directors and shareholders. One of these was Coro Enterprises Pty Ltd, which traded under the name Coco Roco and ran the restaurant business. The other was Syd Mirror Pty Ltd, which held the lease. Forty people were employed. The plaintiffs contributed their own capital to the venture and they guaranteed significant loans advanced to the companies.

41 As already discussed, the premises were fitted out so that there was a kitchen for each of Coco upstairs and Roco downstairs. Several photographs that were tendered show this clearly, as well as various other views of the interior of the premises.

42 The official opening was in the format of a cocktail party. It has been referred to earlier. It was on 4 September 2003. There was no trading on that day. The following day was effectively the first day of operation, although there had been what were described as "soft openings" since the middle of August. This was explained by Ms Gacic as follows:

43 Ms Gacic described the business at Coco and Roco as "double than we had in our projection figures in the first month". Roco had more customers than Coco because it had more seats. She described Roco as "more approachable".

44 Ms Gacic first learned about Mr Evans review when she arrived at the restaurant on the day it was published. This was about 10.30am. When she read what was written she said she was devastated. She was asked about this:

"Q. Why did it upset you or devastate you?
A. Number 1, it wasn't the truth. Number 2, I thought that the person who wrote the review and the person - two or three people that were involved in establishing the restaurants did it together."

*****

Q. Why were you upset?
A. I knew that's the end of the story for the restaurant. I knew it would be closed. It was a question how much money we can pour into it to keep it open, but it wasn't a question that - we were not able to do any longer. That we invested for ten months prior to the opening to be as it was.

*****

Q. Do you attach any importance to the fact that this review was in the Sydney Morning Herald Good Living? Did that have any effect on you?
A. Yes.

45 After she read the review Ms Gacic said she could not walk for the next half hour. Ms Gacic said that following publication of the review, the level of reservations fell dramatically and cancellations of previously made bookings increased. The evidence about this was not capable of verification against the restaurant's reservation book or computer records, as the administrator of one of the companies, according to Ms Gacic, took them in early 2004. She said that overall they received as many as 800 cancellations of bookings for between two and six diners or somewhere between 2,500 and 3,000 people. As many as 60 corporate functions that had been booked were also cancelled. The cancellations started on 1 October 2003 and continued until the third week of that month.

46 Ms Gacic was asked about this:

"Q. Did all these cancellations of individual and corporate bookings cause you any upset?
A. A lot of upset, a lot. The business that we planned, established and everything that we did was just ruined over the night. The restaurant, Coco restaurant in October was like a ghost restaurant, empty. We would have one or two tables during the lunch and sometimes dinner time we had no customers. Roco was a bit better because we had some passing by, but, as I said, our target market was ruined.

Q. And what ultimately happened, say in March the following year?
A. The restaurant was closed, went under the administration and afterwards under liquidation and it was closed. Actually it was--

Q. And never reopened; is that right?
A. No.

47 Ms Gacic was directed to the specific terms of Mr Evans' review. It is fair to say that she emphatically denied his criticisms and staunchly defended the quality of the food and service that was provided. She described the criticisms of the food in general as a lie and completely false. She said, "It's false. It's not true. It's a lie. Absolute lie." She also said, "Everything is lie. Absolutely everything."

48 Ms Gacic was asked whether she saw Mr Evans eat his meal. She said that she saw it on a recording captured on CCTV footage. She played this "many times". She said Mr Evans "cleaned up the plate" and that "most of the time he was very happy". The recording has never been found. Ms Gacic contended that Mr Godfrey, the administrator, took it. By reference to what she saw on it, Ms Gacic was able to say that all of the food that was served to Mr Evans was perfectly satisfactory and that "the service was really good".

49 Since publication of the review, Ms Gacic has noticed a change in the attitude to her of friends, neighbours, business associates and the like. She said, "some people felt pity about me and some people were avoiding to come to the restaurant, some people felt sorry, some people felt very angry". This was all expressed to her and upset her. She was no longer invited to functions. She has received no apology from the defendants and that has also upset her. She has been very worried and concerned about these proceedings.

50 Ms Gacic was cross-examined at some length. Part of this cross-examination was directed to the issue of whether or not the chicken eaten by Mr Evans at his meal on 5 September 2003 was a Glenloth chicken. This was in due course revealed to be a proprietary brand of small corn-fed chicken hailing from Victoria. They are by all accounts of high quality and apparently delicious. Mr Evans' article referred to the Glenloth chicken that he chose from the Coco menu but described it as "outstandingly dull". He expressed surprise at this because a Glenloth chicken was something that he usually loved.

51 The defendants amended their defence when the trial started to include an allegation that the chicken served to Mr Evans was not in fact a Glenloth chicken, as a particular of the imputation that the plaintiffs were incompetent as restaurant owners because they employed a chef who made poor quality food. Considerable evidence was led about this, including from Mr Milburn whose company produces Glenloth chickens, and from Mr Puharich, from Vic's Premium Quality Meats, a wholesale provedore, who supplies them to the Sydney market and who did so in 2003. Invoices, of what the defendants contended was an uncertain provenance, from Haverick Meats and from the provedore, were also tendered in aid of the competing propositions that the bird was or was not the genuine article.

52 It was put to Ms Gacic over objection that no Glenloth chickens were ever supplied by Glenloth Free Range Pty Ltd to Haverick Meats or by anybody else during the time Coco Roco operated. She did not know. It was also put to her that Haverick Meats did not supply any Glenloth chickens to her restaurant at any time. Ms Gacic replied, "I strongly believe they did, according to those [Haverick Meat] invoices". She also denied any knowledge of a complaint made to the restaurant management that the restaurant was advertising Glenloth chicken on the menu but that they were not in fact supplying Glenloth chicken to diners. The Glenloth chicken issue became no clearer than this during the whole of Ms Gacic's evidence.

53 Ms Gacic was cross-examined about the promotional material. She denied that Adam Birtles was the head chef, but instead insisted that he was "one of the chefs". Ms Gacic said that they had two executive chefs. She agreed that reference to "the epitome of fine dining" was a suggestion that the restaurant was one of the best in Sydney. She at first agreed that the restaurant was promoted in a way that invited it "to be judged against very high standards". This position appeared later to change when the following evidence was given:

"Q. I think you agreed with the proposition I put to you a few minutes ago, that by this publicity we are looking at you were inviting the restaurant to be judged against the highest standards. You have agreed with that proposition, haven't you?
A. No.

Q. You agreed with that proposition a minute ago?
A. No, I haven't.

Q. Are you saying now that by this publicity material you were not inviting this restaurant to be judged against the highest standards?
A. The publicity material was promotion for the restaurant.

Q. Is it your serious evidence that that promotion was intended to target potential diners but was not intended to attract the interest of food reviewers? Is that the evidence you are giving to the court?
A. My opinion was that we are targeting our customers. My opinion wasn't that we are targeting reviewers, especially not on the first day on the opening.

Q. But you knew, didn't you, that when fancy new restaurants open it's a common occurrence that food reviewers come along and review the restaurant?
A. Opposite. They never come on the first day or first month of the opening.

54 Ms Gacic denied that any of the promotional material put out by or on behalf of the restaurant was intended to attract the attention of restaurant reviewers. When asked about that she said, "No, absolutely not. That wasn't the intention at all".

55 When Mr Evans came to the restaurant, she knew that he was the Sydney Morning Herald restaurant reviewer. As previously mentioned, and for reasons that are not entirely clear to me, Ms Gacic denied that Mr Evans had been invited to the opening. She gave the following evidence:

"Q. And he was invited along, wasn't he, to the grand opening on 4 September in the hope that he would then subsequently come along and review your restaurant?
A. Not at all. That's a lie. We never gave any kind of those instructions to MP Agency, absolutely not true.

Q. You were all hoping that Matthew Evans or the Good Living guide would review your restaurant, weren't you?
A. We never wanted to be reviewed. We never invited Matthew Evans to be reviewed. He was invited by MP Agency for the opening night to raise the money for Breast Cancer Foundation. I don't know was he invited to pay a ticket or free of charge, I really don't know.

*****

Q. Just the public relations company that you engaged, they invited him?
A. They invited him, not me.

56 It will be recalled that the third imputation refers to the plaintiffs as restaurant owners. Ms Gacic was asked a series of questions about this:

"Q. If someone had said to you, in August 2003: Oh, who owns the restaurant, you would have said: The three of us own it. That is what you would have said, isn't it?
A. No.

Q. You wouldn't have said: Oh, the restaurant is owned by Coro Pty Limited, would you?
A. I don't recall that anyone asked me do I own the restaurant, so I don't recall that I said to anyone that I own the restaurant.

Q. You three plaintiffs were intimately involved in the running of this restaurant, weren't you?
A. I don't understand the question. What you mean 'intimately'? I do not understand the question. What it mean 'intimately'?

HIS HONOUR

Q. Closely.
A. Yes. It was a project of the company. We put all our effort to succeed.

BLACKBURN

Q. You, your sister and Mr Ciric were the bosses of this restaurant, weren't you?
A. I wouldn't say bosses. We were directors.

HIS HONOUR

57 Detailed questions directed to Ms Gacic about the quality or standard of hypothetical dishes were generally, and in my opinion not unreasonably, met with the response that she was not a chef and either did not know or could not comment. Indeed, I expressed the view during the course of her cross-examination that "Ms Gacic [could not] be expected to respond in a meaningful way to something that she said quite reasonably wasn't within her actual knowledge". Questions about obvious matters, such as the unacceptability of serving wilting or yellowing lettuce leaves or a delay of 15 minutes in service between courses, were uncontroversially addressed from her untrained standpoint.

58 Ms Gacic was questioned about what it was that caused her to be upset:

"Q. You gave evidence yesterday that you were upset, I think, when the restaurant closed; did you give that evidence yesterday?
A. I was very upset.

59 One difficult issue that presents itself in the present case is concerned with the defence of truth in the context of Mr Evans' statements about matters that are only capable of subjective assessment. This raises significant epistemological questions. Ms Gacic was nevertheless cross-examined about some topics that were afflicted with this problem. For example, these questions were put to her towards the end of her time in the witness box:

"Q. But you didn't taste any of the dishes that were actually served to Matthew Evans, did you?
A. Yes, I have all of them.

Q. No, but you didn't taste any of the dishes that were actually served to him?
A. No, no.

Q. You didn't sample any of the food that was on his plate?
A. No.

Q. And you characterise what he has written as lies, do I understand that correctly?
A. Yes.

Q. You are saying what he has written is lies and you did not taste a single dish that he ate?
A. Correct. Because no-one in restaurant would produce or serve this kind of food that he explain in his lies published by Sydney Morning Herald in the Good Living. Outrageous.

Q. You come here to court and under privilege you accuse Mr Evans of being a liar, is that what you are doing?
A. Yes.

Q. But you also come here to court, Ms Gacic, and complain that you have been hurt by the publication of these imputations?
A. Correct.

Q. Right. You call Mr Evans a liar without having sampled a single thing that was put before him, is that correct?
A. As I said, those things would be never served in the restaurant. Never.

Q. You simply won't accept the possibility, will you, that the dishes or some of the dishes that were put before Mr Evans were of poor quality, you won't accept that proposition, will you?
A. You don't want to accept for six years that he printed lies and you defended him. I don't understand that.

Q. And if it turns out, Ms Gacic, that some of the dishes put before Mr Evans were in fact unpalatable, will you agree that you have no entitlement to be hurt by the publication of that imputation?
A. None of the dishes that were served to him was unpalatable.

Q. But you didn't taste them, did you?
A. I taste them on many occasions previously and after that day. He taste them once. I taste them more than 10 or 15 times each of it and I do not accept that on one occasion when he visited the restaurant all the dishes or whatever he says were unpalatable and it never happened to me or any of the people that I spoke to.

60 Finally, Ms Gacic would not accept that if the food that was served to Mr Evans were of a poor quality that such a circumstance would reflect upon her competence as a restaurateur. Indeed, she denied steadfastly that the food was of poor quality or that she was a restaurateur.

Ljiljana Gacic

61 Ljiljana Gacic was born in Belgrade in 1964. She went to university in Serbia and studied philosophy, classics and aesthetics. She was at one time crowned Miss Adriatic. She appeared on radio and television in Serbia. She came to Australia in 2000. She did a lot of promotional and public relations work concerning restaurants in Serbia before she came here, including restaurants owned by or associated with her husband Mr Ciric. This was in Germany, Austria and Belgium as well.

62 Ms Gacic did not see Mr Evans eat his meal on 5 September 2003 but said that she did see him eat his meal on 10 September 2003. He looked happy on that occasion and he ate everything.

63 From the time that they opened, both restaurants were nearly full. Coco would appear on occasions to have offered two sittings. She said, "actually in Coco we have to change the chairs twice". She said the business "was better than we can dream of". They had "plenty and plenty of bookings" in both restaurants.

64 Ms Gacic read the review. She was asked about this and her reaction to it as follows:

"Q. Did you read the review?
A. Yeah, with a lot of help from David Richards and afterwards I need to use the dictionary.

Q. When you read the review what was your reaction?
A. I was, I cannot believe. I was stressed, I was angry. It was, I don't know the right words to explain in English but I cannot believe anyone in the world can do something like this with a purpose. I just cannot believe.

Q. Were you upset by the review?
A. More than upset, I don't know the right word. I try to find last night on the internet to translate but it was impossible. I cannot concentrate because I was busy to read the other from Mr Blackburn, other lies from person who passed away by the way. I didn't sleep all night and in six years I have a problem because of this review with my life and if I'm not allowed to say the truth today I will be allowed to print all over the internet. Because my Serbian, my mother language is just perfect. This is my university. I can be lecture in my language and I feel embarrassed because my English is like this.

But I will have people who will translate, they will saw all the truth, I will go on Current Affair and saying everything what I knew, why I need to wait six years and not say the true here and now. What you asking me those questions? I begging you is to ask me for person who is low life person, he is liar, he was printed this editor. Mr, Mr David Richards said to me he give me all information because he was working in newspaper and editor give the, he doesn't work for any longer like editor, he was wait for editor to go on short leave. Mr Richards give me all the information, he will be witness.

This was all the reviews. It was done for purpose to destroy us. They treat us and they deliver through the person, low life person like Matthew Evans and he write a book and he again put our names.

65 Ms Gacic gave other dramatic and emotional evidence about how she reacted to Mr Evans' article. She has gained 57 kg and is under great stress. She has developed a skin condition.

66 After the review the restaurant was empty. The business "was broke". An administrator was appointed on 29 March 2004. She was no longer invited to functions and never received an apology from the defendants. That also upset her. This case worries her as well. She said the imputations have made her sick and "they destroyed all our lives".

67 Ms Gacic gave the following evidence:

"Q. Ma'am, ma'am, do you agree that the purpose of inviting journalists was to attract publicity to the restaurant?
A. Of course, yes.

68 As with her sister, Ms Gacic denied that Mr Evans had been invited to the restaurant opening. She said, "never ever Matthew did receive this invitation". The invitation to Mr Evans was shown to her but she said it was a forgery. She maintained an allegation of some kind of conspiracy between Mr Evans and some other people. She denied that this evidence was false and said, "I didn't make fabrication, and it will be more witnesses to prove this". There were not.

69 Ms Gacic denied emphatically that some of the food served to Mr Evans and his dining companion was unpalatable. She said in fact, "he was recognised by the chef, by the wait staff, and who will serve him food - unpalatable food. He was recognised on both occasions". She agreed that she was one of the three persons responsible for employing the chefs Adam Birtles and David Buchanan. She then gave the following evidence in the course of which she sought to distance herself, alike with her sister, from the suggestion that she was a restaurateur:

"Q. If either or both of those chefs produced poor quality food, then I suggest to you that that would reflect on your competence as a restaurateur?
A. Sorry, but I don't understand the question. They didn't provide poor quality of food, and I am not restaurateur. I was the director, personal guarantor, shareholder, and they have my position to deal with the public relation. That was my position in company, and in both restaurants.

Q. So, are you saying that you do not consider yourself to be a restaurateur?
A. No.

70 This was followed by evidence in these terms:

"Q. You know that one of the imputations is that you are incompetent as a restaurant owner because you employed a chef at Coco Roco who made poor quality food. Do you understand that that is one of the defamatory imputations you are complaining about?
A. Yes. I am shareholder, of course. And my name is there. I was a shareholder, and the difference between shareholder and owner you make in the Court. I don't understand this. But I wasn't person who run the restaurant. I was the person who had an interest in the money and work and give the personal guarantee for those two restaurants.

Q. So, as I understand it, you are not complaining to this Court that that imputation reflects upon your competence as a restaurateur because you do not consider yourself to be a restaurateur?
A. I was shareholder. It was my part of this restaurant. Both restaurants. I invest in both restaurants and I work, and I was director and personal guarantor, as I said to you. I don't know. Maybe I don't understand. Can you use simple English please?

71 I then asked Ms Gacic the following question:

72 That answer prompted cross-examination in the following terms:

"Q. Just a few minutes ago you said, very emphatically, that you are not a restaurateur?
A. This is not my profession. I didn't have the skill. I am shareholder in this restaurant. I don't understand. My English is not enough good to make what is difference between - you asking me between two things. Restaurateur. Yes, it was part of my restaurants. I was shareholder, director, personal guarantor, and my position was dealing with PR in this restaurant. I invest my money inside and I have plan to open up more restaurants, together with Mr Ciric.

Q. You understood perfectly well the meaning of the answer you gave a few minutes ago when you said you were not a restaurateur?
A. Professional, no.

Q. You understood the meaning of that perfectly well, didn't you?
A. My profession - restaurateur it's not. I'm not professional restaurateur. I was shareholder of the restaurant.

Q. Let us cut to the chase. What you are upset about is the failure of the restaurant and your loss of investment?
A. No.

Q. That is what you are upset about?
A. No. I am upset about review. Review destroyed by investment. Our restaurants. My life. My health. Everything. Absolutely everything. Since these days start, everything to be ruined. My name was print in this review. My name.

73 Cross-examination of Ms Gacic concluded with the following question:

Branislav Ciric

74 Branislav Ciric was born in Belgrade in 1949. He came to Australia in 2000. Before doing so he had conducted, managed or co-owned restaurants in Germany between 1972 and 1982. When he came to Australia he decided to set up what eventually became Coco Roco. He said, "it was not one restaurant, it was two restaurants, Coco and Roco". He was the boss and in charge of the whole venture. He confirmed the creation of the corporate vehicles, and the giving of guarantees, to which his sister-in-law had referred in her evidence.

75 He gave evidence about Mr Evans' first visit to Coco Roco:

"Q. The opening was on Thursday 4 September 2003, do you agree with that?
A. Yes.

Q. So was the next day, 5 September, the first day of official business at the restaurant?
A. Yes.

Q. Did you see Matthew Evans, the food critic for the Herald, attend Coco restaurant for lunch on 5 September?
A. Yes.

Q. Now I am talking about seeing him there with your own eyes, not on any videotape?
A. Yes, yes.

Q. You saw him there?
A. Yes.

Q. And I think he was with a companion, is that right?
A. Yeah, it was one person.

Q. He was with one person or only one person?
A. He was with one person. There was two - two people together.

Q. Did you see what Mr Evans had to eat that afternoon or some of what he had to eat or what?
A. I was in the kitchen for the duration while the food was coming out.

Q. Well, does that mean you did not see what he had to eat?
A. Yes, yes, I saw what he was eating.

*****

76 Mr Ciric said Mr Evans ate everything he was served on 5 September 2003. Mr Ciric was at the restaurant on 10 September 2003 as well. He said he also saw what food he and his companion ate on that occasion. He ate everything again.

77 Mr Ciric described the business of Coco Roco up to 30 September 2003 as much better than he had expected. He said, "It was crowded. There [were] a lot of people. There [were] a lot of reservations." The review was read to him that morning. His reaction was, "Shock. What else? What else could it be?" He said, "I know for the very - at the very same moment, I knew that that business doesn't have any prospective, doesn't have any future" and "I did not expect that something like that is possible to be written." He also described his reaction to the review in the following way:

"Regardless how - how easygoing and how tranquil I am and peaceful I am and I am used to all kinds of things in life, that remained - that had an impact and still has an impact on my life."

78 Following the publication of the review, Mr Ciric said that both restaurants became "eerily empty". Bookings dropped off and cancellations increased. He described it thus:

"A. October was tragic. November was bearable, simply because of the season and some functions which were not cancelled and which were booked previously. My opinion, December was the month which is supposed to be the busiest, was very bad.

79 The attitude of people towards him changed, particularly the restaurant staff. He candidly said that an apology was of little importance to him. He gave this evidence:

"Q. Has the no apology caused you any upset?
A. To be honest, I can't see what difference apology would make because my project was ruined. It may be just offer just a tiny bit of my personal satisfaction.

*****

80 Mr Ciric denied that what Mr Evans had written was true. He denied that the imputations were true. He gave this evidence consistently in reference to the detailed matters to which the review referred. Mr Ciric denied that he either invited, or even wanted to invite, Mr Evans to the restaurant opening. He denied that he was hoping that he would write a review of the restaurant in the Sydney Morning Herald.

81 Mr Ciric agreed that the restaurant had been promoted as one of the best restaurants in Sydney but said, "to be number one restaurant you need time". He said he approved of the proposal to promote the restaurant in that way. Mr Ciric was taken through the criticisms of the food and service in some detail and gave his responses. He defended the restaurant, its food and its service, although he was unsure of some of the details of what had been said in the review. He was then asked a series of questions directed at the reaction he had to the review as follows:

"Q. I see. Could I suggest to you that the reason that you remember very imperfectly the detail of Mr Evans' criticism is that you know that what happened to your restaurant venture had really nothing much to do with Mr Evans or the Sydney Morning Herald? You know that, don't you?
A. That's not true.

Q. If you felt a resentment towards Mr Evans or the Sydney Morning Herald for having destroyed your restaurant, I suggest to you that you would remember very clearly the detail of what Mr Evans wrote in this article?
A. After all this stressful situation, the head is not working all that well.

Q. With your experience, moving on to a different point now, you know, don't you, that food critics for newspapers and magazines are a fact of life in the restaurant business, aren't they?
A. Yes, if the criticism is objective and if the critic does allow a sufficient amount of time for the restaurant to develop and to move from the beginning, early stages, of setting up.

Q. Do I understand from that answer that you accept, or at least allow for, the possibility that some of the food, at least, that Mr Evans and his companion tasted may have been below standard because it was early days for the restaurant? Do you accept that possibility?
A. There must have been mistakes. We just started operating. Nothing could be perfect and best of best, because it was early days at the restaurant .

Q. You see, one of the matters of resentment that I discern from your evidence, perhaps it is only one of the matters, but one of the things that you appear to resent is that this review occurred too early in the operation of the restaurant and it would have been fairer for the review to occur later. Is that one of the things that you agitate here that you resent?
A. When we talk about the timing of the critique, yes, it was a bit early but, at the same time, the quality of food that we served at that time to Mr Evans and other people was not that bad as Mr Evans critiqued. It was not of that bad quality.

Q. I think you are acknowledging, aren't you, that the food was below the standard that you at that time, when Mr Evans attended, wanted to achieve, and the reason it was below the standard was because the restaurant had only just opened?
A. No. Not below standard.

Q. It wasn't below standard. Then what is the relevance of Mr Evans reviewing the restaurant when he did and not later?
A. It would have been a lot better in this connection, yes. It would have been a lot better. It was not ideal when Mr Evans came to critique, but it would have been a lot better and a lot more ideal a bit later on, if he came later on, and it would have been improved on that quality.

82 Mr Ciric continued to express dissatisfaction with the fact that Mr Evans had reviewed the restaurant at such an early stage in its existence. He said that he only asked that they be treated like other restaurants. He said, "Mr Evans should have treated us like all the other restaurants, giving them two or three months' time to get things going before critiquing, so - that's the gripe." Mr Ciric appeared however to accept that inherent in that complaint was a possible concession that what Mr Evans had been served, or the way that it had been served, was not up to the standard to which the restaurant aspired. An earlier answer was to the same effect.

83 He gave the following evidence:

"Q. You, Mr Ciric, demanded no more than this, I suggest to you: All you required was that the reviewer give his or her honest opinion?
A. Yes. When it comes, that it is going to be like that, yes.

Q. If a restaurant reviewer gives his or her true opinion, you do not ask anything more than that, do you?
A. Yes, yes, honest. Yes, specifically honest opinion and not under the influence of other people.

84 Mr Ciric was also of the opinion that the invitation said to have been sent to Mr Evans for the opening of the restaurant was a "fabrication". He was extensively cross-examined about the precise nature of his allegations in this respect. Was it a fabrication? He said, "Yes, it's possible. I'm not sure, but it's possible." He did not wish to convey the impression that the defendants had anything to do with the fabrication, but then gave this evidence:

85 Mr Ciric recalled no complaint being made to the restaurant that it served a chicken that was not a Glenloth chicken when it should have been.

86 Finally, Mr Ciric agreed that if Mr Evans' complaints, or most of them, about the meals were true, it would reflect very badly on his competence as a restaurateur. However he maintained that Mr Evans' criticisms were not justified because "the food was not bad as he said". He did not accept that his irritation about the time that Mr Evans visited the restaurant, on the day following the opening, really indicated that he accepted that at that point in the restaurant's history the food was not good enough and was below standard.

Conclusions on the defence of truth

206 The defendants bear the onus of establishing on the balance of probabilities that each of the imputations sought to be justified is substantially true. In Trad v Harbour RadioPty Ltd [2009] NSWSC 750, McClellan CJ at CL adverted to an issue that arises in the present case for consideration upon the question of how one determines what is, or what is capable of being, substantially true. His Honour said this at [12] - [13]:

"[12] In most cases where a court is required to determine questions of fact, including whether or not an imputation is true, the answer will be reached by consideration of relatively uncomplicated issues of primary fact. Where a defendant pleads that a plaintiff has committed a crime the court will be required to determine whether the alleged event occurred. Where the imputation consists of conduct which can be measured against an identifiable social or professional standard, for example, whether the plaintiff was negligent, the court will apply its understanding of the appropriate standard to resolve that issue.

207 His Honour said this at [20]:

". . . The question is not whether a section, even a substantial section of the community shares the plaintiff's views. Rather it is whether, taken as a whole, the plaintiff's expression of his views and his other acts would cause right thinking members of the community, applying general community standards, to conclude that the plaintiff is a disgraceful person."

208 Although issues of general community standards are not called up for consideration in this case, the issue of the way in which truth, even as qualified as substantial truth, is to be assessed and applied does require examination. "It is the imputation contained in the words which has to be justified, not the literal truth of the words, nor some other similar charge not contained in the words": Gatley on Libel and Slander, 11th ed (2008), Sweet & Maxwell at [11.8].

209 Mr Evans described the particular aspects of the service that he received at Coco. His only comment about them was limited to the score of 9 out of 20. There was in this case no evidence, apart from Mr Evans, from the defendants that the service was "bad". By inference, however, it is clear that Mr Evans considered that the service was below standard. The pleaded imputation was that the plaintiffs provided "some bad service". Accepting Mr Evans on the point, undiluted by any evidence given on behalf of the plaintiffs, I would be satisfied that the imputation was substantially true. As the discussions appearing in the transcript will reveal, this may not have been the most serious defamation imaginable but that does not affect the assessment of whether or not the relevant imputation was substantially true.

210 The plaintiffs called the witnesses to whom I have already referred, whose universal appraisal of the restaurant's service was favourable. Those were their subjective, individual opinions of the service that they encountered on the occasions of their visits to the restaurant for a meal. They were limited to what happened on those occasions and, except by force of some available inference, were not able to inform the position as it applied when Mr Evans was there. Even to the extent that the plaintiffs themselves were able to give evidence of the service that Mr Evans encountered, they were not able to give evidence in specific and credible terms that the salad was not dispensed in the way Mr Evans described or that the delay in attracting the waiter's attention was not as Mr Evans has suggested. General statements from the plaintiffs and their witnesses about tendencies or propensities do not derogate sufficiently from the force of Mr Evans' own evidence that he encountered some service that could be described as bad for me to conclude that the imputation is not substantially true.

211 The third imputation is in a different category. It involves the combination of both incompetence and poor quality food. With respect to the first part I am satisfied that the defendants have established the substantial truth of the imputation that the chef employed at the restaurant "made poor quality food". The imputation is not that all of his food was of poor quality, even though the imputation is not drawn as one that the chef produced "some poor quality food". Reference to the matter complained of reveals clearly that Mr Evans was of the view that the chef produced some food that was of the highest and best standard and quality. The oxtail and sweetbread dumplings and the verjuice come to mind. The steak was in the same category. The balance of the food that was produced was of poor quality. I accept Mr Evans' description of the parmesan cheese, the hard sorbet, the dry pork and the sherry-scented white sauce with apricots, the wilting and yellow salad leaves, the starchy lentils, the sticky sweet below average broth and the overcooked flavourless potatoes as some examples of poor quality food. A seafood foam that tasted like reflux could not be excluded from this group. Even allowing for subjective considerations, it is apparent that these descriptions qualify as descriptions of poor quality food if I accept Mr Evans as a witness of truth. It will be apparent from what I have said earlier that I do.

212 With respect to the second part, the first two plaintiffs were not chefs and proclaimed no expertise as such. A demonstration of incompetence would require at least a failure to adhere to a standard that these plaintiffs cannot have been expected to achieve. I do not consider that it is true that these plaintiffs were incompetent as restaurant owners for this reason alone. The same cannot be said of the third plaintiff whose admitted knowledge of matters culinary qualified him to assess the credentials of any head chef that he chose to employ. I consider that it was true that the third plaintiff was relevantly incompetent.

213 In my view the defendants have established that the second imputation is in all cases substantially true and that the third imputation is substantially true in the case pleaded against Mr Ciric but not the other two plaintiffs.

The defence of contextual truth

214 It is necessary in the circumstances to consider this defence in respect of the first imputation.

215 Section 16 of the Defamation Act 1974 is as follows:

" 16 Truth: contextual imputations

(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(i) relate to a matter of public interest or are published under qualified privilege, and

216 McClellan CJ at CL also set out a summary of the principles concerning this defence in Trad at [126] - [128] as follows:

"[126] The principles which must be applied with respect to the defence of contextual truth were discussed in Hepburn v TCN Channel 9 (1984) 1 NSWLR 386 at 400. They may be summarised as follows:

1. The combined effect of the defendant's contextual imputations must differ in substance from that of the plaintiff's imputation to which they are pleaded as a defence;

2. The defendant's contextual imputations must be conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which they are pleaded;

Jackson v John Fairfax Publications & Sons Ltd

John Fairfax v Blake

Corby v Channel Seven Sydney Pty Ltd

The defendants' submissions

217 I have found that the third imputation is not true with respect to Aleksandra Gacic and Ljiljana Gacic but that the second and the third imputations are true in respect of Mr Ciric. The defendants originally made submissions about contextual truth upon the basis that the second and third imputations would both be found to be true in respect of all three plaintiffs. Allowing for the consequences of my finding, the defendants' submissions translate to the following.

218 The defendants submitted that in order to see whether s 16 is satisfied, or in other words, in order to see whether the plaintiffs' reputations are not further injured by the first imputation (on the assumption that the defendants failed either to justify or to defend it), I must take the defamatory effect of the second imputation, in the case of Aleksandra Gacic and Ljiljana Gacic, and the second and third imputations, in the case of Mr Ciric, that the defendants have proved to be true, and weigh that effect against the first imputation that they sold unpalatable food. Accordingly, in this case, because the defendants have established that the second imputation, that the plaintiffs provided some bad service, is true in the case of Aleksandra Gacic and Ljiljana Gacic, the defendants contend that they are not further damaged by the suggestion that the food was unpalatable, even if it cannot be demonstrated to be true. Moreover, in the case of Mr Ciric, because the defendants have established that the second and third imputations, that he provided some bad service and that he is incompetent as a restaurant owner because he employed a chef at the restaurant who made poor quality food, are true, the defendants contend that he is not further damaged by the suggestion that the food was unpalatable, even if it cannot be demonstrated to be true. The defendants submitted that it is difficult to see how the reputations of any of the plaintiffs could possibly be further injured by an imputation that they served unpalatable food, even if that imputation had not been shown to be a matter that was substantially true.

The plaintiffs' submissions

219 The plaintiffs' submissions on this topic were limited to s 16(2)(c) of the Defamation Act 1974 and were in opposition to the defendants' contention that by reason that the contextual imputations were matters of substantial truth, the imputation complained of did not further injure the reputation of the plaintiffs. Their submissions in this respect are effectively summarised and incorporated in the conclusions to which I have come and are not also included here for that reason.

Conclusions on the defence of contextual truth

220 I was not specifically addressed on the question of whether or not the effect of the defendants' contextual imputations differed in substance from the plaintiffs' imputation to which they are pleaded as a defence. It is true that in the present case this involves a comparison of imputations that arise in the same sector of the lives of the plaintiffs, namely, the conduct of a restaurant. However, an article or review about Aleksandra Gacic and Ljiljana Gacic conveying an imputation that in that particular calling they provided some bad service and, in the case of Mr Ciric, that he was also incompetent as a restaurant owner because he employed a chef at the restaurant who made poor quality food, is different to an article or review about them conveying an imputation that in that particular calling they sold unpalatable food. The imputations certainly arise in the same setting but the respective sting of each is different in substance.

221 I am not satisfied that the reputations of all three of the plaintiffs have not been further damaged by an imputation that they sold unpalatable food, even after it has been found to be true that they provided some bad service. The latter is to my mind less serious in the scheme of the restaurant business than the former. Service tends to be something that is often variable and usually forgivable. It is arguably subsidiary to the main game of pleasing, if not delighting, everyone from the would-be gastronome to the humble diner. The quality of the food is generally the rock on which other aspects of a restaurant are built. Accounts exist (possibly apocryphal or exaggerated) of restaurants, whose eccentric and even offensive chefs have become notorious for displays of emotion and rudeness, but these restaurants apparently continue to survive on the strength of their undoubted culinary genius. Such displays are on any view the equivalent of "some bad service". They do not, however, in my experience equate, or even come close, to the importance or significance of a restaurant's reputation for its food, whereas an extravagant, but also often only a relatively minor, decline or variability in the food that it produces will not generally be so charitably treated by the dining public.

222 Nor am I satisfied that the reputation of Mr Ciric has not been further damaged by an imputation that he sold unpalatable food, even after it has been found to be true that he is incompetent as a restaurant owner because he employed a chef at the restaurant who made poor quality food. The imputation concerning competence in the capacity of someone who employs a chef who makes poor quality food is not necessarily or obviously something that is or can be subsumed within the scope of an imputation that Mr Ciric himself sold unpalatable food. The two imputations clearly arise in the same context but the effect of the imputation concerning unpalatable food to my mind cannot be said to be a matter of no consequence simply because the employment imputation is true. Mr Ciric's reputation has in my opinion been further damaged by the first imputation.

Did the restaurant serve a Glenloth chicken?

223 It will be apparent from what I have said so far that the question of whether or not Mr Evans was served a genuine Glenloth chicken is not one that has loomed large in the conclusions I have reached. Mr Evans did not assert in terms that what he ate was not what the menu suggested but instead limited his comments to an expression of mild surprise that a bird that he usually loved was on this occasion "outstandingly dull". It would appear that the forensic endeavours of the defendants' representatives ultimately led them to make the allegation that the chicken in question was not a Glenloth chicken as a particular of the third imputation that the plaintiffs were incompetent as restaurant owners. The underpinning proposition would appear to be that serving anything other than a Glenloth chicken, when the menu advertised that very product, was an example of poor quality food.

224 It is difficult to reject the inference that arises from the evidence of Mr Milburn, that his organisation did not supply either the restaurant directly, or Haverick Meats as a wholesaler, with any of its chicken in the relevant period. Aleksandra Gacic could not say from her own knowledge whether the chicken was genuine and relied for her understanding upon the Haverick Meats invoice directed to Coco Roco. The evidence of Mr Puharich appears to support the proposition that his organisation did not supply the bird and no one from Haverick Meats was called to cast any light upon the issue.

225 Ljiljana Gacic was asked about the topic as follows:

226 Mr Ciric also gave evidence about it in cross-examination:

"Q. Do I understand your evidence to be that the menu specified that it was a Glenloth chicken?
A. It was written in the menu and we were convinced that we were selling that type of chicken.

*****

Q. I want to put this proposition, that Haverick Meats did not supply Glenloth chickens to your restaurant or restaurants.
A. You've got the evidence in there. You've got an account from the company that you just said that did not.

Q. Is the answer to my proposition you say yes, Haverick Meats did supply Glenloth chickens to the restaurants?
A. Yes.

Q. Your understanding was that Glenloth chickens were the absolute top quality chicken that could be served up in a restaurant?
A. Yes.

Q. (Exhibit K shown.) There are five different invoices in that bundle, are there, five pages?
A. Yes.

Q. I don't know what order that you have them in there, but could you have a look at tax invoice number 157883. It might be 863 but I think it is 883.
A. Yes.

Q. You see that the word 'Glenloth' appears in the invoice under the heading Description?

INTERPRETER: Is that the $57 one?

BLACKBURN

Q. Yes, it is, $57.08.
A. Yes.

Q. That word Glenloth, I suggest to you, could not refer to the chicken, it must refer to some or all of the goods underneath it?

*****

Q. You see, Mr Ciric, that the unit price for the chicken referred to in this invoice is $4.40; do you see that?
A. Yes.

Q. The proposition I am going to put to you is that Glenloth chicken, being the highest quality chicken you can buy and being a renowned brand, was simply not wholesaled to retailers at the price of $4.40. Do you agree with that proposition?
A. I can only say that I agree with this document because it is an official invoice. That's all I can agree with, and if anything is suspicious or you are not sure of, it is a Haverick invoice. We can always check with Haverick. They have got their records and they can confirm or deny.

Q. Just to round off this, I want to suggest to you that the wholesale price at that time of a Glenloth chicken size number 10 was $6.35?
A. It doesn't say here, it says $4.40.

Q. The chicken referred to on this invoice wasn't a Glenloth chicken, was it?
A. This is not true that it is not Glenloth chicken. It is Glenloth chicken and we can prove that.

Q. How do you propose to prove that, Mr Ciric?
A. This invoice confirms that. This is an official invoice from the company that supplied us the chicken.

Q. I want to put this proposition to you. You may or may not be able to answer it, but no Glenloth chickens were supplied to Haverick Meats during the time that Coco Roco operated?
A. That's not true and we can talk until the morning, but these invoices show, prove that I did order and receive Glenloth chicken and I stand behind a hundred per cent all of these things that are written on the invoices.

Q. Do you allow for the possibility that the chickens supplied to you by Havericks, if they were described by Havericks as Glenloth chickens, do you allow for the possibility that in fact they were not Glenloth chickens that were being supplied to you?
A. Havericks company is the biggest and the best in Sydney and I don't think they would be risking those, you know, the reputation and everything of the company to fall in question and to do things like that, so I doubt very much that they would be involved in dealings like that, writing here that it is Glenloth and it is not.

Q. Did you not become aware of a complaint from some quarter that the chickens that were being advertised by the restaurant as Glenloth chickens were not in fact Glenloth chickens?
A. No. They were Glenloth chickens and I had no complaints about it not being Glenloth chickens.

Q. A decision was made nevertheless to keep on promoting or advertising the chickens on the Glenloth chickens, in spite of the complaint?

INTERPRETER: We just said there was no complaint.

HIS HONOUR: Please just interpret the question.

A. Somebody might have given their opinion that this is not Glenloth chicken, but that's beside the point. We ordered and we served Glenloth chicken and we had that on the menu and that's what we served.

BLACKBURN

227 Mr Ciric's evidence upon this issue is dependent upon the validity of the Haverick Meat invoice. This is to be compared to the evidence of Mr Milburn and Mr Puharich to which I have referred. I do not consider that Mr Ciric gave any evidence that cast their evidence into any doubt.

228 In my opinion the chicken served to Mr Evans was not one that had been supplied to Coco Roco directly or indirectly by Glenloth Free Range Pty Ltd.

Damages

229 I have determined that the defendants have a complete defence to the plaintiffs' claims by reference to the defence of comment. I have considered the other defences as well, against the contingency that my findings and conclusions in that regard are the subject of challenge. Even though it is strictly not necessary for me to assess damages in these circumstances, I will nevertheless do so for the same reason.

230 Each of the plaintiffs claims general or compensatory damages. This includes the plaintiffs' claim with respect to the reappearance of the matter complained of on the internet following the decision of the High Court of Australia in this matter. No claim is made for damages in any other category, such as aggravated damages pursuant to s 44 of the Defamation Act 1974. Although some artificiality attends the calculation of damages in a defamation case where the defendants have been successful in defending all three imputations, I will, for want of any demonstrably preferable alternative approach, undertake the task upon the basis that all three plaintiffs had been successful in the case of all three imputations upon which they rely.

231 As is well known, general damages serve three functions. First, they act as a consolation to a plaintiff for the distress suffered from the publication. Secondly, to repair the harm to her or his reputation. Thirdly, as a vindication of that reputation in the eyes of the public. Damage and injury to reputation is presumed and flows from the act of publication to others. It is unnecessary to call evidence to establish that it occurred. The witnesses called by the plaintiffs, and the evidence touching the question of the plaintiffs' damages given by them in each case, have been referred to above.

232 Sections 46 and 46A of the Defamation Act1974 are as follows:

" 46 General

(1) In this Part relevant harm means, in relation to damages for defamation:

(a) harm suffered by the person defamed, or

(2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.

(3) In particular, damages for defamation:

(a) shall not include exemplary damages, and

46A Factors relevant in damages assessment

(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

233 Aleksandra Gacic and Ljiljana Gacic each denied that they were "restaurant owners". That denial was only significant in respect of the third imputation as the other two do not refer to any of the plaintiffs in their capacity as such. There is, therefore, as I have had cause to observe during the hearing, a slight tension between the notion that those plaintiffs were damaged in their reputation as restaurant owners as opposed to damaged in their reputation at large.

234 However, this tension is less significant than might appear at first sight. The defendants certainly emphasised that each of the first two plaintiffs said that they were not restaurateurs and that that should have a significant effect on the damage to them and the hurt to their feelings. They contended that if they were restaurateurs, one could readily appreciate the extent of the hurt and the damage to their reputation, which would follow from publication of imputations of this kind. Mr Ciric was in a different category for this reason alone. I am prepared to conclude that Aleksandra Gacic and Ljiljana Gacic were attempting, perhaps in a language that limited their ability to do so, to establish that they had no expertise as chefs or with cooking fine meals in a commercial setting or something to like effect. It may also explain the difference in attitude between them and Mr Ciric. In the end I do not consider that it reflects badly on their credit or limits the damages to which they have otherwise established an entitlement.

235 There is no doubt that the plaintiffs have all been very badly affected by the failure of Coco Roco. There is also no doubt in my mind that each of the plaintiffs attributes as the cause of that failure the review of the restaurant written by Mr Evans. Although the plaintiffs to my observation wanted to direct their considerable disaffection at the defendants in the circumstances for this fact, they were not entitled in this case to recover damages calculated by reference to the substantial financial losses they would appear clearly to have suffered since the restaurant failed, nor indeed by reference to their distress associated with the disastrous financial ramifications of that result. It appeared plain on the first day of the trial, when Aleksandra Gacic sacked the plaintiffs' legal advisers and thereafter unsuccessfully sought to apply for an adjournment of the hearing, that the plaintiffs' desire to claim economic losses associated with the failure of the restaurant, and the likely receipt of advice that this could not be done, lay at the heart of that application. The very emotional evidence given by Ljiljana Gacic at an early stage of her evidence was another dramatic and understandable confirmation of the terrible consequences that have befallen the plaintiffs in the circumstances. However, the plaintiffs are not entitled to recover damages for the loss of their business or for any hurt or emotional distress associated with the loss of that business. At common law there is no separate category of "business" defamation: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, disapproving Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675. The question of any causal relationship between the defamation and the failure of the restaurant business does not arise for consideration.

236 It remains important, therefore, to dissect the damages that are recoverable from the damages that are not. Aleksandra Gacic gave evidence that she was devastated by the publication. Her partner gave the same description of her. She could not walk for half an hour immediately after learning about the review. However, Ms Gacic did not stand back from the proposition that the failure of the restaurant also caused her to be devastated. As I have earlier recorded, she agreed with the proposition that the fact that the restaurant went downhill and finally ended up in administration and closed caused her to be upset and devastated. Everything she had was invested in the restaurant and her immigration status depended on it as well. The defendants' failure to apologise also caused her to be hurt.

237 The evidence given by Ljiljana Gacic at paragraphs 64 and 72 is also very dramatic. It contains a blend of distress at the publication on the one hand and the perceived consequences for the business caused by the publication on the other hand. These themes are interwoven in these passages of her evidence and are also apparent from evidence elsewhere. Clearly enough, the descriptions of how she felt when the review was first read to her are important but it becomes more difficult to isolate the extent of the injury to her reputation and the hurt to her feelings as time goes by and the failure of the restaurant and the associated disastrous financial consequences of it have materialised. She was also hurt by the defendants' failure to apologise to her.

238 Ljiljana Gacic's evidence was no less dramatic than her behaviour during the trial. She was constantly to be seen gesticulating and behaving in an exaggerated way, including the adoption of extravagant facial expressions, in apparent response to any piece of evidence or development in the case that she did not agree with or that she perceived to be inimical to her interests. This included leaving the courtroom often and at great speed, apparently to be relieved of the consequences of what was unfolding before her, only to return with recovered composure until the cycle repeated itself. She was said to have gained considerable weight and photographs of her before publication of the review certainly indicate that this is so.

239 Unlike his co-plaintiffs, Mr Ciric agreed that if Mr Evans' complaints, or most of them, about the meals were true, it would reflect very badly on his competence as a restaurateur. He was also in contrast to them somewhat sanguine or philosophical about the defendants' failure to have offered him an apology. He spoke of the collapse of his project in a way that appeared to connect it with the review but his demeanour in this regard seemed to me to be more connected with his enthusiastic perceptions of the undertaking as an exercise in gastronomic excellence than a purely business or money making venture. There are limits upon the extent to which Mr Ciric's reaction can be characterised in this way, and the financial consequences for him certainly emerged as contributing to the cause of what makes him feel the way he now feels. He was described by one witness as a broken man. He presented with an air of almost wistful resignation and defeat. He now pursues an occupation that he clearly felt was, to adopt an old fashioned expression, "below his station", and this was undoubtedly a matter that contributed to his current emotional state.

Conclusions on damages

240 Although each plaintiff has a different claim for damages, and even though the effect of the defamatory publication upon each of them is qualitatively and quantitatively different, the end result, albeit achieved by different routes, is largely to the same effect. Maintaining what I apprehend to be an appropriate and rational relationship between the relevant harm suffered and the amount of damages awarded, I consider that each plaintiff would have been entitled to general damages in the sum of $80,000.

Result and orders

241 The defendants have succeeded in establishing a complete defence to the plaintiffs' claims. In the circumstances, I make the following orders:

1. Verdict and judgment for the defendants.

2. The plaintiffs are to pay the defendants' costs.

**********

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Citations

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

Most Recent Citation

Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920

Cases Citing This Decision

3

Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362

Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920

Cases Cited

13

Statutory Material Cited

1

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60

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)