Gacic v John Fairfax Publications Pty Ltd - [2005] NSWSC 1210

CITATION:
Gacic v John Fairfax Publicatons Pty Limited [2005] NSWSC 1210

HEARING DATE(S): 22/11/2005

JUDGMENT DATE :

6 December 2005

JUDGMENT OF:
James J at 1

DECISION:
Applications allowed in part

CATCHWORDS:
CIVIL LAW – restaurant review – claim in defamation failed – application by defendants to strike out or dismiss claims in – negligence – contract – injurious falsehood – particulars of falsity – particulars of malice

LEGISLATION CITED:
Defamation Act
Supreme Court Rules
Trade Practices Act
Uniform Civil Procedure Rules

CASES CITED:
Bass v TCN Channel Nine Pty Ltd (2002) 60 NSWLR 251
Bell-Booth Group Limited v Attorney-General [1989] 3 NZLR 148
El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057
Griffith & Ors v Australian Broadcasting Corporation & Anor [2004] NSWSC 582
Harvey v John Fairfax Publications [2005] NSWCA 255
Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388
Ratcliffe v Evans [1892] 2 QB 524
Roberts v Bass (2002) 212 CLR 1
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
South Pacific Manufacturing Co Limited v New Zealand Security Consultants & Investigations Limited [1992] 2 NZLR 282
Spring v Guardian Assurance Plc [1994] 3 WLR 354
Sullivan v Moody (2001) 207 CLR 562
Tame v New South Wales (2002) 211 CLR 317

PARTIES:
Aleksandra GACIC & Ors v John Fairfax Publications Pty Limited & Anor

FILE NUMBER(S):
SC 20233/04

COUNSEL:
CA Evatt/MK Rollinson - Plaintiffs
DR Sibtain - Defendants

SOLICITORS:
David Leamey - Plaintiffs
Freehills - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Progressive List

JAMES J

Tuesday 6 December 2005

020233/04 GACIC & Ors v JOHN FAIRFAX PUBLICATIONS PTY LTD & Anor
JUDGMENT

1 HIS HONOUR: These are applications brought by the defendants in proceedings by the plaintiffs Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric against the defendants John Fairfax Publications Pty Ltd and Matthew Evans. Before describing the nature of the applications, I will outline some of the matters and events giving rise to the proceedings and the history of the proceedings so far.

2 The plaintiffs were the proprietors of two restaurants at King Street Wharf in the city of Sydney, which were known respectively as “Coco” and “Roco”. The two restaurants opened on 4 September 2003.

3 On 5 September 2003 and again on 10 September 2003 the second defendant attended the Coco restaurant and ordered and ate a meal there. On 30 September 2003 the first defendant published in the Good Living magazine which formed part of the Sydney Morning Herald newspaper for that day an article about “Coco Roco” which had been written by the second defendant (“the article”). The article was severely critical of the restaurants. For example, in the article the second defendant gave “Coco Roco” a score of 9 out of 20, which, according to a scoresheet in the margin of the article, fell within the “stay home” range of scores for restaurants.

4 These proceedings were commenced by the filing of a statement…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Gacic v John Fairfax Publications Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 1210
Decision Date: 6 December 2005

CaseChat Overview and Summary

The case involved a claim by Gacic, the owner of a restaurant, against John Fairfax Publications Pty Ltd, the publisher of The Sydney Morning Herald, for defamation arising from a negative review published in the newspaper. The Federal Circuit Court was asked to determine whether the claims should be struck out or dismissed. The court was required to decide if the claims were legally sufficient and whether the plaintiff had provided adequate particulars of falsity and malice.

The court first considered the claim of defamation, which was dismissed as it was found that the review did not meet the threshold of being defamatory. The court then examined the claim of injurious falsehood, which was also dismissed as it was not established that the plaintiff had provided sufficient particulars of falsity. Additionally, the claim of negligence was dismissed as it was found that the plaintiff had not demonstrated that the defendants owed a duty of care. Finally, the claim of contract was dismissed as there was no evidence of a contract between the parties. The court held that the plaintiff had not provided sufficient particulars of malice and that the claims were therefore legally insufficient.

The court dismissed all claims with costs to be paid by the plaintiff. The court found that the plaintiff had not provided adequate particulars of falsity and malice, and that the claims were not legally sufficient. The plaintiff's application to strike out or dismiss the claims was therefore successful. The court ordered that the plaintiff pay the costs of the defendants.

Orders