Don't Get Caught in the Mincer

For those fellow bloggers and others who may be interested I publish below the paper I wrote for presentation to the Eat Drink Blog food bloggers conference held in Melbourne last weekend. Apologies to my mate Igor.

DISGUSTING OYSTERS AND FAIR COMMENT

LESSONS FROM THE “COCO ROCO” CASE

FOOD BLOGGERS CONFERENCE MELBOURNE 21 MARCH 2010

1. On the subject of the lessons for food bloggers to be learned from the decision of the New South Wales Supreme Court in Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403, the first thing I should make absolutely clear is that Matthew Evans, Sydney Morning Herald Good Living reviewer of the Coco Roco Restaurant in 2003, did not refer in his review to the “curdled seafood foam that tasted like reflux” nor to “the disgusting Limoncello oysters that were slimy and bitter and excessively alcoholic” – nope, not even to “ the almond paste that was reasonably grey and looked like oily concrete”. Those comments were in fact comments made by Mr Evans in his evidence given in Court! Thank God they were made in Court because as such they are immune from claims of defamation. Were it otherwise we might be in for another 7 years of litigation and I’m not sure I have that long.

2. The Coco Roco review which was entitled “Crash and Burn” is set out as a PDF attachment to the decision of Justice Harrison which can be found on the New South Wales Supreme Court website. It should be read in full by anyone interested in a better understanding of this case. The principal text of the review however is in the following terms:

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

3. The complicated history of the Gacic v John Fairfax litigation which went as far as the High Court of Australia before coming back to Justice Harrison in the New South Wales Supreme Court late last year is well summarised in an article on the Press Council of Australia’s website for anyone interested, but an understanding of the history of the case is not necessary for present purposes. In fact the decision of Justice Harrison has now been appealed and the appeal will be held later this year in the New South Wales Court of Appeal. So the history is still in the making.

4. Suffice it to say, for present purposes, that Justice Harrison was concerned with the assessment of the damages which might have been awarded to the restaurant owners on the basis of three imputations that were found by the jury hearing the case to have been defamatory of each of the Plaintiffs. Those imputations were:

(i) That the Plaintiffs sold unpalatable food at the restaurant;

(ii) That they provided some bad service; and

(iii) That they were incompetent as restaurant owners because they employed a chef at the restaurant who made poor quality food.

5. The Defendants, John Fairfax Publications Pty Ltd and Matthew Evans, pleaded that the Plaintiffs should not be entitled to any damages because the review in respect of all three imputations was fair comment and also because the second and third implication imputations were true and the first was “contextually true”.

6. This brief paper is not concerned with the defences of truth and contextual truth because Justice Harrison’s decision was that John Fairfax Publications Pty Ltd and Matthew Evans had a complete defence on the basis of fair comment and it was therefore strictly speaking unnecessary for him to deal with the defences of truth and contextual truth. As a matter of interest, his Honour upheld the defences of truth but not the defence of contextual truth. The substantial truth of defamatory imputations (as opposed to the literal truth of the words used) is now an unqualified defence in all Australian jurisdictions under the Uniform Defamation Acts of 2005 but proving truth is never easy and may be impossible where what is written about is a matter of opinion. So the moral for bloggers is don’t place too much reliance in truth as a defence.

7. In the Coco Roco case the Uniform Defamation Acts did not apply because the defamation occurred before that legislation was enacted. The Defendants pleaded the defence of fair comment pursuant to the Defamation Act 1974 (NSW), the defence of fair comment at common law in respect to publications in the ACT, Victoria, South Australia, the Northern Territory and Western Australia and the code defences of fair comment in respect of the publication of the review in Tasmania (Defamation Act 1957 s 14) and Queensland (Defamation Act 1889 s 14). The law as it applies to the facts of the case in each jurisdiction was largely the same.

8. In Radio 2UE v Parker (1992) 29 NSWLR 448 Clarke JA said:

"In my opinion, a defendant who raises a defence of comment is obliged to establish that the imputation which the jury has found that the published matter conveyed was conveyed by the writer or speaker as a comment... Once the defence of comment is raised the jury is required to consider whether the imputation it has found to arise was made by the defendant as an allegation of fact or as an expression of opinion, on facts stated, or sufficiently indicated, in the published matter." (my underlining)

9. I might interpose at this stage that it should be obvious to food bloggers that if you have reached the point where a jury has found that there are defamatory imputations arising from what you have written, you are already in trouble. Certainly in the sense of the cost to you of the legal fees involved in defending what you have said. The fact that a defence of fair comment is available to you, as will be seen in the case of Evans’ review, is probably of small comfort to you if the person suing you is not in a position to pay your costs if you successfully defend yourself.

10. It goes without saying that it is better not to find yourself in this position to start with and perhaps at least something can be learned from that in itself.

11. Any way I digress – to continue - according to the Defendants in the Coco Roco case, applying the law as Justice Harrison set out it from Radio 2UE and other cases – to the ordinary reasonable reader, with his or her knowledge of the world (which are the relevant view points), there could be no real argument that each of the imputations was conveyed as a matter of comment rather than as a statement of fact by Mr Evans. Evans’ barristers, Tom Blackburn SC and Dauid Sibtain, submitted it was a plainly a food review and the ordinary reasonable reader was familiar with the concept of such reviews and would understand that Mr Evans was only giving his estimation or opinion of the food on the details set out in the review and not stating facts.

12. The Plaintiffs agreed that the Defendants had correctly analysed the law but did not accept that what Mr Evans wrote was fair comment. The submission they offered in aid of that position was that Evans’ article did not give a substratum of facts, nor did it indicate matters that are not notorious, in a way that the reader could identify as comment. The principal thrust of their attack however was to argue that, if what Matthew Evans wrote did otherwise qualify as comment, he did not, as the law requires, honestly hold the opinions he expressed. They attacked him as an untruthful and biased witness.

13. This is where it gets tricky for bloggers. Sir Frederick Jordan in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 174 said:

“A critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord”.

14. The dilemma Evans found himself in and one which you would be better not to find yourself in, was that the “pen dipped in gall” formed the very foundation for the Plaintiffs’ argument that he did not honestly hold the opinions he expressed.

15. Bear in mind that Evans had reviewed the restaurant on the basis of a meal the day after it opened on 4 September 2003 and a second some five days after that. The Plaintiffs argued that his “esoteric” descriptions of the meals were superficial and lacked objectivity and that the language he used and the manner of his expression was sarcastic and snide and heavily impressed with venom and bile. They suggested that the word “touted” had a necessarily pejorative tone in the context of the review and that “swank” was assumed to have a similar characterisation, that “at this price I could be dining at Rockpool” suggested dissatisfaction with the price of the restaurant generally and that the statement “the view is the best bit” was gratuitously offensive. They argued that words like “dismal”, “tasteless” and “rubbery” were said to be to the same effect. To describe the sauce that accompanied the steak as a “wretched garnish” was more evidence of spite and was not consistent with the way in which one might expect a properly and honestly held opinion to be expressed.

16. They also argued that Evans was unnecessarily strident and unflattering in his descriptions of the fit out of the restaurant. He had said “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” (incidentally, I can tell you confidentially, the precise get up worn by junior counsel Dauid Sibtain on the day that the judgment was handed down by Justice Harrison in Sydney). The Plaintiffs said the same thing about the suggestion that the style of the restaurant was not glamorous unless “glamour peaked in 1985”. These criticisms were said to denigrate the restaurant in a sarcastic way and to “set the stage for the criticisms of the meals to follow”.

17. In the result Justice Harrison did find that the review was fair comment and not put forward as a statement of fact.

18. His Honour said at [171]:

“As the defendants have stressed, and as appears to be obvious, the structure and setting of the published material is that of a restaurant review. It is visually and textually in that form. The allocation of a numerical score, and the reproduction of the scoresheet against which to measure it, had become part of the format of this section of the paper by the time of the subject publication. It scored or marked restaurants as an examiner or a judge of a sporting contest might do. That is what occurred here. The printed words of the review are augmented by photographs of the restaurant looking across some tables to the view beyond and of one of the meals consumed by the writer, although not the actual food that he ate”.

19. To find that what was written was fair comment was not enough to see Evans in the clear however, for the reasons I have just mentioned, namely that the Plaintiffs claimed that even if the words used were comment, the opinions were not honest opinions held by Matthew, and that this was proven by the nature of the language that he had used in the review.

20. I pause again to interpolate that the food blogger would be well advised never to find himself or herself in this position as it would then be necessary, as it was necessary for Evans, to go into the witness box and impress the Judge in order to persuade the Court to come to the conclusion that the views expressed were honestly held. It came down to this in the Coco Roco case. Justice Harrison said at [188]:

“I should at this stage give my impressions of Mr Evans as a witness. He was at all times very measured and calm in his responses. He showed little, if any, emotion and did not become excited or unsettled at any stage. He gave answers that were actually answers to the questions that were asked and he was generally responsive to what was occurring at all times. I certainly did not get the impression that he was moulding or framing his answers either to avoid dealing with difficult questions or to put some otherwise unavailable gloss on evidence that needed some assistance or resuscitation. Mr Evans was in one sense only in the witness box in order to establish, if he could, that he honestly held the opinions that he expressed in his review and to be subjected to cross-examination upon that area. In my opinion he was not shifted from his conviction that he honestly held the views he published in his review or that they were his honest opinions when he wrote it”.

21. So I pose the question - what if you were Mr Evans? But what if you were not calm when being cross-examined or you showed emotion or became excited or unsettled? The result may not be the same for you and an award of damages against you may follow. Remember Justice Harrison said:

“Mr Evans was in one sense only in the witness box in order to establish, if he could, that he honestly held the opinions that he expressed in his review and to be subjected to cross-examination upon that area” (emphasis added)

22. Justice Harrison theoretically assessed the damages each Plaintiff would have been entitled to, had the defence of fair comment not won the day because a decision of the New South Wales Court of Appeal may yet overturn Justice Harrison’s decision. Each Plaintiff in that event would be entitled to general damages in the sum of $80,000.00 - a cool quarter of a million dollars. Not, I suggest to you, a risk worth taking for the sake of using some strident, sarcastic language which could almost certainly be eschewed in favour of more moderate and dare I say it, more skilful, writing.

23. So it is true that as bloggers you are entitled to “dip your pens in gall” for the purpose of legitimate criticism and it is true that you need not be “mealy mouthed” in denouncing what you regard as “twaddle, daub or discord”. The dilemma for you is that if you do, the very words you use may be argued against you as demonstrating that you did not hold the opinions you expressed honestly and that therefore the defence available to you against any finding of a defamatory imputation, namely the defence of comment, is not made out.

24. Ultimately, whether you win or lose can come down to the impression you make as a witness upon the Judge hearing the case. I would have thought it would not take too much reflection therefore, to conclude that notwithstanding the decision, (so far at least), in the Coco Roco case you need to exercise great care in the words that you use in any restaurant review. Use sarcasm, much less vitriol, sparingly, if at all, and avoid snide comments and pejorative terms or terms that are unnecessarily strident or unflattering. Only that way will you avoid the suggestion that the very terms of the expression of your unfavourable opinion of the restaurant you are reviewing demonstrates that you could not hold the opinions you express honestly.

STEPHEN ESTCOURT QC