Three Sydney restaurateurs have won a lengthy defamation battle against The Sydney Morning Herald over a scathing review of their restaurant published by the newspaper.

On 30 September 2003, the Sydney Morning Herald published a review of the Coco Roco restaurant in King Street Wharf, in Sydney, written by the newspaper’s chief restaurant reviewer, Matthew Evans.

Mr. Evans’ review, headlined “Matthew Evans fails Coco Roco”, referred to “unpalatable” food and claimed the restaurant offered a bad service, advising customers to “stay at home”.

Consequently, the three restaurant owners sued John Fairfax Publications, the publisher of the Sydney Morning Herald and Mr. Evans for defamation in the New South Wales Supreme Court.

The restaurateurs claimed that Coco Roco suffered a decline in patronage as a result of the review. Coco Roco went into administration in March 2004.

At trial, Judge Ian Harrison (‘the primary judge’) accepted the newspaper’s defence of fair comment and dismissed the action.

Issue on appeal

The central issue on appeal was whether the primary judge made an error in determining that the imputations contained in the review should be understood as referring two separate restaurants, Coco and Roco rather than one restaurant ‘Coco Roco’. The appellants argued that the judge had made an error in finding that the ordinary reader would understand that the review related only to Coco.

Findings

The NSW Court of Appeal unanimously overturned the primary judge’s finding that the review clearly referred only to Coco. The Court said the review gave the overall impression that Mr. Evans disapproved of the entire Coco Roco business, including sister restaurant Roco. Accordingly, Mr Evans and Fairfax could no longer rely on the defence of fair comment.

The appeal was allowed with costs. As a result, Fairfax is now exposed to damages, plus eight years of legal fees.

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