Gacic v John Fairfax Publications Pty Ltd

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.

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

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.

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. Both restaurants will open on 15 August and bookings for Christmas functions have already been received. Reservations and functions inquiries can be made by calling [one telephone number] or email info@cocoroco.com.au "

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".

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.

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.

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

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

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."

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?"

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.

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. Q. You heard the evidence about it? A. I definitely knew when this case was under way, yes."

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? A. The line between the two restaurants was fairly blurred and because when I rang and asked which restaurant would be better I felt that a review of Coco would best represent both restaurants that shared an address, a chef and a telephone number."

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.

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. Q. Just one adjective you say you were told on the phone enables you to fail both restaurants, is that correct, because you say someone told you that Coco was the better restaurant? A. It is implicit, in that they say it is the fine dining restaurant, that it would, by definition, be a better restaurant. So, within their own press release material, saying that Coco is a - I don't have the words now, but actually within their own material they say it is - they imply it is - a better restaurant."

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. Q. Which one did you book? A. When I rang to book, I asked, and they actually recommended, to go to the better restaurant, and they suggested Coco."

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?"

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.

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

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. In particular, the article carries of each of Alexandra Gacic, Liliana Gacic and Branislow Ciric an imputation to the following effect: '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.' 'Adam Birtles as chef at the Coco Roco restaurant produced food which was so bad that members of the public should not be at that restaurant.' 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. 3. The apology should be made in the following terms: 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. The Sydney Morning Herald unequivocally withdraws the statements made concerning Alexandra Gacic, Liliana Gacic, Branislow Ciric and Adam Birtles, and apologies to each of them for the hurt and embarrassment the publication of the article and the unwarranted criticism made of each of Alexandra Gacic, Liliana Gacic, Branislow Ciric and Adam Birtles in the article."

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.

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.

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".

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

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

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.

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.

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".

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.

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.

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.

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.

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

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.

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

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

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

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.

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.

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.

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: "Q. What is a soft opening? A. It means that production of the food - we wanted to see reaction of the public. We were not making any kind of advertising, publishing the restaurant is open, et cetera. Just to make sure that everything is running as it is supposed to run. So, from time to time we would open for lunch or for dinner, one or the other restaurant and, on those days, we had a public relation agent who organised the lunches and dinners for different - for journalists from different media."

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".

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."

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.

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. Q. And the fact that the restaurant went downhill and finally ended up in administration and closed, did that cause you upset? A. Very much. I was devastated. I didn't know what we are going to do. Everything that we had was invested there. Our immigration status was based on investment in the restaurant."

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."

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".

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.

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.

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.

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.

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. Q. That's not quite what I am asking you. You knew perfectly well in August and September 2003 that as a general rule when smart, upmarket restaurants are opened they tend to attract the attention of food reviewers. You knew that, didn't you, Miss Gacic? A. No, that wasn't true."

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".

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.

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 Q. Was anybody in authority to make decisions above the three of you? A. No."

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.

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. Q. That's what you are really upset about, Ms Gacic, I suggest to you, that is the collapse of the restaurant and your knowledge that the restaurant failed; that's what you are really upset about, not the publication of the defamatory imputations in this case? A. I would put to you that the review led to the closing of the restaurant directly because we - we lost, as I said yesterday, the target market customers for - for the premises of the Coco Roco for both restaurants. That was directly caused by - closure of the restaurant was directly caused by the review."

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. Q. As you have told us a number of times this morning, you are not even a chef, are you? A. I'm not a chef."

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

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.

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.

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.

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. I propose to call, they try to stop me, I will go on polygraph lie detector to three person and case will be over. Matthew Evans, Lisa Lindsay, Chris Mebberson. I don't need anything else. Put those people to say the true, true, it is freedom. It will free them. Everything what they done. Do you understand? I want to see this is true. He knew this, he is today here and he knew this. He knew they treat us in front of other people they will deliver and they did. Sorry."

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.

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".

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. Q. That is the answer? A. Yes."

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.

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. Q. Even though you were one of the owners of this restaurant? A. I was shareholder. The review said 'owners', but that's not true. One more lie."

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? Q. Can we take it that you are not offended by any reflection upon your competence as a restaurateur because you do not consider yourself to be a restaurateur? Is that correct? A. No. I was very hurt because my plan and my money, investment and business plan, was to focus on to open not just these two restaurants. To begin."

I then asked Ms Gacic the following question: "Q. But did you or did you not consider yourself to be a restaurateur? A. Yes, but I'm not chef. I'm not manager. I was only position in restaurant, yes."

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. Q. You are not upset by these imputations at all, are you? A. I am very upset. I am more than upset. More than upset."

Cross-examination of Ms Gacic concluded with the following question: "Q. If the criticisms of the food at the restaurant that were made by Matthew Evans were true, if those criticisms were true, then it would follow, wouldn't it, that the restaurant serves or served unpalatable food? A. Not one comment was true in this, except our names. In this. Even we are not owner. Except our names. Nothing was true in this review. If you can go with me through the review, I will exactly say the word. How is that quotation. Exactly say word what was said by other person. It probably was write by other person and it wasn't recognised by me. It was recognised by all the staff and many regular guests. About design of the restaurant. I will be more specific." Branislav Ciric

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.

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.

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.

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."

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. Q. And then what about the following year? A. It was not a restaurant any more. There was no restaurant any more."

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.

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 .

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. Q. Let me suggest to you that what is really upsetting you is that the restaurant was reviewed before you had got it right? A. Every beginning has got problems and, you know, things to iron out." [Emphasis added]

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.

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. Q. You accept, don't you, that a food writer or a restaurant critic is not there to puff up a restaurant beyond what it deserves? A. Yes."

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: "Q. Then who do you think fabricated this document? A. I'm not going to go into that. I don't know. I didn't do it. I didn't. I haven't seen it. I cannot comment or speculate on who did it."

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.

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. The plaintiffs' other witnesses Lesley Ann Matthews

Ms Matthews met the plaintiffs in the restaurant. She worked nearby and it was convenient for her. She went there from time to time. Ms Matthews took overseas guests there for a meal and they all appeared to enjoy the experience. She commended the food and the service. She thought it was a really nice place to go. She never had a meal there that she did not like. She went more often to Coco than Roco. David Weston Richards

Mr Richards is a director of a media company that publishes websites and magazines. He had been the chairman of the building management committee for King Street Wharf for a period of four to five years. This included the time when Coco Roco operated from its premises there. He first met the plaintiffs in that capacity. At one time there was an arrangement between him and the plaintiffs in which they paid rent for office space he provided and later he gave them advertising in his magazines in return for a contra arrangement where he could eat in the restaurant. He said that in accordance with this arrangement he could eat two or three times a week at Coco Roco. He ate there 20 to 25 times between the day the restaurant opened and the end of September. He tried many things on the menu, especially the steaks. He always enjoyed his meals. He never had any meal at Coco or Roco that he did not think was up to standard. He thought that the service was exceptionally good.

His organisation also ran a function at Coco Roco for around about 100 senior executives of major consumer technology companies from places like Samsung, Sony and LG. These were marketing directors and managing directors for an event he held once a year called "The Best of the Best Awards". This took place in either late November or early December 2003.

He became aware of the Matthew Evans review on the day it was published but he continued to eat at the restaurant. He was asked some questions about that topic: "Q. When you first saw the review, what did you do? A. I did nothing for about 30 seconds because I was shocked. Q. After that 30 seconds? A. I went downstairs to meet with the family that owned the restaurant, and they were standing around together. They had obviously seen it. Q. About what time was this? A. It was probably about 10, 10.30, in the morning. Q. How were they responding? A. Shocked. Quite distraught actually. Q. After the publication of the review, did you notice any change in the level of patronage on the occasions on which you attended? A. Yes, a significant change. Q. It got busy or got less busy? A. Less busy." Adrienne Tilley

Ms Tilley is a human resources coordinator. She came to know the plaintiffs from dining at Coco Roco a number of times. She recalled her first encounter with Coco. She said it was lovely and had a really lovely feeling. The food was delicious and the service was smooth. She ate there about five or six times in all. Felicity Tilley

Felicity Tilley is Adrienne Tilley's mother. She works in a firm of solicitors in Sydney. She met the plaintiffs when she was working for Ted Tzovaras who was then their solicitor. She read Mr Evans' review of the restaurant. She was asked what she thought when she did so. She said she thought it was "a spiteful piece of writing". She continued: "Q. Why did you think that? A. There's a sarcastic tone to it. I knew the plaintiffs, I knew what their plans were, I knew that they had recruited the very best staff that had been available. I just found it unbelievable. For my own point of view, without having tasted the food at that point, I had no idea how you could possibly cook a piece of belly pork so that it is dry without burning it."

She ultimately ate at the restaurant. She was asked about that: "Q. You read the review, you went to the restaurant. What did you think on the occasions you went? A. It was a fantastic restaurant. It was really beautiful. There had been great attention to detail in the decor. It was very, very well fitted out. Both upstairs and downstairs were very well fitted out. The staff were absolutely lovely. You couldn't fault the staff for their attention to you and the food was perfect."

Ms Tilley observed the second plaintiff after the review was published. She was asked about this as well: "Q. What did you observe, after the review, about her behaviour as to compared before the review? A. Well, she changed from a glamorous, beautiful, confident woman to being someone who was totally off her centre. She was thrown totally off her centre. She became extremely emotional, yeah, very - she actually went to bed for a few months. There were times when I would call and I couldn't speak to her at all and the family would tell me that she wasn't even up, so. . . ".

Ms Tilley was also asked about her observations of the first plaintiff: "Q. Did you see any change at all in her behaviour as between the two periods of time? A. Well, she changed from being a very confident and optimistic, happy person to being a very wound up person. She faded away to almost nothing and she was subsisting on coke, basically. She was drinking coke. That was all she was doing. She lost - I was very, very worried about her."

Ms Tilley described the third plaintiff as "a broken man".

She was cross-examined about the way she had described the review: "Q. Do you allow for the possibility that the dishes served to Mr Evans and his dining companion were, indeed, as he described? A. I find it very difficult to believe that they were as described, I really do. Q. Can I suggest to you that if you did not have the connection that you have with the plaintiffs your answer to that last question would have been very different? A. No, I don't think so, not having read the review. I mean if you are a critical thinker, if you are an independent thinker and you don't just follow fashion and slavishly consider that because the food critic has set himself up as being the expert and you remove yourself and look at that article critically, then you have to think that it is quite over the top. Q. And you are quite unprepared to accept the possibility that what Mr Evans wrote about the dishes that were served to him was the truth. You are quite unprepared to accept that possibility? A. I am quite unprepared to accept that."

Ms Tilley denied that she was "a barracker for the plaintiffs". George Georgas

Mr Georgas is the partner of Aleksandra Gacic. He had owned a series of restaurants in Sydney since about 1986. He has been a regular reader of Good Living for many years. He described it as "the gossip column of the hospitality industry" and he read it for that reason.

He ate at both restaurants in September 2003. They were both fairly full. The quality of the food was very good and the service was fine. Based upon what he observed of Aleksandra Gacic when she read the review, he said she was totally devastated. All three plaintiffs basically changed from being happy to being miserable. Ervin Nadel

Mr Nadel was a friend of the plaintiffs. He went to the opening of the restaurant. He ate there as well although, being a fussy eater, he did not eat food from the menu but instead ate something prepared to meet his tastes. He enjoyed the food but conceded that the service he got was probably better than usual because of his friendship with the plaintiffs.

Aleksandra and Ljiljana were badly affected by the review. He said that he "noticed that the ladies had different attitude towards the whole of Sydney because of that". Brendan Manning

Mr Manning is a solicitor. He first met the plaintiffs when he was an employed solicitor with Mr Ted Tzovaras. The plaintiffs were seeing Mr Tzovaras about the commercial aspects of starting up their new business and restaurant. He met them and spoke to them in that capacity. He described them in answer to the following question: "Q. Well then, from your observations of each of the three plaintiffs prior to the opening of the restaurant, what can you tell us about their demeanour? A. They were very confident. They were very effervescent, talkative, happy. They were optimistic. They were very much looking forward to opening this restaurant, being part of Sydney - they have come from overseas so you understand - and very confident people. Talkative, look you straight in the eyes, shake your hand, yeah, they looked like they were going to do things, very much that sort of people."

He was also asked about the food at the restaurant when he ate there with his wife some time after the review was published: "Q. Now, what was your opinion of the food? A. It was - I rate food as five star, four star, three star. I wouldn't call myself a fine diner but I have dined through business as a lawyer in Sydney at all the major restaurants and it was up there, you know, in - the food was high quality. It - it was typical menu of that type of restaurant. It was fine. I mean, it wasn't a four star, in my opinion, as I rate the other - it was in that range, the food was fine."

Mr Manning described what he observed of the plaintiffs after the review was published: "Q. Now, can you tell us something about their demeanour, each of them, their demeanour after the review? A. I could only express that they were - they appeared to be shell-shocked. They were devastated by the review. They were very emotional. They were bewildered. The confidence that I had seen in them before was just gone. They were arguing amongst themselves. They just looked like people - yeah, they were just devastated. They were just not the same that I saw previously."

Mr Manning took instructions for the letter seeking an apology from the defendants. That letter is set out earlier in these reasons. The defendants' witnesses

No witness from the first defendant was called. Mr Evans was the defendants' first witness. Matthew Evans

Matthew Evans was born in 1966 and left school in 1983. He commenced as an apprentice chef at a Canberra restaurant but discontinued that after about 18 months and transferred to Canberra University doing a degree in applied science. He completed his degree in 1990 and returned to his apprenticeship. He eventually completed his apprenticeship at the Hyatt Hotel in Canberra and was awarded his trade certificate in about 1993.

Mr Evans said that when he was an apprentice he was injured and took some time off work as a result. During this period he had six months when he did not work full-time. He was asked about this: "Q. Did you discover something in that six months that you found interesting, that interested you? A. I found a few things I discovered. I discovered - food writing is one of the things I discovered, is that for this period when I wasn't working, I was very concerned that this profession that I had embarked upon I wouldn't be able to finish, that I may never be able to get back to work, and so I started to read about food because I was so interested and I discovered that there was this whole other world of food besides working just in a restaurant and this was explained in magazines and newspapers."

He gave evidence of the type of experience he had working in restaurants and the type of food with which he became familiar. He worked in Darley's restaurant at Lilianfels at Echo Point and with Chris Manfield at her restaurant Paramount in Sydney. He began writing food related articles for the Canberra Times . He began contributing to the Sydney Morning Herald Good Food Guide . He taught at a hospitality school in Sydney. In the mid to late 1990s he moved to Melbourne to do food writing there. He became the café reviewer for The Age . While there he also edited a book called Cheap Eats for two years. He was later commissioned to write a book known as the World Food Guide to Italy , which was a publication by Lonely Planet. He spent seven weeks in Italy on this task. When he moved back to Sydney he became the features editor for food and travel in Vogue Entertaining and Travel magazine. Up until that point he had written for the Gourmet Traveller Restaurant Guide but it competed with Vogue so he lost that job when he started there. At the start of 2001 he left his job at Vogue to join the Sydney Morning Herald where he had the role of chief restaurant reviewer.

Mr Evans' duties there were to find and review restaurants that would be of interest to the dining public. The job involved trying to find a range of restaurants in terms of geography, price and style. He remained in that job for five years producing what he described as approximately 50 full-sized reviews each year for the Sydney Morning Herald and about 100 each year for the Good Food Guide . Mr Evans gave this evidence: "The idea of reviewing restaurants was to find places of interest which typically means new restaurants but every six weeks, thereabouts, I tried to find an existing restaurant that was reviewable for a reason, perhaps it hadn't been done for years or they had had a change in chef or change in standard, something like that, but mostly it was about new restaurants."

In the period that he was the chief restaurant reviewer at the Sydney Morning Herald he also travelled overseas for the purpose of looking at restaurants. These countries included France, UK, Vietnam, Italy, China, USA, Latvia, Denmark and Germany. There may have been others. He also travelled around Australia on a regular basis to get an indication of the standards here.

Mr Evans said that he became aware of Coco Roco from the PR company that represented the restaurant. They sent him something to do with it. He was unable to say exactly what that was. He was subsequently shown and identified documents that were sent to him by Nikki Landa from the Mark Patrick Agency. He decided to go to Coco Roco because it was suggested as a very fancy new restaurant in an area that was possibly going to be a very interesting dining strip on the water in Sydney. When he went there on 5 September 2003 he thought that it had been open for at least a few weeks at that stage.

The circumstances in which Mr Evans' reservation for lunch on 5 September 2003 was made, and the controversy surrounding it, have been referred to earlier. He entered from Lime Street. There were about a dozen other diners at Coco when he was taken to his seat. He received a menu and a wine list. He thought there were only two waiters there that day. The waiter he spoke to about it did not seem to be familiar with the wine list. He explained how he chose what to order: "Q. Did you then, at that time, have any kind of practice at all which guided you in choosing dishes when you were reviewing a restaurant? A. Yes. In general practice, I like to try dishes that tested the skill of the restaurant. So, I would tend to order - I didn't order natural oysters very often. I am more likely to order something with - where there is cooking involved, rather than sort of just opening a box or a packet, and I try to order a range of dishes, so not just red meat or not just chicken, but a range of dishes."

Mr Evans was taken at some length and in some detail through what he ate on this occasion. He more or less reiterated the descriptions he had used in formulating his original critique of this meal. He referred to the "curdled" seafood foam that tasted "like reflux", the disgusting limoncello oysters that were slimy, and bitter and excessively alcoholic, where "the astringent nature of the saffron was not complementary to the oyster". The verjuice was exquisite. The carpaccio was perfectly fine and what "you would expect from a carpaccio in terms of flavour and texture". He said, "It looked like it had been very freshly sliced, no drying, lovely looking meat".

However, the almond paste was "reasonably grey" and "looked like an oily concrete, oily cement, something like that". It "tasted a bit stale and a bit bland" and "didn't have the sort of freshness and fragrance and all the nuances [he] would expect from freshly ground almonds". He referred to it as "old and tired". The rocket leaves were yellowing and the accompanying parmesan "had a tired old fridge-tainted flavour". The scallops came on shells that were dull, not shiny, very jagged around the edges and they looked like they had been through a dishwasher. The scallops themselves were "a little insipid or a little flaccid in flavour". The accompanying cauliflower puree was "smooth" and "very clean", but without the "fragrance that you get from vanilla through the almost nuttiness of cooked cauliflower".

He was asked about the main course: "Q. We will move on to the main courses. We will deal first with the prime rib and the sherry-scented white sauce. Was there a reason why you ordered that? A. The reason, yeah, there is a reason, yes. The menu from memory, and I am going back a number of years, had a separate meat section, so I think there were three, maybe four beef dishes, and I thought, well, they're obviously pretty proud of their meat so I should try a meat dish. Q. When it came to the table, this is the prime rib with the sherry-scented white sauce, describe the appearance, what did you see on the plate? A. It was a piece of meat on the bone. It was a really nice generous chock of meat, two and a half centimetres tall of meat, beautifully brown on top. This may be a bit technical, but rested well, so it wasn't bleeding, dripping blood on the plate so it had been handled well, and the bone - and the sauce, from the best of my memory, was a little bit on the steak and a little bit on to the plate, so masking part of the meat but only part."

Mr Evans was highly complimentary of the meat. He described it in the following way: "The meat was really good. It was everything you would hope for from a prime rib. It had a great depth of flavour, a good beefy flavour, so I presume good quality meat and well handled. It was cooked about medium, I believe we wanted it, and it came out textbook medium."

Mr Evans was not able to extend the same generosity to the accompanying garnish. He scraped it to the side of his plate. He said, "I guess you could choose to eat most of the steak without it but together it was highly unpleasant, highly unpleasant". He also said, "it was reasonably thickish, not thick in a custard sense but thick enough, not thin like a jus or anything like that" and "strongly alcoholic like raw sherry, excessively strong". The apricots in it were firm, not soft as he would have expected, and rubbery to cut through.

Mr Evans disliked the homemade mustards. The lavender mustard tasted "not dissimilar to naphthalene". The Guinness mustard lacked pungency, and was excessively and unpleasantly bitter. The milk mustard was "pretty average".

The main course of chicken "didn't taste a lot like good chicken". Mr Evans said that he had had Glenloth chickens in the past. He said, "they tend to be everything you want from a chicken, which is I guess a depth of flavour and interesting flavour". This chicken did not taste "chickeny". It was supposed to be marinated but he could not discern any of the lemon, marjoram or bay leaf flavours he expected. It did not taste like any of the 20 or so other Glenloth chickens he had eaten previously. He was asked about it: "Q. Was there anything notable about the flavour of this particular chicken? A. The most notable thing to me was the absence of any of the other flavours, as well as the chicken flavour. To me it was a shock when I went back and re-read the menu when I was writing the review to find that there was supposedly some other flavours in there because I didn't discern them when I ate the dish."

He did not eat dessert on this occasion.

Mr Evans came back for dinner at Coco on 10 September 2003. He had been uncertain about whether or not to even write a review after the first visit. He explained his view as follows: "Generally most of the restaurants reviewed for the Sydney Morning Herald were restaurants that passed, got more than ten out of twenty, and my personal philosophy and the philosophy of the newspaper I believe at the time was to generally tell people where to go, not where not to go, because I think people can find a bad restaurant without needing any help. So it would only be in the exceptional circumstances that I would revisit - I would go to a restaurant and fail it. It was only three times in five years that I failed restaurants."

However, Mr Evans decided that it would be appropriate to review the restaurant for the paper. He also explained why he formed this view: "Because having had the meal and having gone away and thought about it and realised that this restaurant was touting itself as - from memory, you know, the first thing I got about it said it was Sydney's most glamorous new restaurant and it was setting itself up to be in the top tier of Sydney dining and I felt that they were failing to reach that top tier and it was incumbent upon me as the chief reviewer of the Herald to point that out."

He decided to give them another chance. He went with a different companion but sat in a similar location. There were once again only two waiters working that evening. He started with a salad "that had this beautiful fine cress, small looking cress on the top and underneath it some bigger leaves, not quite a tiered salad but that kind of thing". On closer inspection he noticed some yellowing and wilted leaves. He said that apart from the wilting leaves it was everything one could expect in a salad. However, he did not like the dressing, which was excessively sweet and not made with the finest quality balsamic.

The main courses were pork belly and poached beef. The pork came snuggled into "a muddle of lentils" which he did not recognise as the advertised beluga lentils on the menu. The lentils were starchy. The pork tasted excessively hormonal, a "character [that] tends to come from a thing called boar taint". The pork was extraordinarily dry and tended to suck the moisture from his mouth when he tried to swallow it.

He described the poached beef fillet as follows: "The meat itself was good. It was cooked the way we expected in terms of being medium rare. Everything about the meat itself seemed good, except for the very outside of the meat, or towards the outside, where it had coloured. It was dry."

The accompanying sauce was inappropriately sweet and "the sort of syrup you would poach pears in for desert, rather than something you would poach beef in for a main course". Mr Evans said that this "completely overwhelmed the meat, instead of letting the meat flavour shine". The potato was worse: "The flavour of the potato was insipid. It would be the sort of potato that was not even mashable. If you had cooked them that far, boiled them that far, you still would not mash them. They had lost that much flavour."

In stark contrast, the dumplings would appear to have been an absolute triumph. They were described as "beautiful" and "really light and airy". However, whatever praise was directed to the dumplings, the time it took to attract a waiter in order to choose a dessert would appear to have taken the shine off them to some extent.

The cheesecake base was soft, a bit soggy and doughy. Mr Evans thought that it was not properly cooked. The flavour of the pastry in the middle was like raw flour. The sorbet was extraordinarily hard, although he managed to eat quite a lot of it. The flavour was of a berry shiraz but the predominant flavour of the wine was very oaky and of poor quality. The berry flavour was not very pronounced.

Mr Evans was asked a series of questions going to the defences that have been pleaded. They were as follows: "Q. I just want to ask you some short questions about the imputations in this matter. There are three of them. You understand that these defamatory meanings have been found in relation to each of the plaintiffs, each of the three of them? A. Yes. Q. In relation to the imputation the plaintiff sells unpalatable food at Coco Roco, what can you tell the court about whether you held that opinion or you didn't hold that opinion at the time you wrote the article? A. I held the opinion that they sold some unpalatable food at the time I wrote the article. Q. Do you understand that to mean some unpalatable food? A. Yes, I do, yes. Q. The plaintiff provides some bad service at Coco Roco? A. Yes, I believe that to be true when I wrote the article. Q. And the plaintiff is incompetent as a restaurant owner because he or she employs a chef at Coco Roco who makes poor quality food? A. Yes, I believe that to be true. Q. Do you believe that to be true about each of the plaintiffs? A. Yes, I did."

Mr Evans indicated that the prominent words "crash and burn" were not his. He accepted that other reviewers could go to Coco Roco, eat a meal there and form different opinions to the ones he formed.

Mr Evans was taken in detail to his review and to his evidence-in-chief about his visits to the plaintiffs' restaurant. He confirmed that he had no idea that there were two kitchens when he visited Coco Roco or when he published his review. Indeed, he only discovered this recently. He said that when he went through Roco on the lower level on the occasion of his second visit he "wasn't paying attention to chefs in a kitchen at that time".

Mr Evans agreed that when he wrote the review, he was of the opinion that the plaintiffs sold unpalatable food at Coco but he was not of the opinion that they sold unpalatable food at Roco. When he wrote the review he was of the opinion that the plaintiffs provided some bad service at Coco but not at Roco. When he wrote the review he was of the opinion that the plaintiffs were incompetent as restaurant owners because they employed a chef at Coco who made poor quality food but he had not formed that opinion of Roco.

Mr Evans agreed that his review was mainly unfavourable. However, he gave this evidence: "Q. Yes. You held no such opinion, did you, when you ate those meals? A. I held a strong opinion that the food I ate was not of a standard I would expect at that restaurant. Q. Your standard was so high that no-one could live up to it? A. That's incorrect. Q. So you say it was a bad meal, right, but you went back again? A. It wasn't all bad. There were some highlights."

Mr Evans agreed that a very critical review of a new restaurant that is just opening could have dire consequences for the owners. He agreed that it was for that reason that he tried to be accurate. He disagreed that few, if any, restaurants could survive a criticism of the nature of the criticism he gave this restaurant. The defendants' other witnesses Anthony Puharich

Mr Puharich is the managing director of Vic's Premium Quality Meats, which is a meat wholesale business that supplies the food service industry in Sydney and Melbourne such as hotels, restaurants and the like. The company has been supplied by Glenloth Free Range Pty Ltd for about nine or ten years. According to Mr Puharich, Vic's Premium Quality Meats was the only supplier of Glenloth poultry to Sydney restaurants in 2003.

Mr Puharich had been asked to go through computer records maintained by his organisation to turn up documents that showed whether or not it had supplied Glenloth chicken to Coco Roco in August or September 2003. He said that, having examined these documents, they did not show that Vic's Premium Quality Meats had supplied either Coco Roco or Haverick Meats with a Glenloth chicken during this period. Ian Milburn

Mr Milburn is the managing director of Glenloth Free Range Pty Ltd, which grows and markets corn fed free-range chicken and game birds. He currently supplies Vic's Premium Quality Meats and Haverick Meats. He did not make any supplies to Haverick Meats at all during 2003, which he only started supplying in July 2004. Mr Milburn also gave evidence that he had reviewed records that were produced by his company and satisfied himself that there had been no supplies directly to Coco Roco restaurant.

Mr Milburn was asked whether there was any reason why he did not supply Haverick Meats with Glenloth chickens in 2003. He said that there was no reason apart from the fact that he did not know about them. Gail Frances D'Arcy

Ms D'Arcy ate with Mr Evans on the first occasion. Her evidence has already been referred to in part.

She ate the limoncello oyster. She described it in the following terms: "Q. How did it taste? A. It tasted disgusting. It was possibly - I think it was possibly one of the worst things I've ever eaten. I put it in my mouth, thought, you know, crikey, I have to now swallow this. In a polite restaurant at lunch time I couldn't really spit it out, I had to swallow it, and it was really disgusting and it was almost kind of gag material, yeah."

She also ate the chicken. It was dry. She said she was a "kind of slightly above average cook" and that she could have cooked better. She read Mr Evans' review and remembers thinking, "that pretty much sums it up". Drew McLennan

Mr McLennan died before these proceedings were heard. A statement had been prepared for him in anticipation of giving evidence. It is undated and unsigned. Subject to certain objections, the statement became an exhibit in the defendants' case.

He said that he took on the role of functions manager at Coco Roco in early September 2003. He said that he dined at Coco as part of his employment on many occasions. He described the food as "very hit and miss". On some occasions the food was exquisite and on other occasions it was appalling. He provided his opinion about the dishes that were offered and the service at the restaurant.

He left on bad terms and contends that he was owed money for his work at the restaurant. Interrogatories

The defendants tendered a series of interrogatories administered to the plaintiffs. All of the plaintiffs answered the same interrogatories in identical terms. They reveal that the plaintiffs engaged MP Agency as publicity agent for Coco Roco, which was given general instructions related to promotion of the venue and specific instructions related to promotion of two restaurants Coco and Roco. They also appear to demonstrate that Coco was open to the public prior to the official opening on several occasions in the period from 15 or 16 August 2003 to 5 September 2003 but not every day. Coco was open to the public for lunch or dinner only on each of 15 or 16, 19, 20, 21, 22 and 23 August 2003. On 27, 28, 29 and 30 August 2003 Coco was open to the public for lunch and dinner. The answers, however, also say this: "Prior to 05/09/03, Coco restaurant was not open to public on 15 or 16/09/03, 17, 18, 24, 25, 26 and 31 August 2003, 1, 2, 3, and 4 September 2003". [sic]

These answers are not clear when taken together. I have some difficulty understanding what the interrogatories establish about opening times in these circumstances. The defence of comment The defendants' submissions

There was no fundamental difference between the parties concerning the essential elements of the defence of comment. The defendants emphasised what was said by Denning MR in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170: " . . . the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements."

According to the defendants, Sir Frederick Jordan put it more pungently in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 174 when he 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".

In this case, the defendants plead the defence of comment pursuant to the Defamation Act 1974 (NSW), the defence of fair comment at common law in respect of publications in the ACT, Victoria, South Australia, the Northern Territory and Western Australia and the code defences of fair comment in respect of publication in Tasmania ( Defamation Act 1957 s 14) and Queensland ( Defamation Act 1889 s 14). The law as it applies to the facts of this case is largely the same for each jurisdiction. It is common ground that the uniform defamation statutes of 2005 do not apply to this case.

Pursuant to s 29 of the Defamation Act 1974 , the defence of fair comment at common law is modified in accordance with the succeeding statutory provisions in Division 7 of the Act, and is only available in accordance with that division. The defence of comment has been pleaded to each of the three imputations. In order to determine whether the imputation should be regarded as a statement of fact or an expression of opinion, the tribunal of fact is required to consider the published material and consider whether the publisher conveyed the defamatory imputation as an expression of opinion on the one hand, or as a statement of fact on the other hand.

In Radio 2UE v Parker , Clarke JA said at 467-469: "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. In this respect, as I have sought to point out, the actual form of the pleaded imputation is not a relevant consideration. What the jury is required to consider is the published material in order to determine whether the writer or speaker conveyed the defamatory statement which, according to its finding, the published matter conveyed as an expression of opinion or conclusion on the one hand or a statement of fact on the other.

Comments to the same or similar effect can be found in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 345 per Priestley JA (with whom Sheppard A-JA agreed) and in John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [37]. The defence of comment is made not to the article as a whole but to the imputation. It should be noted in passing that this now appears effectively to be the test for the defence at common law also: see Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [2], [76] - [87], [83] and [169].

Accordingly, the task for the Court is to consider the matter complained of and decide whether the imputation was conveyed as an expression of opinion rather than as a statement of fact. This is a question of substance, not of form. It is a question of context: Mackay v Bacon [1910] HCA 71; (1910) 11 CLR 530 at 535-536; John Fairfax Publications v O'Shane at [27]. In determining whether the material is fact or comment, all the circumstances in which the publication was made must be taken into account, including the manner of expression, the context, the tone, the relationship between the material relied on and the alleged comment: Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531. Comment may be constituted by a deduction, an inference, a conclusion, a criticism, a remark or an observation: John Fairfax Publications v O'Shane at [25] - [26]. Comment can arise purely by inference from the terms of the matter published. In Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195, Mahoney JA said that this was: " . . . because it is an unexpressed but implied step in the argument presented by the material published. It may be derived as the conclusion implied by, but not expressed in terms in, that argument or an inference suggested by but not appearing in terms in that material. It may be a judgmental statement or conclusion which the material published implies, but does not state in terms".

In Petritsis , the relevant imputation was that "the plaintiff was a person unfit to be and remain a priest". The matter complained of nowhere made that statement expressly. The imputation was one of pure inference.

The standard by which the test is applied is that of the ordinary reasonable reader, with his or her knowledge of the world and knowledge of what appears in newspapers. The question was whether the ordinary reader would understand what was published was a statement of fact or an expression of opinion: see, for example, Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 at 302.

According to the defendants in the present case, applying those tests against the standard of the ordinary reasonable reader, with his or her knowledge of the world, there can be no real argument that each of the imputations was conveyed as comment rather than as a statement of fact. As the High Court and the Court of Appeal have noted, the context is important. This was a food review. The ordinary reasonable reader is familiar with the concept of a review. He or she would understand that Mr Evans was giving his estimation or opinion of the food at the restaurant in question. The format of the matter complained of is that of a review: the writer sets out the details of the food he ate, gives his opinion of it, gives his overall estimation, including the scoresheet and the summary, and provides some additional information about the establishment.

Moreover, the article appeared in the Good Living section of the Sydney Morning Herald which is, and which would be understood by the reader to be, a food, drink and leisure section of the paper. For example, on the front page of the section there is a promotion about cellaring beer and "best jeans under $200". The reader would understand, in reading Mr Evans' review, that he or she would be getting his opinion of the plaintiffs' establishment.

The second defendant said, in the opening paragraphs of the matter complained of, that the restaurant served "good as well as bad food", and that "more than half the dishes [he had] tried at Coco Roco [were] simply unpalatable". In the balance of the matter complained of, he went on to state how he reached that conclusion, by setting out each of the dishes he consumed, stating certain facts about them, and giving his opinions about them. The matter complained of prominently included a numerical assessment, which could only be understood as the reviewer's subjective opinion of the establishment.

The first imputation is that "the plaintiff sells unpalatable food at Coco Roco". Applying the authorities set out above, and the test laid down by Clarke JA in Radio 2UE v Parker , the task of the Court is to have regard to the matter complained of, and the context as a whole, and determine whether the imputation would have been understood by the reader to be conveyed as a statement of opinion. In the context of the whole article, which was a restaurant review appearing in the Good Living section of the paper, the reader could only reasonably understand that meaning as having been conveyed as an expression of the author's opinion or estimation of the restaurant. In particular, the reader would note the judgmental conclusion that more than half the dishes were "simply unpalatable", and understand that to be the writer's conclusion based on what follows, with the opinion reinforced by the low overall score and the other conclusions and remarks unflattering to the restaurant, such as that it was a bleak spot on the culinary landscape and deserving of a score of 9 out of 20.

The second imputation, that "the plaintiff provides some bad service at Coco Roco", obviously arises principally from the side note that the service was "good and bad" although it is said by the plaintiffs to be conveyed in combination with the "crash and burn" comment and the suggestion that "dining on the view is the only recommendation". The plaintiffs are described as the owners. Again, because of the context, this imputation could not reasonably be understood as other than the second defendant's "judgmental conclusion" ( Petritsis ) about the service provided at the restaurant.

It is not to the point that no explicit example of bad service is set out in the matter complained of. A review constitutes an exception to the general rule that the facts on which the comment is based must be set out in the matter complained of, or be otherwise notorious. It would be, in practical terms, impossible to critique a film, a play, or a restaurant if the law were otherwise. In the case of a review of something submitted to the public and thereby inviting comment, the subject matter upon which the criticism is made has been submitted to the public "though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues. Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded": Kemsley v Foot [1952] AC 345 at 355-356. That passage was approved by the High Court in Pervan v The North Queensland Newspaper Company Ltd [1993] HCA 64; (1993) 178 CLR 309 at 327 and applied by the majority in Channel Seven Adelaide v Manock at [72].

Here the reader would understand the imputation that the plaintiffs provided some bad service as a subjective judgment contained in a restaurant review and obviously based on the experiences of the reviewer on the occasions he visited it. It would be understood as his assessment of the standard of service at the restaurant.

The notion of "incompetence" contained in the third imputation arises by implication or inference. Again, given the whole context of the matter complained of, the defendants contend that the ordinary reasonable reader would understand this inferential imputation as the second defendant's "judgmental statement or conclusion which the material published implies, but does not state in terms": Petritsis at 195. The plaintiffs' submissions

As I have already indicated, the plaintiffs agreed that the defendants had correctly analysed the principles that I am required to apply. The plaintiffs took no issue on the question of public interest or similar concepts to the extent that they remained relevant. The plaintiffs did not dispute that malice was irrelevant as a matter of defeasance except to the extent that it could be used to demonstrate or to infer the absence of an honestly held opinion. The plaintiffs emphasised that if Mr Evans did not intend to convey any of the imputations, he cannot reasonably be taken to have held the opinion represented by that imputation and, therefore, the defence of comment fails in respect of that imputation. The plaintiffs specifically accepted in terms that if Mr Evans said that he honestly believed in the truth of the imputations, there was no need to ask him if he also intended to convey the imputation. Counsel for the plaintiffs expressly agreed with the uncontroversial factual matter, that Mr Evans had expressed agreement with the proposition he had put to him, that he held the opinion conveyed in the terms of the respective imputations.

The plaintiffs did not accept that what Mr Evans wrote qualified as comment. The primary submission proffered in aid of that position was that Mr Evans' article did not give a substratum of facts, or did not indicate matters that are not notorious, in a way that the reader can identify as comment. However, the principal thrust of their attack was to argue that, if what he wrote did otherwise qualify as comment, Mr Evans did not honestly hold the opinions he expressed. They attacked him as an untruthful and biased witness. These matters are all discussed below. Consideration of the defence of comment

Sections 29 - 35 of the Defamation Act 1974 deal with the defence of comment. It is unnecessary to reproduce those sections of the Act here.

In Channel Seven Adelaide v Manock at [4] - [5] Gleeson CJ clearly set out the applicable principles as follows: "[4] In Pervan v North Queensland Newspaper Co Ltd , McHugh J described as 'the conventional case of fair comment' one where the basis of the comment appears in the publication and the reader (or viewer, or listener) is able to judge whether the facts justify the comments. He said that was very different from what he called 'the Kemsley situation'. It will be necessary to return to consider exactly what such a situation is, but, in one respect, this description of the conventional case may be unduly narrow. The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable. [5] However, to satisfy the requirements for the defence, it is not necessary that the facts upon which the comment is based be stated in the terms of the communication itself. The rationale is also satisfied if, to use the language of the majority in Pervan , the facts are 'sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded'. It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ's summation that 'comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.'

His Honour also said this at [8] - [9]: "[8] In the Court of Appeal in Kemsley v Foot , both Somervell LJ and Birkett LJ (with whom Jenkins LJ agreed) assimilated the conduct of the newspaper proprietor to that of an author, artist, or performer (or, nowadays, a professional sportsman), who submits a work or publication or performance to the public. Obviously, the readers of a commentary on a theatrical performance may not be able to see the performance and judge for themselves whether the commentary is well supported. Yet the defence of fair comment is open. Whether one treats this as a particular aspect of the public interest, or as a different subject of comment, is not presently important. The essence of 'the Kemsley situation' is that certain forms of conduct are of such a nature as to invite comment. That is the genus of which books, and artistic works, and theatrical performances are species. Where conduct is 'submitted to public criticism', then, so long as statements about that conduct are presented as comment and not as facts, it is not necessary that a reader, viewer or hearer of the comment should be in a position to form his or her own opinion. Conduct of that kind stands apart from "the conventional case". It was the conventional case to which Lord Nicholls of Birkenhead was referring in Reynolds v Times Newspapers Ltd and Cheng v Tse Wai Chun , and to which the majority in this Court was referring in Pervan . [9] In the present case, the condition stated by King CJ in Pryke was not satisfied. To be protected by the defence of fair comment, the defamatory matter had to be recognisable as comment and not as a statement of fact. The facts on which the matter was based were neither stated nor indicated with sufficient clarity to make it clear that it was comment on those facts."

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. As the defendants have also emphasised, and as the plaintiffs accept, the Good Living section of the Sydney Morning Herald was a section of the paper regularly appearing in the Tuesday edition and always containing a restaurant review by Mr Evans or one of his well known successors or predecessors. It is not without some significance that the plaintiffs all became aware of the matters complained of on the very day that it was published. Mr Georgas' comment, that Good Living was "the gossip column of the hospitality industry", has not been contradicted, and is borne out by other evidence in this case.

Because "it is well established that the words complained of must be construed as a whole and in context" (see Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2000-2002) 54 NSWLR 165 at [26]), the format and positioning of the review are significant. For example, the matter complained of did not appear in the body of the paper as if it were a news item where, if it had, some doubt may have been raised about whether or not the report was promoting the contents as a statement of fact. It is patently not a reporting of events as if it were news of some happening. The published material is structured in a way that sets out what the author did and takes the form of his assessment of what he encountered when he did it. It is not as if Mr Evans has simply regurgitated the opinions of others without knowledge of the underlying facts upon which those opinions were based.

The material upon which any views expressed by Mr Evans are based is also stated in the body of the publication. Whether or not a new (or even an established) restaurant cooks or serves food that is good or not so good or something in between is clearly a form of conduct of such a nature as to invite comment. The facts here on which the defamatory matter is based are in my opinion either clearly stated or indicated with sufficient clarity to make it clear that what is said was comment on those facts. There are many examples of this. Mr Evans described the texture of the seafood foam as "let's be polite, not to my tastes". This is associated with a detailed description of the limoncello oyster in question, "all at once . . . sickly sweet, overtly alcoholic, slippery, salty and bitter". The readers are sufficiently able from this material to identify what is said as comment on those facts and to assess for themselves whether the facts support the comment. "Starchy lentils", "unevenly spiced", "soggy pastry base" and "dreary roast almond paste" all fall into the same category.

One of the key indicators of this in my opinion is that the review is neither universally uncomplimentary of the restaurant nor based upon anything other than the actual meals that were served to Mr Evans and his companions. He does not purport to assess the restaurant by reference to anything that he did not personally experience. For example, he commences his review by referring to "more than half the dishes I've tried" being "simply unpalatable". It is obvious that Mr Evans is commenting on what he ate and differentiating between some dishes that he considered were good and those that he considered were not. This neither appears in its form nor its content to be a statement of fact. Nor could it be. The ordinary reasonable reader would understand that Mr Evans or anyone else might arrive at a view of a restaurant's food that may or may not be shared by others who may have eaten there. Some food he liked and some food he did not like. That was his opinion. That is what he said in his review. The same applies to the service and his view of anyone who would employ a chef who produced the food he consumed.

The review is written in a style to which the plaintiffs have taken exception. This is said to be relevant to the question of whether or not Mr Evans held the opinions he expressed. This is referred to below. However, the very fact that Mr Evans' writing style is peppered with idiosyncratic allusion and metaphor supports the proposition that the reader would be aware, if not more than aware, that what she or he had read was unambiguously someone else's opinion or inference or evaluation or judgment. For example, references to "flavours [that] jangle like a car crash" or to a dessert that "jangles the mouth like a gamelan concert" are hardly likely to strike the reader as anything other than literary flourish to convey the writer's view, even if expressed in extravagant language, with an undoubted emphasis on entertainment, if not controversy. His reference to the chicken as "outstandingly dull" is another example of a particular writing technique, clearly intended to create a contradictory image of something that is simultaneously conspicuous or prominent yet irrelevant. His reference to "the porcine equivalent of a parched Weetbix" is another example of this technique but with the added characteristic of blunt humour. These things would in my opinion have struck the ordinary reader as statements of opinion based upon or about the facts otherwise identified in the body of the review. The fact that the review contains many statements of approval, such as the "oxtail and sweetbread dumplings were a delight" or "a generous chock of meat comes perfectly rested, medium as ordered" underscores the notion of the whole article as an expression of opinion by reference to specific facts stated or at least sufficiently indicated. The reader is able to judge whether the facts justify the comments.

I have referred elsewhere in these reasons to epistemological considerations. It is never possible to know whether Mr Evans' perceptions of what he ate would always or ever accord with the perceptions of his readers. Mr Evans can do no more than give his subjective assessments of the restaurant. The fact that room exists for more than one opinion was exemplified in the evidence given by the plaintiffs' witnesses who attested to their enjoyment of the Coco Roco experience. It is trite to observe that views about food and service can differ and legitimately so, often within a small frame of reference. Ms Matthews and Mr Richards and the Tilleys all ate at Coco Roco more often than Mr Evans. Their opinions were different to his. They were nonetheless expressions of opinion only and not statements of fact. Every reader of Mr Evans' review would consciously or unconsciously incorporate, in his or her assessment of what the review contained, an understanding based on life's experiences that Mr Evans was telling his readers that he went to Coco Roco to eat and was recording what he thought about it. These statements are not akin to statements of fact, such as "the recipes for the dishes served at Coco Roco were all lifted from The Ritz on Collins with only small changes" or "the head chef at Coco Roco was sacked from his previous position at Coast restaurant for assaulting diners who sent back his appalling food".

The plaintiffs attacked the genuineness of the opinions that Mr Evans said he held. They did this in a number of ways. The first was to suggest that as he ate only at Coco and not at Roco he could never have held, let alone expressed, a genuine opinion, or indeed any opinion, about Roco. I have already dealt with this attack in the context of deciding that Mr Evans expressed his opinions about Coco Roco and the fact that it was "two restaurants in one" did not mean that it was not still one restaurant or that Mr Evans expressed his opinion about that restaurant. I would have found in any event that the terms of what he wrote make it clear that he was expressing his opinion only upon the basis of what he ate at Coco and that nothing he said derived from having eaten at Roco.

Secondly, the plaintiffs say in the alternative, as an adaptation of this argument, that if what Mr Evans wrote qualifies as comment, he wrote the article carelessly or negligently not caring to distinguish between the two restaurants or what impression the reader might get about Roco from what was said or written about Coco. This is said to support the proposition that Mr Evans' opinions were not honestly held by him. However, I consider that the review clearly informs the reader that Mr Evans only ever ate at Coco so that no confusion has been created.

Thirdly, the plaintiffs even went as far as to submit that Mr Evans' credibility had been so tarnished because of inaccuracies in his evidence that it revealed him to be other than an impartial critic and in fact a malicious person who bore the plaintiffs ill will. The first suggested example of his inaccurate evidence was said to arise from the conflict or confusion between Mr Evans' evidence, and the evidence of Ms D'Arcy, about who made the reservation for the restaurant on the first occasion. This was important from the plaintiffs' point of view because it was related to whether or not Mr Evans was told that Coco was a better restaurant or a more expensive restaurant when he made the booking himself or otherwise formed some independent view about it because Ms D'Arcy made the booking for him.

The plaintiffs quite bluntly submitted that Mr Evans intended to fail both Coco and Roco, and that the basis upon which he intended to fail them both was "all because someone, when they answered the phone, said that Coco was the better restaurant". Counsel for the plaintiffs said, "when [Mr Evans] rang for the booking somebody told him Coco was the better restaurant and if he hadn't been told that then his rationale just collapses". However, counsel for the plaintiffs also conceded, "it's a very small peg to hang your hat on". I agree.

In my view this dispute is without any significance because the Coco Roco publicity and promotional material drew a clear distinction between Coco and Roco in the first place and in any event the prices for the food at each restaurant were objectively disparate in the second place. By the time Mr Evans came to write his review, both of these considerations would have overtaken whatever suggestions were made to him over the phone if he actually made the booking himself, or else would have been the primary, if not the sole, source of his information if he had not. In other words, I consider that Mr Evans was entitled to use the expressions "the posh place upstairs" and "the more expensive option" and to have extracted or derived them from the plaintiffs' own material without thereby evincing or demonstrating a malevolent predisposition towards them. In the end I was given the rather strong impression that Mr Evans did not actually remember who made the reservation.

Fourthly, the plaintiffs submit that Mr Evans' "esoteric" descriptions of the meals he consumed are superficial and lack objectivity. They suggest that the language he uses and the manner of his expression are sarcastic and snide and heavily impressed with venom and bile. Some of these expressions have been referred to already. The plaintiffs suggested that even the word "touted" has a necessarily pejorative tone in the context of the review. "Swank" may be assumed to have a similar characterisation. "At this price I could be dining at Rockpool" suggests dissatisfaction with the price of the restaurant generally. The statement that "the view is the best bit" was gratuitously offensive, according to the plaintiffs. 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 not consistent with the way in which one might expect a properly and honestly held opinion to be expressed.

Fifthly, Mr Evans was also, according to the plaintiffs, unnecessarily strident and unflattering in his descriptions of the fit out. For example, "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" are also said to be words borne of spite or venom. The plaintiffs submitted that the same could be said of the suggestion that the style to which they designed 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".

Mr Evans denied that he wanted to kick the plaintiffs for daring to say that they were a top tier restaurant or that he wanted to level them as so-called tall poppies. However, the plaintiffs maintained that the tone and wording of the review suggested that Mr Evans was actuated by ill will and hostility to them because of what he regarded as their over-the-top advertising or promotion. His recently published book, Never order chicken on a Monday , refers to "cynical business operators probably better suited to immigration detention centres than the business of putting immaculate fresh ingredients on the plates of discerning diners". Counsel for the plaintiffs submitted that such a statement could be an indication of Mr Evans' hostility to particular ethnic restaurant owners including the plaintiffs. Mr Evans was cross-examined about this as follows: "Q. You were angry, were you, that they described themselves as top tier? A. No, I wasn't angry at all. Q. If you could turn to page 212 of your book. At the bottom of page 212 you say, "The worst, of course" - I think these are restaurant owners you are referring to. A. It sounds like it, yes. Q. "Were those who had invested substantial amounts of money, usually in second-rate waterside restaurants, and felt that because of the investment I should score them better." That's what you have written? A. Yes. Q. You say, "In these cases the water views were like lipstick on a pig and didn't fool me." Is that right? A. That's correct. Q. You said, "The owners of these joints were just cynical business operators, probably better suited to immigration detention centres than the business of putting immaculate fresh ingredients on the plates of discerning diners"; is that right? A. Yes, that's correct. Q. And you meant that? A. Yes, I did."

The plaintiffs also submitted that when Mr Evans went to Coco he did not go as the impartial, objective reviewer but that he had a chip on his shoulder. This was said to go to his reliability and to his motives. He said he was contemplating writing a review, but "having had the meal I went away and reassessed whether it was an appropriate thing to do to write a review." However, in her evidence Ms D'Arcy agreed she was aware during the course of the lunch that it was Mr Evans' intention to write a review of the restaurant, at least partially based on the meal he was having with her. According to the plaintiffs, that is a conflict in the evidence that demonstrates that Mr Evans had not made up his mind one way or the other whether he was going to write a review when he went there the first time, so that he should not be accepted. The plaintiffs submitted that Mr Evans "had every intention of writing a review and of writing a review so adversely strong that its impact would be felt by the restaurant and the plaintiffs".

I find this argument difficult either to follow or to accept. It is patent from what Mr Evans said that he had had second thoughts about whether or not to write the review. He appears to have had these second thoughts after he ate there with Ms D'Arcy. That is not inconsistent with her having an understanding while she was at the restaurant with Mr Evans that he then had the intention of writing a review. The fact that he may have thought twice about it later is of no consequence.

I consider that what passed between me and counsel for the plaintiffs concerning this general area of discourse should be recorded at this point. To some extent it informs the way in which the plaintiffs promoted this aspect of their attack upon Mr Evans' motives and hence his ability to establish that he honestly held the opinions he expressed. That material is as follows; "HIS HONOUR: I understand. Just let me check. I understand the proposition. To put this in context, of course, you say that Mr Evans' motive, if it were as you say it was, reflects upon whether he either genuinely held the opinions he expressed and correspondingly whether the opinions he expressed or the reviews that he wrote were true. EVATT: Yes. HIS HONOUR: So, if you can demonstrate that he went there with, or acquired, an ulterior motive - to resort to the vernacular - to slag off at this restaurant, to strike at whatever confronted him, that answers both of those defences. I understand that. EVATT: But the evidence on which I rely is not as abundant ." [emphasis added]

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.

The plaintiffs suggested that Mr Evans was biased and untruthful. As a suggested example of this they drew upon the fact that he had doubted that Coco had served him beluga lentils in one of the dishes he ate. The plaintiffs therefore tendered invoices that showed that the restaurant had been supplied with such an item shortly before his visit. The subject came up in the following way during Mr Evans' evidence in chief: "Q. Are you familiar with black beluga lentils? A. I am familiar with the term. I don't have a definition. Q. You don't have a definition? A. A definition of that I know to be true but that I believe them to be small lentils that are much more rounded and finer shape and faster cooking than, I guess, the big starchy lentils that, yeah - I guess they are a rarer form of lentil, yes. Q. Were these black beluga lentils? A. No, they weren't black beluga lentils. As I understand. HIS HONOUR Q. Sorry? A. As I understand black beluga lentils to be. The - the-- Q. Have you ever eaten black beluga lentils? A. I - I - the term "black beluga lentil" isn't - I don't think you can go to a shop and buy black beluga lentils so I think it is a restaurant-speak for a type of lentil which is very small, expensive and I would know it perhaps as du puy and castelluccio, or something like that, in terms of the quality lentil but I don't believe it's a - I believe it is restaurant-speak for a certain type of lentil. I believe I have eaten lots of those but black beluga is a term, to be honest, that I haven't seen on restaurant menus."

Exhibit "U" was the original of a tax invoice to Coco Roco dated 3 September 2003. One of the items supplied is described as "organic black caviar lentils 2kg" of which three were purchased at a unit price of $22.50. The plaintiffs tendered it when Mr Evans was being cross-examined. Mr Evans maintained his view about the lentils and said, "I don't believe they were black beluga lentils that I was served", when asked the only question on the topic. It was not put to him that he was lying about the lentils in order to damage the plaintiffs' case or that he was biased or had some other nefarious motive.

Mr Evans did not refer to the lentils by any name in his review but only offered the comment that they were not beluga lentils, as he understood them, in the evidence just quoted. I consider that the evidence on balance reveals that Mr Evans did not have a good understanding of the product and his opinion that he had not been served what the menu referred to is a function of his state of knowledge. I do not consider that his evidence on this topic shows Mr Evans to be untruthful, even though I accept that he was in fact served the genuine article. It may reflect upon Mr Evans' expertise, as the plaintiffs contend, but I disagree that it "is another nail in the coffin of [his] credibility" as their written submissions have alleged.

Finally, there was some suggestion that the writing of an unfavourable review was an act of revenge at the behest of some people who had been sacked. The defendants submitted that this was entirely unfounded and not even put to Mr Evans. There was no satisfactory evidence to support the allegation and the failure to challenge Mr Evans about it is fatal to its viability. I did not get the impression that Mr Evatt had placed any store in this allegation and appeared not unnaturally in the circumstances to distance himself from it. Conclusions on the defence of comment

I find that the defence of comment is established with respect to all three imputations and in respect of all three plaintiffs. In my opinion the plaintiffs have not established that Mr Evans was not a truthful witness in general or that he did not honestly hold the opinions that he expressed in his review in particular. The defence of truth

Although it has become strictly unnecessary to do so, I shall proceed to deal with the defences of truth and, if applicable, contextual truth.

Section 15 of the Defamation Act 1974 deals with the defence of truth. It is as follows: " 15 Truth generally (1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section. (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege." The defendants' submissions

In order to succeed on that defence, the imputation to which the defence is pleaded must be a matter of substantial truth and the imputation must also relate to a matter of public interest. The last element was not controversial and was accepted by the plaintiffs to have been established. The defence in all the States and Territories, both at common law and under statute, only requires what is called substantial truth. In this case the defendants specifically accepted, in relation to the defence of truth, that they had to prove the objective fact that the food, or at least some of it, was of poor quality, to establish that the third imputation is substantially true as well as the concept of incompetence as a restaurant owner.

On the relationship between the proven state or quality of the food and the proof of the competence of anyone who would employ a chef who produced it, the defendants made the following submissions: "BLACKBURN: . . . What I meant to say was, by calling someone to say something in the witness box, it could not really be regarded as a matter of expert evidence. You could not get someone with a wealth of experience in the restaurant industry saying, as a matter of fact, if you employ a chef who makes poor quality food you are an incompetent restaurant owner. It is a perfectly legitimate matter of fact, but it is within the general knowledge of the jury. It is just a factual question that your Honour has to answer, drawing on your Honour's knowledge of the world, with the relevant evidence. I do not think I can put it any other way than that. We would say, as a matter of commonsense, if you do employ a chef who turns out dishes like this, then that reflects badly and very unfavourably on your competence as a restaurateur. If you run a restaurant, then you hold yourself out to be, and you are, a restaurateur. The employee of first response in a restaurant is pretty obviously not the waiter, not even the head of the house, not even the sommelier, but the person who cooks the food, because people go to restaurants to eat the food. If you fail to engage a chef, or if you engage a chef who makes dishes like the ones described by Mr Evans, that must, as a matter of commonsense, reflect on your competence as a restaurateur. So, that's the way we put it."

The defendants accepted my formulation that "incompetence as a restaurant owner" was shackled to the notion of one who "employs a chef who makes poor quality food". Mr Ciric accepted the relationship whereas his co-plaintiffs steadfastly refused to even accept that they were "restaurant owners" or restaurateurs.

The concept of poor quality food was also discussed as appears from the following extract: "HIS HONOUR: Could I just interrupt you. The expression poor quality, am I to understand that as being poor quality meaning not good quality before it was cooked or poor quality after it was cooked or both? BLACKBURN: Depending upon context possibly both, but substantially what hit the table, what came to the table on the plate. The food is prepared in the kitchen. In our submission your Honour is to understand that in the context of a restaurant review as meaning the dishes served up to Mr Evans."

I also found it necessary to establish, if possible, what was contemplated by truth in the context of statements of opinion about matters where no two people may necessarily agree. Must truth for the purposes of the defence be capable of objective assessment or is the accepted opinion of one person enough to establish it? I discussed this with senior counsel for the defendants as follows: "HIS HONOUR: Just on that issue, when I came on this morning I was talking about a tension between comment and truth, that the expression of an opinion is one thing, the opinion expressed may quite independently be capable of being demonstrated of things that are true. BLACKBURN: Yes. There is really no bright line between them. Your Honour is perfectly correct. On the other hand if you say, well, I had an oyster with saffron infused gin on it, I thought it was disgusting, then it is more evidently in the realm of opinion. In other words, if you say I had an oyster with a split, curdled appearance of the garnish and it tasted like reflux then it is more over towards the other side of the line, in our submission. There is not necessarily a tension between the two."

The defendants contended that bad service was in a slightly different category because the precise service could be described and evaluated beyond the vagaries of taste or personal preference. The defendants submitted that if Mr Evans was believed, he had truly received some bad service. There was an unacceptable delay in attracting a waiter's attention at one stage and a salad of mixed leaves had been served at the table without evenly distributing the various kinds of leaves to both diners. The only reference to service in the matter complained of is the sidenote in the terms " The Service Good and bad". The defendants submissions were as follows: ". . . Mr Evans gave evidence that, for a period of time, between five and ten minutes, he was trying to get the attention of the wait staff during the 15 or so minutes from the clearing of plates to the time that he got the attention of the wait staff. The proposition we put about that is quite simply this: If you are in a high class restaurant like this, good service demands, or good service is provided, by the waiter discreetly keeping an eye on what the diner wants, and their needs, after the main course plates have been cleared away. I think the evidence was that they got their menus in a fairly timely way and then, after a period of some five to ten minutes, Mr Evans began to try to get the attention of the waiter in the usual way you do. You raise your hand. You try to make eye contact. But no-one was looking. In a restaurant of this calibre, that amounts to bad service. That is the submission we make about that. Those are the factual matters in relation to the truth of the two imputations that we justify."

The defence of truth was not raised in respect of the first imputation. The plaintiffs' submissions

The plaintiffs contended that the defence of truth was not made out to either of the imputations to which it was pleaded. They argued that the evidence that some bad service was provided at Coco Roco was very weak. This included evidence about the distribution of a salad, without mixing various combinations of different leaves, the service of leaves with the carpaccio that were yellow or wilted, when that should not have happened, as well as the evidence of allegedly bad or poor service when it was not possible to get the attention of a waiter in a timely way. The plaintiffs' submissions on the truth or otherwise of the imputation that they provided some bad service came down to the following summary: "The examples [Mr Evans] gave do not amount to bad service. They might amount to slow service, even poor service, but not bad service."

In relation to the imputation that the plaintiffs were incompetent as restaurant owners because they employed a chef at the restaurant who made poor quality food, the plaintiffs submitted as follows. To prove truth, the defendant must establish each element of this imputation. Each plaintiff must be incompetent because she or he employs a chef who makes poor quality food. That must of necessity incorporate some knowledge that the chef did in fact make poor quality food. Poor quality food does not mean that it is unpalatable: it means poor quality. Poor quality food does not mean that it is inedible or distasteful.

The defendants did not plead truth to the first imputation that the plaintiffs sold unpalatable food, presumably, although not necessarily, because the notion of what is or was unpalatable is such a subjective concept. However, to the extent that the defendants alleged that it was true that the plaintiffs were incompetent as restaurant owners, it would have been, according to the plaintiffs' submission, necessary to elicit an acknowledgment from them that they were aware, or that they knew or accepted, that their employed chef made poor quality food. The plaintiffs never accepted any such proposition and in fact strenuously denied it. Conclusions on the defence of truth

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 Radio Pty 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. [13] A number of the imputations pleaded in the present case raise relatively straight forward factual questions. However, imputation (g), that 'the plaintiff is a disgraceful individual' raises questions of some complexity."

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."

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].

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.

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.

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.

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.

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

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

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. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."

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; 3. The effect of the substantial truth of the combined effect of all the defendant's contextual imputations is such that the plaintiff's imputation to which they are pleaded does not further injure the plaintiff's reputation: see also Jackson v John Fairfax Publications & Sons Ltd (1981) 1 NSWLR 36 at 39-40 Hunt J held: 'The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation.' [127] In John Fairfax v Blake (2001) 53 NSWLR 541 at 543 Spigelman CJ said: 'For purposes of determining whether the section 16 defence is capable of being made out, the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation rather than on the terms of the contextual imputation itself.' [128] The defendant is permitted to plead back the plaintiff's imputations as contextual imputations: Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008, unreported, at [217])." The defendants' submissions

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.

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

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

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.

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.

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?

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.

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.

Ljiljana Gacic was asked about the topic as follows: "Q. Do you recall a complaint being received by the restaurant that the restaurant was advertising Glenloth chickens on its menu but in fact was not serving Glenloth chickens? A. I heard this first time here in the Court and I read this statement of - I forget the family name. I am not good with the names, sorry, and I never ever, in my knowledge - I didn't receive complaint, but it wasn't part of my dealing. Office was under the control of Aleksandra, first plaintiff, Aleksandra Gacic. I wasn't dealing, with my bad English, on the phone, with the books, papers, emails. Not. Nothing to do with this."

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.

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.

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

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.

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.

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.

Sections 46 and 46A of the Defamation Act 1974 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 (b) where the person defamed dies before damages are assessed, harm suffered by the person defamed by way of injury to property or financial loss. (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 (b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm. 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. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)."

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.

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.

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.

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.

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.

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.

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

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

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.