Critics on notice

Matthew Evans, the former chief food critic at the Sydney Morning Herald, was sued over his 2003 review of Sydney restaurant Coco Roco. Following a $3 million fit out, the King St Wharf diner claimed to deliver a “new level of dining,” but Evans said “more than half the dishes I’ve tried at Coco Roco are simply unpalatable.” A jury decided that the review was not defamatory, but on appeal, the High Court judged the article to defame the restaurant.

An article in the SMH today makes the obvious point that this opens could open all critics up for similar actions.

Leo Schofield (himself the subject of a similar case in 1989) said:

If a poor review leads to diminished returns at the box office of the theatre, are we going to now say that it is due to the review and not to the quality of the work?

Is it possible that a situation like this one – where a local music writer and his publisher wound up at odds with a record label over a negative review of the band (the label allegedly threatened pulling their advertising) – could wind up in court? It’s hard to imagine a review in the Brag (the Sydney street press publication in question) deciding the fate of a new pop group like the Cops – music reviews just don’t do that any more – but what if it was shown to set the scene for ensuing coverage?

Not being a lawyer, I missed a crucial point, which cearta.ie explained here.

But this is only half the story. Because of the procedure adopted in the case itself, the proceedings were being conducted ahead of any consideration of the newspaper’s defences. No defence had yet been filed. Doubtless, that will be the next stage in the proceedings. So, we are only at half-time. The second half of the case is still to come, in which the newspaper can seek to rely on various defences, including no doubt fair comment. If the newspaper loses at that stage, then there can be wailing and gnashing of teeth. But not yet.

Moreover, the decision that the review could bear a defamatory meaning was not even the main thrust of the High Court’s decision. That was whether the Court of Appeal had the power (in the light of general provisions of Australian law relating to practice and procedure in general (section 108(3) of the Supreme Court Act 1970), and of the (s7A) procedure adopted in the case itself in particular), to substitute their similar holding for the different decision reached by a misdirected jury at first instance. On that issue, the High Court decided that the power did exist, and that the Court of Appeal had properly exercised it.