To sum up, the defence of comment will arise for consideration by the jury only when it has found that the imputations for which the plaintiff contends (or one substantially similar) were conveyed by the material published and that those imputations were defamatory. Once the defence of comment is raised the jury is required to consider whether the imputation it has found to arise was made by the defendant as an allegation of fact or as an expression of opinion, on facts stated, or sufficiently indicated, in the published matter. For that purpose it is not to the point that the plaintiff has pleaded his imputation as a statement of fact. The question is to be determined upon a consideration of the published material."
154 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].
155 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".
156 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.
157 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.
158 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.
159 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.
160 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.
161 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.
162 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.
163 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].
164 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.
165 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
166 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.
167 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
168 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.
169 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.