(a) Expressions of opinion or statements of fact?
77The appellants submit that the bad service imputation and the incompetence imputation were statements of fact and not opinion.
78The approach the court applies in determining whether defamatory matter constitutes fact or comment was explained in the judgment of the plurality in Channel Seven Adelaide Pty Ltd v Manock (at [35] - [36]) as follows (footnotes omitted):
"35 Distinguishing fact and comment . In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:
'The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule...that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated .' (emphasis added)
In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, 'it is essential that the whole of the words in respect of which it is relied on should be comment'. He continued:
'It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to , the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.' (emphasis added)
A 'discussion or comment' is to be distinguished from 'the statement of a fact. It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.' As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of 'comment' as 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc'. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J:
'[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact.'
36 The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at.' " (Emphasis in original)
79As the primary judge recognised (at [153]), in the context of the 1974 Act, the question whether the imputation the jury found was conveyed was conveyed as a comment turns, not merely on the form of the pleaded imputation, but upon a consideration of the matter complained of as a whole: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (at 467 - 469) per Clarke JA (Handley and Cripps JJA agreeing).
80The appellants complain that the incompetence imputation was in a different category to the unpalatable food and bad service imputations. This was because, while the latter related to the quality of the food and service which could be relevant to the review of a restaurant which was open to the public and could be deemed to submit, therefore, to public criticism, the allegation of incompetence was a personal attack on them.
81In this context, the appellants relied upon Gleeson CJ's statement in Channel Seven Adelaide Pty Ltd v Manock (at [8]):
"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."
82The appellants argued that they had not submitted themselves for public criticism and there were no facts or references to facts in the matter complained of referring to their competency and, accordingly, the incompetence imputation should be taken as a statement of fact.
83Gleeson CJ's observation in Channel Seven Adelaide Pty Ltd v Manock , to which the appellants refer, was made in the context of his Honour's consideration of the question of the extent to which the facts upon which comment was said to be based must be stated in the matter complained of itself so as to enable the reader, viewer or hearer to be in a position to form his or her own opinion concerning statements in the matter complained of or, rather, whether it was sufficient that the facts on which a comment was based were "indicated with sufficient clarity to make it clear that it is comment on those facts": Pryke v Advertiser Newspapers Ltd (1983) 37 SASR 175 (at 192).
84Viewed in that light, it is apparent that Gleeson CJ's statement in Channel Seven Adelaide Pty Ltd v Manock (at [8]) did not exhaustively state the circumstances in which statements about individuals might be characterised as comment or opinion.
85However, in any event, in my view in this case the condition to which Gleeson CJ referred was satisfied. The appellants were identified in the right-hand sidebar to the review as the "owners" of the restaurants the second respondent reviewed. Although, as the appellants submit, there were no explicit facts or references to facts in the matter complained of which referred to their competency, it was open to the s 7A jury to conclude, as it manifestly did, that, applying the conventional test as to whether an imputation was conveyed, the incompetence imputation was conveyed of and concerning each appellant. They were, like the newspaper proprietor who was the plaintiff in Kemsley v Foot [1951] 2 KB 34, persons who had submitted their "work" in the form of the Coco and Roco restaurants to the public. They bore ultimate responsibility for the conduct of the establishment both, it might be inferred, in the selection of the staff and the menu.
86In my view, the primary judge did not err in concluding that the imputations were statements of comment and/or opinion. They were conveyed in the context of a restaurant review and purported to be the second respondent's opinion about the restaurants referred to, Coco and Roco. It is unnecessary to do more than endorse his Honour's reasoning in this respect.