Extra hurdle for defamed restaurateurs and chefs

A cafe’s unsuccessful defamation action means restaurateurs and chefs may have an additional hurdle when fighting over restaurant reviews.

A business owner on Rottnest Island, off the coast of Perth, sued over these 15 words spoken to one other person in 2012:

“Quokka Joe’s cafe had been closed following a health inspection of the cafe last week.”

The litigation dragged on for three years and appears from the judgement to have been particularly complicated and heated.

The case was rejected by Justice Kenneth Martin of the Supreme Court of Western Australia in very detailed decision. His Honour said the case may go further.

“Summer holidays on Rottnest Island are a fond memory for many West Australians. However, there is nothing pleasant about this defamation litigation, which is brought over 15 words (the Spoken Words) uttered on Rottnest Island in late January 2012. The words were spoken briefly by the defendant in a conversation with one person.
Nevertheless, the Spoken Words have given rise to these two defamation actions, which are separately pursued by the related plaintiffs, over the same words.” (at


The principal stumbling block for one plaintiff was he could not be identified from those 15 words. The words referred to the trading name. Not the name of the company behind the business and certainly not the company’s director and majority shareholder.

In the particular (and peculiar) facts of this case, the court found that the company behind the business was identified. In most cases, a company can’t sue for defamation.The exception is where it employs fewer than 10 people. The company’s case failed as those words didn’t convey the defamatory meanings that it claimed.

This decision has ramifications for restaurants deciding how to respond to negative restaurant reviews. Restaurateurs and chefs have an additional hurdle if they want to sue for defamation. The decision confirms that a defamed restaurateur or chef who is not named in a review will need to prove that, despite not being named, readers know that the review is about them.

Despite being 118 pages long, there were occasional highlights for any casual reader.

“… trading under … ‘Quokka Joe’s Delicious Wholesome Food’. Given an irrepressible Australian penchant for abbreviation, this retail food outlet business … soon came to be referred to as ‘Quokka Joe’s Café, or sometimes, more simply, as ‘Quokka Joe’s’.” (at



“Here, the trial time saved in not needing to deal with hosts of sterile, multi-faceted evidentiary objections to endless rambling paragraphs of lawyer influenced witness statements, more than balanced time consumed in the leading of the witnesses’ evidence in chief in traditional fashion.” (at [182])

“It is the nature of these health inspections to find something to highlight” Evidence of one witness (at


“A propensity for a 15 word ‘molehill’ to develop into a ‘mountain’ is perfectly captured by these events, which have sadly unfolded at no doubt great expense to all concerned.” (at [234])

“But balanced against that was the saga of the many past (but sketchy) tales of commercial woe involving third persons, all unburdened therapeutically at the trial.” (at



“[One plaintiff’s] reaction to what was a rather benignly phrased [letter] displays what looks to be an abnormal level of hypersensitivity at the time. It echoed the reference by Macbeth to a ‘dagger of the mind, a false creation’.” (at [424])

“Here, the amount of $10 would prima facie present as being on the high side of a nominal award for each plaintiff, had that been required.” (at


Context for these quotes is available in the decision itself, Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117

By | 2017-06-01T13:06:15+10:00 16 April 2016|Categories: Opinion|Tags: , , , , , , , |

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