Whites Legal in The Australian

Ever wondered whether it was ok for a restaurant to take a deposit for a booking?

What should happen when you order the priceless item off the menu?

Is it really illegal to dine and dash?

Can I take that half-finished open bottle of wine home?

Those questions answered, and more, in my article published in The Australian newspaper. Full text appears below.


Eating out isn’t what it used to be. When did our ‘dietary requirements’ become part of the vernacular? When did we all start letting our mains go cold while we took another dozen Instagrams? Not to mention those predictable rants on TripAdvisor.

But, where the court of public opinion goes, the courts of laws must follow. Here is our rough guide to the laws of dining out.

Making a booking. Most of the time, placing a booking is a matter of courtesy for both you and the restaurant. There’s no agreement in place. That means there’s not much a restaurant can do about no-shows — unless it takes a deposit.

If the restaurant takes a deposit, there’s a contract (the booking) to enter into another contract (dinner). It’s not that different from buying a house. If you don’t show (or refuse to settle on buying the house), the restaurant can keep your deposit. Recently, both the Fat Duck in Melbourne and the Sydney pop-up Noma Australia took the notion of deposits to the next level by requiring payment upfront for the food.

Cancelling before the booking is different. Whether the deposit should be returned depends on what the restaurant said at the time of taking that deposit. The cancellation policies for The Fat Duck and Noma Australia were pretty unfair. The Fat Duck took your money if you didn’t give them weeks’ notice of cancelling. Noma didn’t allow any cancellations. That’s even if their extensive waiting lists filled the table, meaning they profited from the cancellation. It could be argued that this was so unfair as to be a case of unlawful “unfair contract terms”, which are void. So if you lost your circa-$500-per-person prepayment because you cancelled, maybe get in touch.

Priceless items. That’s a tempting list of specials on the wall. But there are no prices. Please don’t try the line “if there’s no price, it must be free, haw haw”. There’s the forever vague market price for the fish of the day.

Ignorance of the price is the diner’s undoing. There’s a price for that item and the diner didn’t ask. The diner has the choice of appearing gauche by asking for the price at the time, or being a jerk by throwing a hissy fit at the end of the night over, what, $30?

Be on your best behaviour. You’re at the restaurant at the pleasure of the owner. If you don’t play by their rules, they can kick you out after politely asking you to leave.

If the restaurant says “no photos” and you take photos, it can kick you out. The gorgeous and tiny Bar Americano in the Melbourne CBD has appropriately small signs requesting you not take photos. Bar di Stasio in St Kilda has them, too. They’re Instagram-free zones. After telling you not to take photos, the restaurant can’t, however, force you to delete the photos you’ve already taken.

Pricing. While we’re talking about payment, Noma Australia did something naughty. Payment could only be made by credit card but Noma didn’t quote the total price, which had to incorporate a compulsory credit card surcharge. That’s a breach of the same laws that make companies such as Air Asia, TPG and Fitness First quote the total minimum price, including all compulsory fees and surcharges. This is a different situation from that of surcharge prices on weekends to help combat penalty rates. That’s allowed at restaurants and cafes, provided the menu says “a surcharge of X% applies on certain days”.

Choose your friends carefully. Who has to pay at the end of the night? In almost every case, everyone at the table. There’s a contract between each diner and the restaurant, and each diner is jointly liable for the meal.

That doesn’t necessarily mean that each diner commits a crime if they dine-and-dash. Some states and territories have specific criminal offences which cover dine-and-dash just like not paying for petrol. Suffice to say, if you’re considering enjoying a meal tonight then dining and dashing, you’re likely to commit an offence and you’re definitely a bastard. If there’s a dine-and-dash, the staff don’t have to pay the bill.

Can you insist on splitting the bill? No, and it’s because of that joint contract. Sorry! The law favours the restaurant in this case.

Doggie bags. Doggie bags aren’t illegal. That doesn’t mean diners are entitled to take the leftovers home. Restaurants can pick and choose. Restaurants can only serve food that’s satisfactory and safe. It’s for the same legal reasons that retailers can’t sell lousy whitegoods. Once the food has left the building, the restaurant can’t know what happens to it or how long it will sit at room temperature.

Most food shouldn’t be kept outside the 5C to 60C temperature range for more than two hours. That’s counting from the time it’s served, bagged, taken home and cooled in the fridge.

If you find a restaurant that will allow doggie bags, don’t be surprised if seafood, meat and salad get bagged separately, or if the bags are sealed with the Department of Health suggested sticky labels or if Hellenic Republic requires a signed indemnity first.

Complaining loudly. Social media complainers ought to be cautious. Seasoned restaurant critics know to set out the facts on which their review is based. Negative reviews are vetted by lawyers before publication. But ranty Trip­Advisor and Zomato reviewers rarely take the time to carefully set out what they experienced that led to their opinion. It’s almost impossible to fit that into a 140-character tweet.

Bloggers, too, need to be careful. A brief, unhappy tweet that links to a carefully written (and defensible) review can be the blogger’s undoing. Writers can’t expect that all Twitter followers will click through. Fairfax Media was undone for that reason when tweeting about then-Treasurer Joe Hockey being “for sale”.

Dietary requirements. I have a lot of sympathy for restaurants that have to deal with the gamut of allergies and intolerances — and preferences masquerading as disease.

Pan-Asian restaurant Rice Queen in Melbourne’s Fitzroy says that if a diner needs an EpiPen for an allergy, they must have it with them when they dine. That’s in addition to Rice Queen’s usual extensive precautions for any allergy requests. They rightly expect customers to take steps to protect themselves too.

Restaurants give a consumer a guarantee that their food is safe for most people. That won’t always cover those with allergies. If the diner is told there’s an allergen risk with a dish, that guarantee won’t apply as the “defect” has been pointed out. Those with allergies need to say they’re at risk, the restaurant has to tell the diner which allergens are in any dish when asked. Some proactive restaurants say it on the menu. If the restaurant says the dish contains the allergen and the diner orders it anyway, it’s their own responsibility.

The restaurant will get into serious trouble if they say it’s safe and it turns out that it’s not. Restaurants aren’t expected to ensure every dish is allergen free, and they’re not legally required to change dishes to suit.

Wine in a doggie bag? It’s rare that a restaurant is allowed to let you take half a bottle of wine home. Most restaurant liquor licences allow drinking on the premises, but not takeaways. So drink up — responsibly, of course. Cheers to that.

Richard Edwards is the founder of Whites Legal, a law firm specialising in looking after bars and restaurants.

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