Federal Court Judge rejects bias claim over influencers’ lobster defamation case

There’s been a twist in the court case involving three influencers suing a restaurant for accusing them of faking food poisoning and not paying for a $364 lobster meal.

A Federal Court judge has rejected claims of bias in a case where three influencers are suing a restaurant for alleging they didn’t pay for their pricey lobster.

Jennifer Do, Belinda Nguyen and Julie Nguyen initiated defamation proceedings against Sydney seafood establishment Silver Pearl Restaurant after the venue claimed they faked food poisoning to avoid paying their $364 dinner bill.

Justice Robert Bromwich dismissed an attempt by the women's legal team to have him removed from the case after he suggested it was a “neighbourhood dispute” that may be better dealt with in a lower court.

The trio is suing the Cabramatta restaurant for an Instagram post titled “Beware fraudulent diners,” which referred to a “family of four” who dined with them on Christmas Day, 2020.

Ms Nguyen and two other influencers argue the restaurant defamed them. Pictures: Instagram

According to court documents, the post read they ordered “a bottle of red wine and one live lobster” but complained to staff halfway through their meal of feeling sick because they had been served frozen — not fresh — lobster.

“Note the CCTV footage of them continuing to eat WHILST complaining about the food too,” it read.

“Our staff tried to explain to them that this was definitely not the case. The staff brought the head of the lobster back out and even tried to explain to them how the head juices change colour based on the amount of time passed, and since their order was only recently cut, they could see that the head juices were still vibrant”.

It is alleged the influencers “completely finished” their meal before refusing to pay. The restaurant claimed management messaged the women on Instagram “asking them to settle the matter in private and pay for the balance of their bill of $364” and were blocked in response.

“What makes this matter worse, is that after they left us, they went to another seafood restaurant across the road and ordered lobster and wine again!! How could anyone eat more of what made them ‘feel sick’? let alone another meal,” the post read.

Silver Pearl alleged the women had been ‘dishonest’ and ‘fraudulent’. Pictures: Instagram

The post, which included three of their first names, described their behaviour as “dishonest ... fraudulent ... entitled ... classless”.

According to Justice Bromwich’s June 6 judgment, the women argued the post defamed them by implying they were fraudulent, made false claims about being sick, bullied the waitstaff, were scammers and refused to pay due to a false pretence they’d been served frozen lobster.

During the defamation proceedings, Justice Bromwich said the Federal Court hears “the sorts of cases” like those brought by Geoffrey Rush and Ben Roberts-Smith, “not cases of this kind”.

The influencers’ barrister Roger Rasmussen told the court it would be a shame if this court was turned into a celebrity court, to which Justice Bromwich said “it would be a shame if this court was turned into a neighbourhood disputes court,” the judgment read.

Mr Rasmussen applied to the court to have Justice Bromwich removed from the case, arguing he showed bias in the proceedings and called the case minor.

But Justice Bromwich wrote in his judgment that the word “minor” was not uttered by him, but was in fact said by Mr Rasmussen during a December 7 hearing.

At that hearing, Justice Bromwich suggested if the matter were brought in the state courts, it would be the District Court and not the higher Supreme Court.

Silver Pearl’s Master Chef Wang. Picture: Facebook

Mr Rasmussen responded that he knows it “appears on its face to be minor, but it’s not” because the restaurant’s complaint was republished in the Sunday Telegraph.

“Now, the Sunday Telegraph is the most widely read newspaper in Australia,” he told the court.

“It also was republished in, I think, four different – on four different websites, each of which has not less than 40,000 readers, one of which has, I’ve noticed, 140,000 members”.

Ultimately, Justice Bromwich rejected Mr Rasmussen’s application to have him thrown off the case, ruling “a fair minded observer” would know he was merely saying that he would be “astounded” if the influencers were to be awarded a “substantial sum”.

“(They) would understand that I was saying no more than that, because this proceeding was not at the higher end of seriousness when it comes to defamation, there was a real risk of costs greatly exceeding any likely damages being awarded even if the case was wholly successful,” he wrote.

“Mr Rasmussen also submitted that a fair minded observer would have observed that I had taken the view that because the applicants were social media influences or bloggers, their claims were less than impressive, a submission that was not supported by any of the transcript references to which I was taken”.

The influencers were ordered to pay Silver Pearl’s costs for the recusal application.

Justice Bromwich is yet to make a judgment on the initial defamation proceedings, which are listed for trial in October next year.