What are your rights when the dining experience you're paying for doesn't go to plan?
We explain your rights in restaurants, how to make complaints and what to do if you think you've been ripped off.
The restaurant tells me I can't drink the bottle of wine I brought with me. Can it do this?
Yes. A fully licensed restaurant can refuse to allow you to bring your own wine. There should be no problem if the restaurant has a BYO (bring your own) licence.
That's OK, I can always go and get the half-dozen beers I left in the car, right?
As with the wine, it's up to the restaurant. Some do not allow customers to bring their own spirits or beer.
I want to book a table but my favourite restaurant doesn't accept bookings.
Restaurants do not have to accept bookings.
I've booked a table for two tonight but now realise I won't be able to make dinner. If I don't turn up, can they charge me?
Yes. Making a booking with a restaurant creates a contract which places obligations on both parties. If you don't turn up, the restaurant can legitimately claim you have broken the contract and caused it to lose business.
If you realise in advance you won't be able to make it, let the restaurant know. They're unlikely to charge if you tell them in reasonable time.
We arrived late and our table was gone. Can the restaurant do this?
Yes, within reason. If you are significantly late, you have broken your contract with the restaurant. If you know you will be late, call ahead.
Even though we had a booking, the restaurant staff said there had been a mistake and wouldn't let us in. What can we do?
If it can't provide your table, the restaurant has broken its contract with you. You can claim any expenses you have incurred, such as travelling costs, using a Disputes Tribunal if necessary.
Dress codes and perfume
The restaurant manager wouldn't let me in wearing my brand-new glitter jeans. Isn't this sort of attitude a bit old-fashioned?
Restaurants are allowed to be old-fashioned - they can set any codes of dress and behaviour they want. Provided the Human Rights Act is not breached (see below), restaurants may impose conditions of entry.
I'm halfway through my meal and the maitre d' asks me to remove my perfume. Can they do this?
Conditions of entry must be spelt out when you enter the restaurant - they can't be unilaterally introduced halfway through the meal. So, a restaurant would be within its rights to ask you to remove your perfume before you're seated. If they ask you the same thing when you're halfway through your meal, the restaurant's rights are less clear - if they're acting on another customer's complaint, they've got more of a leg to stand on. If you decide to leave or are asked to leave, you should be refunded for the food and wine you've already consumed.
Of course, a restaurant can ask you to leave at any time if you start acting offensively (like swearing, shouting or breaking things) or commit an illegal act.
What about the Human Rights Act?
There are many grounds restaurants can't discriminate on, including sex, sexuality, religion, race, disability, politics and age (except where the person is under 16). If you believe you've been discriminated against, you can complain to the Human Rights Commission.
The restaurant said "No babies". Can they do this?
Although the Human Rights Act bans discrimination on the basis of age, this does not apply to children aged under 16. A child can be prevented from entering a restaurant.
But the Act does ban discrimination on the basis of family status, which includes adults having responsibility for the care of children.
In effect, this means restaurants cannot refuse to let you in just because you have a baby or children with you.
However, if your children cause a disturbance, you can be asked to take them away.
I plan to take my daughter Janine, who is 16, out for dinner to celebrate her birthday. Is it OK if she has a glass of wine?
Yes. No age limit applies provided a parent or legal guardian is present and actually purchases the alcohol, and you will be dining.
What if the food isn't good enough?
The food must be acceptable for the circumstances. A cheap diner's fish of the day doesn't have to be as good as a 5-star restaurant's. But some things should be right no matter what the price. A hot meal, for example, should be served hot. Complain as soon as you discover the problem. You can't eat the food and then refuse to pay.
When I tasted the house wine I realised I didn't like it. Can I reject it?
No. If you are offered a taste of the wine to check whether it is "corked" (air has got through the opening and turned the wine bitter) and it is, the restaurant should get you another bottle. If you ordered by the glass and the wine is clearly 'off', complain to the waiter. But if you just don't like the wine, that's too bad.
The portions were too small and I'm still hungry, do I still have to pay the full price?
Yes, unless you were specifically promised a particular amount of food and the restaurant didn't supply it.
I found a piece of glass in my food. What should I do?
If you have doubts about the edibility of anything you're served, send it back. The Food Act says any food on sale must be sound and fit for human consumption. You could also complain to the health protection officer at your local public health unit (call your hospital for contact details). They'll need a sample of the food if they're to take any action.
Three of us ate the salmon mousse and now we've all come down with a bad stomach bug. What can we do?
Again, if you suspect the restaurant, contact a health protection officer through the hospital. They'll arrange tests and try to identify the source of the food poisoning in order to protect others. You should also ask the restaurant for your money back.
If you are concerned about the restaurant's hygiene standards, contact your local council's environmental health officer.
Noise and disturbance
The table next to ours is so rowdy it's wrecking our intimate dinner for two. What can we do?
Complain to a waiter or the restaurant manager. If you specifically asked to be seated in a quiet area and the restaurant accepted this condition, it must keep the noise level down. If you choose to leave, pay for what you have received.
People nearby are smoking. Are they allowed to light up at the table?
Under the Smoke-Free Environments Act, no smoking is allowed inside any part of a restaurant. A restaurant can provide an open area (outside) for smokers but it doesn't have to.
The waiter is being incredibly rude. Can I complain?
Yes. Speak to the manager: it's part of their job to ensure customers are satisfied. If the problem isn't resolved, you should leave and pay what you think is reasonable under the circumstances.
To add insult to injury, the waiter has spilled red wine on my new white shirt. Is the restaurant responsible?
The Consumer Guarantees Act says service must be provided with reasonable skill and care. You can expect to be reimbursed for the cost of cleaning the shirt or replacing it if necessary.
We told the restaurant we have a movie to catch, but the food still hasn't arrived. Can we leave without paying?
Yes. The restaurant should have provided your meal within the agreed time. Pay for anything you did receive on time.
Where no time limit was agreed, the Consumer Guarantees Act says the service must be completed within a reasonable time. What's reasonable depends on the circumstances - half an hour might be acceptable if you're waiting for a cooked meal, but not for fast food or a cup of coffee.
Is tipping required?
Tipping has become common in many restaurants, but you should not feel obliged to leave something extra. We think tips should be given for good service and not just because it is expected.
The corkage charge was $7 per person per bottle. Can they ask this much?
It depends on the circumstances. Corkage is a fee to help cover the costs of glasses, service, cleaning, the BYO licence and so on. If this charge is shown on the menu, then you must pay what's listed. If it isn't, you're required to pay only what's reasonable. We think $7 per bottle is probably too high; and $7 per person per bottle is far too high. If the menu doesn't state the price, ask.
Can a restaurant have a minimum charge regardless of what I buy?
Yes. Restaurants can set minimum charges. But they should make the customer aware of these.
Settling the bills
The bill has arrived and they've added GST to the prices listed on the menu. Can they do this?
Not unless the menu clearly states GST will be added. Falsely representing the price of goods or services breaches the Fair Trading Act.
I was going to pay by Eftpos but they don't have a machine. What can I do?
Restaurants can choose which non-cash methods of payment they accept. If you find yourself unable to pay, give the restaurant your contact details and ask if you can return to pay as soon as possible. Even if the restaurant calls the police, it is unlikely any action will be taken provided you can show the mistake was genuine and you had intended to pay.
There was a group of 10 of us and we wanted to pay individually. The restaurant wouldn't let us and would only give us one account for the whole group. Can they do this?
Yes. Most restaurants have signs up that let you know that this is their policy. If it's going to be an issue for your group then phone to ask in advance whether the restaurant will let you pay individually.