Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd; Christine Tumney (NSW Food Authority) v Michael Speare Hocken Sharpe; Christine Tumney (NSW Food Authority Australia Pty Ltd) v Toni Lee Brendish

Reported Decision:
74 NSWLR 148

New South Wales

Supreme Court

CITATION: Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd; Tumney (NSW Food Authority) v Michael Speare Hocken Sharpe; Tumney (NSW Food Authority) v Toni Lee Brendish [2008] NSWSC 1382
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 December 2008 - 3 December 2008

JUDGMENT DATE :
22 December 2008

JUDGMENT OF: Simpson J

DECISION: 2007 Criminal Proceedings against Nutricia to be permanently stayed.
13664/07, 13665/07, 13666/07, 13669/07, 13670/07, 13671/07
2007 Criminal Proceedings against Nutricia to be dismissed.
13672/07, 13673/07, 13674/07, 13675/07, 13676/07, 13677/07
13678/07
2008 Criminal Proceedings against Nutricia to be permanently stayed.
12711/08, 12713/08, 12971/08, 12942/08, 12974/08, 12945/08
12977/08, 13042/08, 12950/08, 12980/08, 12953/08, 12983/08
12717/08, 12742/08, 12739/08, 12736/08, 12811/08, 12927/08
12847/08, 12846/08, 12930/08, 12841/08, 12956/08, 12870/08
12959/08, 12871/08, 12933/08, 12837/08, 12822/08, 12962/08
12965/08, 12849/08, 12890/08, 12936/08, 12968/08, 12874/08
12939/08, 12820/08, 12857/08, 13646/08, 13647/08, 13653/08
13654/08, 13655/08, 13656/08, 13658/08, 13660/08, 13666/08
13667/08
2008 Criminal Proceedings against Nutricia to be dismissed.
12733/08, 12728/08, 12808/08, 12895/08, 12903/08, 12826/08
12848/08, 12864/08, 12893/08, 12892/08, 12836/08, 12906/08
13668/08, 13670/08, 13672/08, 12731/08, 12725/08, 12898/08
12876/08, 12899/08, 12829/08, 12855/08, 12888/08, 12819/08
12840/08, 12851/08, 12896/08, 13669/08, 13671/08, 13673/08
2008 Criminal Proceedings against Brendish to be permanently stayed.
12707/08, 12715/08, 12719/08, 12735/08, 12738/08, 12740/08
12809/08, 12814/08, 12821/08, 12824/08, 12828/08, 12835/08
12845/08, 12850/08, 12854/08, 12860/08, 12863/08, 12877/08
12880/08, 12928/08, 12931/08, 12934/08, 12937/08, 12940/08
12943/08, 12946/08, 12948/08, 12951/08, 12954/08, 12957/08
12960/08, 12963/08, 12966/08, 12969/08, 12972/08, 12975/08
12978/08, 12981/08, 12984/08, 13702/08, 13703/08, 13704/08
13705/08, 13706/08, 13707/08, 13708/08, 13709/08, 13710/08
13711/08
2008 Criminal Proceedings against Brendish to be dismissed.
12722/08, 12724/08, 12727/08, 12730/08, 12812/08, 12813/08
12817/08, 12825/08, 12839/08, 12844/08, 12852/08, 12858/08
12861/08, 12867/08, 12872/08, 12873/08, 12885/08, 12886/08
12889/08, 12894/08, 12897/08, 12900/08, 12902/08, 12905/08
13712/08, 13713/08, 13714/08, 13715/08, 13716/08, 13717/08
2008 Criminal Proceedings against Sharpe to be permanently stayed.
12709/08, 12716/08, 12734/08, 12737/08, 12741/08, 12743/08
12815/08, 12816/08, 12827/08, 12832/08, 12834/08, 12842/08
12853/08, 12859/08, 12862/08, 12865/08, 12868/08, 12882/08
12887/08, 12929/08, 12932/08, 12935/08, 12938/08, 12941/08
12944/08, 12947/08, 12949/08, 12952/08, 12955/08, 12958/08
12961/08, 12964/08, 12967/08, 12970/08, 12973/08, 12976/08
12979/08, 12982/08, 12985/08, 13674/08, 13675/08, 13679/08
13681/08, 13682/08, 13684/08, 13686/08, 13689/08, 13690/08
13692/08
2008 Criminal Proceedings against Sharpe to be dismissed.
12723/08, 12726/08, 12729/08, 12732/08, 12810/08, 12818/08
12823/08, 12830/08, 12831/08, 12833/08, 12838/08, 12843/08
12856/08, 12866/08, 12869/08, 12875/08, 12878/08, 12879/08
12881/08, 12883/08, 12884/08, 12891/08, 12901/08, 12904/08
13693/08, 13694/08, 13697/08, 13698/08, 13699/08, 13700/08

CATCHWORDS: PRACTICE AND PROCEDURE - permanent stay of proceedings - abuse of process - no prospect of conviction - duplicitous charges - criminal prosecution - misleading conduct relating to sale of food - infant formula - inclusion of nutritive substance - false description - labelling - miscalculation of energy content - meaning of nutritive substance - use of extrinsic material - Australia New Zealand Food Standards Code - Food Standards Australia New Zealand Act 1991 (Cth) - Food Act 2003 (NSW)

LEGISLATION CITED: Food Act 2003
Criminal Procedure Act 1986
Australia New Zealand Food Standards Code
Food Standards Australia New Zealand Act 1991 (Cth)
Acts Interpretation Act 1901 (Cth)
Legislative Instruments Act 2003
Interpretation Act 1987 NSW

CATEGORY: Procedural and other rulings

CASES CITED: Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
Walton v Gardiner [1993] HCA 77; 177 CLR 378
Rogers v R [1994] HCA 42; 181 CLR 251
Williams v Spautz [1992] HCA 34; 174 CLR 509
R v Hamzy (1994) 74 A Crim R 341
R v Hanza [2008] NSWCCA 288

PARTIES: Christine Tumney (NSW Food Authority) (Prosecutor)
Nutricia Australia Pty Ltd (Defendant)
Michael Speare Hocken Sharpe (Defendant)
Toni Lee Brendish (Defendant)

FILE NUMBER(S): SC 12709/08; 12716/08; 12723/08; 12726/08; 12729/08; 12732/08; 12734/08; 12737/08; 12741/08; 12743/08; 12810/08; 12815/08; 12816/08; 12818/08; 12823/08; 12827/08; 12830/08; 12831/08; 12832/08; 12833/08; 12834/08; 12838/08; 12842/08; 12843/08; 12853/08; 12856/08; 12859/08; 12862/08; 12865/08; 12866/08; 12868/08; 12869/08; 12875/08; 12878/08; 12879/08; 12881/08; 12882/08; 12883/08; 12884/08; 12887/08; 12891/08; 12901/08; 12904/08; 12929/08; 12932/08; 12935/08; 12938/08; 12941/08; 12944/08; 12947/08; 12949/08; 12952/08; 12955/08; 12958/08; 12961/08; 12967/08; 12964/08; 12970/08; 12973/08; 12976/08; 12979/08; 12982/08; 12985/08; 13674/08; 13675/08; 13679/08; 13681/08; 13682/08; 13684/08; 13686/08; 13689/08; 13690/08; 13692/08; 13693/08; 13694/08; 13697/08; 13698/08; 13699/08; 13700/08; 12711/08; 12713/08; 12717/08; 12725/08; 12728/08; 12731/08; 12733/08; 12736/08; 12739/08; 12742/08; 12808/08; 12811/08; 12819/08; 12820/08; 12822/08; 12826/08; 12829/08; 12836/08; 12837/08; 12840/08; 12841/08; 12846/08; 12847/08; 12848/08; 12849/08; 12851/08; 12855/08; 12857/08; 12864/08; 12870/08; 12871/08; 12874/08; 12876/08; 12888/08; 12890/08; 12892/08; 12893/08; 12895/08; 12896/08; 12898/08; 12899/08; 12903/08; 12906/08; 12927/08; 12930/08; 12933/08; 12936/08; 12939/08; 12942/08; 12945/08; 12950/08; 12707/08; 12715/08; 12719/08; 12722/08; 12724/08; 12727/08; 12730/08; 12735/08; 12738/08; 12740/08; 12809/08; 12812/08; 12813/08; 12814/08; 12817/08; 12821/08; 12824/08; 12825/08; 12828/08; 12835/08; 12839/08; 12844/08; 12845/08; 12850/08; 12852/08; 12854/08; 12858/08; 12860/08; 12861/08; 12863/08; 12867/08; 12872/08; 12873/08; 12877/08; 12880/08; 12885/08; 12886/08; 12889/08; 12894/08; 12897/08; 12900/08; 12902/08; 12905/08; 12928/08; 12931/08; 12934/08; 12937/08; 12940/08; 12943/08; 12946/08; 12948/08; 12951/08; 12954/08; 12957/08; 12960/08; 12963/08; 12966/08; 12969/08; 12972/08; 12975/08; 12978/08; 12981/08; 12984/08; 13702/08; 13703/08; 13704/08; 13705/08; 13706/08; 13707/08; 13708/08; 13709/08; 13710/08; 13711/08; 13712/08; 13713/08; 13714/08; 13715/08; 13716/08; 13717/08; 13664/07; 13669/08; 13670/07; 13671/07; 13672/07; 13673/07; 13674/07; 13675/07; 13676/07; 13677/07; 13678/07; 13669/07; 12953/08; 12956/08; 12959/08; 12962/08; 12965/08; 12968/08; 12971/08; 12974/08; 12977/08; 12980/08; 12983/08; 13042/08; 13646/08; 13647/08; 13653/08; 13654/08; 13655/08; 13656/08; 13658/08; 13666/08; 13667/08; 13668/08; 13670/08; 13671/08; 13672/08; 13673/08; 13660/08

COUNSEL: M Joseph SC/M Cahill/A Naylor (Prosecutor)
I Barker QC/NJ Williams SC/AM Mitchelmore (Defendant)
P Menzies QC/S Callan (Defendants)

SOLICITORS: Moray & Agnew (Prosecutor)
Gilbert + Tobin (Defendant)
Thompson Eslick Solicitors (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Monday 22 December 2008

12709/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12716/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12723/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12726/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12729/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12732/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12734/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12737/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12741/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12743/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12810/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12815/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12816/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12818/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12823/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12827/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12830/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12831/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12832/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12833/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12834/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12838/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12842/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12843/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12853/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12856/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12859/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12862/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12865/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12866/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12868/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12869/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12875/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12878/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12879/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12881/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12882/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12883/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12884/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12887/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12891/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12901/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12904/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12929/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12932/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12935/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12938/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12941/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12944/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12947/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12949/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12952/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12955/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12958/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12961/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12967/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12964/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12970/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12973/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12976/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12979/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12982/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12985/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13674/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13675/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13679/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13681/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13682/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13684/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13686/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13689/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13690/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13692/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13693/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13694/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13697/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13698/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13699/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

13700/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE

12711/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12713/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12717/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12725/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12728/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12731/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12733/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12736/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12739/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12742/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12808/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12811/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12819/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12820/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12822/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12826/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12829/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12836/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12837/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12840/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12841/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12846/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12847/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12848/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12849/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12851/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12855/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12857/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12864/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12870/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12871/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12874/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12876/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12888/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12890/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12892/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12893/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12895/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12896/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12898/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12899/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12903/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12906/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12927/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12930/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12933/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12936/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12939/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12942/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12945/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12950/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12707/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12715/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12719/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12722/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12724/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12727/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12730/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12735/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12738/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12740/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12809/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12812/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12813/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12814/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12817/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12821/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12824/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12825/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12828/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12835/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12839/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12844/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12845/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12850/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12852/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12854/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12858/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12860/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12861/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12863/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12867/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12872/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12873/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12877/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12880/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12885/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12886/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12889/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12894/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12897/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12900/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12902/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12905/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12928/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12931/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12934/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12937/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12940/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12943/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12946/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12948/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12951/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12954/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12957/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12960/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12963/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12966/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12969/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12972/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12975/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12978/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12981/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

12984/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13702/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13703/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13704/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13705/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13706/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13707/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13708/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13709/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13710/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13711/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13712/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13713/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13714/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13715/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13716/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13717/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH

13664/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13669/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13670/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13671/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13672/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13673/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13674/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13675/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13676/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13677/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13678/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13669/07 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12953/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12956/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12959/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12962/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12965/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12968/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12971/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12974/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12977/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12980/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

12983/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13042/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13646/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13647/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13653/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13654/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13655/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13656/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13658/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13666/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13667/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13668/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13670/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13671/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13672/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13673/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

13660/08 CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD

JUDGMENT: On first defendant’s notice of motion for stay of proceedings

1 SIMPSON J: Ninety-two separate proceedings are before the Court. Each was commenced by summons filed either in 2007 or 2008 by Ms Christine Tumney (“the Prosecutor”), an authorised officer of the NSW Food Authority. Three separate defendants are named: Nutricia Australia Pty Ltd (“Nutricia”), Michael Speare Hocken Sharpe, and Toni Lee Brendish. The two individual defendants are and were at all material times directors of Nutricia.

2 In each summons the Prosecutor claims an order that the named defendants appear before the Court to be dealt with in respect of an offence alleged to have been committed against the Food Act 2003. By s 118 of the Food Act such proceedings are to be before the court exercising its summary jurisdiction. Procedure is governed by Chapter 4, Part 5 of the Criminal Procedure Act 1986.

3 By notice of motion filed on 3 September 2008 Nutricia seeks a permanent stay of each summons, or, alternatively, that all charges against it be quashed. Although they have not filed any similar notice of motion, the two individual defendants seek orders of a similar kind. They largely relied upon the arguments advanced on behalf of Nutricia.

4 The charges are brought under three different subsections of the Food Act: s 18(3), s 21(2) and s 21(3).

5 S 18(3) is in the following terms:

“18. Misleading conduct relating to sale of food

(1) …

(2) …

(3) A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food.”

6 A note to the subsection directs attention to s 22 which gives examples of food that is falsely described. One such example is:

“(a) The food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard …”

7 S 21 provides, relevantly:

“(1) A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.

(2) A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food.

(3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.

(4) …

(5) …”

8 For the purpose of the present proceedings it was not in issue that Nutricia and the two individual defendants carried on a food business and sold food.

9 The “Food Standards Code” referred to in the legislation is the Australia New Zealand Food Standards Code. The Food Act adopts the definition given to the Australia New Zealand Food Standards Code (hereinafter called “the Code”) that appears in the Food Standards Australia New Zealand Act 1991 (Cth). The Code is a national Code promulgating detailed standards in respect of the production, sale and importation of food, devised under a co-operative arrangement between the governments of Australia and New Zealand and, in NSW, given the force of law by the Food Act (s 21).

10 The charges against Nutricia and the two individual defendants may be variously categorised into groups, to which it will be necessary to return. For now, it is convenient to outline, as briefly as possible, the background.

11 Nutricia is an Australian company that manufactures and supplies, inter alia, infant formula products. These include a product marketed as Karicare Gold Plus. Karicare Gold Plus is manufactured in three forms, an “infant formula” (for babies up to six months), a “follow on formula” (for babies between six months and twelve months) and a “toddler supplement” (for children one to three years). The product is marketed and supplied in cans. Except where it is necessary to differentiate, I will refer to the products as “Karicare”.

12 Two components of Karicare are fructo-oligosaccharides and galacto-oligosaccharides. These substances are commonly referred to, respectively, as “FOS” and “GOS”. I will adopt those abbreviations. FOS is also known as inulin. It is the inclusion of FOS and GOS in all three forms of Karicare that gives rise to twenty-five charges under s 21(2).

13 It is the Prosecutor’s case that the products were packaged and labelled in such a way as to represent that they were of a particular nature or substance, and that this amounted to a false description of the food. This gives rise to the charges against s 18(3).

14 It is further the Prosecutor’s case that the products carry labels that contravene two different provisions of the Code. This gives rise to the charges under s 21(3).

15 Finally, the Prosecutor alleges that energy content (which is required to be stated on labels of the containers in which the product is sold) were, in contravention of a specific requirement of the Code, miscalculated. This gives rise to a further fifteen charges under s 21(2).

16 I will outline in more detail below the factual matters relevant to the issues for present determination.

17 I begin with an overview of the Code.

18 The Code is divided into sections, each of which is a numbered “Standard”, and prescribes the requirements applicable to the particular subject matter with which it deals. For example, St 1.2.8 deals with Nutrition Information Requirements. St 1.3.1 deals with Food Additives. Occurring throughout the Code are “editorial notes”. By St 1.1.1, cl 5, the editorial notes are not legally binding.

19 The first Standard is St 1.1.1, which is headed “Preliminary Provisions – Application, Interpretation and General Prohibitions”. St 1.1.1 opens, as do all succeeding Standards, with a statement of its purpose. That statement is, as will become apparent, of some importance. The purpose of St 1.1.1 is stated as follows:

Australia New Zealand Food Standards Code

This Standard should always be consulted as a starting point in the use of the Code because it regulates the general operation of the Code in its entirety. Many definitions which have general application to the Code are contained in this Standard

20 In cl 2, St 1.1.1 sets out a number of definitions which are to be applied to words and phrases used throughout the Code “unless expressly defined elsewhere” in the Code. The following are relevant for present purposes:

“ component means any substance including a food additive used in the preparation of an ingredient and present in the final product in a primary or modified form;

nutritive substance means a substance not normally consumed as a food in itself and not normally used as an ingredient of food, but which, after extraction and/or refinement, or synthesis, is intentionally added to a food to achieve a nutritional purpose, and includes vitamins, minerals, amino acids, electrolytes and nucleotides;

prescribed name means a name by which a food is defined or described in a Standard, and is declared in this Code to be a prescribed name.”

21 Interestingly enough, although the entire focus of the Code is on the regulation of production, sale and supply of food and food products, there is no definition of “food”. That word is extensively defined in the Food Act, and, in very similar terms, in the Food Standards Australia New Zealand Act 1991 (Cth), s 5. All parties proceeded on the basis that, to the extent that “food” requires definition, the definition contained in the Commonwealth Act ought to be applied. I disagree with this approach. There is nothing in the Code that adopts or incorporates either definition, and nothing of which I am aware in the rules of statutory construction that would allow recourse to either of those Acts to fill any gap in the Code. I will proceed on the basis that “food”, being undefined, has the meaning it has in ordinary language.

22 Cl 3 of St 1.1.1 provides:

“A reference in this Code to the nature, substance, composition, strength, weight, volume, quantity, purity or quality of any food, article, ingredient or component is the prescribed standard for that food, article, ingredient or component.”

23 Cl 9 provides:

“9. Prohibition on addition of nutritive substances to food

Nutritive substances must not be added to food unless expressly permitted in this Code.”

24 St 1.1A.2 is headed “Transitional Standards – Health Claims”.

25 Sub cll (3)(a), (b), (e) and (f) are in the following terms:

“(3)(a) Save where otherwise expressly prescribed by this Code, any label on or attached to a package containing or any advertisement for food shall not include a claim for therapeutic or prophylactic action or a claim described by words of similar import.

(b) Any label on or attached to a package containing or an advertisement for a food shall not include the word ‘health’ or any word or words of similar import as a part of or in conjunction with the name of the food.

(e) Subject to subclauses (3)(f), (g) and (h), a food listed in column 1 of the Table to this subclause may have a health claim listed in column 3 of the Table made in respect of that food, provided that the food meets the relevant eligibility criteria in column 2 of the Table.

(f) A health claim must not be made in respect of the following foods -

(i) …

(ii) food standardised in Standards 2.9.1, 2.9.2 and 2.9.4 of this Code; and

(iii) …

(iv) … “

26 St 1.3.1 is concerned with “Food Additives”. In the introductory statement of the purpose of the Standard, “food additive” is defined as:

“ … any substance not normally consumed as a food in itself and not normally used as an ingredient of food, but which is intentionally added to a food to achieve one or more of the technological functions specified in Schedule 5. … Food additives are distinguishable from processing aids (see Standard 1.3.3) and vitamins and minerals added to food for nutritional purposes (see Standard 1.3.2).

This Standard regulates the use of food additives in the production and processing of food. A food additive may only be added to food where expressly permitted in this Standard. Additives can only be added to food in order to achieve an identified technological function according to Good Manufacturing Practice.”

27 This definition of “food additive” (which is to be found, not in the interpretation clause, but in the “Purpose” statement) is, to a point, a repetition of the definition of “nutritive substance” with the exception of the recognised purpose of the addition of the substance. A “nutritive substance” is a substance (having the (negative) characteristics mentioned in the definition) which is added for a “nutritional purpose”. A “food additive” is a substance (having the same (negative) characteristics) which is added to achieve a “technological function”. Schedule 5 of St 1.3.1 identifies the technological functions that are performed by food additives. They have nothing to do with the present case.

28 Schedule 1 of St 1.3.1 prescribes the maximum permitted levels of food additives, set out by “food type”. Schedule 1 contains both general provisions and specific provisions relating to particular kinds of foods – for example, Dairy Products, Ice Cream and Edible Ices, and others. Relevantly for present purposes, it contains a section specifically referable to “Foods Intended for Particular Dietary Uses” (cl 13), of which one subclause is devoted to “Infant Formula Products”, another to “Food for Infants”, and a third to “Formula Meal Replacement and Formulated Supplementary Foods” which, I was told, is a reference to “toddler formula”. There is in this Standard no definition of “infant formula products”, “food for infants” or “formulated meal replacement” or “formulated supplementary foods”.

29 St 1.5.1 deals with “Novel Foods”. “Novel food” is defined to mean:

“ … a non-traditional food and the food requires an assessment of the public health and safety considerations having regard to -

(a) the potential for adverse effects in humans; or

(b) the composition or structure of the food; or

(d) the source from which it is derived; or

(e) patterns and levels of consumption of the food; or

(f) any other relevant matters.”

(a) a food that does not have a history of human consumption in Australia or New Zealand; or

(b) a substance derived from a food, where that substance does not have a history of human consumption in Australia or New Zealand other than as a component of that food; or

(c) any other substance, where that substance, or the source from which it is derived, does not have a history of human consumption as a food in Australia or New Zealand.”

30 St 2.9 regulates “Special Purpose Foods”. St 2.9.1 regulates “Infant Formula Products”.

31 Under “Purpose”, “infant formula products” are identified as:

“ … foods intended or represented for use as a substitute for breast milk …”

32 In Subdivision 1 of Division 1 of this Standard, “infant formula product” is further defined (for the purposes of the Code as a whole – see the introductory words of cl 1(2)) as:

“ … a product based on milk or other edible food constituents of animal or plant origin which is nutritionally adequate to serve as the principal liquid source of nourishment for infants.”

“ … an infant formula product represented as a breast milk substitute for infants and which satisfies the nutritional requirements of infants aged up to four to six months.”

(“Infant” is a person under the age of twelve months.)

“An infant formula product represented as either a breast milk substitute or replacement for infant formula and which constitutes the principal liquid source of nourishment in a progressively diversified diet for infants aged from six months.”

“The intent of this definition is to limit the addition of ingredients to infant formula products to ingredients that would be considered to be foods. The addition of an ingredient that is not considered to be a food is prohibited unless specifically permitted elsewhere in this Standard.

…”

33 Cl 3 prescribes the method of calculation of the energy content of infant formula product. It is not necessary here to set it out. It specifies what energy value contribution or factors may be taken into account in the calculation of energy in value. The calculation is important, because cl 16 requires that labels on infant formula products contain certain information, including the average energy content expressed in kilojoules per 100 millilitres.

34 By cl 12, “infant formula” and “follow on formula” are prescribed names.

35 Subdivision 3 is concerned with “General Compositional Requirements”. Cl 6(1) is of central importance to the present proceedings. Under the heading “Restrictions and Prohibitions”, it provides:

nutritive substance

(a) expressly permitted by this Code; or

(b) it is naturally present in an ingredient of the infant formula product.

(2) …” (italics added)

36 Cl 7 is headed “Permitted Nutritive Substances” and contains a Table showing nutritive substances that may be added to infant formula product if prescribed conditions are met. It includes a series of substances known as “nucleotides”. It does not include FOS or GOS.

37 Some relevant terminology is not defined in the Code. This includes –

nutritive purpose

ingredient

health claim

food

normally consumed

therapeutic claim

prophylactic claim

therapeutic or prophylactic claim.

The charges

38 The charges are as follows:-

(a) twenty-five charges alleging that, contrary to St 2.9.1 cl 6(1), FOS or GOS was added to infant formula and toddler formula (“ the composition charges ”);

(b) fifteen charges alleging that, contrary to St 2.9.1 cl 3, the energy value contributions were miscalculated (“ the energy content charges ”);

(ii) fifteen charges under s 18(3) (selling food that is falsely labelled), alleging that the defendants sold food with labelling that falsely described the food. The description alleged to be false was that the content of the cans was “infant formula”, a prescribed name under the Code (St 2.9.1 cl 12), when, in fact, by reason of the addition of FOS and GOS, the content was not of that description (“ the false description charges ”);

(a) twenty-two charges alleging that, contrary to St 1.1A.2 cl 3(a), the defendants sold food with labelling that claimed therapeutic or prophylactic action (“ the labelling charges – therapeutic or prophylactic action ”);

(b) fifteen charges alleging that, contrary to St 1.1A.2(3)(f)(ii), the defendants sold food with labelling that made health claims (“ the labelling charges – health claims ”).

39 The composition charges were separately broken up into those concerning infant formula, follow on formula and toddler nutritional supplement. The distinction is of no present significance. The labelling charges were similarly sub-divided. There was a further differentiation in that some charges (the 2007 charges) related to sales to Woolworths, and the remainder (the 2008 charges) concerned sales to Coles. These also have no present relevance.

40 The two individual defendants were charged only in relation to the 2008, Coles, charges, and this also has no significance. By reason of s 122 of the Food Act, they were charged as directors. It seems that earlier legal advisors of the Prosecutor took a different view as to their liability, or the propriety of charging them, and they were not charged in relation to the Woolworths sales in 2007.

41 As filed, Nutricia’s notice of motion merely claims orders, in the alternative, that the proceedings be permanently stayed, or that the charges the subject of the proceedings be quashed. Annexed to the notice of motion is a statement of the grounds on which it is based. Neither the written nor the oral argument entirely reflect what is there contended.

42 The statement of grounds is to the following effect:

(i) the composition charges :

The Prosecutor is unable to prove the charges beyond reasonable doubt because she cannot prove:

(b) (GOS charges only) that GOS is not naturally present in an ingredient of Karicare;

(ii) the labelling charges :

the Prosecutor cannot prove the charges beyond reasonable doubt because the words alleged to have been used do not and could not constitute a claim of therapeutic or prophylactic action;

the Prosecutor cannot prove the charges beyond reasonable doubt because the words alleged do not and could not constitute a health claim;

the false description charges:

the particulars do not disclose any words that falsely describe the food;

the Prosecutor cannot prove the charges beyond reasonable doubt because she cannot prove:

(a) that the defendant represented the food as being of a particular nature or substance for which there is a prescribed Standard under the Code;

(b) that FOS [GOS] is a nutritive substance;

(d) (in respect to certain of the charges) the particulars do not allege any representation at all;

the energy content charges:

the charges as particularised do not allege a contravention of a requirement of the Code that relates to food;

the Prosecutor cannot prove the charges beyond reasonable doubt because she cannot prove that the defendants sold food that did not comply with the requirement of the Code that relates to the food.

43 Common to all charges is the further ground expressed as follows:

“The charges are vexatious, oppressive and embarrassing because of their multiplicity and because other charges are brought in respect of the sale of the same item of food alleging a failure to comply with a requirement of the [Code].”

44 Just what evidentiary material was intended to be put before me on the stay application was never defined. I was provided with voluminous documentation – eleven lever arch folders – which, I was told, contained the prosecution brief (for the substantive proceedings). Much of the material was, so far as I could tell, scientific, medical or otherwise specialised material. But this material was never formally tendered on the stay application, and I am unable to regard it as evidentiary material to which I ought to have regard. Notwithstanding that, reference was at times made to parts of the contents of the folders. For the purpose of this application, another quantity of documentation was tendered on behalf of Nutricia, and became Exhibit A. This consisted of what was perceived (by Nutricia’s legal representative) to be such material, extracted from the prosecution brief, as was relevant to the stay application. There remained a considerable quantity of material to which no express reference was made by any party in the course of argument. I made it plain that I would not refer to any material to which I had not been specifically directed. This is for two reasons. Firstly, for a judge to base a decision on material to which no reference, and therefore no submissions, have been made, risks creating a denial of procedural fairness to one side or the other: the judge does not know what different complexion might have been placed upon that material if the parties had made submissions. Secondly, and this is of particular significance in the present case, to rely on some parts only of such a vast array of material is to risk error by selectiveness. I left it to the parties to draw my attention to what they contended to be the relevant material.

45 In order to facilitate an understanding of the way in which the Prosecutor puts her case, I was given a draft of the proposed prosecution opening, prepared for the substantive hearing. I was also provided with comprehensive written submissions on both sides.

46 Given the large number of charges, a selection was made of “lead” or sample charges, apparently representing the various categories of charges I have outlined above. I have not gone beyond these charges.

47 I turn now to deal with the issues named in relation to the four categories of charges.

48 There is nothing controversial or complex about the basis upon which the court will intervene to stay a criminal prosecution. It may properly do so where it would be an abuse of process for the prosecution to proceed. It is an abuse of process to proceed, inter alia, where there is no prospect that the prosecution will result in a conviction. See generally Jago v District Court of NSW [1989] HCA 46; 168 CLR 23; Walton v Gardiner [1993] HCA 77; 177 CLR 378; Rogers v R [1994] HCA 42; 181 CLR 251; Williams v Spautz [1992] HCA 34; 174 CLR 509.

49 As mentioned above, the case put in written and oral submissions was not coextensive with the grounds appended to the notice of motion. I will deal with the arguments as they were put, with particular emphasis on the written submissions.

50 In short, Nutricia’s position, as put in its written submissions, was:

51 (i) the Prosecutor is unable to prove essential elements of the s 21(2) charges; there is therefore no prospect of a conviction and these charges are doomed to fail;

(ii) the 2007 charges are duplicitous;

52 As set out above, s 21(2) provides:

Food Standards Code

53 The food was Karicare in its various forms. The requirement of the Code with which the Prosecutor alleges Karicare did not comply was that imposed by St 2.9.1, cl 6(1) – which prohibits the addition of a “nutritive substance” to infant formula product. The prohibition is subject to two exceptions; it is permissible to add a nutritive substance to infant formula where, either, it is expressly permitted by the Code, or it is naturally present in any ingredient of Karicare. The “nutritive substances” which the Prosecutor alleges were added are FOS and GOS. The defendants do not deny that both FOS and GOS were added to Karicare. For the prosecution to result in conviction on these charges, it is essential that the Prosecutor prove (in the FOS charges) that FOS is a nutritive substance, and (in the GOS charges) that GOS is a nutritive substance. If either is proved to be a nutritive substance, then it is also essential that the Prosecutor prove that neither of the exceptions for which cl 6(1) provides applies – that is, that the addition of FOS [GOS] to infant formula product is not expressly permitted by the Code and that FOS [GOS] is not naturally present in any ingredient of Karicare. It was common ground that the addition of neither FOS nor GOS to infant formula product is expressly permitted by the Code. It was not suggested by Nutricia that FOS is naturally present in any ingredient of Karicare. An issue arose whether GOS is naturally present in an ingredient of Karicare.

54 As framed and particularised, the composition charges involving the addition of FOS allege:

(i) that each defendant sold food (Karicare);

(ii) that Karicare is, within the meaning of the Code, an “infant formula product”;

(iii) that St 2.9.1 (including cl 6(1)) applies to regulate the sale of Karicare;

(iv) that, therefore, St 2.9.1 cl 6 prohibits the addition of FOS to Karicare unless its addition is expressly permitted by the Code or it is naturally present in an ingredient of Karicare;

(v) that FOS had been added to Karicare;

(vi) that FOS is, within the meaning of St 2.9.1 cl 6(1) , a nutritive substance;

(vii) that the Code does not expressly permit the addition of FOS to infant formula;

(viii) that FOS is not naturally present in an ingredient of Karicare.

55 The composition charges involving the addition of GOS allege a parallel set of facts. In issue in those charges are (vi) that GOS is, within the meaning of St 2.9.1 cl 6(1), a nutritive substance and (viii) that GOS is not naturally present in an ingredient of Karicare.

56 Proof that FOS [GOS] is a nutritive substance entails proof of three facts, of which two are negative propositions, that:

(a) FOS [GOS] is a substance not normally consumed as a food in itself;

(b) FOS [GOS] is a substance not normally used as an ingredient of food;

(c) FOS [GOS] is a substance which, after extraction, refinement or synthesis, is intentionally added to a food to achieve a nutritional purpose.

57 Nutricia denies that either FOS or GOS is a “nutritive substance”; at least, it argues, there is no evidence (and, indeed, such evidence as there is is to the contrary) either that FOS [GOS] is not normally consumed as a food in itself or that it is not normally used as an ingredient of food, and that therefore, the Prosecutor must fail in these charges.

58 In their written submissions, counsel for the Prosecutor concede:

“ … that inulin [FOS] is a permitted food ingredient in relation to the general food supply.”

within the definition in St 1.1.1

59 The charges concerning the addition of GOS are framed and particularised similarly to the FOS charges, with one divergence. Where, in relation to the FOS charges, the Prosecutor merely asserts that FOS is not naturally present as an ingredient of Karicare, in relation to GOS, she alleges that it:

“… was not naturally present as an ingredient of the infant formula product but was a product made by enzymatic transformation of lactose to synthesise GOS, and as added, the synthesised GOS was present at a final concentration beyond that which occurs naturally.”

“ … that GOS may be present in trace quantities in the whey ingredient of infant formula products.”

This appears to be, if not a concession, then a recognition, that GOS is naturally present in an ingredient of Karicare. If that is correct, GOS cannot be, within the definition in St 1.1.1 , a nutritive substance. That would mean that the exceptions to cl 6(1) are irrelevant. As with FOS, however, the Prosecutor advanced the same argument to avoid this result.

60 What the Prosecutor argued (in relation both to the FOS and the GOS charges) is that the words “nutritive substance” as used in St 2.9.1 cl 6(1) have a more specific meaning than the same words have as used in St 1.1.1.

61 Nutricia’s essential argument, in the case of the FOS charges, was that there was no evidence, and the Prosecutor is not able to produce or point to evidence, that FOS is a substance not normally consumed as a food in itself and is a substance not normally used as an ingredient of food. In the light of the concession, or recognition, noted above, the latter, at least, appears to be a powerful argument. If that is correct, the FOS charges must fail and it is an abuse of process for the prosecution to proceed. An additional argument, in relation to the GOS charges, was that the Prosecutor is not able to produce or point to evidence that GOS is not naturally present in an ingredient of Karicare and therefore cannot prove that the addition of GOS to Karicare is not within the second exception in cl 6(1). Nutricia relied upon the particularisation of the GOS charges, extracted above, that GOS is present in Karicare in a final concentration beyond that which occurs naturally, as an acceptance that it does indeed occur naturally in an ingredient of Karicare. That also appears to be a powerful argument, and, if it is correct, the GOS charges must fail and it is an abuse of process for the prosecution to proceed.

62 Nutricia’s argument is therefore, simply, that FOS and GOS cannot be proven to be nutritive substances; if they are not proven to be nutritive substances, their addition to Karicare is not prohibited by St 2.9.1 cl 6(1), and the exceptions there provided to the prohibition are immaterial. This is the principal area of dispute.

63 Should that argument fail, Nutricia would argue that the Prosecutor cannot produce or point to evidence that either is a substance that is:

“ … intentionally added to [Karicare] to achieve a nutritional purpose.”

64 If that is correct, neither can be shown to be a nutritive substance. Nutricia also argues, in the case of GOS, that the Prosecutor is unable to produce or point to evidence that GOS is not naturally present in an ingredient of Karicare in that it does not come within the second exception to cl 6(1). In the light of the concession extracted above, that proposition appears unanswerable. But the Prosecutor also seeks to avoid that result. I will return to that.

65 The disputed issues on a final hearing of the composition charges would be:

The FOS charges:

whether FOS is proved to be a substance not normally consumed as a food in itself;

whether FOS is proved to be a substance not normally used as an ingredient of food;

if both negatives are proved: whether FOS is proved to be a substance which, after extraction, refinement or synthesis, is intentionally added to food for a nutritional purpose;

The GOS charges:

whether GOS is proved to be a substance not normally consumed as a food in itself;

whether GOS is proved to be a substance not normally used as an ingredient of food;

if both negatives are proved: whether GOS is proved to be a substance which, after extraction, refinement or synthesis, is intentionally added to food for a nutritional purpose;

if all of the above are proved, whether GOS is proved to be a substance not naturally present in a (any) ingredient of Karicare.

66 The stay application (as will, if there is to be one, a substantive hearing) depends very largely upon the construction of various terms used in the Code. The Code is significantly lacking in definitions. I have already mentioned a number of relevant terms that are undefined.

67 For the purpose of the stay application, it is sufficient if the Prosecutor can point to any evidence, however slight, that tends to establish the relevant facts. It is not appropriate, on a stay application, to assess the weight of any individual item of evidence.

Interpretation

68 I digress to make some observations about the approach to the construction of the Code. It is not easy. The Code is, in my experience, an unusual breed of instrument, something of a hybrid.

69 Its aetiology is spelt out in a “Commentary” at its commencement. It was developed and maintained by “Food Standards Australia New Zealand”, which, as its name proclaims, is a joint instrumentality of Australia and New Zealand. So far as the Australian contribution is concerned, it is authorised by the Food Standards Australia New Zealand Act 1991 (Cth). But enforcement and policing of food standards are within the constitutional realm of the states. For that reason, the Code is given the force of law by the Food Act of NSW.

70 Accordingly, in my view, (and contrary to the approach taken by all parties, who referred me to the Acts Interpretation Act 1901 (Cth)), construction of the Code falls to be determined by reference to NSW interpretation law. That is because it is given the force of law by a state Act, and this is a prosecution brought under state law, governed by rules of evidence and interpretation of NSW law.

71 In construing the Code, it seems to me to be appropriate to bear in mind that, while it has legal force, it is a document drafted, apparently, by non-lawyers. That being so, it may be appropriate to take a more liberal, or more purposive, approach to its construction.

72 I was told, however, that it is a “legislative instrument” within the meaning of the Legislative Instruments Act 2003 (Cth). The Legislative Instruments Act has this relevance – and, it seems to me, this relevance only. It shows the extent, if any, to which, as a draft, the Code came under the scrutiny and supervision of those skilled in parliamentary drafting techniques. That is relevant to the degree of liberality that might be brought to bear on the construction questions.

73 In response to my questions about these circumstances, I was referred to Pt 5 of the Legislative Instruments Act. The purpose of Pt 5 is expressed to be to facilitate the scrutiny by Parliament of legislative instruments, and to provide for disallowance when considered appropriate. S 38 requires tabling, for a specified period, of legislative instruments, obviously for the purpose of permitting scrutiny. What is not clear is the extent to which parliamentary drafting staff are called upon to assist in ensuring the clarity of the instrument, or that it achieves its purpose or reflects the intentions of the drafters.

74 I have come to the view that the more liberal approach to construction which I have mentioned above ought to be adopted. In particular, considerable weight ought to be given to what can be discerned to be the intention of those who compiled the Code, and the purpose for which it, and its individual provisions, were formulated.

75 At the same time, I bear in mind that the Code must be taken to mean what it says, and that, even if it appears not to have achieved its purpose, it is not to be rewritten in order to achieve that purpose. I also bear in mind that, in this instance, it is to be construed in the context of criminal prosecution. Any ambiguity must be resolved in favour of the defendants and against the Prosecutor. I shall endeavour to balance these considerations.

* * *

76 In respect of St 2.9.1 cl 6, the competing positions were these.

77 On behalf of Nutricia it was argued that the definition of “nutritive substance” in St 1.1.1 is clear in its terms, and applies throughout the Code, including in cl 2.9.1. The expression of the “purpose” of St 1.1.1 in which the definition of “nutritive substance” – for the Code in general – appears, is clear and unequivocal.

78 Essential to Nutricia’s argument was the assertion that the Prosecutor has presented no evidence that could amount to proof that FOS is not normally consumed as a food in itself, and no evidence that FOS is not normally used as an ingredient of food. The same applies in relation to GOS. Indeed, Nutricia identified evidence on the stay application that pointed in the opposite direction – that inulin (FOS) is marketed as “Metamucil Fibresure”, a substance that is intended to be mixed with water and consumed as a food in itself. This is consistent with the Prosecutor’s concession. Nutricia identified other evidence that FOS is used as an ingredient in various food products sold in NSW and New Zealand (and globally). I infer from the volume of material to which I have referred above that the whole of the Prosecutor’s brief has been served. If there were any evidence of the kind which, as is asserted on behalf of Nutricia is lacking, then it would have been a simple matter for counsel for the Prosecutor to direct me to it. They did not. Initially, they made no attempt to identify any evidence of any of these facts. They concentrated their attention on the construction argument to which I will shortly turn.

79 Nutricia identified what it perceived as the high point of the prosecution case in proving the two negative propositions. In each case, it was said, the high point in the prosecution brief was:

infants and toddlers

80 At no time during the hearing did counsel for the Prosecutor take issue with these assertions as to the state of the evidence, including to the challenge to the admissibility of the statement extracted from a report provided by Dr McVeagh.

81 Indeed, in their written submissions, as extracted above, they expressly conceded (para 30) that FOS is a normally used food ingredient, and (para 43) that GOS may be present “in trace quantities” in the whey ingredient of infant formula products. This approach, it appears to me, was at least an acknowledgment that the evidence is lacking as the defendants contended.

82 Counsel for the Prosecutor therefore focused their attention on the construction of “nutritive substance”, as it appears in cl 6(1), and channelled their energies into an argument that cl 6(1) means more than it says. They presented an elaborate argument to the effect that “nutritive substance” as it there appears represents a narrower concept than the same combination of words as it appears in St 1.1.1. The essential submission appears in para 18 and is as follows:

“When the definition of ‘nutritive substance’ [sic – is] construed in the context of Standard 2.9.1, the question whether a substance is ‘normally consumed as a food in itself’ or ‘normally used as an ingredient of food’ must have regard to the relevant population, that is, infants. …”

83 In other words, and as the argument developed, counsel for the Prosecutor suggest that “nutritive substance” in cl 6(1) ought to be read as meaning, not the bare:

“ … a substance not normally consumed as food in itself and not normally used as an ingredient in food …”

by infants

for infants

84 Even taking the liberal approach to construction that I have foreshadowed, I am unable to accept the Prosecutor’s contention.

85 The “Purpose” stated in the introduction to St 1.1.1 is explicit. It is that St 1.1.1 should always be consulted as a starting point in the use of the Code because it regulates the general operation of the Code in its entirety. It asserts that many definitions which have general application to the Code are therein contained.

86 In the first paragraph it is noted that, while St 1.1.1 contains general application and interpretation provisions, in other cases application and interpretation provisions specific to individual food Standards are to be found in those specific Standards. It is also of interest that cl 2, the interpretation clause, begins with the words “Unless expressly defined elsewhere in this Code …” (and then provides that the expressions and words have the meanings there assigned to them.)

87 Recourse to St 2.9.1 fails to disclose any specific interpretation provisions relevant to what is meant by “nutritive substance” as there used (other than as defined in St 1.1.1), that would override the application of the St 1.1.1 definition. On the contrary, in the “Purpose” introductory statement, the following, unequivocal, statement appears:

“Standard 1.1.1 defines nutritive substances for the purposes of this Code.”

88 It would be quite wrong, and I decline, to interpolate into cl 6(1) the additional words proposed.

89 It is true that, as it stands, and so far as it deals with nutritive substances, cl 6(1) is substantially a duplication of St 1.1.1 cl 9, although it does contain reference to other substances, and provides for two exceptions to the general prohibition. The duplication is, in my opinion, merely reflective of the manner in which the Code came into existence, and its somewhat piecemeal nature. It is not an indicator that the words as they appear in one should be treated as meaning something different from the same words as they appear in the other.

90 During the course of argument, counsel for the Prosecutor tendered a number of documents as “extrinsic materials” as a proposed aid to the construction of the Code, particularly the use of the phrase “nutritive substance” as it appears in St 2.9.1 cl 6(1). This material was largely historical and included the original Standard prescribed with respect to infant formula, reviews and reports thereafter (commencing February 1993), and the final report on Special Foods Standard.

91 It was put that this material tended to support the construction the Prosecutor seeks to place upon the words “nutritive substance” as they appear in St 2.9.1 cl 6(1), including the additional words proposed to be inserted.

92 I rejected the material, saying that I would give reasons in due course.

93 After judgment was reserved I received from counsel for the Prosecutor further written submissions, urging, inter alia, that reliance on the extrinsic material was permissible to aid in the construction of the phrase.

94 Again, reliance was placed upon Commonwealth legislative provisions with regard to interpretation. Particular reliance was placed upon the ActsInterpretation Act 1901 (Cth) s 15AB.

95 In this prosecution I am exercising state, not federal, jurisdiction. I adhere to the view I have already expressed that the appropriate guide to construction is to be found in NSW legislation: the Interpretation Act 1987. S 34 of the Interpretation Act is in virtually identical terms to s 15AB of the Acts Interpretation Act.

96 S 34 provides that extrinsic material may be used in the interpretation of “an Act or statutory rule” (and, although it is not entirely clear that the Code is a statutory rule, I am prepared to take a broad view of the phrase and apply s 34 to the interpretation of the Code) in certain defined circumstances. Extrinsic materials may be used in the following circumstances:

(i) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text. (The extrinsic material was not tendered for this purpose: indeed, it was tendered for the opposite purpose, to show that the ordinary meaning conveyed by the provision is not its (intended) meaning);

(ii) to determine the meaning of the provision where it is ambiguous or obscure. (Counsel for the Prosecutor rely upon this, asserting that the definition of “nutritive substance” is ambiguous or obscure. I do not accept that. For reasons I have already given, I do not find the meaning of cl 6(1) in any way ambiguous or obscure. S 34 does not permit reliance on the material for this purpose);

97 Accordingly, it remains my view that the extrinsic material is not available to be used as an aid to construction.

98 Further, although no mention was made of it, sub para (3)(a) of s 34 requires, in determining whether to take into account any such proposed material, the desirability of parties being able to rely on the ordinary meaning of the text of the provision (taking into account its context in the statute, and the purpose or object underlying the provision).

99 In this case that is, in my opinion, of some significance. As I have already held, a fair reading of the Code dictates that “nutritive substance” has, in cl 6(1), the same meaning as is given to it by St 1.1.1. This is a provision with which manufacturers of food, including of infant formula, must comply – at the risk, in case of failure to do so, of criminal prosecution, as well as significant - or worse - commercial repercussions. I do not think justice is served by turning to a volume of extrinsic material in order to arrive at a construction that is, or appears to be, significantly at odds with the words as they appear in the clause.

100 I declined at the time to receive the extrinsic material. I see no reason to change the view I then formed or the ruling that I made. It is not clear to me that the present argument goes so far as to seek a review of the ruling I made, but if it does, I decline to do so.

101 A significant consideration, in this instance, is that this is a criminal prosecution. It would be quite wrong to strain the language of the Code to incorporate what the drafters have failed themselves to incorporate.

102 After the conclusion of argument, and after judgment was reserved, I received a further twenty pages of written submissions from counsel for the Prosecutor, and, subsequently, a response from counsel for Nutricia.

103 The submissions on behalf of the Prosecutor were, to say the least, obscure and difficult to follow. They appear to be intended to achieve two things: -

(i) to reinforce and repeat the argument concerning the construction of “nutritive substance” in cl 6(1), specifically by urging the receipt and reliance on extrinsic material; I have stated my views on this and I do not intend to repeat them. The additional submissions do nothing to persuade me that I ought to change or even reconsider those views;

(ii) to put certain additional propositions. These, so far as I am able to understand them, are:

104 So as not to do injustice to the submission, I will extract the proposition in full:

“11. It is irrelevant as to who consumes the substances. The only relevant consideration in the first part of the definition is to identify the normal (and thus not normal) ‘uses’ of the substances being added . (Here, manufactured GOS and FOS are not such substances which may be naturally present in the food.) If they are normally used (either as consumed foods or as ingredients) not as foods in themselves, and are not normally used as ingredients in food then they can be ‘nutritive substances’ subject to them being the manufactured substance, and is (sic) being added for a nutritional purpose.” (bold in original)

105 So far as I can ascertain from the written argument that follows, the intention was to examine the meaning of “normally” as it is used in the definition of “nutritive substance”. It was put that:

“16. … the fact that there is evidence that these substances are sometimes used as ingredients does not mean that the substances are normally used as ingredients of food. What is in issue is normal use, not sale of products containing these substances.”

106 If I understand this argument correctly (and I am not at all sure that I do) it is that “normal” has some statistical base. “Normal” use of a food depends upon the extent to which it is used as a food. Rare and unusual consumption would not establish “normal” use. Perhaps so. But, in my view, “normally” in the definition is equivalent to “ordinary” or “not artificial”. There follows an argument that FOS and GOS are nutritive substances because they are additives “used to serve the purpose of dietary fibre”, which, the submission goes on to assert, is not normally used as an ingredient of food. I find this proposition surprising. My understanding is that dietary fibre is integral to many foods, and is added as an ingredient to many foods. I was referred to no evidence to suggest that “dietary fibre” is other than a food or a food ingredient.

107 This was a repeat of the proposition that the inquiry as to normal consumption of a substance of food or its normal use as an ingredient, incorporates an inquiry as to “the targets or population to whom the regulated food relates”; it goes on to introduce a distinction between manufactured GOS and naturally occurring GOS.

108 For reasons I have already given, I reject the first argument. There is no warrant for interpolating words into cl 6(1) that do not there appear.

109 For reasons that follow (see Proposition 3), I also reject the second proposition.

110 This is a proposition that there is evidence capable of establishing that both FOS and GOS:

used as

dietary fibre

111 I have already expressed my understanding concerning dietary fibre. There is nothing in this further argument that persuades me that I am wrong. In particular, there is no reference to any evidence to contrary effect.

112 I conclude that there is no evidence that FOS is not normally consumed as a food in itself. There is no evidence that GOS is not normally used as an ingredient of food. Such evidence as there is is to the opposite effect. The Prosecutor therefore cannot prove that either is, within the meaning of St 2.9.1 cl 6(1), a nutritive substance. It is unnecessary therefore, to determine whether the Prosecutor is able to prove that the addition of either FOS or GOS does not come within exception to (b) cl 6(1).

113 Two further prosecution arguments ought to be noted. Firstly, in para 31 and repeatedly thereafter submissions were made differentiating between synthetic (or “manufactured”) GOS and naturally occurring GOS. I was referred to no such distinction or differentiation in the Code. So far as I can see, the Code treats GOS as a generic, and does not distinguish between its different forms.

114 Secondly, in paras 37 and 38 the following submissions were made:

“37. The exception in paragraph (b) [of cl 6(1)] does not have the effect that merely because a vitamin, mineral, food additive or nutritive substance is present in an ingredient, it is permissible to separately add any amount of that substance to an infant formula product. What paragraph (b) means is simply that it is permissible to add the ingredient that contains the vitamin, mineral, food additive or nutritive substance where it is naturally occurring in the food ingredient.

38. If the construction contended for by the defendant is correct, it would mean that it would be permissible to add any amount of a vitamin, mineral, food additive or nutritive substance that is naturally contained within an ingredient. Such a construction is inconsistent with other provisions of the Code.”

115 The “other provisions of the Code” with which the disputed construction is said to be inconsistent were not identified. It may well be that what the Prosecutor contends for is what the regulators had in mind in formulating cl 6(1). Indeed, that would be a logical approach on the part of the regulators. But it is not so clear that that was the intention as to allow the proposed formulation to usurp the role of the words of the Code. What is now proposed is not what was incorporated into the Code.

116 It would have been very simple, if that were what the drafters intended, to provide that a vitamin, mineral, food additive or nutritive substance must not be added in quantities additional to those that occur naturally in any (permitted) infant formula product ingredient. That they did not clearly do.

117 Having regard to the view I have reached concerning whether FOS and GOS are nutritive substances, it is not, strictly, necessary to come to a conclusion on this argument. It concerns only the exception in cl 6(1), (b) which is material only if the Prosecutor is able to succeed in proving that GOS is a nutritive substance.

118 Counsel for the Prosecutor further argued that the construction contended for by the defendants:

“ … invites the Court to disregard cl 24 of Standard 2.9.1.”

119 Cl 24 requires that infant formula and follow on formula must contain certain vitamins, minerals and electrolytes in specified quantities. The submission made on behalf of the Prosecutor is, in effect, that cl 24 is inconsistent with cl 6(1). That submission overlooks cl 6(1)(a) which provides an exception to the prohibition where the addition is expressly permitted by the Code. Cl 24 is express permission for the addition of these substances.

120 My conclusion in relation to the first two elements has the inevitable consequence that the prosecution case must fail because the Prosecutor is incapable of proving essential elements of the charges. It is therefore unnecessary to deal with whether there is evidence that GOS is naturally present in an ingredient of Karicare. These charges will be stayed.

121 These are divided into two categories. They are:

(a) twenty-two charges alleging that, contrary to St 1.1A.2 cl 3(a), the defendants sold food with labelling that made therapeutic or prophylactic claims;

(b) fifteen charges alleging that, contrary to St 1.1A.2(3)(f)(ii), the defendants sold food with labelling that made health claims.

(a) therapeutic or prophylactic claims

122 St 1.1A.2(3)(a) prohibits the sale of food with labels that:

“ … include a claim for therapeutic or prophylactic action or a claim described by words of similar import.”

123 It seems that, at different times, or in different circumstances, Karicare, whether infant formula or follow on formula, was sold in cans bearing labels with slight variations. I set out below what is particularised, in various of the summonses, as the relevant, objectionable, content of different labels. They are:

“GOLD PLUS FOLLOW ON FORMULA

From six months, Karicare Gold Plus is a premium formula designed to meet the increasing nutritional requirements of growing infants. Its unique formulation of special ingredients, include Nutricia prebiotics. These nutritionally support your baby’s digestive and natural immune systems.”

“GOLD PLUS INFANT FORMULA

From birth, Karicare Gold Plus is nutritionally complete and is designed to meet the needs of bottle fed infants. It has a unique formulation of special ingredients, including Nutricia prebiotics. These nutritionally support your baby’s digestive and natural immune systems.”

“ GOLD PLUS INFANT FORMULA

These nutritionally support your baby’s digestive and natural immune systems. A well supported immune system helps babies thrive

“ GOLD PLUS FOLLOW ON FORMULA

These nutritionally support your baby’s digestive and natural immune systems. A well supported immune system helps babies thrive

124 On behalf of the Prosecutor it is alleged that each of these contains a “therapeutic or prophylactic claim”.

125 Neither “therapeutic” nor “prophylactic” is defined in the Code, and nor is the composite phrase. The Macquarie Dictionary gives the following meaning for “therapeutic”:

adj

126 On behalf of the defendants it was submitted that it is “critical” that the words “form part of a phrase”: that is, (as I understand the argument) that they denote a composite concept. I see no reason so to limit the words as they appear in the clause. The two words have distinct meanings, and represent distinct concepts. In my view, the clause ought to be read as containing references to both therapeutic action and prophylactic action. True, that result would be clearer if the clause prohibited claims for “therapeutic action” or “prophylactic action”, and such a formulation would be more in accord with conventional drafting standards. But this is one of those areas where the apparent absence of supervision or contribution by parliamentary drafting staff may be taken into account in order to allow a purposive approach to be taken to the construction. In any event, it makes little difference to the outcome. Even if it is a composite phrase, it is one that is disjunctive.

127 For the purposes of the application for a stay, the test to be applied is whether the words are capable of being read as making a claim for therapeutic action or prophylactic action. That is, the test is whether a notional jury, properly instructed, could find that they made such a claim. At this stage of the proceedings, it is not appropriate to determine whether (in my view) they do or do not amount to such a claim: that is for the ultimate tribunal of fact. Although there is to be no jury, it may well be that (no matter what view I would reach) the judge who ultimately deals with the prosecution would reasonably come to a different view.

128 I have come to these conclusions: the words on the labels are not capable of being read as making a “therapeutic” claim. There is no suggestion of treatment or cure of disease. But, by the reference to immune systems, they are capable of being read as making a claim for prophylactic action, in defending or protecting from disease. For that reason, the charges relating to labels so framed should proceed to a hearing.

(b) Health claims

129 St 1.1A.2 prohibits making of “a health claim” in respect (inter alia) of infant formula products. It is the Prosecutor’s case that the claims on the labels set out above also amount to “health claims” and are prohibited by St 1.1A.2(3)(f)(ii).

130 Sub para 3(f) is relevantly in the following terms:

“3(f) A health claim must not be made in respect of the following foods -

(i) …

(ii) food standardised in Standard 2.9.1 …

(iii) …

(iv) …”

131 “Health claim” is undefined in the Code.

“ … any statement, representation, information, design, words or reference in relation to a food which is not mandatory in this Code.”

132 Sub para (3)(a) is expressed as set out above, and applies:

“Save where otherwise expressly prescribed by this Code …”

133 Sub para (3)(b) prohibits the inclusion of the word “health” or any word or words of similar import as part of or in conjunction with the name of the food; sub para (3)(c), again save where otherwise expressly prescribed by the Code, prohibits any claim that may be interpreted as medical advice; sub para (3)(d), also save where otherwise expressly prescribed by the Code, prohibits the inclusion on a label or package of the name of or any reference to any disease or physiological condition. Sub para (3)(e) permits, in circumstances there defined, certain health claims to be made. (It is set out in [*] above.)

134 Sub para (3)(e) is expressly made subject to sub paras (3)(f), (g) and (h).

135 Nutricia’s argument, in writing, was this:

“55. The effect of [cl 3(f)] is to create an exception to the permission granted by sub cl (3)(e), such that none of the permitted claims [permitted by sub cl (3)] can be made in respect of the foods specified in (f). Manifestly, the intention is that no health claim of the kind set out in [sub cl (3)] can be made in respect of the foods that are the subject of the exception in (f).”

136 I reject this contention. It is plain to me that sub para (3)(e) is subject to, inter alia, sub para (f) – that is, even claims that would otherwise be permitted by sub para 3(b), where they relate to foods mentioned in sub para 3(f), may not be made; sub para 3(f) is clear in its intent and in its expression.

137 Since no argument was put that the claims made cannot otherwise amount to a health claim, I decline to stay prosecution on these charges.

138 S 21(2) provides:

Food Standards Code

139 Cl 3 does not impose any obligation on any person to do or not do anything. That role, referable to energy content calculation, is to be found in cl 16, which requires labels on infant formula products to state the average energy content expressed in kilojoules per 100 millilitres.

140 The summons is poorly phrased. It particularises the offence as:

calculation of

141 The energy charges are misconceived. The only submission put in writing on behalf of Nutricia in respect of these charges was as follows:

“73. These charges … allege a breach of Standard 2.9.1 cl 3. The form of charge is deficient. That clause does not create a prohibition. It merely provides a mechanism for calculating energy content. There is no offence alleged. There is no allegation that the food does not comply with a requirement of the Code as required by s 21(2).”

142 In oral argument counsel for Nutricia pointed out that cl 3 expressly permits the inclusion of energy value contributions of any carbohydrate component of the infant formula product, and that “carbohydrate” is defined in St 1.2.8, in such a way as to include FOS. (He made no mention, in this context, of GOS.)

143 It is of some interest that, while cl 3 directs attention to the “energy factors” set out in St 1.2.8, it does not adopt the definition of “carbohydrate” there set out. The definition clause of St 1.2.8 is expressed to apply only to “this Standard”. This is another of those examples of loose drafting that ought to be overlooked or excused, or accommodated by a flexible approach.

144 It is unnecessary to deal with that argument. There is, it seems to me, a simpler, more fundamental, reason why the charges so framed cannot succeed and therefore ought to be stayed. That is this.

145 S 21(2) under which the charges are brought, makes an offence of selling food that does not comply with a relevant requirement of the Code.

146 Cl 3, as was pointed out, does no more than prescribe a method of calculation of energy content. It is, in effect, preliminary to the requirements of cl 16.

147 Miscalculation of energy content is capable of, and probably likely to, produce a false or misleading declaration of the average energy content of the product. But to sell a food with a false or misleading declaration, or label, is not an offence against s 21(2). This statement of energy content does not have the consequence that the food sold does not comply with a relevant requirement of the Code – the food may be perfectly compliant. It is the label that is non compliant.

148 Simply proving, if the Prosecutor is able to do so, that impermissible factors were taken into account in the calculation of energy content does not and cannot give rise to an offence against s 21(2). These charges must be stayed.

149 S 18(3) provides:

“A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food.”

150 The nature of these charges may be stated succinctly. It is that in its packaging or labelling, Karicare was represented as being “infant formula”. “Infant formula” is a prescribed name under St 2.9.1 cl 12.

151 The Prosecutor’s case is that it was false to describe Karicare as “infant formula”. This was because, in breach of St 2.9.1 cl 6(1) of the Code, it contains the prohibited substances FOS and GOS.

152 Proof of these charges depends, like the composition charges, on proof that FOS and GOS were nutritive substances and their addition to Karicare was prohibited by cl 6(1). Plainly, these charges stand or fall with the composition charges.

153 Having regard to the conclusions I have reached in relation to the composition charges, these charges must also be stayed.

154 The remaining grounds may be disposed of quickly. One is that the charges involving allegations of sale of food (s 21(2)) are duplicitous because they relate to multiple sales, and not to a single, identifiable, sale. The simple rebuttal to this proposition can be found in R v Hamzy (1994) 74 A Crim R 341; and in R v Hanza [2008] NSWCCA 288.

155 Complaint was also made about an asserted failure on the part of the Prosecutor to disclose relevant material. Some assertions along these lines were made in Nutricia’s written submissions, but no oral submissions were directed to the issue. Given that many of the charges will be stayed, it is inappropriate to deal with this complaint at this stage.

156 No separate argument was directed to what was said to be the oppressive nature of the multiplicity of charges. Having regard to my findings, it is unnecessary to take time on that issue.

157 It will be necessary for the parties to formulate the orders that must be made consequential upon these reasons.

**********

25/11/2009 - Paragraph number has been inserted after the heading "The Charges" - Paragraph(s) [38]

25/11/2009 - The word "ought" has been inserted after "therefore" - Paragraph(s) 144

24/02/2010 - Correction to party name in citation - Paragraph(s) Coversheet

[2008] NSWSC 1382

22 December 2008

Key Legal Topics

Areas of Law

Administrative Law

Consumer Law

Criminal Law

Legal Concepts

Abuse of Process

Misrepresentation

Criminal Liability

Limitation Periods

CITATION:	Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd; Tumney (NSW Food Authority) v Michael Speare Hocken Sharpe; Tumney (NSW Food Authority) v Toni Lee Brendish [2008] NSWSC 1382 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 December 2008 - 3 December 2008
JUDGMENT DATE :	22 December 2008
JUDGMENT OF:	Simpson J
DECISION:	2007 Criminal Proceedings against Nutricia to be permanently stayed. 13664/07, 13665/07, 13666/07, 13669/07, 13670/07, 13671/07 2007 Criminal Proceedings against Nutricia to be dismissed. 13672/07, 13673/07, 13674/07, 13675/07, 13676/07, 13677/07 13678/07 2008 Criminal Proceedings against Nutricia to be permanently stayed. 12711/08, 12713/08, 12971/08, 12942/08, 12974/08, 12945/08 12977/08, 13042/08, 12950/08, 12980/08, 12953/08, 12983/08 12717/08, 12742/08, 12739/08, 12736/08, 12811/08, 12927/08 12847/08, 12846/08, 12930/08, 12841/08, 12956/08, 12870/08 12959/08, 12871/08, 12933/08, 12837/08, 12822/08, 12962/08 12965/08, 12849/08, 12890/08, 12936/08, 12968/08, 12874/08 12939/08, 12820/08, 12857/08, 13646/08, 13647/08, 13653/08 13654/08, 13655/08, 13656/08, 13658/08, 13660/08, 13666/08 13667/08 2008 Criminal Proceedings against Nutricia to be dismissed. 12733/08, 12728/08, 12808/08, 12895/08, 12903/08, 12826/08 12848/08, 12864/08, 12893/08, 12892/08, 12836/08, 12906/08 13668/08, 13670/08, 13672/08, 12731/08, 12725/08, 12898/08 12876/08, 12899/08, 12829/08, 12855/08, 12888/08, 12819/08 12840/08, 12851/08, 12896/08, 13669/08, 13671/08, 13673/08 2008 Criminal Proceedings against Brendish to be permanently stayed. 12707/08, 12715/08, 12719/08, 12735/08, 12738/08, 12740/08 12809/08, 12814/08, 12821/08, 12824/08, 12828/08, 12835/08 12845/08, 12850/08, 12854/08, 12860/08, 12863/08, 12877/08 12880/08, 12928/08, 12931/08, 12934/08, 12937/08, 12940/08 12943/08, 12946/08, 12948/08, 12951/08, 12954/08, 12957/08 12960/08, 12963/08, 12966/08, 12969/08, 12972/08, 12975/08 12978/08, 12981/08, 12984/08, 13702/08, 13703/08, 13704/08 13705/08, 13706/08, 13707/08, 13708/08, 13709/08, 13710/08 13711/08 2008 Criminal Proceedings against Brendish to be dismissed. 12722/08, 12724/08, 12727/08, 12730/08, 12812/08, 12813/08 12817/08, 12825/08, 12839/08, 12844/08, 12852/08, 12858/08 12861/08, 12867/08, 12872/08, 12873/08, 12885/08, 12886/08 12889/08, 12894/08, 12897/08, 12900/08, 12902/08, 12905/08 13712/08, 13713/08, 13714/08, 13715/08, 13716/08, 13717/08 2008 Criminal Proceedings against Sharpe to be permanently stayed. 12709/08, 12716/08, 12734/08, 12737/08, 12741/08, 12743/08 12815/08, 12816/08, 12827/08, 12832/08, 12834/08, 12842/08 12853/08, 12859/08, 12862/08, 12865/08, 12868/08, 12882/08 12887/08, 12929/08, 12932/08, 12935/08, 12938/08, 12941/08 12944/08, 12947/08, 12949/08, 12952/08, 12955/08, 12958/08 12961/08, 12964/08, 12967/08, 12970/08, 12973/08, 12976/08 12979/08, 12982/08, 12985/08, 13674/08, 13675/08, 13679/08 13681/08, 13682/08, 13684/08, 13686/08, 13689/08, 13690/08 13692/08 2008 Criminal Proceedings against Sharpe to be dismissed. 12723/08, 12726/08, 12729/08, 12732/08, 12810/08, 12818/08 12823/08, 12830/08, 12831/08, 12833/08, 12838/08, 12843/08 12856/08, 12866/08, 12869/08, 12875/08, 12878/08, 12879/08 12881/08, 12883/08, 12884/08, 12891/08, 12901/08, 12904/08 13693/08, 13694/08, 13697/08, 13698/08, 13699/08, 13700/08
CATCHWORDS:	PRACTICE AND PROCEDURE - permanent stay of proceedings - abuse of process - no prospect of conviction - duplicitous charges - criminal prosecution - misleading conduct relating to sale of food - infant formula - inclusion of nutritive substance - false description - labelling - miscalculation of energy content - meaning of nutritive substance - use of extrinsic material - Australia New Zealand Food Standards Code - Food Standards Australia New Zealand Act 1991 (Cth) - Food Act 2003 (NSW)
LEGISLATION CITED:	Food Act 2003 Criminal Procedure Act 1986 Australia New Zealand Food Standards Code Food Standards Australia New Zealand Act 1991 (Cth) Acts Interpretation Act 1901 (Cth) Legislative Instruments Act 2003 Interpretation Act 1987 NSW
CATEGORY:	Procedural and other rulings
CASES CITED:	Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Rogers v R [1994] HCA 42; 181 CLR 251 Williams v Spautz [1992] HCA 34; 174 CLR 509 R v Hamzy (1994) 74 A Crim R 341 R v Hanza [2008] NSWCCA 288
PARTIES:	Christine Tumney (NSW Food Authority) (Prosecutor) Nutricia Australia Pty Ltd (Defendant) Michael Speare Hocken Sharpe (Defendant) Toni Lee Brendish (Defendant)
FILE NUMBER(S):	SC 12709/08; 12716/08; 12723/08; 12726/08; 12729/08; 12732/08; 12734/08; 12737/08; 12741/08; 12743/08; 12810/08; 12815/08; 12816/08; 12818/08; 12823/08; 12827/08; 12830/08; 12831/08; 12832/08; 12833/08; 12834/08; 12838/08; 12842/08; 12843/08; 12853/08; 12856/08; 12859/08; 12862/08; 12865/08; 12866/08; 12868/08; 12869/08; 12875/08; 12878/08; 12879/08; 12881/08; 12882/08; 12883/08; 12884/08; 12887/08; 12891/08; 12901/08; 12904/08; 12929/08; 12932/08; 12935/08; 12938/08; 12941/08; 12944/08; 12947/08; 12949/08; 12952/08; 12955/08; 12958/08; 12961/08; 12967/08; 12964/08; 12970/08; 12973/08; 12976/08; 12979/08; 12982/08; 12985/08; 13674/08; 13675/08; 13679/08; 13681/08; 13682/08; 13684/08; 13686/08; 13689/08; 13690/08; 13692/08; 13693/08; 13694/08; 13697/08; 13698/08; 13699/08; 13700/08; 12711/08; 12713/08; 12717/08; 12725/08; 12728/08; 12731/08; 12733/08; 12736/08; 12739/08; 12742/08; 12808/08; 12811/08; 12819/08; 12820/08; 12822/08; 12826/08; 12829/08; 12836/08; 12837/08; 12840/08; 12841/08; 12846/08; 12847/08; 12848/08; 12849/08; 12851/08; 12855/08; 12857/08; 12864/08; 12870/08; 12871/08; 12874/08; 12876/08; 12888/08; 12890/08; 12892/08; 12893/08; 12895/08; 12896/08; 12898/08; 12899/08; 12903/08; 12906/08; 12927/08; 12930/08; 12933/08; 12936/08; 12939/08; 12942/08; 12945/08; 12950/08; 12707/08; 12715/08; 12719/08; 12722/08; 12724/08; 12727/08; 12730/08; 12735/08; 12738/08; 12740/08; 12809/08; 12812/08; 12813/08; 12814/08; 12817/08; 12821/08; 12824/08; 12825/08; 12828/08; 12835/08; 12839/08; 12844/08; 12845/08; 12850/08; 12852/08; 12854/08; 12858/08; 12860/08; 12861/08; 12863/08; 12867/08; 12872/08; 12873/08; 12877/08; 12880/08; 12885/08; 12886/08; 12889/08; 12894/08; 12897/08; 12900/08; 12902/08; 12905/08; 12928/08; 12931/08; 12934/08; 12937/08; 12940/08; 12943/08; 12946/08; 12948/08; 12951/08; 12954/08; 12957/08; 12960/08; 12963/08; 12966/08; 12969/08; 12972/08; 12975/08; 12978/08; 12981/08; 12984/08; 13702/08; 13703/08; 13704/08; 13705/08; 13706/08; 13707/08; 13708/08; 13709/08; 13710/08; 13711/08; 13712/08; 13713/08; 13714/08; 13715/08; 13716/08; 13717/08; 13664/07; 13669/08; 13670/07; 13671/07; 13672/07; 13673/07; 13674/07; 13675/07; 13676/07; 13677/07; 13678/07; 13669/07; 12953/08; 12956/08; 12959/08; 12962/08; 12965/08; 12968/08; 12971/08; 12974/08; 12977/08; 12980/08; 12983/08; 13042/08; 13646/08; 13647/08; 13653/08; 13654/08; 13655/08; 13656/08; 13658/08; 13666/08; 13667/08; 13668/08; 13670/08; 13671/08; 13672/08; 13673/08; 13660/08
COUNSEL:	M Joseph SC/M Cahill/A Naylor (Prosecutor) I Barker QC/NJ Williams SC/AM Mitchelmore (Defendant) P Menzies QC/S Callan (Defendants)
SOLICITORS:	Moray & Agnew (Prosecutor) Gilbert + Tobin (Defendant) Thompson Eslick Solicitors (Defendants)

12709/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12716/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12723/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12726/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12729/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12732/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12734/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12737/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12741/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12743/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12810/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12815/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12816/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12818/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12823/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12827/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12830/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12831/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12832/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12833/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12834/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12838/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12842/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12843/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12853/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12856/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12859/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12862/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12865/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12866/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12868/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12869/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12875/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12878/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12879/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12881/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12882/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12883/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12884/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12887/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12891/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12901/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12904/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12929/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12932/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12935/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12938/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12941/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12944/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12947/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12949/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12952/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12955/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12958/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12961/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12967/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12964/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12970/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12973/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12976/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12979/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12982/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12985/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13674/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13675/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13679/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13681/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13682/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13684/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13686/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13689/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13690/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13692/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13693/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13694/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13697/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13698/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13699/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
13700/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v MICHAEL SPEARE HOCKEN SHARPE
12711/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12713/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12717/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12725/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12728/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12731/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12733/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12736/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12739/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12742/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12808/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12811/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12819/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12820/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12822/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12826/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12829/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12836/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12837/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12840/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12841/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12846/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12847/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12848/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12849/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12851/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12855/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12857/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12864/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12870/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12871/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12874/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12876/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12888/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12890/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12892/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12893/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12895/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12896/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12898/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12899/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12903/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12906/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12927/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12930/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12933/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12936/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12939/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12942/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12945/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12950/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12707/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12715/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12719/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12722/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12724/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12727/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12730/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12735/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12738/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12740/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12809/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12812/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12813/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12814/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12817/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12821/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12824/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12825/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12828/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12835/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12839/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12844/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12845/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12850/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12852/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12854/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12858/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12860/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12861/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12863/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12867/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12872/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12873/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12877/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12880/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12885/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12886/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12889/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12894/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12897/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12900/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12902/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12905/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12928/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12931/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12934/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12937/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12940/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12943/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12946/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12948/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12951/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12954/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12957/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12960/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12963/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12966/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12969/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12972/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12975/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12978/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12981/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
12984/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13702/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13703/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13704/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13705/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13706/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13707/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13708/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13709/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13710/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13711/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13712/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13713/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13714/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13715/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13716/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13717/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v TONI LEE BRENDISH
13664/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13669/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13670/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13671/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13672/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13673/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13674/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13675/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13676/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13677/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13678/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13669/07	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12953/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12956/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12959/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12962/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12965/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12968/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12971/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12974/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12977/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12980/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
12983/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13042/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13646/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13647/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13653/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13654/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13655/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13656/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13658/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13666/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13667/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13668/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13670/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13671/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13672/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13673/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD
13660/08	CHRISTINE TUMNEY (NSW FOOD AUTHORITY) v NUTRICIA AUSTRALIA PTY LTD