Christopher Arthur Charles Catt (Respondent) v Woolworths (SA) Ltd (Appellant) No. SCGRG 93/1827 Judgment No. 4808 Number of Pages 5 Public Health

[1994] SASC 4808

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), BOLLEN(2) and DEBELLE(3) JJ

CWDS
Public health - food and drugs purity, adulteration, misdescription, etc. - offence under s22 Food Act (SA) of being employer of person who handled food for purposes of sale and who contravened Regulation 11(1) of Food Hygiene Regulations - whether employee sold the food within meaning of Regulation - extended definition of "to sell" in s3 of Food Act not applicable to the selling proscribed by Regulation 11(1) - employee handling food before point of sale not engaged in act of selling - employee, and hence employer, not guilty of offence - Magistrate's dismissal of charge upheld on appeal. Food Act ss 3 and 22; Food Hygiene Regulations 1990 Regulation 11(1) and ActsInterpretation Act sl4

HRNG ADELAIDE, 10 October 1994 #DATE 27:10:1994

Counsel for appellant:     Mr N J T Swan

Solicitors for appellant:    Finlaysons

Counsel for respondent:     Mrs A Simpson

Solicitors for respondent: Mellor Olsson

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was charged on a Complaint by the respondent containing two counts. Count 1 alleged that the appellant "was the employer of Jodie Ann Leslie who, in the course of her employment, handled food in the course of its storage for sale, or for the purposes of its sale, and who contravened or failed to comply with regulations relating to hygiene. Section 22 of the FoodAct 1985 and Regulation 11(1) of the Food Hygiene Regulations 1990." Count 2 was to the same effect except that the contravention alleged was a contravention of Regulation 6(1)(a). At the conclusion of the case for the prosecution, the learned magistrate ruled that there was a case to answer on Count 2 but no case to answer on Count 1. He dismissed the charge in Count 1. The respondent appealed against the decision on Count 1. The learned judge on appeal allowed the respondent's appeal, set aside the dismissal and remitted Count 1 to the Magistrates Court to be heard and determined. The appellant has appealed to this Court.

2. The charge arises out of the conduct of a salad bar at the appellant's supermarket premises at Morphett Vale. The manner in which the salad bar is operated and Ms Leslie's part in it, was described by the magistrate in his decision as follows:
    "Jodie Leslie told the court her duties, amongst other
    duties, was to generally supervise the salad bar and in
    particular place the containers of salad on the bar, refill
    the containers as required, and if any of the serving spoons
    had slipped down into the salad, to retrieve those spoons.
    Clearly therefore, Jodie Ann Leslie comes within the
    definition of a person who handles food.
    The evidence is that a customer who wants to purchase a
    salad or several types of salad, would take an empty
    container or containers at the salad bar and fill them with
    whatever his or her requirements were, by the use of serving
    spoons, and then place a lid on the container or containers.
    Having done that, the customer would move from the salad
    bar, collect any other food or items that he or she wanted,
    approach the checkout counter and checkout operator, and
    place any items in his or her hands, on the counter with a
    view to paying for them. If the items have been placed by
    the customer in a carry basket or simply a basket, he or she
    removes the items from the basket at the checkout so the
    operator at the checkout can add up the amount to be paid by
    the customer. Alternatively, the items are taken out of a
    basket by the customer or by the seller or both."

3. Section 22 of the Food Act under which the appellant was charged is as follows:
    "22.(1) A person -
    (a) who handles food in the course of its manufacture,
    transportation or storage for sale, or for the purposes of
    its sale;
    and
    (b) who -
     (i) contravenes or fails to comply with a regulation
     relating to hygiene; or
     (ii) otherwise fails to observe reasonable standards of
    personal hygiene,
    shall be guilty of an offence.
    Penalty: Five hundred dollars.
    Expiation fee: Division 9 fee.
    (2) Where a person commits an offence against subsection (1)
    in the course of his employment, the employer shall be guilty
    of an offence.
    Penalty: Two thousand five hundred dollars.
    Expiation fee: Division 7 fee."

4. The Regulation relating to hygiene which was alleged to have been contravened is as follows:
    "11 (1) A person who handles food for sale must not sell by
    retail food that is ordinarily consumed in the state in
    which it is sold unless the food is to be delivered to the
    purchaser completely wrapped or packed."

5. There is an incongruity in the relationship of Regulation 11(1) to section 22. The conduct constituting the offence against s22(1) is the handling of food in contravention of regulations relating to hygiene or when not observing reasonable standards of personal hygiene. The s22 offence relates naturally to the Regulations applying to persons handling food for sale other than Regulation 11(1), but relates only awkwardly, even inappropriately, to a contravention of Regulation 11(1).

6. The Regulations other than Regulation 11(1) applying to persons handling food for sale proscribe conduct which is directly connected with the handling of the food. The conduct dealt with includes lack of personal cleanliness, unnecessary contact with the food, protection from contamination, misuse of cloths or towels, prevention of cross-contamination, attaching unclean labels, using unclean wrapping, use of contaminated packages appliances or utensils, use of dirty tableware, reserving or permitting reservance of previously served food, disposal of returned food, display of food in open spaces and incorrect storage of food. The link with the handling of the food is direct and relevant to the purpose of s22.

7. Regulation 11(1) is quite different. The conduct proscribed is the sale by retail of food which is to be delivered not completely wrapped or packed, but the prohibition is directed against a person who handles the food for sale. Regulation 3 provides that "'handle food for sale' means handle food in the course of its manufacture, transportation storage or display for sale, or for the purposes of its sale." There may be no link or only the most tenuous link between the handling of the food and the sale or delivery which is the gist of the offence. What appears to be aimed at is the selling of food which is to be delivered in an unwrapped or unpackaged condition. The link in Regulation 11(1) with the handling of food is artificial but is of course necessary to attract the operation of s22.

8. If s22(1)(b)(i) prohibited only conduct which contravened regulations relating to personal hygiene the incongruity would disappear because Regulation 11(1) would not be such a regulation. The use of the word "otherwise" in placitum (ii) invites consideration of that construction. I think, however, that the language of placitum (i) should be given its ordinary meaning. Regulation 11(1) is undoubtedly a regulation relating to hygiene.

9. The case against the appellant is founded upon the appellant being the employer of a person who has contravened Regulation 11(1). The liability of the employer under s22(2) is conditioned upon the commission of an offence by the employee against s22(1), in this case the contravention of Regulations 11(1). It is necessary to consider whether there is evidence of the commission of the offence by Ms Leslie.

10. There can be no doubt that Ms Leslie is a person who handled the food for sale within the meaning of the section and the Regulations. The contravention of the Regulation, however, consists in selling the food. The sale, according to the ordinary meaning of that concept, occurred at the checkout point. Ms Leslie had no part in selling the food if "sell" is used in Regulation 11(1) in the ordinary sense of the word.

11. It was contended, however, that the word "sell" in the Regulation is used in the extended meaning given to it by s3 of the Act. That section provides that:
    "'to sell' includes -
    (a) to offer, expose, or have in possession, for sale;
    (b) to deliver for the purpose, or in pursuance, of sale;
    (c) to supply for the purpose, or in pursuance, of a
    contract for the performance of a service;
    (d) to give, or offer to give, as a prize in a competition
    or game of chance;
    (e) to give away in the course, or for the purposes, of
    promotional activities."

12. By virtue of s14 of the Acts Interpretation Act 1915, the expression "to sell" bears the same meaning as in the Act, that is to say the extended meaning, "unless the contrary intention appears." It is necessary to consider whether a contrary intention is indicated as regards Regulation 11.

13. I think that the application of the extended definition to Regulation 11 would produce absurd consequences. Persons who handle food might expose it for sale, deliver it for the purpose of sale, or give or offer to give it as a prize or promotion, although quite removed from the actual sale and point of sale, and the delivery to the customer. They would be made offenders by the actions of others who might sell the goods to be delivered in an unwrapped or unpackaged condition. That cannot be the intention.

14. A contrary intention may appear by express words or from necessary implication. To my mind the fixing of liability on the handler of goods makes it clear that the act of selling which constitutes the offending by the handler must be selling in the ordinary sense. The absurdity which would flow from the application of the extended meaning is a sufficient indication of a contrary intention.

15. An argument was also advanced that the selection of the food by the customer does not amount to the delivery contemplated by the Regulation. The offence is committed by the act of selling unless the food is to be delivered in a completely wrapped or packaged condition. The words "is to be delivered" appear to assume a delivery after sale. It cannot be intended, however, that the offence is committed where the food is delivered completely wrapped or packaged simply because delivery has occurred before sale. The argument for the respondent was that delivery occurred when the customer selected the salad and placed it in the container. At least until the customer placed the lid on the container it was not completely wrapped or packaged.

16. I do not think that it is necessary to consider when delivery as understood in the law of sale of goods occurred. The word delivered in the Regulation must be interpreted having regard to the purpose of the Regulation. That purpose is to prevent contamination of food which is sold by prohibiting the transfer of possession or custody of the food to the customer in an unwrapped or unpackaged condition. The customer selected food from the salad bar with the authority of the appellant. I think that that amounted to delivery for the purpose of the Regulation and that an offence would have been committed by any person who both handled and sold the food.

17. The case for the prosecution established that Ms Leslie handled food. The case failed, however, because it did not prove that Ms Leslie sold the food. As Ms Leslie was not proved to have committed an offence, the case against the appellant was not made out.

18. In my opinion the appeal should be allowed, the order appealed from should be set aside and the order of the magistrate dismissing Count 1 should be restored.

JUDGE2 BOLLEN J I agree that the appeal should be allowed for the reasons given by the Chief Justice. I agree with the order proposed. I, too, do not consider when "delivery" occurred.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice.