Hudson v Hostile Takeovers Pty Ltd
[2015] ACTMC 4
•7 August 2015
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hudson v Hostile Takeovers Pty Ltd |
Citation: | [2015] ACTMC 4 |
Hearing Date(s): | 22 May 2015 |
DecisionDate: | 7 August 2015 |
Before: | Magistrate Campbell |
Decision: | See [56] – [58] |
Category: | Decision |
Catchwords: | CRIMINAL LAW – defendant company prosecuted for food hygiene offences – whether defendant was “proprietor” of food business – whether execution of search warrant contaminated premises –application of the Food Standards Code. |
Legislation Cited: | Criminal Code 2002 (ACT) pt 2.2 Evidence Act 2011 (ACT) ss 55, 65, 82 Australia New Zealand Food Standards Code, standards 3.1.1, 3.2.2, 3.2.3 |
Cases Cited: | Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Hudson v ACT Magistrates Court & Anor [2014] ACTSC 192 |
Parties: | ACT Director of Public Prosecutions (Prosecution) Ms L Hudson (Informant) Hostile Takeovers Pty Ltd (Defendant) |
Representation: | Counsel Ms A Jamieson-Williams (Prosecution) Mr J Pappas (Defendant) Solicitors ACT Director of Public Prosecutions (Prosecution) Ms J Vogel (Defendant) |
File Number(s): | CC 43191 of 2013 CC 43192 of 2013 |
MAGISTRATE CAMPBELL:
The allegations against the defendant company date back to 27 October 2011. It took almost two years for the matter to be first mentioned in court. On that occasion the defendant entered pleas of not guilty to all five charges which allege contraventions of s 27(1) of the Food Act 2001 (ACT) (the Food Act).
For a variety of reasons, including a delay waiting for two very useful decisions to be handed down by the Supreme Court in not dissimilar prosecutions,[1] and an application made by the defendant for a ruling on a particular point before Magistrate Dingwall which was subsequently abandoned, the charges did not finally come on for hearing until 22 May 2015.
Unfortunately by the time of the hearing the primary prosecution witness, environmental health officer, Terence Patrick Ireland, had died.
The five charges are detailed in annexure A. The relevant date for all of them is 27 October 2011. While the ‘particulars of requirement’ set out in each charge are not drafted strictly in accordance with the terminology of the Food Standards Code (more fully known as the Australia New Zealand Food Standards Code) (the Code) their intent is clear enough especially when one reads with them the corresponding clause of the Code to which each relates (also set out in annexure A). In summary there are three alleged contraventions by the company of Standard 3.2.2 of the Code – clauses 17, 19 and 21 and two alleged contraventions of Standard 3.2.3 – clauses 10 and 11.
Relevant legislation – the Food Act and its incorporation of the Code
One of the stated objects of the Food Act is ‘to provide for the application in the ACT of the food standards code’.[2] Observation of the standards set out in the Code is compulsory because of the specific provisions in the Food Act which are ‘part of the legislative scheme to enforce the requirements of a nationally uniform Food Standards Code’ (Hudson at para 52).
In particular s 27(1) of the Food Act, as in force at 27 October 2011, provided:
27Compliance with food standards code
(1) A person must comply with any requirement imposed on the person by the food standards code in relation to—
(a) the conduct of a food business; or
(b) food intended for sale; or
(c) food for sale.
Maximum penalty: 500 penalty units.
One such requirement is imposed by clause 4(1) of Standard 3.1.1 of the Code:
4 Compliance
(1)The proprietor of a food business must ensure the food business complies with all the requirements of the Food Safety Standards ...
The definition of ‘proprietor’ in the Code is mirrored in the Dictionary to the Food Act:
proprietor, of a food business, means—
(a) the person conducting the food business; or
(b) if that person cannot be identified—the person in charge of the food business.
The specific Food Standard requirements imposed on the proprietor of a food business are detailed in Standard 3.2.2 of the Code (Food Safety Practices and General Requirements) and in Standard 3.2.3 (Food Premises and Equipment) which are the Standards the defendant is said to have breached. As was pointed out in Hudson at para 43 these two Standards are relevant to most of the ‘restaurant cases’ which come before the courts in the ACT.
Elements of the offence and the nature of liability
While the provisions of Part 2.2 of the Criminal Code 2002 (ACT) did not apply in October 2011, an analysis of the elements in s 27(1) of the Food Act by reference to conduct and circumstance has been regarded as useful in considering the requirements to be proved in order for the offence to be made. In Hudson at paras 30-31 the Master (as Associate Justice Mossop then was) agreed with the following analysis of the elements:
· A person is conducting a food business (a circumstance);
· The person has a requirement imposed on them by the Code in relation to the conduct of that food business (a circumstance); and
· A person fails to comply with any requirements of the Code (conduct).
Based on this the prosecution does not need to prove a subjective fault element. It is sufficient if it is able to establish beyond reasonable doubt each of the above physical elements in relation to the defendant.
The course of the hearing
10. The primary but not sole issue in dispute was whether the prosecution could prove beyond reasonable doubt that the defendant was ‘the proprietor’, that is ‘the person conducting the food business’ on 27 October 2011. It was not in dispute that a food business was being conducted on that date at the relevant premises or that ‘the person’ could be a corporate entity.
11. At the commencement of the hearing the prosecutor applied for ‘the evidence of Mr Ireland’ namely an unsigned and undated statement, together with a bundle of photographs and accompanying annotations, to be admitted as an exception to the hearsay rule pursuant to s 65(2) of the Evidence Act2011 (ACT) (the Evidence Act) on the unassailable basis that Mr Ireland was an ‘unavailable witness’.
12. Counsel for the defendant, did not oppose the application however the prosecution evidence in support of the application was, in my view, unsatisfactory. Neither of the two affidavits tendered in support addressed the relevant matters set out in s 65(2)(c) of the Evidence Act which was the provision relied on by the prosecution as justifying admission of the statement and its attachments. I have no reason to doubt that given some time that morning the prosecution could have elicited the necessary oral evidence to satisfy me that the previous representations made by Mr Ireland were made in circumstances that made it highly probable that those representations were reliable, and hence admissible as an exception to the hearsay rule, but it was frustrating that the necessary factual information was not contained in either of the affidavits.
13. However after discussion, and with the consent of the parties, I ordered pursuant to s 190 of the Evidence Act that the statement (or more correctly, all the representations contained in that statement) be admitted as evidence in the hearing notwithstanding that its contents would otherwise be hearsay. That is, I dispensed with the application of any provisions relating to hearsay evidence which would otherwise render the evidence potentially inadmissible.
14. At this early stage of the proceedings I noted, at the defendant’s request, that it reserved ‘its position in relation to the possibility that certain annotations to the attached photographs may be challenged.’ I made it clear that I was not comfortable being required to determine the admissibility of each annotation made by Mr Ireland next to the many photographs he had taken. It was preferable that the parties go through the comments and reach some agreement themselves. Ultimately at the end of the prosecution case counsel for the defendant conceded that he no longer had a difficulty with the ‘identifying annotations going before your Honour’ and that I should give such weight to the expressions of opinion/observations and comments made by Mr Ireland as I saw fit. I have done so. In my view there is no basis for my not placing considerable reliance on the comments.
15. The 52 paragraph statement of Mr Ireland together with the accompanying 48 pages of photographs and a pro forma completed document titled ‘Food Premises Inspection Report’ became exhibit 1.
Statement of Terence Patrick Ireland (exhibit 1)
16. In paragraph 5 of his witness statement Mr Ireland refers to the morning of 27 November 2011. It is clear that this is an error and that the date to which he meant to refer is 27 October 2011. He has noted the date ‘27-10-11’ on the photographs attached to his statement and refers in paragraph 47 of his statement to downloading those photographs on 28 October 2011. No point was made by either party in relation to what I am satisfied was a simple typographical error.
17. Much of his written statement unsurprisingly concentrates on the state of the premises and Mr Ireland’s concerns in relation to them rather than the issues which have primarily taken up my time. However some of the salient points of Mr Ireland’s statement were:
(a)The condition of the premises where the food business The London Burgers and Beers restaurant was being carried on at 121 London Circuit, Canberra City was brought to his attention by a member of the Australian Federal Police (AFP) who was executing a search warrant at the premises. I infer that the police were concerned enough at the state of the premises to contact Mr Ireland.
(b)Before he left his office Mr Ireland undertook a database search, as did the Director of Environmental Health, Ms Langhorne, in an attempt to find out more about the business owner or the premises. Neither could find any reference to the business on their databases and they concluded that the business did not have a ‘food business registration under s 91 of the Food Act 2001’.
(c)Mr Ireland attended the premises but was delayed in undertaking his inspection as the police were still conducting their search:
We could not commence a food safety inspection immediately due to the AFP conducting their search, but in the short time that I was in the kitchen for this briefing I could see some obvious breaches myself particularly concerning the material and structure of the premises, fixtures, fittings and equipment (at para 9; some examples are then detailed in paras 10 and 11).
(d)Mr Ireland spoke to a man called Ali Bilal, who he was told by a police officer is also known by the name, Tony Soprano. Mr Bilal was sitting at a table in the restaurant and Mr Ireland advised him that he would be conducting a food safety inspection of the premises:
I asked him was he able (sic) to demonstrate that the food business is registered with HPS by providing us with a current food business registration certificate. Mr Bilal said that his partner – the chef – looked after everything to do with the food and that I needed to ask him (para 14).
(e)Mr Ireland met with the chef, Christian Hyland. He asked Mr Hyland if he was ‘able to demonstrate that the food business is registered with HPS by providing us with a current food business registration certificate. Mr Hyland was not able to give a relevant straight answer to this question’, but made reference to something about another business partner (later identified as a Mr Conners) who was no longer involved with the business.
(f)At the end of his inspection Mr Ireland met with Mr Hyland again and told him that there were ‘a number of non-compliances’ and that there was no evidence to suggest that the food business was registered. He told Mr Hyland that he was directed by his superiors to advise him that the business was not to trade as a food business. He recorded that ‘Mr Hyland questioned the non-compliances and also questioned the registration’ (or more particularly I infer, the lack of a record of the registration of the food business).
(g)Mr Ireland went to the office of the Australian Securities & Investments Commission (ASIC) to obtain a company extract to confirm Hostile Takeovers Pty Ltd and the directors ‘as the correct company in whom (sic) to address the prohibition order’. The ASIC extracts confirmed Christian Hyland as one of the directors of Hostile Takeovers Pty Ltd. It also confirmed the company’s registered office was 121 London Circuit, Canberra.
(h)Later in the day Mr Ireland attempted to deliver the prohibition order addressed to the company to Mr Hyland but Mr Hyland did not wish to talk with him. Accordingly, he ‘delivered the prohibition order to Mr Bilal’ who was still present at the restaurant.
18. Of course Mr Ireland was not available to be cross-examined but neither was he available to expand on the contents of his statement or to supplement the detail in it as to his observations of the state of the premises or as to any conversations he had with Mr Hyland or Mr Bilal on 27 October 2011.
Lyndell Hudson
19. The only witness to give oral evidence was Ms Lyndell Hudson, the informant. In October 2011 she was Mr Ireland’s direct supervisor. She was familiar with the brief compiled by him and a number of documents were tendered through her.
20. Exhibit 2 consisted of a copy of the document described as having been ‘obtained by Mr Ireland in the course of his involvement in the matter’ from the records of ASIC. Included with this ASIC material was a document referred to as a Public Register search result.
21. The defendant objected to the tender of the seven pages of documents not on the basis of their contents but on the basis of relevance. In particular it objected to the company extract which was prepared on 28 October 2011. The defendant argued that a company search undertaken a day after the event could not assist in determining the facts which existed the day before. I did not agree. In my view the contents could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact (indeed the primary fact) in issue in the proceeding (s 55 Evidence Act).
Correct name of the defendant
22. What was immediately evident from the first page of the documents was that the correct name of the corporate entity, which on its registration was issued by ASIC with the unique nine-digit identifier (an ACN) 143 229 038, is Hostile Takeovers Pty Ltd. Nearly every court document incorrectly names the company as Hostile Takeover Pty Ltd although I note that the witness statement of Mr Ireland (exhibit 1) correctly refers to the company as Hostile Takeovers Pty Ltd. While this inaccuracy may be a minor matter and not a fatal flaw to the prosecution case (indeed even the defendant refers to itself as Hostile Takeover Pty Ltd, for example in exhibit 4, as do its legal representatives in correspondence to the DPP although I accept this may not have been an oversight) dealing with it at such a late stage of the proceedings was an unnecessary distraction.
23. Leave was granted to the prosecution to amend the name of the defendant in all relevant court documents to correctly reflect its name as Hostile Takeovers Pty Ltd.
Information gleaned from the ASIC records – 28 October 2011 (exhibit 2)
24. Hostile Takeovers Pty Ltd ACN 143 229 038 was registered with ASIC on 20 April 2010 as a private company. Its principal place of business from that date was recorded as being located at 121 London Circuit, Canberra City. Since 13 June 2011 its registered office was recorded as also being at 121 London Circuit, Canberra City.
25. Christian John Hyland was both a director and secretary of the company. A second director, also with the surname Hyland, lives at the same residential address as Christian Hyland. The third director is recorded as Rachel Bilal. She has the same residential address as Ali Bilal who is listed with Mr Hyland as one of two shareholders in the company.
26. The most recent change to the company details prior to October 2011 was recorded as taking place on 28 September 2011.
The Business and Industry Licensing extract from the Public Register (exhibit 2)
27. This document is a public register search result record from what I assume is the ACT liquor licensing register which states that the licensee of Hostile Takeovers Pty Ltd was, under the trading name The London Beers and Burgers, issued with an ‘on’ or active liquor license (number 13008690) from 12 November 2010 to 30 November 2011. I infer from this that the premises were licensed premises as at 27 October 2011. From the photographic evidence of the large sign hanging outside the premises I am satisfied that the business was called The London Burgers and Beers. I take the transposition of the words ‘Beers’ and ‘Burgers’ to be no more than a typing error. To be abundantly cautious I note that there is no evidence to suggest that there was another unrelated entity carrying on business in the ACT under a very similar name. Indeed I am confident the relevant regulatory authority would not allow such a confusing situation to occur.
Prohibition order (exhibit 3)
28. Exhibit 3 is a document titled ‘Food Act 2001 – Prohibition Order’. It describes itself as an instrument made under s 82 of the Food Act 2001 and is signed by ‘Melissa Langhorne Director Environmental Health’ and dated 28 October 2011. It states relevantly in para 2: ‘This Prohibition Order is served upon Hostile Takeovers Pty Ltd as proprietor of the premises London Burgers and Beer, located at 121 London Circuit Canberra City ACT 2601.’
29. I allowed the tender of the document, over objection by the defendant, as a copy of the prohibition order referred to in paragraphs 49 and 50 of Mr Ireland’s statement which was handed over to a person (Mr Bilal) at the registered premises of the defendant on 27 October 2011. In my view it met the rest of relevancy and thus was admissible. I indicated that what interpretation I put on its contents and whether it could be used to assist in establishing the factual issue at the root of these proceedings was something which would be dealt with after I had received written submissions from the parties and the precise issues in dispute had become clear. Ultimately I am satisfied that it was the delivery of this notice which prompted Mr Hyland to lodge the food business registration application on the defendant’s behalf the very next day.
Food Business Registration Application (exhibit 4)
30. Section 91 of the Food Act relevantly provides:
(1) A person must not conduct a food business unless the food business is registered under this part.
31. Section 92 provides the mechanism for that registration:
(1) A person may apply to the chief health officer for registration of a food business conducted by the person.
32. The requirement for a food business to be registered with the relevant public authority/enforcement agency (the chief health officer in the ACT) is to enable that authority to ensure that all food businesses within their area of responsibility comply with the standards of the Code.
33. On 28 October 2011, the day after Mr Ireland inspected the premises, an application for food business registration was lodged with ACT Government Health on behalf of Hostile Takeover (sic) Pty Ltd ACN 143 229 038. The person making the application was Christian Hyland who provided the trading name of the food business as being ‘The London Burgers and Beers’ and its street address as 121 London Crt (sic) Civic. Mr Hyland described himself as ‘Director (Chef)’. Mr Hyland was named as the contact person for the company and as the ‘onsite contact person’ for the food business.[3] He answered the question ‘was (sic) the premises previously used for a food business’ with ‘yes’ and said the previous trading name of the food business was Cafe Macchiato.
34. Again an objection was made by the defendant in relation to the relevance of the document on the basis that it had been submitted to the relevant authority the day after the date of the alleged offences. Counsel argued that the application to register the company pursuant to s 92 of the Food Act (this section is referred to in the heading of the application form) as the person carrying on the food business the day after the event could not allow me to draw a proper conclusion as to who was conducting the food business the day before.
35. I allowed the tender of the document as exhibit 4 as I was of the view that the evidence satisfied the test for admissibility as set out in the Evidence Act. Clearly the fact that on 28 October 2011 the defendant was applying to register a food business was relevant to the question of whether it, or someone else, was conducting the very same food business the day before. Especially in circumstances where it was abundantly clear that 28 October 2011 was not the first day of operation of the restaurant known as London Burgers and Beers and that the kitchen area certainly did not appear to be in the state one might expect it to be in had there been a change of ownership/management overnight.
36. Exhibit 5 consisted of two instruments made pursuant to the Public Health Act 1997 (ACT). They were tendered through Ms Hudson without objection.
37. The defendant did not cross examine Ms Hudson at the close of the prosecution case nor did it adduce any evidence to challenge or contradict the evidence before me.
38. The defendant was in a position to hand up written submissions immediately. The prosecution replied to them within a few weeks after which a final set of brief submissions in reply were lodged by the defendant.
The issues
39. There were three issues ventilated in the written submissions:
(a)Was the defendant the proprietor of the food business?
40. Was it possible that there had been some contamination of the premises by the AFP?
41. Does Standard 3.2.3 only relate to the past with no ongoing obligation imposed on a proprietor?
Was the defendant the proprietor of the food business?
42. The defendant argued that the prosecution could not prove beyond reasonable doubt that it was the proprietor of the food business for the purposes of the Food Act. In particular it argued that the evidence was such that I could not discount as a reasonable possibility, that at the relevant date the business was being conducted by Ali Bilal or Tony Soprano or Christian Hyland, or some combination of those men in partnership, or by the company Hostile Takeovers Pty Ltd.
43. ‘A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities’ (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 514 per Brennan J). A corporation can only act or form an intention through its directors or employees. Some people in a corporation are mere servants or agents who do its work but it cannot be said that they represent the mind or will of their employer. However others, directors and managers, do represent the mind and will of the company and control what it does. A corporation is directly liable for the acts of such people (in larger corporations this is usually the board of directors or someone to whom they have delegated certain functions) as they are considered to be the embodiment of the company.
44. Here Mr Hyland was a director, the secretary and one of only two shareholders in the defendant company. On 28 October 2011 he referred to himself as the defendant’s ‘onsite contact person’ in relation to The London Burgers and Beers. I am satisfied that he was indeed by virtue of all these roles the embodiment of the company and thus acted and spoke on its behalf in his dealings with Mr Ireland and the regulatory authority.
45. It seems to me that any loose reference by Mr Bilal to Mr Hyland being ‘his partner’ can be explained as reflecting the reality that the two men were joint shareholders in the company which was conducting the business at the address in London Circuit. An imprecise or ill-informed reference to a person and their role in a food business, whether by that person, a police officer, or a public servant working for a regulatory authority, cannot be determinative of the issue which remains: ‘does the defendant satisfy the definition of “proprietor” in relation to the food business in question?’ (Stirfry at para 18).
46. I have had the considerable benefit of the clear statements of principle contained in the decision of Penfold J in Stirfry, some of which are directly of relevance to this matter. For example at paras 18 – 20, 25, 31 and 44 her Honour commented:
Identifying the proprietor
18. The statutory regime out of which this matter arises creates an offence that is committed by the “proprietor” of a food business. The identification of a natural person or other entity as the “proprietor” of a food business depends on the content of the definition of “proprietor”, and on the determination of the question of who is actually “conducting” or “in charge of” the food business. It does not depend on references to a person as the “proprietor”, even by the regulatory authorities, irrespective of whether that reference has any basis in the relationship between the definition and the facts. While the identification of a “proprietor” in a registration certificate for the business may be helpful in identifying the proprietor in many cases, an imprecise reference to a person involved with the running of the food business, or even to a person who does not exist, in such a document does not change the question to be considered in a prosecution under s 27.
19. The question is not: is the defendant identified as the proprietor on a registration certificate which is required to include the proprietor’s name? The proper question is: does the defendant satisfy the definition of “proprietor” in relation to the food business in question?
20. Having said that, if it is accepted, as it appears to be, that a food business can be conducted by an entity other than a natural person, then it will often be necessary to look not at who is actually doing the work required to conduct the food business (generally, acquiring, storing, preparing and serving the food) but at the corporate structure by which the business is carried on.
25. ... the test for identifying the proprietor does not refer to any specification in the registration certificate but to the functions being performed in relation to the business.
31. In considering that question, it seems to me that the appropriate starting point is not the Certificate as granted but the Application Form as lodged. It is in the Application Form that the entity seeking authority to carry on a food business in the specified restaurant is identified.
44. If it had been necessary to determine who was “in charge” of the business, evidence as available from the inspection reports who was present in the restaurant and dealt with the inspectors at various times might well be relevant ... .
47. Applying these principles to the evidence before me, particularly exhibits 2 and 4, it is impossible not to conclude that the defendant was the proprietor of the business and that it was conducting the food business The London Burgers and Beers on 27 October 2011 at the address in London Circuit. This is, of course, the address which it had earlier advised ASIC was the primary location at which it carried on its business.
48. I am satisfied to the requisite degree that once it had been brought to Mr Hyland’s attention that the company had not registered the business as a food business (the ‘Burgers’ part of its name – it already having a liquor license for the ‘Beers’ part) that he, embodying the will of the defendant and acting for it, immediately attended to rectifying the situation.
The possibility of contamination of, or tampering with, the premises by the AFP
49. This defendant’s submission was articulated as: ‘there is no evidence as to the state of the premises immediately prior to the involvement of the police in that searching process; nor what was done during that search; what areas were searched; what was moved or disturbed; what was opened; what was soiled or what was contaminated by police’.
50. In effect I understand from this that I am being invited to draw an inference that the police either deliberately or inadvertently tampered with the evidence that Mr Ireland referred to in his statement on the sole basis that they had the opportunity to do so. This simply does not arise on the evidence (see para 9 of exhibit 1), there is no suggestion of how that sort of conduct might affect any of the matters shown in the photographs and I reject it as inherently implausible.
The design and construction of the premises – Standard 3.2.3
51. The defendant argued here that in relation to two of the five charges (43194/13 and 43195/13) ‘there is simply no evidence as to when the premises were designed and constructed and therefore no evidence of whether they were designed or constructed so as to comply with food standard 3.2.3. The standard is cast in the past tense with no ongoing application’. There is no evidence concerning when the premises (the floors, walls and ceilings) were designed and constructed.
52. The clauses relevant to charges 43194/13 and 43195/13 and the responsibilities of a proprietor of a food business imposed by them are contained in annexure A.
53. This submission in my view is based on a misreading and misunderstanding of Standard 3.2.3, the objective of which is relevantly stated as being: ‘to ensure that, where possible, the layout of the premises minimises opportunities for food contamination. Food businesses are required to ensure that their food premises, fixtures, fittings, equipment and transport vehicles are designed and constructed to be cleaned and where necessary, sanitised’.
54. The Standard expressly reiterates that it applies to all food businesses in Australia (‘in accordance with Standard 3.1.1’ and thus to the defendant) and provides specifically in clause 2 that: ‘A food business may only use food premises ... that comply with this Standard’.
55. There is a clear and ongoing responsibility imposed on the proprietor of a food business to comply with Standard 3.2.3. For the Standard to be interpreted in the way suggested by the defendant would undermine the clearly stated intention of the Standard. I reject the interpretation.
The charges – my findings
56. In her written submissions the prosecutor matched up each of the five charges and the applicable clause in the relevant Standard of the Code, with the relevant paragraphs of Mr Ireland’s statement and the accompanying photographs. The particulars of each of the charges become apparent when one reads them in conjunction with the nominated clause of the relevant Standard (see annexure A). I am grateful to her for her diligence.
57. It was not in dispute that the tendered photographs depicted the relevant parts of the business premises. Nor was it submitted by the defendant that I could not be satisfied that what was depicted in the large body of photographs together with the other evidence, all of which was summarised by the prosecutor in her written submissions dated 5 June 2015 and reproduced in annexure B, was sufficient to establish the particulars of each of the five charges beyond reasonable doubt.
58. I am satisfied beyond reasonable doubt that the defendant failed to meet the requirements imposed on it as proprietor of the food business on 27 October 2011 and that each of the five offences are proved beyond reasonable doubt.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Campbell. Associate: Verity Griffin Date: 17 September 2015 |
Annexure A – the charges
The purpose of Standard 3.2.2 is to specify: ‘process control requirements to be satisfied at each step of the food handling process. Some requirements relate to the receipt, storage, processing, display, packaging, distribution disposal and recall of food. Other requirements relate to the skills and knowledge of food handlers and their supervisors, the health and hygiene of food handlers, and the cleaning, sanitising and maintenance of premises and equipment’.
That on 27 October 2011 Hostile Takeovers Pty Ltd (ACN 143 229 038) trading as food business The London Burgers & Beers, contravened section 27(1) of the Food Act 2001 by failing to comply with the Food Standards Code in relation to the conduct of a food business.
Particulars of requirement: Food Standards Code clause 3.2.2 number 17 - Hygiene of food handlers.
17Hygiene of food handlers – duties of food businesses
(1)Subject to subclause (2), a food business must, for each food premises –
(a)maintain easily accessible hand washing facilities;
(b)maintain, at or near each hand washing facility, a supply of –
(i) warm running water; and
(ii) soap; or
(iii) other items that may be used to thoroughly clean hands;
(c)ensure hand washing facilities are only used for the washing of hands, arms and face; and
(d)provide, at or near each hand washing facility –
(i) single use towels or other means of effectively drying hands that are not likely to transfer pathogenic microorganisms to the hands; and
(ii) a container for used towels, if needed.
Evidence of contraventions summarised in paragraphs 36 and 37 of prosecution submissions dated 5 June 2015.
That on 27 October 2011 Hostile Takeovers Pty Ltd (ACN 143 229 038) trading as food business The London Burgers & Beers, contravened section 27(1) of the Food Act 2001 by failing to comply with the Food Standards Code in relation to the conduct of a food business.
Particulars of requirement: Food Standards Code clause 3.2.2 number 19 - Cleanliness.
19Cleanliness
(1)A food business must maintain food premises to a standard of cleanliness where there is no accumulation of –
(a)garbage, except in garbage containers;
(b)recycled matter, except in containers;
(c)food waste;
(d)dirt;
(e)grease; or
(f)other visible matter.
(2)A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of –
(a)food waste;
(b)dirt;
(c)grease; or
(d)other visible matter.
Evidence of contraventions summarised in paragraph 39 of prosecution submissions dated 5 June 2015.
That on 27 October 2011 Hostile Takeovers Pty Ltd (ACN 143 229 038) trading as food business The London Burgers & Beers, contravened section 27(1) of the Food Act 2001 by failing to comply with the Food Standards Code in relation to the conduct of a food business.
Particulars of requirement: Food Standards Code clause 3.2.2 number 21 - Maintenance.
21Maintenance
(1)A food business must maintain food premises and all fixtures, fittings and equipment, having regard to their use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, in a good state of repair and working order having regard to their use.
(2)A food business must not use any chipped, broken or cracked eating or drinking utensils for handling food.
Evidence of contraventions summarised in paragraph 40 of prosecution submissions dated 5 June 2015.
The objective of Standard 3.2.3 is relevantly stated as being: ‘to ensure that, where possible, the layout of the premises minimises opportunities for food contamination. Food businesses are required to ensure that their food premises, fixtures, fittings, equipment and transport vehicles are designed and constructed to be cleaned and where necessary, sanitised’.
That on 27 October 2011 Hostile Takeovers Pty Ltd (ACN 143 229 038) trading as food business The London Burgers & Beers, contravened section 27(1) of the Food Act 2001 by failing to comply with the Food Standards Code in relation to the conduct of a food business.
Particulars of requirement: Food Standards Code clause 3.2.3 number 10 - Floors.
10 Floors
(1) Floors must be designed and constructed in a way that is appropriate for the activities conducted on the food premises.
(2) Subject to subclause (3), floors must –
(a)be able to be effectively cleaned;
(b) be unable to absorb grease, food particles or water;
(c) be laid so that there is no ponding of water; and
(d) to the extent that is practicable, be unable to provide harbourage for pests.
Evidence of contraventions summarised in paragraph 41 and 42 of prosecution submissions dated 5 June 2015.
That on 27 October 2011 Hostile Takeovers Pty Ltd (ACN 143 229 038) trading as food business The London Burgers & Beers, contravened section 27(1) of the Food Act 2001 by failing to comply with the Food Standards Code in relation to the conduct of a food business.
Particulars of requirement: Food Standards Code clause 3.2.3 number 11 - Walls and ceiling.
11 Walls and ceilings
(1) Walls and ceilings must be designed and constructed in a way that is appropriate for the activities conducted on the food premises.
(2) Walls and ceilings must be provided where they are necessary to protect food from contamination.
(3) Walls and ceilings provided in accordance with subclause (2) must be –
(a)sealed to prevent the entry of dirt, dust and pests;
(b) unable to absorb grease, food particles or water; and
(c) able to be easily and effectively cleaned.
(4) Walls and ceilings must –
(a)be able to be effectively cleaned; and
(b) to the extent that is practicable, be unable to provide harbourage for pests.
Evidence of contraventions summarised in paragraph 44 of prosecution submissions dated 5 June 2015.
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Annexure B – Extract of Prosecution Submissions
IN THE MAGISTRATES COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY ) CC2013/43191–43195
LYNDELL HUDSON
Informant
and
HOSTILE TAKEOVERS PTY LTD
Defendant
PROSECUTION SUBMISSIONS
...
EVIDENCE IN SUPPORT OF CHARGES
| CHARGE | FOOD STANDARDS CODE | PHOTOS DEPICTING THE ALLEGED BREACH OF THE FSC | OTHER EVIDENCE RELIED UPON BY THE PROSECUTION |
| CC2013/43191 | Clause 3.2.2(17) | 38, 91 | Statement of Terence Ireland – [21] |
| CC2013/43192 | Clause 3.2.2(19) | 5, 6, 8, 9, 10, 13, 14, 16, 17, 37, 39, 41, 42, 47, 50, 51, 52, 71, 72, 74, 76, 77, 80, 83, 85, 86, 88, 89, 90, | Statement of Terence Ireland – [10], [22], [23], 27], [28], [29], [30], [34], [35], [37], [39], [40], [41], [42] |
| CC2013/43193 | Clause 3.2.2(21) | 23, 56, 80, 84 | Statement of Terence Ireland – [25], [39], [42] |
| CC2013/43194 | Clause 3.2.3(10) | 3, 4, 81, 82, 90 | Statement of Terence Ireland – [11] |
| CC2013/43195 | Clause 3.2.3(11) | 5, 6, 22, 23, 24, 25, 27, 48, 55, | Statement of Terence Ireland – [10], [24], [25], [32], [33] |
CC2013/43191
35. Clause 3.2.2(17) imposes an obligation on a proprietor of a food business to maintain hand washing facilities to a certain standard.
(1) Subject to subclause (2), a food business must, for each food premises –
(a) maintain easily accessible hand washing facilities;
(b) maintain, at or near each hand washing facility, a supply of –
(i) warm running water; and
(ii) soap; or
(iii) other items that may be used to thoroughly clean hands;
(c) ensure hand washing facilities are only used for the washing of hands, arms and face; and
(d) provide, at or near each hand washing facility –
(i) single use towels or other means of effectively drying hands that are not likely to transfer pathogenic microorganisms to the hands; and
(ii) a container for used towels, if needed.
(2) Paragraph (1)(c) does not apply in relation to hand washing facilities at food premises that are used principally as a private dwelling if the proprietor of the food business has the approval in writing of the appropriate enforcement agency.
(3) With the approval in writing of the appropriate enforcement agency, a food business that operates from temporary food premises does not have to comply with any of the requirements of paragraphs (1)(b)(i) or (1)(d) that are specified in the written approval.
36. The defendant contravened this clause because it did not maintain the hand washing facilities in the kitchen by providing soap or single use towels or other means of effectively drying hands that are not likely to transfer pathogenic microorganisms to the hands – 3.2.2(17)(1)(b) and (d).
37. Clause 3.2.2(17)(1)(c) states that a food business must ensure that hand washing facilities are only used for the washing of hands, arms and face. The defendant further contravened this clause by using the hand wash basin in the front bar area to store a basket full of cutlery.
CC2013/43192
38. Clause 3.2.2(19) imposes an obligation on a proprietor of a food business to maintain a food premises to a standard of cleanliness.
(1) A food business must maintain food premises to a standard of cleanliness where there is no accumulation of –
(a) Garbage, except in garbage containers;
(b) Recycled matter, except in containers;
(c) Food waste;
(d) Dirt;
(e) Grease; or
(f)Other visible matter.
(2)A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of –
(a)Food waste;
(b)Dirt;
(c)Grease; or
(d)Other visible matter.
39. The evidence establishing that the proprietor of the food business did not maintain the food premises to a standard of cleanliness is outlined below:
| Evidence | Description | Contravention of Clause 3.2.2(19) |
| Ireland [10]/photos 5, 6 | Dirty ceiling into the entry of the office above the food preparation area/dishwasher | 1(f) |
| Ireland [22]/ Photo 8, 17 | Accumulation of garbage that was not in a garbage container (cigarette butts on the floor in the area inside the back entrance) | 1(a) |
| Ireland [23]/Photo 9, 10, 13, 14 | Accumulation of other visible matter (spilt chemicals which have not been cleaned up) | 1(f) |
| Ireland [23]/photo 16 | Accumulation of mould on the cool room fan units and ceiling surface | 2(d) |
| Ireland [27]/ photos 28, 29, 31, 32, 33, 37, 47, 74, 88, 89, 90 | Kitchen walls had a number of external running service pipes, conduits and other hardware, covered in accumulated material | 1(f) |
| Ireland [28]/ photos 35, 36, 41, 42, 44 | Accumulation of grease on and around cooking appliances | 2(c) |
| Ireland [29]/ photo 34 | Accumulation of grease on the mechanical ventilation canopy | 2(c) |
| Ireland [30], [31]/ photos 28, 32, 33, 34, 45, 46, 58, 59, 74, 76, 88, 89 | Accumulation of grease and food waste on the walls and floor behind the cooking appliances and other benches | 2(c) |
| Ireland [34]/ photos 47, 57, 58, 59, 72 | Unclean floor of kitchen which were littered with items such as loose bricks | 1(f) |
| Ireland [35]/ photo 57 | Unclean black sheet plastic lining which covered a pass through to the restaurant from the kitchen | 1(f) |
| Ireland [39]/ photos 71, 80 | Unclean fridge latch handles and rubber seals | 2(d) |
| Ireland [40]/ photos 65, 66, 67 | Unclean fridge with water on the fridge floor | 2(d) |
| Ireland [41]/photos 93, 94 | Unclean refrigeration condenser | 2(d) |
| Ireland [37]/photos 50, 51, 52, 53 | Accumulation of an orange substance in the dishwasher water jets | 2(d) |
| Ireland [42]/photos 85 | Fan motor in the refrigerator was unclean and the grate contained a contaminant | 2(d) |
| Photo 39 | Unclean food utensils | 2(d) |
| Photo 43 | Unclean towels and equipment stored in non-working fridge cabinet | 2(d) |
| Photo 54 | Accumulation of visible matter on top of ice machine | 2(d) |
| Photo 60, 61, 62, 63 | Accumulation of food waste in grill above food prep area | 2(d) |
| Photo 76 | Unclean wall tile grout | 1(f) |
| Photo 77 | Unclean microwave | 2(d) |
| Photo 83 | Unclean rim & lid of chest freezer | 2(d) |
| Photo 86, 95 | Unclean food preparation bench | 2(d) |
| Photo 92 | Unclean bain marie | 2(d) |
CC2013/43193
40. Clause 3.2.2(21) imposes an obligation on a proprietor of a food business to maintain a food premises, fixtures, fittings and equipment. All of the evidence establishes various contraventions of subsection (1) of this clause.
(1)A food business must maintain food premises and all fixtures, fittings and equipment, having regard to their use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, in a good state of repair and working order having regard to their use.
(2)A food business must not use any chipped, broken or cracked eating or drinking utensils for handling food.
| Evidence | Description | Contravention of Clause 3.2.2(21) |
| Ireland [25]/photo 23 | light fittings were not properly fixed into the ceiling | 3.2.2(21)(1) |
| Ireland [25]/photo 23 | ice machine was unclean with caked on dirt and grime and taped on plastic sheeting and peeling gaffer tape | 3.2.2(21)(1) |
| Ireland [39]/photo 80 | latch handles of fridge were broken | 3.2.2(21)(1) |
| Ireland [42]/photo 84 | fridge shelf was damaged, with the plastic coating peeling and flaking off, exposing bare rusted metal | 3.2.2(21)(1) |
| Photo 56 | broken container in dishwasher | 3.2.2(21)(1) |
CC2013/43194
41. Clause 3.2.3(10) imposes an obligation on a proprietor of a food business to design and construct floors in a way that is appropriate for the activities conducted on the food premises.
(1) Floors must be designed and constructed in a way that is appropriate for the activities conducted on the food premises.
(2) Subject to subclause (3), floors must –
(a)be able to be effectively cleaned;
(b) be unable to absorb grease, food particles or water;
(c) be laid so that there is no ponding of water; and
(d) to the extent that is practicable, be unable to provide harbourage for pests.
(3) The following floors do not have to comply with subclause (2) –
(a)floors of temporary food premises, including ground surfaces, that are unlikely to pose any risk of contamination of food handled at the food premises; and
(b)floors of food premises that are unlikely to pose any risk of contamination of food handled at the food premises provided the food business has obtained the approval in writing of the appropriate enforcement agency for their use.
| Evidence | Description | Contravention of Clause 3.2.3(10) |
| Ireland [11]/photos 3, 4, 81, 82, 90 | Missing floor tiles and gouged subfloor with “ponding (of water) and food particle harbourage” which was evident. The floor was unsealed around a pipe/drain (photo 90). |
42. The floor in question was not designed and constructed in a way that complied with this clause. The fact that there was “ponding” of water and food particles being harboured in the floor is evidence of this. In addition, the floor could not be effectively cleaned with tiles missing and an unsealed surface.
43. It is submitted by the defendant that there is no evidence as to when the premises in question were designed and constructed. What the evidence does establish is that on 27 October 2011, the floors were not designed and constructed in a way that is appropriate for the activities conducted on the food premises. Regardless of whether the premises was designed and constructed on an earlier occasion, there is evidence which establishes that this clause was contravened on 27 October 2011.
CC2013/43195
44. Clause 3.2.3(11) imposes an obligation on a proprietor of a food business to design and construct walls and ceilings in a way that is appropriate for the activities conducted on the food premises.
(1) Walls and ceilings must be designed and constructed in a way that is appropriate for the activities conducted on the food premises.
(2)Walls and ceilings must be provided where they are necessary to protect food from contamination.
(3)Walls and ceilings provided in accordance with subclause (2) must be –
(a)sealed to prevent the entry of dirt, dust and pests;
(b)unable to absorb grease, food particles or water; and
(c)able to be easily and effectively cleaned.
(4)Walls and ceilings must –
(a)be able to be effectively cleaned; and
(b)to the extent that is practicable, be unable to provide harbourage for pests
| Evidence | Description | Contravention of Clause 3.2.3(11) |
| Ireland [24]/photo 22, 24, 25 | Walls in the back of house storage area (where drinks, cooking oils and containers were stored) were unsealed and did not have wall sheeting on them and a telecommunications board was hanging out of the wall | (2)&(3) |
| Ireland [24]/photo 22 | Surface of the ceiling in the back of house storage area was unsealed, flaking paint or paper lining from the plaster board sheeting | (2)&(3) |
| Ireland [10]/photos 5 & 6 | No ceiling above the kitchen leading into the office space, which would expose food to contamination | (2)&(3) |
| Ireland [25]/photos 23 & 27 | Unsealed ceiling above the back of house storage area and corridor to the kitchen | (2)&(3) |
| Ireland [32]/photos 55, 61 | Walls with tiles missing, including above the food preparation area | (2)&(3) |
| Ireland [33]/photos 48, 64, 87 | Ceiling was not sealed (gaps and holes visible) | (2)&(3) |
| Photo 75 | Walls not sealed properly (deteriorated/contaminated sealant) | (2)&(3) |
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[1] Hudsonv ACT Magistrates Court & Anor [2014] ACTSC 192 (Hudson), Stirfry Pty Ltd vLorkin [2014] ACTSC 213 (Stirfry).
[2] Food Act 2001 (ACT) s 3(c).
[3] Stirfry at para 34: ‘ ... food business regulators would be substantially hindered in their task of protecting public health through monitoring food hygiene and related matters in restaurants if they were unable to deal directly, and quickly, with the individuals operating a food business on behalf of a corporate entity.’
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