I Cook Foods Pty Ltd v State of Victoria
[2023] VSC 654
•13 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2020 02728
| I COOK FOODS PTY LTD (ACN 094 392 060) | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF HEALTH AND HUMAN SERVICES) | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2-4, 9-11, 14-15, 31 August, 1 September 2023 |
DATE OF JUDGMENT: | 13 November 2023 |
CASE MAY BE CITED AS: | I Cook Foods Pty Ltd v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 654 |
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TORTS – Misfeasance in public office – Order made by Acting Chief Health Officer requiring plaintiff to destroy food and immediately cease food production – Order had an immediate prejudicial effect upon plaintiff – Plaintiff not provided with any opportunity to be heard prior to the Order being made – Order invalid by reason of denial of procedural fairness – Acting Chief Health Officer sought legal advice prior to making Order – Acting Chief Health Officer not advised of any requirement to accord plaintiff procedural fairness – Acting Chief Health Officer not recklessly indifferent to whether Order was invalid by reason of failure to accord plaintiff procedural fairness – Claim for damages for misfeasance in public office dismissed.
DECLARATION – Whether Court should grant declaration that Order invalid by reason of failure to observe the requirements of procedural fairness – Plaintiff ceased trading in 2019 – No evidence that plaintiff is likely to resume trading – Whether any foreseeable consequence from grant of declaration – Whether declaration will redress reputational damage suffered by plaintiff – Whether public interest considerations favour grant of declaration – Declarations granted.
Food Act 1984 – ss 3, 4D, 4E, 19, 19W, 20, 44, 44A, 44D, 44F; Interpretation of Legislation Act 1984 – ss 35, 37
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke KC with Ms V Plain | BSP Lawyers |
| For the Defendant | Mr C Caleo KC with Mr M McLay | MinterEllison |
HIS HONOUR:
Introduction
Section 19 of the Food Act 1984 (‘the Act’) confers wide ranging powers on a relevant authority to make orders relating to a food premises if the authority is satisfied that the food being prepared at the premises is likely to cause physical harm to a person who might later consume it. In February 2019 Dr Brett Sutton was the Acting Chief Health Officer for the State of Victoria and a delegate of the Secretary of the Department of Health and Human Services (‘DHHS’). As such, he was a relevant authority for the purposes of the Act.
In February 2019 I Cook Foods Pty Ltd (‘ICF’) operated a longstanding business making ready to eat meals for a large number of local government authorities, nursing homes and private hospitals. One of ICF’s private hospital customers was the Knox Private Hospital. On 4 February 2019 an 86 year old woman (AB) died whilst an inpatient at the hospital. AB had been an inpatient since 13 January 2019. During the period 13 January to 4 February 2019 meals provided to AB included sandwiches which had been made at ICF’s premises in Dandenong. AB’s death certificate recorded listeria meningoencephalitis as a significant condition contributing to her death. Samples of food manufactured at ICF’s premises were taken on 1 February 2019 and were tested. Test results received by DHHS on 18 February 2019 detected listeria monocytogenes in samples of: ham; sliced silverside; egg and lettuce sandwiches; ham, cheese and relish sandwiches; and sliced continental cucumber. On 21 February 2019 DHHS received supplementary results which disclosed molecular markers (binary type and molecular serotype) in the food samples which corresponded with blood samples taken from AB.
At approximately 10.00pm on 21 February 2019 Dr Sutton made an order pursuant to s 19(2)(b) and (3) of the Act requiring ICF, inter alia, to immediately cease production of food and to destroy all food manufactured since 13 January 2019 (‘the Order’). The Order had an immediate prejudicial effect on ICF’s business. Within a matter of weeks all of ICF’s customers had terminated their contracts. All of ICF’s 41 employees were dismissed. ICF never resumed trading post 21 February 2019. ICF contends that the Order was invalid and that Dr Sutton was recklessly indifferent as to its invalidity. ICF contends that in making the Order Dr Sutton committed the tort of misfeasance in public office and that DHHS is vicariously liable for his conduct. To establish the tort of misfeasance in public office ICF must establish that the Order was invalid and that Dr Sutton was recklessly indifferent as to its invalidity.
I have concluded that the Order was invalid because DHHS failed to observe the requirements of procedural fairness when Dr Sutton made the Order. I have rejected all of the other grounds upon which ICF contends that the Order was invalid.
Prior to making the Order, Dr Sutton sought advice from a senior departmental lawyer. He did not receive advice that he was subject to any obligation to observe the requirements of procedural fairness prior to making the Order. Dr Sutton was not recklessly indifferent as to whether the Order was invalid by reason of a failure to observe the requirements of procedural fairness. As ICF has failed to establish that Dr Sutton was recklessly indifferent as to the validity of the Order its claim for damages based on misfeasance in public office must be dismissed.
In addition to claiming damages based on misfeasance in public office, ICF seeks a declaration that the Order was invalid. ICF’s claim for declaratory relief is upheld. The Order made by Dr Sutton on the evening of 21 February 2019 had an immediate and significant adverse impact upon ICF’s business reputation. Although ICF is no longer trading the company is still in existence and is the plaintiff in the present proceeding. A declaration that DHHS failed to observe the rules of natural justice when making the Order will go some way to redressing damage to ICF’s business reputation. Further, public interest considerations favour the grant of declaratory relief. Section 19(2)(b) and (3) of the Act, which confer power on a relevant authority to make a food destruction and cease production order continues to the present day in the same form it was in when Dr Sutton made the Order on 21 February 2019. It is in the public interest to formally record by way of declaration the Court’s conclusion that an order made under s 19(2)(b) and (3) of the Act requiring a party to destroy food and immediately cease production is subject to the requirements of natural justice, and that an order made without observing those requirements will be invalid.
Statutory Framework
The objects of the Act are described in s 3:
The objects of this Act include the following—
(a) to ensure food for sale is both safe and suitable for human consumption;
(b) to prevent misleading conduct in connection with the sale of food;
(c) to provide for the application in Victoria of the Food Standards Code.
Part III of the Act contains the power to make orders relating to food premises. Section 19 of the Act is as follows:
19 Orders relating to food premises
(1) This section applies if the relevant authority is satisfied from the report of an authorized officer that—
(a) a food premises is in an unclean or unsanitary condition or in a state of disrepair; or
(b) food being prepared, sold or otherwise handled at a food premises is unsafe or unsuitable; or
(c) food is prepared, sold or otherwise handled at a food premises in a manner that makes it likely the food is unsafe or unsuitable.
(2) The relevant authority may by written order direct that, within a specified time, either or both of the following things must be done—
(a) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer;
(b) specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.
(3) The relevant authority may in an order made under subsection (2) or in a subsequent written order direct that until the matters referred to in subsection (2) are complied with—
(a) the food premises must not be kept or used for the sale, or the handling for sale, of any food; or
(b) the food premises must not be kept or used for the preparation of food; or
(c) the food premises must not be used for a specified purpose or for the use of any specified equipment or a specified process.
(4) If an order under this section includes a direction under subsection (3)(a) or (3)(b)—
(a) in any case—
(i) the relevant authority may direct that a copy of the order be affixed to a conspicuous part of the premises in such a manner that the order can be read by a member of the public from outside the premises; and
(ii) the relevant authority may, by notice published in a newspaper or by any other means, inform the general public that the order has been made and the terms of the order;
(b) if the relevant authority is anyone other than the Secretary, the relevant authority must notify the Department of the making of the order;
(c) if the relevant authority is not the registration authority for the premises, the relevant authority must notify the registration authority of—
(i) the making of the order; and
(ii) any appeal made under section 19BA against the order and the outcome of the appeal.
Note
Under section 43(2) the record of registration maintained by the registration authority in respect of a food premises must include the details of any order in force under this section that includes a direction under subsection (3)(a) or (b) in relation to the premises.
(5) An order under this section takes effect—
(a) when it is given to or served on the proprietor of the food premises; or
(b) if the name and address of the proprietor is unknown, when it is affixed to the premises.
(6) If satisfied that an order made under this section has been complied with, the relevant authority must—
(a) revoke the order; and
(b) give written notice of the revocation of the order in the same manner in which the order was given or served.
(7) A person must not contravene an order made under this section.
Penalty: 120 penalty units.
(8) A person must not remove the copy of an order affixed to a food premises under subsection (4)(a)(i) while that order remains in force.
Penalty: 60 penalty units.
(9) For the purposes of this section, relevant authority means any one of the following—
(a) the Secretary;
(b) the council that is the registration authority for the premises;
(c) if the premises is a temporary food premises or a mobile food premises, the council of the municipal district in which the premises is being operated;
(ca) DFSV in relation to any food premises in respect of which it has issued a dairy industry licence under Part 3 of the Dairy Act 2000;
(cb) PrimeSafe in relation to any food premises in respect of which it has issued a licence under Part 4 of the Meat Industry Act 1993 or a seafood safety licence under Part 3 of the Seafood Safety Act 2003;
(d) the chief executive officer of a council referred to in paragraph (b) or (c).
Sections 4D and 4E of the Act include definitions for ‘unsafe food’ and ‘unsuitable food’, respectively. These definitions are as follows:
4D Meaning of unsafe food
(1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming—
(a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and
(b) nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and
(c) it was consumed by the person according to its reasonable intended use.
(2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons.
(3) In subsection (1), processes include processes involving storage and preparation.
4E Meaning of unsuitable food
(1) For the purposes of this Act, food is unsuitable if it is food that—
(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or
(b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or
(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or
(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.
(2) However, food is not unsuitable for the purposes of this Act merely because—
(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical; or
(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or
(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or
(d) it contains any matter or substance that is permitted by the Food Standards Code.
(3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.
The reference to the ‘Food Standards Code’ in s 4E(2) of the Act is a reference to the Australia New Zealand Food Standards Code, as defined in the Australia New Zealand Food Authority Act 1991 (Cth).[1]
[1]Food Act 1984 (Vic) s 4 (definition of ‘Food Standards Code’).
The definition of an ‘authorized officer’ is found in s 4 of the Act. The definition includes ‘a person who is authorised by the Secretary or appointed by a council to be an authorized officer under section 20’. Section 20(1) of the Act permits the Secretary to authorise in writing that a person employed under the Public Administration Act 2003 is to be an authorized officer for the purposes of the Act.
Section 19W contains powers to make directions concerning food safety:
19W Directions concerning food safety
(1) The Secretary or the registration authority may direct the proprietor of a food premises to comply with any requirement under this Part relating to the premises.
(2) Without limiting subsection (1), a direction may be given—
(a) to comply with any record keeping requirements applying to the premises under section 19CB;
(b) to comply with any specified requirement in the food safety program for the premises;
(c) to comply with the staff training requirements of a QA food safety program;
(d) to have the premises audited in accordance with this Act.
(3) The Secretary or the registration authority may direct the proprietor of a food premises—
(a) to have staff at the premises undertake training or instruction within a specified time to ensure that the requirements of this Act applying to the premises are met;
(b) to have details of any staff training incorporated into the minimum records required to be kept or food safety program of the premises.
(4) A direction given under this section must be in writing and must allow the proprietor at least 28 days to comply with the direction.
(5) A failure to comply with the direction within the time allowed is a ground for—
(a) the refusal of the registration, renewal of registration or transfer of registration of the premises;
(b) the revocation or suspension of registration of the premises.
Background
Business operations of I Cook Foods Pty Ltd in early 2019
ICF is a food manufacturing business established in 1985 by sole director Mr Ian Cook.[2] In early 2019 ICF operated out of factory premises at 212 Zenith Road, Dandenong South (‘ICF premises’).[3] ICF employed 41 staff members.[4] The general manager of ICF was Mr Ian Cook’s son, Mr Ben Cook.[5] In the financial year ending 30 June 2018, ICF had a turnover of $6.8 million and a profit margin of between 5 and 8 per cent.[6] Following the events the subject of this proceeding, ICF is no longer trading.[7]
[2]Transcript of Proceedings, T 282 L 5–10.
[3]Ibid T 282 L 21–22.
[4]Ibid T 282 L 27–28.
[5]Ibid T 282 L 30 – T 283 L 1.
[6]Ibid T 286 L 8–11, 29–31.
[7]Ibid T 282 L 3–4.
In early 2019 ICF’s business consisted of the manufacture of chilled meals and meal components.[8] Its customers were councils, hospitals, and aged care facilities.[9] ICF did not sell food products directly to the public.[10] ICF produced four lines of food:
·ready-to-eat sandwiches, soups, deserts and salads (‘ready-to-eat foods’);
·extended shelf-life, pasteurized food products, which are meal components such as individual portions of proteins or vegetables (‘extended shelf life foods’);
·texture modified, pasteurized, formed food products for persons with dysphasia and swallowing disorders (‘texture modified foods’); and
·modified, atmospheric, packaged food products such as chilled meals prepared for council Meals on Wheels programs (‘MAP foods’).[11]
[8]Ibid T 282 L 11–16.
[9]Ibid T 289 L 1–9; CB260, Email from Dr Finn Romanes dated 21 February 2019.
[10]Transcript of Proceedings, T 308 L 1–4.
[11]Ibid T 284 L 13–22.
In January 2019, ICF supplied food to the following customers:
·Knox Private Hospital
·Frankston Private Hospital
·Holmesglen Private Hospital
·Northpark Private Hospital
·Melbourne Private Hospital
·St Vincent's Kew
·St Vincent's Fitzroy
·St Vincent's East Melbourne
·Mercy Health Ballarat
·Mercy Health Rosebud
·Yallambee Aged Care
·Fairway Hostel Aged Care
·Kingston City Council
·Yarra Ranges Council
·Knox City Council
·Monash City Council
·Glen Eira City Council
·City of Whitehorse
·City of Ballarat
·City of Boroondara…[12]
[12]CB4684–5, Email from Dr Romanes dated 21 February 2019.
ICF had contracts with the majority of its customers. Some customers did not hold contracts with ICF and purchased from it as required (such as Yallambee Aged Care).[13] ICF had a contract with Healthscope in January 2019 for the supply of food to several hospitals including Knox Private Hospital.[14] Knox Private Hospital purchased between 3,000 and 3,500 sandwiches from ICF per week.[15]
[13]Transcript of Proceedings, T 289 L 1–11.
[14]Ibid T 317 L 18–20.
[15]Ibid T 284 L 7–9.
In January 2019 ICF prepared between 7,000 and 10,000 meals per week for Meals on Wheels programmes run by councils.[16] It prepared approximately 50,000 meal components per week,[17] such as individual portions of proteins or vegetables.[18] It also prepared approximately 5,000 sandwiches per week.[19]
[16]Ibid T 283 L 8–9.
[17]Ibid T 283 L 10–13.
[18]Ibid T 283 L 18–30.
[19]Ibid T 284 L 4–6.
AB admitted to hospital
On 13 January 2019, AB was admitted to Knox Private Hospital via the emergency department.[20] AB was experiencing diarrhoea and abdominal pain. [21] On the morning of 23 January 2019 AB was discharged from Knox Private Hospital to Donvale Rehabilitation Hospital.[22]
[20]CB345, Nursing Discharge Summary dated 23 January 2019.
[21]Ibid; CB336, Emergency Nursing Observation Chart dated 13 January 2019; CB323, Emergency Department Record dated 13 January 2019.
[22]Ibid.
Records from Knox Private Hospital disclose that between 14 and 15 January 2019, AB was offered a ‘light ward’ diet.[23] Between 16 and 23 January 2019 AB was offered a ‘regular’ diet.[24] Knox Private Hospital did not keep records of food items ordered by each patient.[25] The nursing discharge statement dated 23 January 2019 records that AB was seen by a dietician on 21 January 2019 and states:
[23]CB4858–9, Nutrition Details of AB dated 14 to 23 January 2019.
[24]Ibid.
[25]Transcript of Proceedings, T 331 L 13–16.
Clinical: patient reports a chronic poor appetite with nil nausea or vomiting present… On review, patient had some nausea this morning now resolving.
Appetite good.
Diet: … Since admission patient has commenced on Fortisip Compact Protein drinks twice a day.
On review, patient enjoying Fortisip Compact Protein twice a day.
Patient is also managing 3 small meals a day…
Plan
1) Full diet and fluids
2) Fortisip Compact Protein BD
3) Focus on protein items during meal…[26]
[26]CB346, Nursing Discharge Summary dated 23 January 2019.
At 7.45pm on 23 January 2019, AB was re-admitted to Knox Private Hospital via the emergency department,[27] presenting with confusion and dysphasia.[28] On 25 January 2019, listeria monocytogenes was isolated by Dorevitch Pathology from blood cultures collected from AB on 23 January 2019 and AB was diagnosed with listeria.[29] On 25 January 2019, Dorevitch Pathology notified DHHS that listeria had been detected via blood culture.[30]
[27]CB450, Progress Notes dated 23 January 2019.
[28]CB327, Emergency Department Record dated 23 January 2019.
[29]CB4473, Pathology Report dated 25 January 2019; CB349, Nursing Discharge Summary dated 4 February 2019.
[30]CB4472, Conditions Notifiable by Medical Practitioners in Victoria Form dated 25 January 2019.
On 26 January 2019, Dr Torresi, a medical practitioner employed by Knox Private Hospital, wrote a progress note in respect of AB, stating:
Unclear where she has acquired listeria…
Possible that the initial gastro / diarrhea [sic] presentation 2 weeks ago would have been due to listeria…[31]
[31]CB462–3, Progress Notes dated 26 January 2019.
On 29 January 2019 Ms Atkinson, a Public Health Officer within the Communicable Disease Prevention and Control Unit of DHHS, completed a Communicable Disease Prevention and Control Case Questionnaire in respect of AB’s medical history and potential food sources in the four weeks prior to illness with the assistance of AB’s daughter.[32] In respect of foods consumed during hospital admission, Ms Atkinson records in the questionnaire that AB ‘would have eaten food provided by the hospital’ and that ‘she often liked sandwiches or ham/salad but didn’t eat lots’.[33] The investigation notes attached to the questionnaire record: ‘b/c of case being in hospital for some of incubation period will sample both foods ate while @ home & foods from hospital’.[34] Further, an email from Ms Lyon (Principal Infection Control Consultant at Healthcare Infection Control Management Resources) to Ms Atkinson dated 29 January 2019 states:
[32]CB4476–87, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.
[33]CB4481, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.
[34]CB4486, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.
Patient Food History:
Food at Knox Private Hospital is provided by 3rd party 'i Cook Foods', this includes cook / chill meals, texture modified foods, salads, sandwiches and soups.
'i Cook Foods' are registered and assessed routinely by Dandenong City Council, independent 3rd party auditor and are HACCP Certified.
The patient in question during admission from 13/1/19 - 23/1/19 was on a full ward diet.
There is a weekly (7 Days) menu.
Unfortunately, food items ordered by the patient are not on a computerised system, therefore a record is not maintained.
However, the Diet / Menu Monitor staff member from Food Services was familiar with the patient's ordering preferences and stated these were mainly cooked meals or ham and cheese sandwiches or ‘chicken Caesar', 'pork salad', 'beef salad' or 'ham salad' were not to their recollection ever ordered.
However cannot be confirmed.
Sandwiches are prepared and provided by 'i Cook' these are delivered the evening before, patient consumption the following day. Food Services staff then plate and place that day's 'use by' date on each portion of sandwiches. Those not consumed are discarded at the end of every day.
There are no pre-prepared salads and pre-chopped fruit purchased from an alternate supplier.
The patient was on nutritional drinks, however these were all commercially provided, pre-packaged single use disposable units.
Any potentially 'high risk' food items in terms of Listeria are supplied through 'i Cook'.
An actual food history from the patient was unable to be obtained due to current medical condition, (a little confused).[35]
[35]CB5548–9, Email from Ms Lyon dated 29 January 2019.
Records from Knox Private Hospital state that between 25 and 28 January 2019, AB was offered a diet described as ‘Soft Bite Sized’.[36] Between 29 and 30 January 2019 AB was on ‘Nil By Mouth’.[37] Between 31 January and 4 February 2019 AB was offered a ‘Puréed’ diet.[38]
[36]CB381–2, Nutrition Details of AB dated 24 January to 4 February 2019.
[37]Ibid.
[38]Ibid.
AB died on 4 February 2019.[39] The death certificate records AB’s cause of death as acute pulmonary oedema with the antecedent cause of ischaemic heart disease.[40] It further records listeria meningoencephalitis as a significant condition contributing to the death but not related to the disease, injury or condition causing death.[41]
[39]CB723, Medical Certificate of Cause of Death dated 4 February 2019.
[40]CB724–5, Medical Certificate of Cause of Death dated 4 February 2019.
[41]CB725, Medical Certificate of Cause of Death dated 4 February 2019.
Laboratory testing
There are numerous species of listeria, listeria monocytogenes being the species which poses a risk to human health via listeriosis infection. Laboratory testing can provide information as to the presence of listeria monocytogenes (‘detection’) as well as quantify the concentration of listeria monocytogenes in a sample (‘enumeration’). Further, laboratory testing can provide information as to the characterisation of variants of listeria monocytogenes based on the presence or absence of molecular markers (‘binary type’ and ‘molecular serotype’) and genetic material (‘genotype’). This information can be used to compare listeria monocytogenes variants found in clinical samples (such as blood cultures) with food and environmental samples and provide a scientific basis for the identification of the source of listeria infection.
On 31 January 2019 Ms Atkinson sent a request to Ms Johnson, a co-ordinator of the City of Greater Dandenong (‘Dandenong Council’) Environmental Health Department, to collect environmental swabs and food samples from the ICF premises.[42] On the same day Ms Johnson instructed Ms Rogerson, an Environmental Health Officer, to attend the ICF premises.[43] On 1 February 2019 Ms Rogerson collected food samples and environmental swabs.[44] Ms Rogerson collected environmental swabs and the following food samples: ham; silverside sliced on premises; sandwiches (egg and lettuce, corned beef and mustard, tomato and cheese, chicken and mayo, ham, cheese and relish); sliced continental cucumber; shredded carrot; tasty cheese; egg and mayonnaise; sliced lettuce; cooked and shredded chicken; mayonnaise; tomato; and margarine.[45]
[42]CB4488, Email from Ms Atkinson to Ms Johnson dated 31 January 2019; CB811, Request Form for Environmental Samples, Swabs and Equipment dated 1 February 2019; CB813, Request Form for Food, Food Ingredient and Packaging Samples dated 1 February 2019.
[43]Transcript of Proceedings, T 346 L 10–22.
[44]Ibid T 348 L 10–12.
[45]CB814, Request Form for Food, Food Ingredient and Packaging Samples dated 1 February 2019.
On 31 January 2019 Ms Atkinson sent a similar request to the Manningham City Council to collect environmental swabs and food samples from food retailers identified by AB’s daughter in the questionnaire as supplying food to AB in the four weeks prior to illness: Mirabella Bros, Jackson Court, East Doncaster; Coles, Tunstall Square, Doncaster; Woolworths, The Pines, Doncaster East; Domain Café, Aveo Domaine Retirement Village.[46]
[46]CB4489, Email from Ms Atkinson to Manningham City Council dated 31 January 2019.
On 14 and 18 February 2019, DHHS received result reports from the Microbiological Diagnostic Unit of the Public Health Laboratory (‘MDU/PHL’) in respect of the environmental swabs and food samples taken from the Coles and Woolworths supermarkets and Aveo Domaine Retirement Village. No listeria species were detected.[47]
[47]CB4516–8, Results Report dated 14 February 2019; CB4519–4524, Results Report dated 18 February 2019.
Further, on 18 February 2019 DHHS received result reports from MDU/PHL in respect of the environmental swabs and food samples taken from the ICF premises on 1 February 2019. Listeria monocytogenes was detected in the following food samples: ham;[48] sliced silverside;[49] egg and lettuce sandwiches;[50] ham, cheese and relish sandwiches;[51] and sliced continental cucumber.[52] No listeria species were detected in the following food samples: corned beef and mustard sandwiches;[53] tomato and cheese sandwiches;[54] chicken and mayonnaise sandwiches;[55] shredded carrot;[56] tasty cheese;[57] egg and mayonnaise.[58]
[48]CB828, Results Report dated 18 February 2019.
[49]CB831, Results Report dated 18 February 2019.
[50]CB817, Results Report dated 18 February 2019.
[51]CB822, Results Report dated 18 February 2019.
[52]CB825, Results Report dated 18 February 2019.
[53]CB817, Results Report dated 18 February 2019.
[54]Ibid.
[55]Ibid.
[56]CB834, Results Report dated 18 February 2019.
[57]CB835, Results Report dated 18 February 2019.
[58]CB836, Results Report dated 18 February 2019.
On 19 February 2019 DHHS received result reports from MDU/PHL in respect of food samples taken from Mirabella Bros, East Doncaster. No listeria species were detected.[59] On the same day, DHHS received result reports from MDU/PHL in respect of further food samples taken from the ICF premises. Listeria monocytogenes was detected in a sample of corned beef and mustard sandwiches.[60] No listeria monocytogenes was detected in samples of tomato and cheese sandwiches, chicken and mayonnaise sandwiches, egg and lettuce sandwiches,[61] or sliced lettuce.[62]
[59]CB4557–8, Results Report dated 19 February 2019.
[60]CB4560, Results Report dated 19 February 2019.
[61]Ibid.
[62]CB4559, Results Report dated 19 February 2019.
On 21 February 2019 DHHS received supplementary results from MDU/PHL which stated that certain molecular markers called the binary type and molecular serotype were the same as those found in AB’s blood culture on 11 February 2019.[63] The MDU/PHL supplementary results stated that the food samples of corned beef and mustard sandwiches,[64] egg and lettuce sandwiches,[65] sliced continental cucumber,[66] and sliced silverside[67] had the same binary type and molecular serotype as AB’s blood culture. The binary type and molecular serotype of the ham, cheese and relish sandwiches[68] and ham[69] were not consistent with AB’s blood culture.
[63]CB4497, Results Report dated 11 February 2019.
[64]CB4674, Results Report dated 21 February 2019.
[65]CB4677, Results Report dated 21 February 2019.
[66]CB4676, Results Report dated 21 February 2019.
[67]CB4679, Results Report dated 21 February 2019.
[68]CB4764, Results Report dated 21 February 2019.
[69]CB4765, Results Report dated 21 February 2019.
DHHS correspondence on 18 February 2019
At 4:56pm on 18 February 2019 Mr Goldsmith (Acting Manager Regulation and Incident Management within DHHS Food Safety Unit and an authorised officer under s 20 of the Act[70]) emailed Dr Bone (Deputy Chief Health Officer) and Dr Canil (Senior Manager of Food Safety and Regulation). Mr Goldsmith stated:
[70]CB4401, Instrument of Authorisation/Appointment dated 15 April 2015.
FYI - CDPC [Communicable Disease Prevention and Control] are investigating an 86 year old female who has been diagnosed with listeriosis. Unfortunately, we have been informed today the case has passed away.
Earlier this month CDPC interview[ed] the case and arranged Dandenong City Council to collected and submitted samples from a sandwich manufacturer that supply's [sic] aged care facilities.
Dandenong City Council was requested to collect the following samples from a manufacturer known as I Cook Catering based in Dandenong South;
Assorted Sandwiches including chicken, ham, turkey roll and silverside,
Cheese and ham sandwiches, I Cook [sic], cucumbers, ham and silverside.
All the samples (apart from one) have been reported as being detected with LM today (18/02/2019). We are still waiting for enumeration/water activity and genotyping which is expected on Friday.
As you would expect all the sandwiches that were tested positive have a short shelflife and are not available as the use by dates were in early February.
The two samples of smallgoods, the ham and silverside have a longer shelf life and the use by dates are still current. We have requested further information about these samples today such as were they sealed packaged products and the supplier details. If enumeration and water activity results indicated growth then we may need to take further action with the company via relevant authorities.
Further to above action with the smallgoods given the wide spread [sic] contamination the council have been requested to oversee a clean down of the site and taken extra samples including environmental swabs.
We have also requested information about the distribution of the products as a precaution although at this stage we are not aware of any other cases.[71]
Dr Sutton gave unchallenged evidence that this email was the first occasion on which AB’s diagnosis with listeria was brought to his attention.[72]
[71]CB4551, Email from Mr Goldsmith dated 18 February 2019.
[72]Transcript of Proceedings, T 487 L 19 – T 488 L 2.
At 8:19pm on 18 February 2019, Dr Bone replied to Mr Goldsmith and carbon-copied Dr Sutton. Dr Bone stated:
Thanks for the update and I'm sorry to hear the person has subsequently died. I understood from health issues this morning that she had eaten several different foods recognised to be associated with a higher risk of LM prior to her illness.
The presence of positive samples from a range of foods from this manufacturer is concerning, particularly as this manufacturer supplies an aged care facility which will likely have residents who may be more vulnerable.
I agree that in order to better understand the situation and risk we need:
• further information on the food samples already taken and the foods they were taken from
• environmental samples
• typing of isolates from foods and case,
• an understanding of where these foods are distributed (particularly high risk consumers)
I'd consider sampling of further sandwiches too, to determine if this is an on-going issue.
Pending this information a thorough clean is warranted, which council is overseeing.
No doubt are [sic] CD colleagues we stay alert to identify any further cases that could be linked.[73]
[73]CB4550, Email from Dr Bone dated 18 February 2019.
At 8:27pm on 18 February 2019, Dr Sutton replied to the above email:
Thanks Angie and agree with the approach.
As you say, the multiple detections are suggestive of possible environmental contamination at the manufacturer and so further sampling, as well as environmental swabbing, is warranted. I also wonder if the affected aged care facility knows what the possible manifestations of listeriosis in residents looks like, so that they are prompted to seek care and GPs know to consider it - ie. fever/sepsis, meningo-encephalitis, and gastro illness (where listeria needs a special request on a faecal specimen to be grown/isolated).[74]
[74]CB4553, Email from Dr Sutton dated 18 February 2019.
Dandenong Council inspects ICF premises
On 18 February 2019, Ms Garlick (Environmental Health Officer with Dandenong Council) and Mr Little-Hales (Senior Environmental Health Officer with Dandenong Council) attended the ICF premises to conduct an inspection.[75]
[75]Transcript of Proceedings, T 291 L 23 – T 293 L 4; T 316 L 9–11; T 351 L 24 – T 352 L 1.
On 19 February 2019 Ms Garlick issued an order under s 19(1) and 19(2) of the Act (‘Clean Order’). The Clean Order was served on Mr Ben Cook at the ICF premises by Ms Garlick and Mr Little-Hales.[76] It stated:
I, Elizabeth Garlick, being an authorised officer and delegate of the City of Greater Dandenong Council, am satisfied from my report dated 18 Feb 2019 that the food premises situated at 2/12 Zenith Road, DANDENONG SOUTH 3175, known as l Cook Foods Pty Ltd, is in an unclean and unsanitary condition and is in a state of disrepair.
Pursuant to section 19(2) of the Food Act 1984 I hereby direct that the food premises must be put into a clean and sanitary condition, in a state of good repair, ensure that food prepared, sold or otherwise handled is safe and suitable, and the specified steps specified below be taken to the satisfaction of an authorised officer within the specified time periods.[77]
[76]Transcript of Proceedings, T 352 L 12–18.
[77]CB1623, Order dated 19 February 2019.
The Clean Order sets out 37 corrective actions to be completed by specified dates between 19 February 2019 and 1 July 2019.[78] The Clean Order is set out at Annexure A. Ms Garlick also issued an order under s 19W of the Act (‘s 19W Order’), directing Mr Ian Cook as proprietor of the ICF premises to take specified steps by 18 March 2019. The s 19W Order is set out at Annexure B. When Dr Sutton made an order for ICF to cease production on 21 February 2019 pursuant to s 19(3) of the Act, he was not aware of the existence of the Clean Order or the s 19W Order.[79]
[78]CB1624–7, Order dated 19 February 2019.
[79]Transcript of Proceedings, T 523 L 23–28; T 540 L 30–31.
Cleaning undertaken at ICF premises
At 4:30am on 20 February 2019 ICF staff members performed ‘a full thorough clean down’ of the ICF premises.[80] This involved the use of a chlorine-based cleaning solution.[81] During the afternoon ICF staff members also performed a ‘normal clean down’.[82] Ms Garlick and Ms Johnson attended and inspected the ICF premises during the afternoon of 20 February 2019. Ms Garlick told Mr Ben Cook that she was not satisfied with the cleaning performed by ICF staff members and requested that ICF employ a professional cleaning company.[83]
[80]Transcript of Proceedings, T 293 L 24–31.
[81]Ibid T 352 L 27 – T 353 L 2.
[82]Ibid T 294 L 5–6.
[83]Ibid T 353 L 2–5; T 354 L 24 – T 355 L 14.
On the evening of 20 February 2019, a company called Melbourne Forensic Cleaning performed a ‘forensic clean’ of the ICF premises.[84] Melbourne Forensic Cleaning undertook a clean from 6:00pm until the late night or early morning.[85] A tax invoice records that ICF was billed for 48.5 hours of labour.[86]
[84]Ibid T 294 L 27–29.
[85]Ibid T 353 L 14–16; T 356 L 21–22.
[86]Exhibit-P2, Bundle of Documents Headed Re Gastro Outbreak Claim, 4.
On the morning of 21 February 2019, Ms Garlick and Ms Johnson attended the ICF premises and advised Mr Ben Cook that in their opinion the cleaning had not been effective.[87] In the evening of 21 February 2019, a company called Jaymak performed chlorine fogging at the ICF premises.[88] The process of chlorine fogging took approximately four hours.[89]
[87]Ibid T 358 L 7–14.
[88]Ibid T 295 L 1–2, 13–14, T 296 L 3–4.
[89]Ibid T 359 L 10–13.
Mr Ben Cook gave evidence that on 22 February 2019, Ms Maloney and Mr Chatterton from DHHS attended the ICF premises and he explained to them the cleaning operations that had been undertaken by Melbourne Forensic Cleaning and Jaymak.[90] At this meeting, Mr Ben Cook provided Ms Maloney, Mr Chatterton and Ms Johnson with copies of a report prepared following the chlorine fogging by Jaymak.[91]
[90]Ibid T 371 L 29 – T 372 L 8.
[91]Ibid T 371 L 11–28.
DHHS correspondence on 21 February 2019
Dr Sutton gave evidence that he was satisfied that the food being produced at the ICF premises was unsafe for the purposes of s 19 of the Act based on information he received from multiple individuals including written reports and oral statements at an Incident Management Team (‘IMT’) meeting on 21 February 2019.[92] Dr Sutton’s evidence as to his state of satisfaction was strongly challenged by Mr Clarke KC, who appeared with Ms Plain for ICF. It is necessary to set out in detail the evidence relating to emails received by Dr Sutton and meetings in which he participated during the course of 21 February 2019.
[92]Ibid T 526 L 26–31; T 527 L 16–25; T 528 L 18–21.
At 11:35am, Dr Canil emailed Dr Sutton, stating:
Please find information available to date as discussed:
(i) abridged excerpt from issues register submitted yesterday:
• current investigation into the death of an 86 year old female from listeriosis - case was first notified to the Department on 25 January 2019 from a blood sample collected on 23 January 2019.
• The case was initially admitted to Knox Private Hospital on 13 January 2019 with diarrhoea symptoms and subsequently discharged on 23 January 2019 to a rehabilitation facility where she spent only a few hours before being returned to Knox Private Hospital having developed fever and generally deteriorated. It was not until the readmission on the 23 January 2019 that listeriosis was diagnosed.
• When interviewed following the notification of listeriosis, the case indicated that prior to her admission to Knox Private Hospital she had consumed a wide range of foods that are considered high risk in terms of contamination with L. monocytogenes (the foods consumed included processed meats, soft cheeses and rock melon). The case had also regularly frequented a local cafe where she had also consumed foods considered high risk.
• While in Knox Private Hospital, the case had consumed sandwiches were sourced from a commercial manufacturer.
• Following interview CDCP found that there were no high risk foods available in the case's home to sample, but purchased and tested similar products to those purchased by the case at her local supermarket and also investigated the possibility of the food consumed at her local cafe as a source. These investigations did not return any positive results. However, the possibility that the listeriosis was acquired while at home has not been dismissed.
• Dandenong Council attended the manufacturing facility of the sandwiches supplied to Knox Private Hospital and took samples of assorted sandwiches and ordered a clean down of the premises.
• All but one of the samples indicated the presence of l. monocytogenes. Results of enumeration and water activity (important considerations in determining legislative compliance) and genotyping are expected by the end of the week. The genotype of the samples will confirm whether the sandwiches/manufacturing premises was the source of the illness.
(ii) information received this morning:
• Clean down of the manufacturing premises occurred last night to address widespread listeria contamination of the site
• Council considered closing the premises but was concerned about the impact that the immediate closure would have on distribution chain (food supplied to meals on wheels, aged care facilities and hospitals).
• Production recommenced at 4.30am today.
• Food Safety Unit has obtained a copy of councils, hospitals and aged care facilities supplied from this manufacturer.
• Food Safety Unit awaiting advice from the manufacturer about what food was produced today and to where it has been distributed.
Action proposed:
• set up IMT (Finn to lead?)
• Contact council to stop further production
• request council to sample from each production line (raw materials through to end product) and request urgent laboratory results
• manufacturer to contact all suppliers requesting that high risk foods (eg sandwiches and fruit salads) be accompanied with instructions to consume within 24 hours and then dispose, and that cooked, frozen food be reheated until piping hot
• manufacturer to advise suppliers to find alternatives until production recommences
• council to close facility until return of laboratory results from today's testing…
Please advise if you are happy with this course of action or wish to take alternative measures.[93]
[93]CB4662–3, Email from Dr Canil dated 21 February 2019.
At 1:11pm, Dr Sutton emailed Ms Skilbeck (Deputy Secretary, Regulation, Health Protection and Emergency Management, and Dr Sutton’s superior at DHHS):
I think the overall risk of linked cases is low but further testing will help quantify that. Incubation periods for meningitis or septicaemia can be up to two weeks, so active surveillance is required.[94]
[94]CB4667, Email from Dr Sutton dated 21 February 2019.
In respect of the above email, Dr Sutton gave the following evidence:
'Overall risk is low'… And that was your view at that time at 1.11?---Yes.
And it never changed, the risk was low?---No, it refers only to the overall risk of linked cases being present then.
HIS HONOUR: Just to be clear, what exactly do you mean by the expression, 'Linked cases'?---Cases that would be linked by virtue of having already consumed food produced up to this point in time by I Cook premises.
But wouldn't the risk in fact have been very high because, as I raised with you before lunch, by this time from 13 January, in total I Cook Foods are producing 5,000 sandwiches a week?---Yes.
So by this time, that's 30,000 sandwiches have come out of I Cook Foods into the community. So a linked case is where numerous people eat contaminated sandwiches, there is 30,000 sandwiches in the community - am I missing something, shouldn't that be saying the exact opposite? The overall risk of linked cases is very high?---So not linked exposures. Obviously there were thousands of people who were also exposed to those foods.
Yes?---But cases that were going to be notified to the department having eaten food on that day or just earlier.
Why, because on that day or just earlier, that's 10,000 sandwiches?---Yes.
Consumed by hundreds, thousands of people?---Yes, the reality is there are food borne illnesses in a handful of people notified to the department every day out of millions of retail meals being sold. It only takes a tiny proportion of those enormous volumes of food for there to be cases manifest. This is a relatively smaller volume with again, individually a small risk to an individual. But at that point in time with only one case notified to the department, I felt the risk that there were other linked cases at that point in time was low, but that the risk should food production continue, for those vulnerable populations, that the risk would be high, that there would be subsequent cases if no action were taken… I'm reflecting here on the fact that with an incubation period of just a few days on average, that they would have already been identified to the department if they were going to be. So it is really around the fact that it is for those who have had food exposures in the previous few days, if they haven't been identified to us now there is a small risk of them being notified to us in the next few days.[95]
[95]Transcript of Proceedings, T 626 L 3 – T 628 L 5.
At 1:30pm, the IMT meeting took place. The meeting was chaired by Dr Romanes (Public Health Physician within DHHS Regulation Health Protection and Emergency Management Division and an authorised officer under s 20 of the Act).[96] The IMT was attended by a further 14 DHHS officers, [97] including Dr Sutton by teleconference and other authorised officers under s 20 of the Act: Mr Goldsmith, Dr Ivan,[98] Ms Atkinson,[99] Ms Antoniou,[100] and Mr Wressell.[101] The meeting agenda outlined the following ‘Draft Proposed Plan of Action’:
[96]CB4399, Instrument of Authorisation/Appointment dated 22 February 2013.
[97]CB4671, Incident Management Team Meeting Agenda dated 21 February 2019.
[98]CB4400, Instrument of Authorisation/Appointment dated 9 May 2014.
[99]CB4402, Instrument of Authorisation/Appointment dated 18 June 2015.
[100]CB4403, Instrument of Authorisation/Appointment dated 11 May 2016.
[101]CB4404, Instrument of Authorisation/Appointment dated 14 October 2016.
Risk assessment
•Background
•Clinical and epidemiological investigation
o Listeriosis death - details, date of death, admissions and dates
o Potential foods consumed, and knowledge of consumption at Knox
o Wider listeriosis epidemiology if relevant
o Was case hospital acquired - probability, timing of matching?
•Food investigation - general
· Foods sampled from potential community sources and results
•Food investigation - Knox Private Hospital
· Nature of food supplied
· Food Safety Program
•Food investigation - iCook caterer
· Foods sampled from iCook - range, date, findings
· Timing of further results of positive Lm findings
· iCook food safety profile - regulator, FSP, previous issues
· Current findings of any inspection of iCook, any risks identified?
· Distribution and recipients of iCook products from kitchen
· Suppliers to iCook and actions to investigate source products
•Assessment of risk
· Was iCook correctly classified under the Food Act?
· Which populations are at risk?
· What's the level of risk associated with iCook?
Risk management
•Cessation of production
· Controls already implemented at food premises
· Criteria for re-opening, who decides
•Food recall parameters
· Agree the need to initiate - ACHO has indicated threshold met
· Agree date of first risk (period to message there is risk) - date food that was positive was sampled?
· Control measure for food not yet consumed - discard, not eat, eat if well cooked only?
•Implementation of food recall
· Areas for guidance
•Case management and case finding
· Letters to suppliers, recipient organisations, Alert and public awareness
Risk communication
•Merits in naming parties involved
•Communication with recipients of potentially contaminated foods -letter, factsheet, request for case
•finding
•CHO Alert?
•Media holding lines or media release?
•Situation Report / internal email summary
•Issues Register Entry
Other actions
•Date and time of next meeting[102]
The meeting concluded at approximately 2:30pm.[103]
[102]CB4671–2, Incident Management Team Meeting Agenda dated 21 February 2019.
[103]Transcript of Proceedings, T 538 L 15–16.
At 5:27pm Dr Romanes emailed Dr Sutton, stating:
Situation
As a precaution, the Acting Chief Health Officer has this afternoon requested that the City of Greater Dandenong issue an Order under the Food Act 1984 to iCook Foods that it cease production effective immediately, because of multiple positive findings of Listeria monocytogenes across a range of foods. These foods were sampled as part of an investigation triggered by a case of listeriosis in a patient at Knox Private Hospital, who has subsequently died. The investigation is active and ongoing and no definitive links have been made. We do not know how long it will take to lift the Order but in confidence it could be some days or longer at a minimum.
The ACHO is writing this evening to eight councils, five private hospitals, five public hospitals and two aged care facilities, and two other parties who are all recipients of iCook Foods products, to indicate that they need to dispose of all food they currently hold from iCook Foods, and that they need to raise awareness of the potential for Listeria infection amongst vulnerable people (patients, clients or staff) who have consumed food sourced from iCook Foods since 13 January 2019. This list is below.
We are not able to determine on current information what proportion of food supplied to clients and patients is from iCook Foods in each service, but it could range from a small proportion to a large proportion. We have spoken to Health Purchasing Victoria who indicate that the public hospitals on the list have contingency plans for food, but are unable to comment on the privates or aged care facilities. Councils are understood to rely on iCook Foods for some part of their meals-on-wheels services.
Which services are listed as receiving food distributed from iCook Foods?
The list of services from food supply records is:
• Knox Private Hospital
• Frankston Private Hospital
• Holmesglen Private Hospital
• Northpark Private Hospital
• Melbourne Private Hospital
• St Vincent's Kew
• St Vincent's Fitzroy
• St Vincent's East Melbourne
• Mercy Health Ballarat
• Mercy Health Rosebud
• Yallambee Aged Care
• Fairway Hostel Aged Care
• Kingston City Council
• Yarra Ranges Council
• Knox City Council
• Monash City Council
• Glen Eira City Council
• City of Whitehorse
• City of Ballarat
• City of Boroondara…[104]
[104]CB4684–5, Email from Dr Romanes dated 21 February 2019 (emphasis in original).
At 8:21pm Dr Romanes emailed Dr Sutton, stating:
I thought it may be helpful to summarise where we are, what the risk is and what the next steps are at this point. I am not working on Friday 22 February, but help can be sought from PHMCD Unit and of course actions are being led through FSU.
The most important two actions on Friday morning are to ensure the Order has been served, and that an officer personally contact each service and also IGA and the final recipient service to ensure the actual lead / CEO of the service is aware of the email and ACHO advice (as they were sent tonight to the only points of contact we had, which could be out of date / incorrect / insufficiently senior people as they are the food contacts only).
Overall situation
As we learned last night and this morning, there are now concerns with the food safety arrangements at the manufacturer and now a clear knowledge of the widespread distribution to vulnerable groups through hospitals, councils and aged care facilities. As such, an Incident Management Team was held. The meeting determined production should cease, and food produced since 13/1/2019 be discarded and those who have consumed should be made aware to look out for symptoms and signs of listeriosis. After the meeting, we impressed on Council the importance of an Order to cease production and are hopeful that will be served very late tonight, we have written to internal stakeholders across the sector, and letters from the ACHO have gone out to the food supply record client list for the services.
Review of risk from the Incident Management Team
Some critical observations at the IMT were:
• The deceased case who was an 86 year old female was admitted to Knox Private on 13/1/2019, discharged and readmitted on 23/1/2019 and died on 4/2/2019 due to complications of invasive listeriosis
• The listeriosis was probably hospital-acquired, based on published data indicating the likely upper limit for invasive listeriosis presenting as meningo-encephalitis at 14 days, and exposures to a range of high risk foods for listeria, and the knowledge now of a range of positive findings of Listeria monocytogenes in foods produced from iCook Foods who supply Knox Private Hospital, and data showing that four of six Listeria monocytogenes isolates are of the same binary type as the Listeria isolated from the case (more details awaited - match is consistent, not confirmed) .
• Sampling and swabbing of the manufacturer at iCook Foods was requested by DHHS on 31/1/2019 and enacted on 1/2/2019 and 25 samples were taken, of which DHHS was informed on 18/2/2019 that seven were positive for Listeria and six of those seven positive for Listeria monocytogenes. No environmental swabs were positive.
• Council inspections of the manufacturer indicated considerable concerns about cleaning of equipment and food safety standards at the manufacturer, and the findings were discussed at the IMT and the IMT confirmed on the basis of reported findings that there was not suitable or adequate control of the risk of Listeria proliferation, and there was some evidence that the manufacturer's kitchen was likely to be the point of contamination of multiple samples that were subsequently positive
• No food sampling from community exposures has been positive (foods matching those purchased and consumed in the community from supermarkets or cafes).
• There was a material risk of Listeria contamination of food produced at the premises from 13/1/2019 onwards to the present time, given, that there were negative findings on inspection, risks identified, positive Lm findings in a range of foods and suggestion of transmission to a vulnerable case who subsequently died, and as such, Council would be formally requested to Order cessation of production.
• The period of production risk was agreed to be from 13/1/2019 (because there was a material risk that was not controlled, samples were positive from 1/2/2019 but a person appeared to have acquired the infection from inpatient stay whilst exposed to foods likely from iCook Foods at some point from 13/1/2019 onwards)
• The public health advice would be that food produced prior to cessation of production should be discarded, and patients / persons who had consumed any food sourced from iCook Foods since 13/1/2019 should be identified and advised of a potential risk
• The name of the premises (iCook Foods) should be released if asked as it was important for transparency and to enable services to identify which food to dispose of / when to warn patients / clients / staff
• The fact there was a deceased confirmed case of listeriosis as part of this investigation should be released if required, as that was the prompt for the investigation
• Lead for IMT is via Environment Section, under ACHO and OCHO(E) with Dr Finn Romanes chairing until close 21 February 2019…
Next steps and agreed actions from IMT and subsequently
· Ensuring an Order is served and production ceases:
• Council should finalise and serve the Order after 10pm tonight
• In the event Council does not do that, it is hoped the CEO of Council will discuss with ACHO at that time, and then ACHO will authorise serving of a CHO Order directly on the premises before 0430AM potentially via Victoria Police (for which an Order is currently under legal review with a view to finalising)
· Checking all services have received the advice:
• FSU to call each service and check email from ACHO received and identify CEO and ensure it has been forwarded to CEO, or resend to CEO (noting that the email containing letters from ACHO has not been sent to CEOs of any service, since that information was not available this evening – which means if the point of contact for that service as held by iCook Foods is wrong or out of date or the person is on leave, the email from OHHS will not have been received and acted on)
• FSU to identify contact and provide the ACHO advice to IGA Rowville and Gloria Jeans, who have not yet been informed
• CDPC / Sally to obtain details of the patient profile of Knox Private Hospital, especially whether there are maternity and oncology services
• FSU / Pauline to investigate finding that food premises was incorrectly classified as a class 2 food premises under the Act, to determine cause and rectify
• CDES/FSU Joy / Paul to feedback further results of food sample Listeria characterisation, especially to identify if MLST and molecular typing are a match for the findings in the human case
• FSU / Paul to develop a clear set of criteria required to be met before production can recommence, including elements around correct classification of the food premises, an appropriate food safety programme and Listeria management programme, validation testing
• FSU / Pauline to ascertain volume of meals served at each service for purposes of estimating and understanding the impact of the food withdrawal
• FSU to map and investigate supply chain of iCook Foods for any Listeria-related risk
• Media / Graeme to draft holding media lines
• PHMCD / FSU to draft CHO Alert on Friday 22 February 2019 in preparation for use if deemed necessary only - a CHO Alert was judged likely to be required if certain events occurred, for example more cases (an outbreak), concern patients and treating doctors may need to be made aware through media and direct communication (other than through writing to services), or other factors
Records management
There is a TRIM file with key documents at:
IIEF/19/971…[105]
[105]CB4687–9, Email from Dr Romanes dated 21 February 2019.
DHHS requests Dandenong Council consider making a cease production order
Prior to February 2019 Dr Sutton’s understanding of the respective roles of DHHS and local councils in respect of food safety powers was that ‘it was overwhelmingly council that exercised powers in relation to the Food Act… But that they were available nonetheless to delegated individuals within the Department of Health.’[106] Dr Sutton stated that because he understood that the local council would normally be the entity to take action under the Act with respect to premises within its jurisdiction, the preferred option arising from the IMT meeting was for Dr Sutton to request that the Dandenong Council make a cease production order.[107]
[106]Transcript of Proceedings, T 486 L 23–29.
[107]Ibid T 505 L 22–28.
At 12:41pm on 21 February 2019, Dr Canil emailed Dr Sutton the following proposed text of a request to Dandenong Council to issue an order requiring ICF to cease food production:
Hi chaps, are you comfortable with these words ....
Dear Leanne
The Acting Chief Health Officer, Dr Brett Sutton, has considered information about the detection of Listeria moncytogenes [sic] in 6 of 7 food samples taken from the food premises icook, concerns raised by Council following its inspection of the premises and the clean down that occurred last evening. On the basis of that information, the Acting Chief Health [sic] has requested that Council consider ordering the premises, under section 19 of the Food Act, to cease all further production for today, 21 February 2019.
This recommendation is based on the Council findings that the food premises were not, prior to clean down, in a clean or sanitary state and that until results of further testing of premises and foods are available, the Acting Chief Health Officer cannot be assured that the premises are in a state that is suitable for food production.
Further advice will be sought from you in relation to distribution, food types distributed, sampling regime and sampling results to inform the Acting Chief Health Officer's further decision about this issue including his recommendation in relation to the recommencement of production.[108]
[108]CB4665–6, Email from Dr Canil dated 21 February 2019.
At 1:05pm Dr Sutton approved of the above wording and asked for the email to be sent.[109] At 2:45pm Dr Canil emailed Ms Johnson the above, in addition stating:
I would be grateful for your confirmation of receipt of this email and confirmation that Council has issued the section 19 Order, as soon as possible[110]
[109]CB4665, Email from Dr Sutton dated 21 February 2019.
[110]CB4673, Email from Dr Canil dated 21 February 2019.
At 1:01pm Dr Sutton forwarded the 11:35am email from Dr Canil to Ms Skilbeck and Ms Kilpatrick, stating:
Please see below for an issue with a food manufacturer in Dandenong Council.
As a result of this information and in discussion with Food Safety and CD Section, I've ordered production at the icook kitchen in Dandenong to cease immediately. We are developing communications for services and for recipients of food, in particular Meals on Wheels, where consumption of potentially contaminated food may have been ongoing for some weeks and where immediate alternative MOW supply arrangements need to be made.
Please call me if you need further detail, but hopefully we'll have an update and SitRep today.[111]
[111]CB4661, Email from Dr Sutton dated 21 February 2019.
In respect of the statement ‘I’ve ordered production at the icook kitchen in Dandenong to cease immediately’, Dr Sutton gave the following evidence:
… I don't know why I have used those words. Clearly I hadn't ordered production at the kitchen to close and we're in the process of having council draft an order.
You haven't signed an order at that stage but you had in fact formed your view that it had to be closed?---I hadn't ordered production to close and I hadn't drafted an order.
Orally or in writing?---Sorry?
Either verbally or in writing?---Neither.
So that's just false, is it?---That's correct.
Can you explain why you have made a false statement to your boss?---I don't know why I used those specific words, no.
HIS HONOUR: On one view of it, it is a shorthand way of you saying that you had made a recommendation to the council that the council issue the order, isn't that what you're referring to?---Yes, yes, it's a clumsy way to express it though.
So it's a shorthand, presumably when you made the recommendation to the council presumably you anticipated that your recommendation would be complied with and the order would be made by the council?---Yes, I had made that assumption at the time, yes.
So you agree that is a fair reading of your statement, 'I have ordered production at I Cook kitchen to cease immediately' is a reference to you having made a recommendation to the council to make such an order?---Or at least forming the view that the email should be sent, yes.[112]
[112]Transcript of Proceedings, T 542 L 18 – T 543 L 16.
Further, Dr Sutton gave evidence that ‘it was essentially at the end of the incident management team meeting that I came to the view that we would make a recommendation to council to consider closing the premises.’[113] The IMT meeting concluded at approximately 2:30pm on February 2019.[114]
[113]Ibid T 531 L 22–25; See also T 538 L 6–26.
[114]CB4671, Incident Management Team Meeting Agenda dated 21 February 2019.
At 4:44pm, Dr Romanes emailed Dr Sutton a ‘[d]raft letter for CEOs of eight councils, five private hospitals, five public hospitals and two aged care facilities, and two other parties, for review and approval.’[115] The email attached the following draft letter:
[115]CB4682, Email from Dr Romanes dated 21 February 2019.
Please be advised that the department and the City of Greater Dandenong are currently investigating the detection of Listeria monocytogenes in a range of foods produced by the manufacturer, I Cook.
On the basis of information provided by the company, it is understood that foods have been supplied by I Cook to you at <hospital/council meals on wheels program/aged care>.
As you would be aware, food contaminated with Listeria monocytogenes is dangerous, and can lead to death, if consumed by vulnerable people - these include older adults, pregnant women and the immunocompromised.
The Acting Chief Health Officer has requested that the City of Greater Dandenong issue an Order under the Food Act 1984 to I Cook that it cease production effectively immediately. Any food distributed to you by I Cook prior to today, including refrigerated and frozen foods, should be discarded immediately.
Listeriosis predominantly affects people who have immunocompromising illnesses such as leukaemia, diabetes or cancer; the elderly; pregnant women and their foetuses; newborn babies; and people on immunosuppressive drugs such as prednisolone or cortisone. Healthy adults are usually not affected but may experience transient, mild to moderate flu-like symptoms.
Those from any vulnerable groups who has [sic] consumed foods produced by I Cook since 13 January 2019 should be ·on the lookout of signs and symptoms of listeriosis. These include fever, headache, tiredness, aches and pains. These symptoms may progress to more serious forms of the illness, such as meningitis (brain infection) and septicaemia (blood poisoning). Less common symptoms are diarrhoea, nausea and abdominal cramps. After eating contaminated food, on average, symptoms appear after about three weeks but can occur from 3 to 70 days after consumption.
Attached is a fact sheet outlining the signs and symptoms of Listeria, and what foods are at high risk for listeria.[116]
At 4:47pm Dr Sutton approved the contents of the draft letter.[117]
[116]CB4680–1, Draft Letter dated 21 February 2019.
[117]CB4682, Email from Dr Sutton dated 21 February 2019.
At 6:34pm Dr Romanes emailed Ms Johnson from Dandenong Council, stating:
Thanks for the chance to speak just now.
As discussed:
· the Acting Chief Health Officer is formally and urgently requesting that Council issue an Order to cease production at iCook Foods effective immediately
· further it is particularly imperative that this Order is issued prior to the commencement of the next production which we understand commences at around 0430AM tomorrow Friday 22 February 2019
· the Acting Chief Health Officer would like to speak to the Chief Executive Officer of Council without delay,
· should there be any concern or reason why Council considers it cannot issue such an Order, so that a discussion can take place to understand and address any concerns
· the Acting Chief Health Officer is available on […] for the purposes of an urgent call
As I explained to your Director just now on the telephone, we understand the pressure of time and appreciate that all parties are in a Council meeting expected to run until 10pm tonight. I hope that if the Order is prepared now, it will be able to be made and served as soon as possible after 10pm tonight.[118]
[118]CB264, Email from Dr Romanes dated 21 February 2019.
As at 6:34pm Dr Sutton was not aware of any concerns on the part of Dandenong Council regarding the issuing of an order but was aware that Dr Romanes ‘was having difficulty in getting an assurance from council that the order would be in process and would come into effect.’[119] He received a copy of a draft order at approximately 7:30pm.[120] Upon receiving the draft he read s 19 of the Act.[121] Although he had been aware of the wording of s 19 at an earlier date by virtue of the instrument of delegation, this was the first occasion on which he had looked at s 19 ‘in detail’.[122] He did not read the definitions of ‘unsafe’ and ‘unsuitable’ in ss 4D and 4E of the Act prior to making the order.[123] Although he was aware on 21 February 2019 of the existence of emergency powers under Part VII of the Food Safety Act 1984 he did not consider making a cease production order under s 44,[124] because he was satisfied that Dr Canil and Mr Morrison (Acting Director of DHHS Legal Services Branch) as ‘the experts with respect to food regulation and legislation’ had selected s 19 as the most appropriate provision.[125] Dr Sutton considered the ICF premises to be ‘unsafe’ rather than ‘unsuitable’ within the meaning of s 19 of the Act. His satisfaction that the food being produced at ICF’s premises was ‘unsafe’ provided the basis for the making of the Order.[126] When he made the Order he had an understanding of the meaning of ‘unsafe’ for the purposes of s 19 of the Act, informed by his experience in the DHHS.[127]
[119]Transcript of Proceedings, T 508 L 24–26.
[120]Ibid T 525 L 20–21; T 544 L 24–26.
[121]Ibid T 544 L 24–26.
[122]Ibid T 525 L 1–23.
[123]Ibid T 554 L 30–31.
[124]Ibid T 556 L 1–21.
[125]Ibid T 557 L 11–22.
[126]Ibid T 641 L 5-11.
[127]Ibid T 528 L 22 – 529 L 7; T 639 L 7-12.
At 8:21pm Dr Romanes emailed Dr Sutton, stating:
Update on issuance of an Order and communication with clients of the company and internal stakeholders
• Two emails have been sent to Council firmly requesting an Order to cease production be served, and indicating the strong recommendation that this must occur prior to first production on 22/2/2019 at 4.30am
• The Council Authorised Officer is preparing an Order to cease production, but has not guaranteed that Council CEO will issue the Order, and this may not occur until after 10pm tonight 21/2/2019…[128]
[128]CB4687–9, Email from Dr Romanes dated 21 February 2019.
Between 8:21pm and 9:16pm Dr Sutton spoke on the telephone with the CEO of Dandenong Council.[129] He stated:
He told me that he was conflicted and would be unable to issue an order because he was on the board of a competitor kitchen… I accepted that conflict was real and that I would have to make an order.[130]
[129]Transcript of Proceedings, T 511 L 21 – T 512 L 1.
[130]Ibid T 512 L 6–15.
At 9:16pm, Dr Sutton emailed Dr Bone: ‘Council order not progressing; will be CHO order. But all in progress.’[131]
[131]CB4753, Email from Dr Sutton dated 21 February 2019.
Dr Sutton makes the Order
At 6:59pm Dr Sutton emailed Dr Canil and Mr Morrison, stating:
Sean Morrison is happy to review the order you are drafting (thanks Sean). He'll be home in 20 minutes so can review then and will provide advice to me on any changes etc required. I'll then confirm with you that it is good to go.
It can be served by a local council authorised officer or we can explore a police officer or other alternative if we're stuck.[132]
[132]CB4686, Email from Dr Sutton dated 21 February 2019.
Dr Sutton gave evidence about the advice that he envisaged Mr Morrison might provide, as referred to in the 6:59pm email. He stated:
Anything of relevance. As an experienced and senior legal practitioner within the department supporting the public health division, ensuring the robustness of legal language and appropriate exercise of powers and charter review.
When you say charter review, what's that a reference to?---The Victorian Charter of Human Rights and Responsibilities.[133]
[133]Transcript of Proceedings, T 510 L 5–12.
At 7:19pm Dr Canil sent Mr Morrison a copy of a draft order pursuant to s 19 of the Act, stating: ‘I have given this Order a crack. I would be grateful for your review and advice’.[134] At 9:30pm Mr Morrison emailed Dr Canil attaching a draft order pursuant to s 19 of the Act.[135]
[134]CB4745, Email from Dr Canil dated 21 February 2019.
[135]CB4741, Email from Mr Morrison dated 21 February 2019.
At 9:30pm Mr Morrison emailed Dr Romanes and Dr Canil, carbon-copying two DHHS legal officers:
I believe the attached is fit for purpose. Please give it a read to see if you understand the conditions. If you have any questions then please give me a call. I am typing a short advice now which will follow in a minute.[136]
[136]Ibid.
At 9:53pm Mr Morrison emailed Dr Canil again, stating:
Things to follow up on/know:
·please make sure Brett has the correct delegation under the Food Act;
·the order is valid when served;
·the Food Act requires us to notify the relevant council (the registering authority I assume for the premises) when we have served such a notice;
·in making such an Order the Charter of Human Rights and Responsibilities must be considered.
·Based on the available facts I believe the issuing of the Order is compliant with the charter for the following reasons:
·it limits, but not arbitrarily, the right to property but enhances the right to life.
·Brett can use an electronic signature pursuant to section 9 of the Electronic Transactions Act.
·Happy to discuss any issues you may have.
Please send me a copy of the order when signed.[137]
[137]CB4745, Email from Mr Morrison dated 21 February 2019.
At 10:00pm Dr Canil emailed Dr Romanes and Dr Sutton:
Please find Order attached into which brett's [sic] signature has been inserted. Please pdf before sending to Leanne at council. thanks.[138]
[138]CB4748, Email from Dr Canil dated 21 February 2019.
Dr Sutton replied, stating:
Thanks so much Milena and Sean.
I know the website has a title of iCook foods but I think the name (listed at bottom of webpage) may be 'I Cook Foods Pty Ltd'.
Maybe doesn't matter but thought I'd highlight.[139]
The timestamp attached to this email is 11:08am. However, the email was part of an email thread and sent subsequent to Dr Canil’s email at 10:00pm and prior to Mr Morrison’s email at 10:19pm. Dr Sutton gave evidence, which I accept, that at the time of this email, he had received from either Mr Morrison or Dr Canil a copy of the draft order intended to be made by him.[140] On receiving the draft order he ‘went through it line by line.’[141]
[139]CB4747, Email from Dr Sutton dated 21 February 2019.
[140]Transcript of Proceedings, T 513 L 20–21.
[141]Ibid T 514 L 10–11.
At 10:09pm Dr Romanes emailed Ms Johnson a copy of the Order and requested Dandenong Council to serve the Order.[142]
[142]CB4691, Email from Dr Romanes dated 21 February 2019.
At 10:18pm Mr Morrison replied to Dr Sutton, stating:
Given the lateness in the day I think this will be ok. The Act allows where the name is unknown for the order to take effect if affixed to the premises, which will happen in any event.[143]
[143]CB4747, Email from Mr Morrison dated 21 February 2019.
At 10:24pm Dr Sutton replied to Mr Morrison, stating:
All good. It’s been sent and I’m sure will have desired effect.
Thanks so much all for urgent work on this.[144]
[144]CB4749, Email from Dr Sutton dated 21 February 2019.
At 10:33pm Dr Romanes confirmed to Dr Sutton that Ms Johnson had received and would serve the order.[145] The Order states:
[145]CB4749, Email from Dr Romanes dated 21 February 2019.
I, Dr Brett Sutton, Acting Chief Health Officer, Department of Health and Human Services and delegate of the Secretary to the Department of Health and Human Services for the purposes of Section 19 of the Food Act 1984, am satisfied from the report of an authorized officer of the Department’s Food Safety Unit that -
in relation to the food premises known as iCook Foods and situated at 2/12 Zenith Road, Dandenong South, Victoria 3175 (“the food premises)”, food being prepared, sold or otherwise handled at this food premises is unsafe or unsuitable.
Pursuant to Section 19(2) of the Food Act 1984 I HEREBY ORDER AND DIRECT THAT within 14 days of the date of the serving of this notice:
a) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer; and
b) specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.
Pursuant to Section 19(3) of the Food Act 1984 I HEREBY ORDER AND DIRECT, EFFECTIVE IMMEDIATELY ON THE SERVICE OF THIS NOTICE, THAT:
a) the food premises must not be kept or used for the sale, or the handling for sale, of any food; and
b) the food premises must not be kept or used for the preparation of food.[146]
The Order set out further steps to be taken pursuant to s 19(2)(b) of the Act, including the destruction of all short shelf life and extended shelf life food manufactured since 13 January 2019. The full text of the Order is set out at Annexure C.
[146]CB1681, Cease Production Order dated 21 February 2019.
The Order was served by Ms Johnson at 4:00am on 22 February 2019 at the ICF premises.[147]
[147]Transcript of Proceedings, T 310 L 9–12.
Dr Sutton makes the Varied Order
After making the Order on 21 February 2019, Dr Sutton participated in discussions about differentiation of types of food being produced at the ICF premises.[148] A proposed variation to the Order was communicated to him by Dr Canil and Dr Bone based on the advice of Mr Goldsmith and other DHHS officers of the Food Safety Unit.[149] He stated:
Materiality
It was a breach of the rules of natural justice to issue the Order without according ICF an appropriate opportunity to be heard. It is necessary to address the issue of whether the failure to accord ICF natural justice was material, thereby resulting in the invalidity of the Order. Materiality is established if ICF establishes that it was deprived of a realistic possibility of a different outcome.[329] Materiality is essential to the existence of jurisdictional error.[330]
[329]Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 741 [1] (‘Nathanson’).
[330]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45].
In Nathanson v Minister for Home Affairs,[331] Kiefel CJ, Keane and Gleeson JJ stated:
As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made” . This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome…
SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.[332]
[331]Ibid.
[332]Ibid 747–8, 750, [32]–[33], [46] (citations omitted).
The formulation of the materiality threshold in Nathanson has been applied by appellate courts on numerous occasions.[333]
[333]Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen (2023) 409 ALR 719, 734 [79] (Mortimer CJ, with whom Anderson and Hespe JJ agreed); Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68, [46]–[47] (Moshinsky, Stewart and Jackman JJ); AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90, [76], [81], [88] (Banks-Smith, Jackson and Feutrill JJ); Bobrenitsky v Sydney Trains [2023] FCAFC 96 , [99] (Collier, Snaden and Goodman JJ); Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98, [62] (Katzmann, Jackson and McEvoy JJ); Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116, [154] (Logan, Rangiah and Goodman JJ); Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144, [56] (Stewart and Hespe JJ, with whom Feutrill J agreed), [75]–[76] (Feutrill J).
The question is whether as a matter of reasonable conjecture the decision whether to make the Order could have been different had ICF been provided an appropriate opportunity to be heard. This threshold is undemanding.
There are matters which ICF could have brought to Dr Sutton’s attention had it been accorded an opportunity to be heard. First, ICF could have made Dr Sutton aware of the existence of the Clean Order and s 19W Order issued by the Dandenong Council on 19 February 2019. It could have explained the steps that it had already taken and planned to take to comply with the terms of those orders. Dr Sutton stated that when he made the Order he was unaware that Dandenong Council had made orders in respect of the ICF premises.[334] Second, ICF could have provided Dr Sutton with detailed information concerning the volume of food it had produced and distributed since 13 January 2019 without there having been any other reported cases of listeriosis. Third, ICF could have proposed a regime under which, pending the receipt of enumeration and genotype reports, food manufactured since 13 January 2019 would be retained but would not be distributed. Fourth, ICF could have proposed that it would continue to manufacture food but not distribute food to customers.
[334]Transcript of Proceedings, T 523 L 23–28; T 540 L 30–31.
There was a realistic possibility that the decision making process in respect of the Order could have resulted in a different outcome if ICF had been provided with an opportunity to be heard prior to the making of the Order. DHHS’ breach of the rules of natural justice was material. As a consequence the Order was invalid.
Reckless Indifference
Was Dr Sutton recklessly indifferent to whether the Order was invalid by reason of DHHS breaching the rules of natural justice?
The tort of misfeasance in public office extends to acts by public office holders that are beyond power for want of procedural fairness.[335] ICF submits that Dr Sutton was recklessly indifferent as to whether the Order was invalid by reason of ICF being denied procedural fairness.
[335]Mengel (n 180) 356–57 (Brennan J); Sanders v Snell (n 180) 344-5 [38].
ICF’s allegation that the making of the Order constituted misfeasance in public office is a very serious allegation. A finding that a public office holder has committed misfeasance in public office ‘should only be reached having regard to the seriousness of such a finding based on evidence that gives rise to reasonable and definite inference that he or she had the requisite state of mind’.[336] I have applied this standard of proof when addressing the question of whether Dr Sutton was recklessly indifferent as to whether the Order was invalid for want of procedural fairness.
[336]Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries and Forestry & Anor (2020) 274 FCR 337, 407 [284]; Commonwealth v Fernando (2012) 200 FCR 1, 28-9 [128]–[130]; Evidence Act 2008 (Vic) s 140(2)(c).
Prior to making the Order Dr Sutton had not received advice that he should give ICF notice of his intention to make the Order and an opportunity to put forward reasons why an order should not be made. He gave evidence, which I accept, that he did not know prior to making the Order that he was under any obligation to provide ICF with an opportunity to be heard prior to the Order being made. He did not turn his mind to the question of whether ICF had a right to be heard.[337] He did not seek legal advice about whether ICF had a right to be heard prior to a closure order being made.[338] He did not turn his mind to whether ICF had a right to be heard because he was making an order for the protection of individuals at risk of consuming unsafe food.[339] I accept this evidence.
[337]Transcript of proceedings, T 577 L 25.
[338]Ibid T 577 L 26–27.
[339]Ibid T 577 L 28 – T 578 L 2.
Mr Clarke submitted that the Court should reject Dr Sutton’s evidence that when he made the Order he did not turn his mind to the question of whether ICF should be provided with a right to be heard prior to the making of the Order. Mr Clarke based this submission on two matters. First, that Dr Sutton had an understanding in February 2019 as to what natural justice entailed. Second, that Dr Sutton was an unreliable witness whose evidence should not be accepted.[340]
[340]Ibid T 803 L14–21.
Dr Sutton gave evidence that in February 2019 he understood that the expression ‘right to be heard’ was a right to be able to make a case for a different cause of action or a modified cause of action.[341] It does not follow from this evidence that Dr Sutton understood that ICF had a right to be heard when he made the Order. Dr Sutton took the step of involving Mr Morrison in the drafting of the Order. I infer that Dr Sutton took this step because he wished to ensure that the Order would not be invalid by reason of a failure to comply with any relevant legal requirement. Dr Sutton was relying upon the advice which he received from Mr Morrison as to the validity of the Order. He received no advice from Mr Morrison that he was subject to a requirement to accord ICF procedural fairness prior to making the Order. I accept Dr Sutton’s evidence that he did not turn his mind to the question of whether he needed to accord procedural fairness to ICF prior to making the Order. Further, I reject Mr Clarke’s submission that Dr Sutton was an unreliable witness. The events which are the subject of the present proceeding occurred in February 2019. When giving his evidence Dr Sutton gave an honest account of the events of early 2019 based on his best recollection of those events. He was a reliable witness.
[341]Ibid T 649 L18–20.
Earlier in this judgment I have set out a number of emails between Dr Sutton, Dr Canil and Mr Morrison, the Acting Director of DHHS Legal Services Branch, between 6.59pm and 10.24pm on the evening of 21 February 2019. I accept Dr Sutton’s evidence that he sought the involvement of Mr Morrison prior to making the Order to ensure ‘the robustness of legal language and appropriate exercise of powers and charter review’.[342] Having taken the step of involving a senior department legal officer in the drafting of the Order, Dr Sutton did not receive any advice that he was subject to a requirement to accord procedural fairness to ICF prior to making the Order. There is no basis for concluding that Dr Sutton was recklessly indifferent as to a requirement to observe procedural fairness as a condition of the valid exercise of the power to make an order requiring ICF to destroy food and to cease production. To the contrary, he acted prudently by issuing an order which had been drafted and reviewed by a senior department legal officer.
[342]Ibid T 510 L 5-9.
In Sanders v Snell, the Minister for Tourism in the administration of Norfolk Island (Sanders) terminated the employment of Mr Snell, the Executive Officer of the Norfolk Island Government Tourist Bureau. Prior to doing so, Mr Sanders was told by another Minister and the Chairman of the Bureau that he should afford Mr Snell natural justice prior to terminating his employment.[343] Mr Sanders ignored this advice and went ahead with the termination of Mr Snell’s employment. The Full Court of the Federal Court held that the Minister was liable for misfeasance in public office:
Having been warned of his obligation to give natural justice to Mr Snell, and knowing that the correctness of the report on which he was relying was challenged by Mr Nobbs, Mr Sanders gave to the Bureau a statutory direction to take steps that same day to terminate Mr Snell's employment. When the original members of the Bureau requested more time, he removed them from office and appointed members who, he expected, would carry out his wishes. The time limits he imposed made it impossible for anybody to put before him a response to the report. But Mr Sanders was not interested in anybody else's views; there "was not going to be a debate". Mr Sanders' acts were "calculated in the ordinary course to cause harm" and "done with reckless indifference to the harm that [was] likely to ensue", to use the words of the Mengel joint judgment. This is a case of a public officer recklessly disregarding both a known constraint on his power and an obvious means of fulfilling his known duty of fairness.[344]
[343]Sanders v Snell (n 180) 349 [47].
[344]Sanders v Snell (1997) 73 FCR 569, 593.
On appeal, the High Court overturned the Full Federal Court’s finding of misfeasance in public office:
At most, the trial judge's finding (made in the context of his conclusion that the appellant had procured a breach of the respondent's contract) was that the appellant had acted peremptorily and with no regard to what he had been told would be fair. That is very different from finding that the appellant knew that he was acting beyond power. Nothing in what was found by the judge to have happened, and nothing that was revealed in the evidence, warranted the Full Court in making a finding that the appellant knew or was reckless to the possibility that what he was doing was without power for want of procedural fairness let alone making a finding of want of honesty on his part. And yet that is what the Full Court found.[345]
[345]Sanders v Snell (n 180) 350 [48].
The High Court ordered that there be a new trial limited to the claim alleging misfeasance in public office. That claim was upheld at first instance.[346] On appeal, in Sanders v Snell (No 2)[347] the Full Court of the Federal Court overturned the finding of misfeasance in public office:
[346]Snell v Sanders [2000] NFSC 5.
[347]130 FCR 149, 180.
In the circumstances we conclude that there was no basis upon which it could have been concluded that misfeasance in public office had been made out by reason of actual knowledge of want of power or reckless indifference to the absence of power based upon want of procedural fairness. In this respect Sanders’ position is analogous to that of the defendant, Cornwall, in Rowan v Cornwall. It will be recalled that Debelle J found Dr Cornwall liable for misfeasance in public office in its first form. As to the second form, in connection with absence of procedural fairness in the decision to withdraw funding from the women’s shelter, Debelle J said (at 358):
The power to withdraw funding of course existed but Dr Cornwall did not turn his mind to the question of procedural fairness, that is to say, whether he should give the shelter an opportunity of being heard before funding was withdrawn. Nor did he receive any advice on the question of procedural fairness. He was plainly set upon a course to close the shelter. So fixed was his purpose that he was oblivious to the obligation to accord procedural fairness. He simply did not think of that obligation. I do not think that constitutes a reckless indifference as to the question whether he had power because, plainly, the power existed subject to the obligation to accord procedural fairness.
His Honour quoted Brennan J in Mengel (at 356):
The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of a power when the act is ultra vires.
True it is that there was evidence that Sanders had been told of the desirability of according procedural fairness but not on the basis that this went to power, nor was he cross-examined on that basis. His Honour’s decision in favour of Snell cannot be upheld by reference to the second form of the tort.
This reasoning is apposite in the present proceeding. Dr Sutton did not turn his mind to the question of whether ICF should be accorded procedural fairness prior to the making of the Order. Nor was he advised by Mr Morrison that the valid exercise of the power to make an order to cease production was subject to a requirement to accord ICF procedural fairness. Dr Sutton erred by making the Order without first providing ICF with an opportunity to be heard. However, this did not constitute misfeasance in public office.
ICF has failed to establish that Dr Sutton was recklessly indifferent as to whether the Order was invalid for want of procedural fairness. It follows that ICF’s claim that Dr Sutton committed misfeasance in public office must be rejected.
Declaratory relief
ICF seeks declarations that the Order and the Varied Order were ultra vires and invalid. DHHS resists the claim for declaratory relief. It contends that there would be no foreseeable consequence from the grant of declarations because ICF has ceased trading and there is no evidence which supports a finding that there is any prospect that it will resume trading.
The jurisdiction of the Supreme Court of Victoria to make a binding declaration of right without granting consequential relief arises pursuant to s 85 of the Constitution Act read in conjunction with s 36 of the Supreme Court Act 1986. A declaration is not an equitable remedy. It is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court.[348]
[348]Ambridge Investments Pty Ltd (in liq) (Receiver appointed) v Baker & Ors [2010] VSC 59, [61]–[63].
In Ainsworth v Criminal Justice Commission[349] the plurality stated:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘it is neither possible nor desirable to fetter… by laying down rules as to the manner of its exercise. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that have not occurred and might never happen’ or if ‘the court’s declaration will produce no foreseeable consequences for the parties’.
The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness. A report has been made and delivered under section 2.18 of the Act. That report has already had practical consequences for the appellants’ reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done.[350]
[349](1992) 175 CLR 564.
[350]Ibid [581]–[582].
Mr Caleo submitted that the reasoning set out above has no application in the present proceeding because ICF ceased trading in early 2019. He submitted that what persuaded the High Court to grant a declaration in Ainsworth was the prospect of foreseeable consequences redressing the damage to the appellants’ reputation.[351] In support of the proposition that a declaration will not be granted if there are no foreseeable consequences from the grant of relief Mr Caleo referred to Gardner v Dairy Industry Authority (NSW)[352] and Minister for Immigration and Ethnic Affairs v Ozmanian.[353]
[351]Transcript of Proceedings, T 752 L22–27.
[352](1977) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).
[353](1996) 71 FCR 1, 31–33 (Kiefel J, Sackville J agreeing).
Mr Caleo did not submit that the making of the Order did not adversely affect ICF’s reputation. He was plainly correct not to advance any such submission. The Order records Dr Sutton’s satisfaction that food being prepared at ICF’s premises was unsafe. Under s 4D of the Act food is unsafe if it would be likely to cause physical harm to a person who might later consume it. For a longstanding business engaged in the production of food consumed by the elderly (Meals on Wheels) and infirm individuals (food supplied to hospitals and aged care facilities) it was inevitable that the Order would have adverse consequence for ICF’s business reputation. I have no hesitation in concluding that the making of the Order caused immediate and significant damage to ICF’s business reputation.
ICF ceased trading in early 2019. Its business premises in Dandenong have been sold. Neither Mr Ian Cook or Mr Ben Cook gave evidence which supports a finding that there is any prospect of ICF resuming trading at any time in the future. It does not follow, however, that a declaration that the defendant failed to observe the requirements of procedural fairness when making the Order will not have any foreseeable consequence. Although it is no longer trading, ICF still exists and is the plaintiff in the present proceeding. A declaration that the defendant failed to observe the requirements of procedural fairness when making the Order will redress some of the damage to ICF’s business reputation arising from the Order. It will also provide ICF with vindication that it has been subject to a wrong done by a public office holder.[354]
[354]Bare v IBAC (2015) 48 VR 129, 180 [152]; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, 600 [556], 602 [563], 603-4 [568]–[569].
If, contrary to the conclusion set out above, a declaration would have no foreseeable consequence for ICF, it does not follow that declaratory relief is not available. There is a well-established line of authority, which was not referred to by either party, to the effect that a declaration may be granted even if there is no foreseeable consequence for the moving party, if there is a wider public interest in the making of the declaration. This line of authority[355] is set out in Cavanough J’s judgment in Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission.[356]
[355]Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89; ACCC v Eurong Beach Resort [2005] FCA 1134; Director of Consumer Affairs Victoria v DW International Trading Pty Ltd [2010] VSC 515; Director of Consumer Affairs Victorian v Mecon Insurance Pty Ltd [2016] VSC 42; Tax Practitioners Board v Hogan [2012] FCA 642; CMA19 v Minister for Home Affairs [2020] FCA 736; Antigua Power Co Ltd v Attorney General of Antigua and Bermuda [2013] UKPC 23.
[356][2020] VSC 762, [111]-[113]; See also reported version Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission (2020) 61 VR 383.
Dr Sutton made the Order in his capacity as a delegate of the Secretary of the DHHS. The Secretary is one of six relevant authorities authorised by s 19(9) of the Act to make an order under s 19(2) or (3). The powers conferred on a relevant authority by s 19(2) and (3) are wide-ranging. As is clearly demonstrated by the present proceeding, where the exercise of those powers involves the making of an order to cease production, such an order can have a devastating effect upon an affected business and its employees. The question whether the valid exercise of the powers conferred upon a relevant authority to make an order requiring destruction of food and cessation of production is subject to a requirement to accord procedural fairness attracts the public interest. The powers under 19(2)(b) and (3), which were exercised by Dr Sutton in February 2019, continue to exist in the same terms to the present day. Although ICF has ceased trading there are numerous businesses which could potentially be subject to orders of the same type made by Dr Sutton in February 2019. There is utility in granting declaratory relief which gives formal effect to the Court’s conclusion that the valid exercise of the power to make an order to destroy food and cease production is subject to a requirement to accord procedural fairness to a party affected by such an order.
ICF is entitled to a declaration that the Order and the Varied Order are invalid by reason of the defendant’s failure to observe the requirements of procedural fairness. Mr Caleo submitted that any declaration should not state that the Order was invalid. He submitted that there is no utility in the Court declaring the Order was invalid because the Order was revoked in late March 2019. I reject this submission. First, as the Order was made without according ICF any procedural fairness whatsoever it was invalid and of no legal effect from the time it was made.[357] Consequently, there never was a valid order in existence capable of being varied or revoked. The revocation of the Order is not a matter which weighs against a declaration that the Order was invalid and of no effect. Second, the public interest considerations which support a declaration that the Order was made without observance of the requirements of procedural fairness also support a declaration that the Order was invalid.
[357]Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128, 137 [48]–[49]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [13]; Hossain (n 212) 133 [24], 143 [62].
The Court shall declare as follows:
I.The order made by the Acting Chief Health Officer on 21 February 2019 pursuant to s 19 of the Food Act 1984 (the Order) was invalid by reason of the failure of the defendant to observe the requirements of procedural fairness.
II.The variation to the Order made by the Acting Chief Health Officer on 23 February 2019 pursuant to s 41A of the Interpretation of Legislation Act 1984 was invalid by reason of the failure of the defendant to observe the requirements of procedural fairness when making the Order.
Conclusion
ICF’s claim for damages based on misfeasance in public office is dismissed. ICF’s claim for declaratory relief is upheld. I shall provide the parties with an opportunity to make submissions as to the costs of the proceeding.
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Annexure A – Clean Order dated 19 February 2019
Annexure B – s 19W Order dated 19 February 2019
Annexure C – Cease Production Order dated 21 February 2019
Annexure D – Varied Cease Production Order dated 23 February 2019
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