Scott-Brydges v Lismore City Council

[2018] NSWCATAD 215

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Scott-Brydges v Lismore City Council [2018] NSWCATAD 215

Hearing dates:

27 November 2017, 20 – 21 February 2018, 11 April 2018, 15 – 17 August 2018.

Date of orders:

14 September 2018

Decision date:

14 September 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof. GD Walker, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

HEALTH – food safety – improvement notice – prohibition order – compensation claim – whether no grounds for making the order – layers of protection analysis.

  WORDS AND PHRASES – “ensure” – “reasonable grounds” –“no grounds for making the order”.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Food Act 2003

Cases Cited:

Carrington Slipways Pty Ltd and Inspector RJ Callaghan, Industrial Commission, No. 1518 of 1984;
Essential Energy and WorkCover Authority of New South Wales [2012] NSWIRComm 83;
George v Rockett (1990) 170 CLR 104;
Re Heavylift Cargo Airlines Ltd and Civil Aviation Safety Authority [2007] AATA 1005.

Texts Cited:

D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn.,LexisNexisButterworths 2014.

Category:

Principal judgment

Parties:

Garry Scott-Brydges (Applicant)
Lismore City Council (Respondent)

Representation:

Counsel:

 

Mr M Shume (Respondent)

 

Solicitors:

  Nimbin Legal (Applicant)
Mills Oakley (Respondent)

File Number(s):

2017/00241904

reasons for decision

1. The applicant Mr Garry Scott-Brydges on 3 August 2017 applied to this tribunal for review of a decision by the respondent dated 5 July 2017 to refuse him payment of compensation under s 66 of the Food Act 2003 for loss which he claimed to have sustained as a result of a prohibition order under s 60 of the Act issued on 2 June 2017 by the Council in respect of his operation of certain café premises known as the “Contented Tummy” at shop 2, 45 Cullen Street, Nimbin, New South Wales. The café served food and beverages at those premises.

2. On 28 April 2017, Mr David Mundt, a Council health compliance officer, inspected the premises and recorded certain shortcomings, the absence of a food safety supervisor or FSS certificate on the premises, the positioning of plastic containers impeding access to the hand basin, a leaking hand basin and lack of a thermometer on the premises. As a result of those observations, Mr Mundt issued an improvement notice on 4 May 2017 requiring the applicant to repair the hand wash basin, provide a thermometer and ensure that utensils were effectively washed and sanitized. A Council public health officer, Mr Cameron Smith, who inspected the premises on 4 May 2017 made similar observations.

3. On 4 May 2017, Mr Mundt sent a show cause letter to the applicant requiring him to appoint a food safety supervisor and make a certificate available for inspection, by 18 May 2017. On that date Mr Smith and Mr Mundt carried out an inspection in the course of which they observed that staff members were in their view not appropriately cleaning and sanitizing food service utensils. On 19 May 2017, Mr Smith emailed the applicant informing him that the cleaning and sanitizing system observed at the premises was not effective and that the use of a single bowl sink was unacceptable. The applicant was informed that he needed to provide an alternative system, such as a double-bowl sink, a single bowl sink and a dishwasher, or a double bowl sink and a dishwasher.

4. At a meeting with the Council’s general manager, Mr Gary Murphy, and compliance manager, Mr Peter Jeuken, attended by the applicant and Mrs Carolyne Scott-Brydges on 30 May 2017, the applicant refused to install a double bowl sink. He did undertake to appoint a food safety supervisor with appropriate accreditation by 2 June 2017, however. (For convenience Mrs Scott-Brydges will be referred to, with all due respect, as Carolyne; Mr and Mrs Scott-Brydges will sometimes be referred to as “the owners).

5. Mr Jeuken and Mr Smith inspected the premises on 2 June 2017 and observed the same system of a single bowl sink and buckets used to clean and sanitize food service items. The applicant confirmed that he would not install a double bowl sink. Mr Smith issued a prohibition order while on the premises. Performing a further inspection on 11 June 2017, Mr Smith observed that a double bowl sink had in fact been installed. A clearance certificate was issued that permitted the applicant to resume business from that date. At the time the applicant also operated a restaurant in shop 3, the premises adjoining the café. Since then, he has sold both businesses and is now retired.

Applicable legislation

6. Section 3 of the Food Act 2003 describes the objects of the Act as including ensuring that food for sale is both safe and suitable for human consumption, preventing misleading conduct in connection with the sale of food and providing for the application in New South Wales of the Food Standards Code. The respondent Council had engaged a number of officers authorized under division 3 of part 9 of the Act to carry out inspections of food service premises.

7. Section 57 of the Act sets out the circumstances in which an improvement notice may issue:

57 Unclean or unfit premises, vehicles or equipment

If an authorised officer believes, on reasonable grounds, that:

(a)   any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle is in an unclean or insanitary condition or is otherwise unfit for the purpose for which it is designed or intended to be used, or

(b)   any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle does not comply with a provision of the Food Safety Standards with which the food business is required to comply, or

(c)   in relation to any premises used in connection with the handling of food for sale or any food transport vehicle, any relevant food safety program prepared in accordance with the regulations is not being implemented adequately by a food business, or

(d)   any provision of the Food Standards Code with which a food business is required to comply is being contravened in relation to the handling of food intended for sale on any premises, or in any food transport vehicle, used by the food business in connection with the handling of food intended for sale,

the authorised officer may serve an improvement notice on the proprietor of the food business in accordance with this Part.

8. The content of an improvement notice is prescribed by s 58:

58 Improvement notice

(1)   An improvement notice is to take the form of an order that:

(a)   premises, equipment or a food transport vehicle be put into a clean and sanitary condition, or be repaired, to the satisfaction of an authorised officer, or

(b)   equipment or a vehicle be replaced, or

(c)   a food safety program be prepared if required by the regulations, or

(d)   a food safety program required by the regulations be revised so as to comply with the requirements of the regulations, or

(e)   in relation to the handling of food intended for sale, measures be taken to implement the provisions of any relevant food safety program required to be prepared by the regulations, or

(f)   in relation to the handling of food intended for sale, measures be taken to implement the requirements of the Food Safety Standards,

within a period of 24 hours (or such longer period as is specified in the notice) after the service of the notice on the proprietor of the food business.

(2)   Before the end of the period specified in the improvement notice, the authorised officer who issued the notice may, on his or her own motion or on the application of the proprietor of the food business, extend the period within which the proprietor of the food business is to take action in accordance with the notice.

(3)   An improvement notice is to state that it is issued under this section.

9. Section 61 enumerates the bases on which improvement notices and prohibition orders can be made:

61 Scope of notices and orders

An improvement notice or a prohibition order may be made with respect to any one or more of the following:

(a)   any premises or any part of any premises, food transport vehicle or equipment specified in the notice or order,

(b)   all equipment contained on any premises or any part of any premises, or in a food transport vehicle, specified in the notice or order, or any specified equipment so contained,

(c)   the handling of food intended for sale by a food business in a specified way or for a specified purpose.

10. Under s 62, an improvement notice must contain certain information:

62 Notices and orders to contain certain information

An improvement notice or prohibition order under this Part:

(a)   must specify any provision of the Food Standards Code to which it relates, and

(b)   may specify particular action to be taken by a person to ensure compliance with the provision of the Food Standards Code to which it relates.

11. Prohibition orders are issued under s 60:

60 Prohibition order

(1)   If the Food Authority or an enforcement agency believes, on reasonable grounds:

(a)   that any of the circumstances specified in section 57 (a), (b), (c) or (d) exist, and

(b)   that:

(i)   the proprietor of a food business has not complied with an improvement notice within the time required by section 58 for compliance, or

(ii)   the issue of the order is necessary to prevent or mitigate a serious danger to public health,

the Food Authority or the enforcement agency may serve a prohibition order on the proprietor of the food business in accordance with this Part.

(2)   A prohibition order is to take the form of an order that:

(a)   no food intended for sale is to be handled on specified premises or a specified part of specified premises, or

(b)   no food intended for sale is to be conveyed in a specified vehicle, or

(c)   specified equipment is not to be used in connection with food intended for sale, or

(d)   no food intended for sale is to be handled by a food business in a specified way or for a specified purpose,

until the proprietor of the food business has been given a certificate of clearance stating that the premises, part of the premises, vehicle or equipment may be used for the handling or conveyance of food intended for sale, or for use in connection with such food, or that the food may be handled in the specified way or for the specified purpose, as the case may be.

(3)   A prohibition order is to state that it is issued under this section.

(4)   The Food Authority or person that made the order must give a certificate of clearance if, after an inspection of the premises, part of the premises, vehicle or equipment, or the way of handling food, specified in the prohibition order, the Food Authority or person finds, by the Food Authority’s or person’s own inspection or the report of an authorised officer, that:

(a)   the premises, part of the premises, vehicle or equipment, or the handling of food by the food business in the specified way or for the specified purpose, is not a serious danger to public health, and

(b)   the person on whom the prohibition order was served has complied with the prohibition order and any improvement notices served on the person.

12. The central concern of this application is s 66, which deals with compensation payable to persons as a result of the making of unfounded prohibition orders:

66 Compensation

(1)   A person bound by a prohibition order who suffers loss as a result of the making of the order may apply to the Food Authority or person who made the order for compensation if the person bound by the order considers that there were no grounds for the making of the order.

(2)   If there were no grounds for the making of the order, the Food Authority or enforcement agency is to pay such compensation to the applicant as is just and reasonable.

(3)   The Food Authority or enforcement agency is to send written notification of its determination as to the payment of compensation under this section to each applicant for the payment of such compensation.

(4)   If the Food Authority or enforcement agency has not determined an application for compensation under this section within 28 days of receiving the application, the Food Authority or enforcement agency is taken to have refused to pay any compensation.

(5)   An applicant for the payment of compensation under this section who is dissatisfied with a determination by the Food Authority or enforcement agency as to the refusal to pay compensation or as to the amount of compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997:

(a)   within 28 days after the day on which notification of the determination was received, or

(b)   in a case to which subsection (4) applies, within 28 days after the expiration of the 28-day period referred to in that subsection.

13. The issues in this case are therefore:

1. Whether there were “no grounds for the making of the [prohibition] order” and, if so,

2. If there were no grounds, what is the quantum of damages to be paid by the respondent to the applicant.

Applicant’s evidence

Mr Garry Scott-Brydges

14. At the hearing the applicant adopted his statement dated 17 October 2017 (exhibit A1) in which he stated inter alia that he owned and operated the “Contented Tummy” café at shop 2, 75 Cullen Street, Nimbin, for 5 years from 1 August 2012 until 12 September 2017, when he sold it. In 2016 and 2017 he also held the lease on the adjacent shop 3, but for some of that period was fitting it out as a restaurant. Before operating the “Contented Tummy”, he ran a business called the “Retro Café” at 76 Cullen Street, Nimbin, for 5 years until August 2012, when he surrendered the lease. The café businesses required constant preparation and cooking of foodstuffs, collection, washing and sanitization of crockery and cutlery and the taking and accounting of relatively small sums of money.

15. Throughout his conduct of those businesses over some 12 years, he sanitized crockery and cutlery with bleach. That had been a traditional method that to his knowledge had been in use throughout his life. It appeared to be endorsed by scientific authorities generally on the Internet. He had never been the subject of a health complaint, nor heard any general criticism of the efficacy of bleach as a sanitizer.

16. As regards crockery, cups and saucers, they were scraped clean with a spatula, then washed in hot (initially 70° C) water one at a time in a single-bowl sink. The plates and saucers were then submerged in plain rinse water and (except for the cups) were dipped in a solution of lukewarm water and bleach (about 60° C) in a bucket or basin that was regularly changed after use, and using 40 ml of commercial (White King) bleach in 10 L of water, for between two and five minutes, then drip-dried on a sanitized surface (except that saucers were dried using a tea towel). Cups were not dipped in bleach, as that would affect the taste of the tea or coffee. Instead they were rinsed twice and placed mouth down on a coffee machine to air-dry.

17. Surfaces were regularly wiped with bleach solution, but after early 2017 a dedicated sanitizing agent was used.

18. Cutlery was soaked in a 5 L bucket of hot soapy water, then washed up in a single bowl sink. The clean cutlery was then sorted into separate perforated steel cutlery canisters and submerged in clean hot rinse water from a gas hot water system at 70.3°C using the 10 L bucket, and then, while still in the canisters, were sanitized using the same method in another 10 L bucket before being towel dried and polished using a clean tea towel. All sanitized items were allowed to air dry before use.

19. His method relied on chlorine as a cheap and effective disinfectant, germicide, algaecide and anti-slime agent. The chlorine disinfects, controls taste and odour, destroys organic matter and reduces colour. It has been in widespread use for over a century and has been, and is, commonly used for sanitization purposes in Australia. It is effective in sanitizing eating and drinking utensils and equipment to the standard required by Food Safety Standard 3.2.2, clause 20.

20. Over the years Lismore City Council health compliance officers (usually Cameron Smith) visited his cafés regularly. The applicant was always receptive to their advice. They were well aware of the sanitization method he used and at no time did he receive any written or oral criticism of that method from any of the officers, or any stipulation that hot water had to be at 77°C and not 70°C. In April and May 2017, he received unannounced visits from a new LCC health officer, David Mundt. The applicant and his wife Carolyne were both present the first time he came, but were both absent on the three subsequent occasions because one or other of them was in hospital.

21. At an inspection on 28 April 2017, Mr Mundt objected that a staff hand basin in the food preparation area was leaking around the drainage collar. The applicant was aware of the problem, the basin having been struck by a customer’s wheelchair when the applicant allowed him past it to the disabled lavatory. Unfortunately, the damage occurred at the time of the massive flood that hit Lismore at the end of March 2017 and he found it impossible to arrange for a plumber. He dealt with the problem by placing a bucket in the basin. Staff washed their hands under running water that was collected in the bucket. When the bucket was full, it was emptied into the lavatory. It was not correct to say that staff washed their hands in the bucket itself. The applicant was able to arrange for a plumber soon after that inspection.

22. On other occasions the thermometer could not be found, as Mrs Scott-Brydges had taken it home, or was not in the shop to locate it. Even if the cooking thermometer had been taken home by her, there were always two coffee thermometers in the shop and they could both be used and sanitized. On other occasions he was without a food service supervisor (FSS) or FSS certificate because the relevant staff member had resigned. He had rectified those problems, however, and paid the fines. He did not consider any transgression thereby involved to have any relevance to the sanitization issue.

23. As a result of that inspection, an improvement notice dated 4 May 2017 was also issued. It asserted that “eating and drinking utensils were being washed and dried with no means of sanitation present”. That statement referred to a photograph that showed nothing except various sanitized utensils air-drying on a sanitized surface. That surface was a silicon mat spread on the sink drainage shelf. It was always washed in soapy water, rinsed and then dipped in bleach sanitizer three or four times a day.

24. At all times his staff were subjecting all crockery, cutlery and saucers to the sanitization method. The improvement notice continued to advise that “Sanitisation can be achieved through the use of hot water (at the appropriate temperature) or chemicals”. He thereafter continued to use the same method, as he considered that it met those requirements. The LCC officers did not criticize his sanitization method or demand – as distinct from suggest – that he install a double-bowl sink.

25. There had been various occasions in 2016 and 2017 when LCC officers had recommended a double bowl sink, but on those occasions he or his wife had informed them that they believed their method of cleaning and sanitizing was adequate to comply with the Food Act regulations and had caused no health problems or complaints over 12 years of business.

26. On 2 June 2017, without further discussion or warning and at 4.30 p.m. on the Friday a week before the June long weekend, LCC officers served on him a prohibition order forbidding him to handle food intended for sale on specified premises (shop 2), until a certificate of clearance issued following compliance with the schedule. The schedule required him to “Ensure that the kitchen is equipped (that is install a double bowl sink and/or dishwasher) to be able to clean and sanitise all eating and drinking utensils and food contact surfaces”.

14. The prohibition order had embarrassed him because the improvement notice had not specified any requirement about a two bowl sink or a dishwasher that reflected or foreshadowed the reasons given in the prohibition order. The order was served a week before the June long weekend, which was an important business period for him, and therefore threatened major cash flow losses, the wastage of substantial stored food supplies and the realistic possibility that nothing could be done to rectify the situation until after the long weekend. Further, he could not afford the financial outlay involved in installing a double bowl sink or dishwasher, nor was there space to do so by replacing the existing single bowl sink, at least not without sacrificing valuable working space. He also could not see how a double bowl sink or dishwasher was necessarily better than his proven method.

15. In the circumstances he decided that the best thing to do was to close shop 2 and do all the customer interactions, food preparation and washing up in shop 3. On 3 June 2017, he therefore placed a “Shop Closed” sign in shop 2, moved essential utensils and the cake refrigerator into shop 3, and conducted all operations from shop 3, with a reduced menu. The only thing he continued to do in shop 2 was to make coffee, as the coffee machine was too large to fit into shop 3. He traded in that way on the Saturday and Sunday, but late on the Monday 5 June, LCC officers came out to Nimbin and fined him again.

16. Eventually, in order to cut his losses, he had to purchase a double bowl sink, sacrificing valuable working space, and engaged a plumber to install it, on 15 June 2017. He informed the LCC health department immediately, but did not receive a certificate of clearance until 19 June. His business was thus interrupted for 14 days. His financial losses caused by lost earnings, wasted capital outlays and perished foodstuffs amount to $30,696 [details are set out in the statement]. He has retained all receipts, cash register rolls and financial data required for any accountancy review. As all his staff are casual, he laid them off during much of the downtime, but paid them in full on 3 June and Sunday 4 June when he was trying to cut his losses by trading from shop 3, and again on Sunday 18 June 2017.

17. On 28 June 2017 he applied to the Office of State Revenue debt recovery office to review the LCC penalty notices, but they rejected his application by email on 10 July 2017. His solicitors then sought compensation from LCC in the reduced sum of $20,000. By email dated 5 July 2017 and letter dated 20 July 2017, the Council refused compensation.

18. In oral examination in chief the applicant reiterated those points, adding that initially LCC health officers inspected his businesses on about two occasions each year, but that later increased to 6 times a year. He had always been using a single bowl sink and had used 3 buckets, 10 L for washing, rinsing and sanitizing plates, and 5 L for cutlery. Cutlery was left in the sanitizing container for between 20 and 30 minutes, then washed. Some staff did try to take shortcuts, and he had difficulty supervising them because he was fully engaged on the coffee machine. Carolyne had supervised them to prevent such practices until she became sick, and the applicant also became sick from about mid-January 2016. He was off work for two months, returning to work prematurely as Carolyne was in and out of hospital all the time.

19. The hot water was usually at between 70 and 72°, and was sometimes boiling. Cups and glasses were rinsed by being fully immersed in it for 4 or 5 seconds. Carolyne kept a close watch on the potency and temperature of the solutions used. The water was regularly tipped out into the washroom basin (not the lavatory) for a short period after the kitchen basin had been broken. He had earlier stopped using the deep sink for that purpose as it was difficult for the staff to reach down into it. He consequently placed the black insert in it, which was just as efficient. He had used that insert from the start, for about five years, the whole time he was running the Contented Tummy. The inspectors could have discussed the matter with Carolyne, who had greater experience in that side of the business and had frequent discussions with them, but they had not queried his methods until 2017.

20. They had always had a digital thermometer on the premises that could be sanitized. It was kept in plain sight but he was compelled to purchase an electronic one that he did not need. The photographs of the tubs shown in front of the hand basin in the photograph had been taken at 3.30, just before closing time, and staff could have moved them easily. He had had a good rapport with Cameron Smith, their inspector from the start. But late in 2016 Mr Mundt had taken over and wrote adverse reports on them. The applicant had arranged for him to talk to Carolyne because he did not get on with him.

21. After receiving the improvement notice about the double bowl sink, they had made an appointment with LCC officers to discuss the matter. The officers had said they would inform the applicant and Carolyne of the results of their deliberations but they simply came out and closed the business down. They were not prepared to work it out. As closing the café down was a death knell to the business, they moved the business into shop 3 and served the public from there. They used the dishwasher and double bowl sink in shop 3 but continued to use the coffee machine in shop 2 as it could not practicably be moved. But the health officers objected to the continued use of the coffee machine in the closed premises.

22. The 4 May 2017 improvement notice made no sense as the Council gave no detailed objections to the applicant’s sanitization practices. They had criticized the fact that the larger plates were difficult to fit into the sanitization bucket except diagonally. There were only two large plates, and they were consequently disposed of. Mr and Mrs Scott-Brydges had always operated a sanitization system, but when they were not there, some staff took shortcuts. One employee was dismissed for that reason.

23. Utensils were stacked on the sink on a sanitized sheet and air dried before being packed away. The cutlery was placed in the perforated containers and immersed in the sanitization solution. Clean tea towels were used to dry cutlery only. When the café was busy, the sanitization water was changed more often, but if it was not busy it could have been kept for longer, as it did not need to be hot. Weekends were busy all day, especially depending on the number of tourists. Up to 4 extra staff could be engaged on long weekends. Some inspections were held at peak times.

24. The prohibition notice was served on a Friday afternoon; such things can break a business. Their regular casual staff lost their wages and he had to buy a sink in a hurry. He lost the Queen’s Birthday weekend and another weekend, 2½ weeks in all. The business could gross $17,000 over a long weekend. All orders were taken in shop 3 and all food was supplied from there, but he had to make the coffee on the machine in shop 2. Payment had also to be made in shop 2 as the till was there and it was connected to a computer link. All washing of utensils was in shop 3, and only clean cups went into shop 2, because he had to make the coffee on the machine in shop 2. Between 15 and 20 percent of the café’s revenue came from coffee, but unless coffee can be supplied, it is not possible to sell food.

25. He had not appealed against the prohibition order because that would have delayed the café’s reopening. He therefore complied by installing a double-bowl sink but had to pay $3200 for it, when if there had been no urgency he could have obtained it for $400. He did ask the Office of State Revenue to review the penalty (exhibit A2), but was unsuccessful and indeed incurred additional fines for having shop 2 open. He had applied to the council for compensation, but they had rejected his claim.

26. Mr Scott-Brydges was then cross-examined. At this point it is necessary to explain the approach these reasons will take to his evidence. The applicant was clearly inexperienced in legal matters and in the procedures and methods of courts and tribunals. He presents as a practical businessman who wants to get things done and believes he has always used proper methods. Consequently he had a marked tendency not to listen properly to counsel’s questions, to interrupt before questions had been fully articulated and to answer a question that he apparently thought counsel should have asked rather than the one that was actually put. The result was that the cross-examination was needlessly protracted and repetitious, such that a step-by-step account of it would be almost incomprehensible. These reasons will therefore necessarily summarize the process rather than describe it in detail.

27. In cross-examination the witness said that the sanitizing with bleach had been carried out by staff, although he washed up occasionally himself. His wife mainly handled that side of the business. When he said in his statement that “I used” a certain sanitizing method, he was referring to his expectation of staff. He had not provided staff with a written description of the procedures to be followed or required them to sign such a document, because it had not been needed. Carolyne had carried out the training, while he was more occupied with running the shop.

28. He had been sick for approximately three months and on doctor’s orders had been unable to visit the shop. Consequently it was difficult for him to give evidence about that period. Carolyne had been in charge of that aspect, but as she had undergone hip and knee replacement operations (the hip being in December 2016) and was immobile, he had returned to work before he should have, also because Carolyne’s knee was proving troublesome.

29. At the time of the 4 May visit, Carolyne had not been able to be present as she had suffered a turn. Her problems continued off and on until June 2017. The applicant was thus absent from the business, because of his own medical problems and Carolyne’s, between December 2016 and June 2017. He had informed the Council officers (especially Mr Smith) about Carolyne’s problems, but they were not concerned about them. It resulted in a unique situation, in which neither the applicant nor Carolyne was there when the council officers called.

30. The crockery was washed in the kitchen sink with the black insert, and rinsed in water that was run into a white 10 L bucket, and rinsed in hot water at about 60 or 70°. They were placed in a bucket and left there, then sanitized in a separate bucket of lukewarm tap water. The cups and glasses were rinsed in hot water and dried on top of the coffee machine where there was heat. The cutlery was placed in a steel perforated container, washed, rinsed and sanitized, then wiped with a tea towel. When placed in the steel perforated container, the cutlery would stick out the top, but they were inserted face down. Asked if it was necessary for the person washing to put his or her hand in the water, the witness replied that some staff do the wrong thing and it was not possible to supervise them all the time. But they would be terminated if they were caught, although they would normally have a chance to correct their behaviour.

31. The applicant agreed that plates had to be inserted in the bucket on a diagonal, and that it was not possible to put many in the water at the one time. He agreed that an inspector might notice that fact, but he could not afford a double bowl sink. His method would possibly leave it open for staff to make a mistake, but they were trained to do it correctly. If they had not been submerging the utensils fully in the water, they would be corrected. They were trained, but they were young people and tourists who needed continual training. But it was not easy to make a mistake if the staff member was trained. Their system had worked for 12 years.

32. He did not think a double bowl sink would make the process simpler. It would be no different, and the council had approved a single bowl arrangement. While it might be simpler, that was not the issue and he could not afford a double bowl sink. The inspector’s observations were made when he (Mr Scott-Brydges) had not been on the premises and were not accurate. When he was not there to supervise, it was easy for staff to use shortcuts, and that was a problem.

33. Mr Scott-Brydges was still under cross-examination when the hearing was adjourned part heard to 20 February 2018.

34. On the adjourned date the witness was asked how he knew that the utensils were washed in water at 70°. He replied that the hot water system runs at over 70° because it is gas-fuelled, and they also measured the temperature from time to time. Sometimes it was close to boiling. He agreed it was a little more difficult to estimate whether the lukewarm water was at 60°, but pointed out that bleach was used. The sanitizing water was a 4 percent bleach solution, as per the instructions on the White King bleach bottle.

35. As the LCC inspectors’ observations had been carried out on three days when he had not been there, he could not say whether there had been any failures by staff to follow proper procedures. Nevertheless, he did not believe their observations were accurate and thought they had closed down his business without giving any proof. Sharon Rose’s evidence would support that. There was no problem about inserting plates into the buckets, except in relation to one large plate that had to be immersed twice. In any event, they had disposed of that plate before the prohibition order because of suggestions that it did not work in conjunction with the sanitization method used.

36. After receiving the improvement notice, they had arranged with the council for a meeting, which was held on 30 May 2017, attended on the respondent’s side by Mr Peter Jeuken, the council’s CEO Mr Gary Murphy and his secretary. They had run through their procedures, pointing out that they had been operating cafés for 12 years without incident and that the council had been fully aware of their methods during the whole of that time. Referred to Mr Jeuken’s statement dated 31 October 2017 (filed 3 November 2017), the witness agreed with much of the report of the 30 May meeting, but disagreed with some statements. He acknowledged that Carolyne had said they had some concerns about David Mundt, but denied that she had said “It would be better if he was under the ground”; she would have said something else, not that.

37. He did not know whether Carolyne had said that “Our employed staff do not know what to do when either Garry or myself are not there supervising, because our employees are mainly backpackers on work visas and we have a high turnover….” The council had asked them to affix notices outlining required procedures on the walls, but that was not practicable for language reasons, as the employees were mainly backpackers who could not read English. At the end of the conversation, he had not been aware that the council was not happy with their cleansing procedures. He did not know whether the officer who visited the premises on 20 January 2017 was Suzanne Anderson. On all three occasions when the inspectors had come, neither he nor Carolyne had been there. He did not suggest they had planned it that way, but thought it was simply a coincidence. There had only been a period of about 6 weeks when neither he nor Carolyne could be present on the premises, not 6 months. He had been medically advised not to go to work for 6 months, but as Carolyne was also sick at the time and he had to be away for short periods to help her, he had to return to work after 6 weeks.

38. It was difficult for him to conduct staff training because he was fully occupied at the coffee machine. Carolyne or Sharon did the training, as well as other experienced staff such as Angela Summers. The discussion had only been in relation to the 2-bowl sink, as all the other matters had been attended to. In the end the council had insisted on a twin-bowl sink, but until then they had only mentioned it. They had approved the new, improved single-bowl sink installed at the time the business was started. Mr and Mrs Scott-Brydges had wanted to convince the council that a 2-bowl was not required. They had shown the council officers their procedures, and the officers had said they would give their decision about whether at 2-bowl sink was required.

39. He agreed that from January 2017 the council had raised an issue about sanitization procedures, but pointed out that they had performed no tests to ascertain whether there was any bacterial contamination. He also agreed that a 2-bowl arrangement might be easier and could reduce the chances of error, but added that it was their practice to dismiss any staff member who was not being careful. But there had never been any problem with the bucket method. There was only one plate that could not be submerged flat in the bucket.

40. There had been a leak in the drainage collar of the wash-basin caused by the wheelchair of a customer who was proceeding to the handicapped washroom. He had therefore placed a bucket in the basin and staff washed their hands under running water from the tap. The water in the bucket was then disposed of each time, but he could not be certain that staff had always followed that practice. The water had been poured into the wash-basin in the washroom, not into the lavatory, but again he could not be everywhere at once and although they had high expectations, they could not be sure those procedures were always followed. They did train the staff, but it was impossible to be observing them the whole time, even if a 2-bowl sink were used.

41. The council had recommended the use of a 2-bowl sink, but the existing process had been followed for 12 years. He agreed that the 4 May 2017 inspection had recommended a double bowl. He said the council did not really believe it was needed, but had gone too far to say otherwise. It was not correct to say that they had been on notice to install a double bowl since the improvement notice. The council officers had said they would give their decision on the double bowl issue on the Friday, but instead decided to close the business down. In any event he could not see how a double-bowl sink or a dishwasher was necessarily better than his proven method or capable of “sanitizing… food contact surfaces” as alleged by the council.

42. The witness was then asked about Cameron Smith’s email dated 19 May 2017 (part exhibit R4 ) describing an inspection of the premises carried out on 18 May by Messrs Smith and Mundt that was required in order to ensure compliance with the 4 May 2017 improvement notice. The applicant pointed out that he had arranged for the inspection to be conducted on 18 May, but there had been problems at the hospital and he had asked unsuccessfully that it should be rescheduled.

43. The email noted that the requirements of a working thermometer and an operational hand wash-basin had been complied with, but said the cleaning and sanitizing facilities still did not meet Code requirements. The email continued, “The officers observed one of the staff members washing glassware in a black tube [scil. ‘tub’] (which was taking up most of the single bowl sink), and then quickly dip (submerge ¾) of the glass into another white bucket. (The staff member then proceeded to wipe their hands on a nearby tea towel)”. The applicant denied that such an action would occur. The officers also observed that staff would try to tip waste water in and around the black container into the sink, which they said might give rise to contamination of the washing-up water. That could happen, the witness said, but the staff member doing it would be “pulled up”.

44. The email then stated that the practice did not work and was not an acceptable means of cleaning and sanitizing utensils as the heat applied was insufficient to assist with sanitization and to allow air drying. The applicant denied that the water was not hot enough or that the practice was unworkable. The email continued, “The officers were also advised that the sink was too deep, which is why the black tube [scil. ‘tub’] was in there to make it easier for staff to reach the bottom. It should be noted that the sink needs to be big enough to be able to wash effectively the largest item”. The witness said the sink was not too deep, and had been approved by the council. They had put the insert in it because they had been told it was too deep.

14. The email had then declared that “Council is advising you that a single sink is not acceptable, and that an alternative system must be in place (whether it is a double bowl sink, single bowl sink and dish washer or double bowl sink and dish washer)”. The applicant said he did not agree that the staff were not properly carrying out sanitization procedures. He acknowledged that he had arranged the meeting with the council officers on 30 May 2017.

15. The email concluded by stating that, “Since the timeframe on the improvement notice has passed, council is granting an additional 7 days to ensure compliance with the notice. Thereafter council will conduct an inspection on Tue 30 May 2017. If the notice has not been complied with, council will be serving a prohibition order….” The applicant agreed that the letter made it clear that if its stipulations were not complied with, a prohibition notice would issue.

16. In re-examination the witness acknowledged that at the time of the 30 May meeting, he had not had a food service supervisor on the premises owing to a staff member departure, but had told the officers that another employee, Eliapo Matamata, would have his certificate within a week, as in fact he did (exhibit A3). He agreed that when large plates were being sanitized, they were inserted sideways, but pointed out that the turnover of plates was limited as the business mainly dealt in takeaway coffee. The process was therefore not rushed and there was no need for errors to occur.

17. The broken hand basin had been out of action for 2 or 3 weeks because floods had made it difficult to obtain the services of a plumber. The bucket in the broken hand basin had been emptied into the wash-basin in the washroom, not into the lavatory. Used sanitization water was emptied around the side of the black bucket in the sink. Any drops of bleach water that fell into the dishwashing water would do no harm.

18. The meeting on 30 May 2017 had been “pretty tense”. A few notes had been taken, but it had not been recorded. The officers had said nothing in detail and he thought that they had not been listening. He told them that the café had experienced no problems in 12 years of operation.

Ms Sharon Rose

63. Ms Rose adopted her statutory declaration dated 17 October 2017 (exhibit A4, filed 23 October 2017) in which she stated inter alia that she had been employed by the applicant at the “Contented Tummy” at Nimbin for nearly 3 years before the business was sold last September and was well acquainted with the washing-up and sanitization procedures in that business.

64. The business had an “outside” trolley, which served the tables on the external veranda. On the trolley were three 5-litre buckets, two 10-litre buckets and one 20-litre tub. The 5-litre buckets always contained hot soapy water and were used to receive liquid slops, usually from collected cups and glasses, and to receive cutlery. They were also used to hold hot soapy water for cleaning down the tables. The two 10-litre buckets were for food scraps scraped off plates with a spatula and to receive inorganic rubbish. The 20-litre tub was for stacked plates, cups and the like for delivery to the sink.

65. The kitchen area had its own processes with a separate set of one 5-litre bucket, two 10-litre buckets and one 20-litre tub. One 5-litre bucket was for cutlery coming in from the outside trolley. Of the two 10-litre buckets, one contained very hot water for rinsing washed plates and the other held warm water and two capfuls of White King bleach. The 20-litre tub contained very hot water and industrial grade washing liquid for washing the scraped plates, cups etc., delivered to the sink.

66. All plates, cups, saucers, glasses and cutlery were washed, then rinsed in hot water. Except for coffee cups and glasses, they were then placed in the sanitizing bleach for between two and 10 minutes. After being rinsed in hot water, coffee cups and glasses were placed on the coffee machine to dry. All cutlery was polished with a clean tea towel before storage.

67. Carolyne supplied ample clean, dry tea towels every day, which were used only for drying saucers and polishing cutlery. Staff did not use them for drying their hands – a separate dispenser of paper towels was on the wall next to the hand basin. The applicant’s account about the broken hand basin was correct.

68. On several occasions when Garry and Carolyne were both away in hospital, the health inspector David Mundt appeared without warning. The witness had become flustered and was unable to find the food or coffee thermometer. On no occasion when employed by the applicant was she aware of any customer criticism about cleanliness of the shop, or any health-related complaint.

69. In oral evidence at the hearing the witness reiterated some of those points and stressed that she always observed the procedures that were laid down. But if the applicant or Carolyne were not there and she was not there herself, she could not say how it was done. The applicant had called a plumber in relation to the broken hand basin but had been unable to procure one. Staff washed their hands in hot water and tipped it into the bathroom wash-basin. There had been one occasion when the applicant was away sick and two when Carolyne had hip and knee replacements.

70. In cross-examination Ms Rose said she had started out in the café as a kitchen hand but had become a cook. Initially she had worked five or six days a week, but later reduced that to 4 days a week. She had known in advance of Suzanne Anderson’s inspection on 20 January 2017, having received a text from one of the girls at the café a few days ahead. It was a Saturday night, and the message said the inspection would be on the following Monday. She had been at work on 20 April 2017 when Mr Mundt carried out his inspection. He had measured the temperatures and had not mentioned any problems.

71. The improvement notice issued on 4 May 2017 was given to her by Messrs Smith and Mundt as the owners were in hospital at the time and there had been further dislocation caused by floods. Mr Smith had been nice about it but Mr Mundt was standoffish. Mr Smith had said there were problems, so she agreed to pass on the information to the owners and did so.

72. As Mr and Mrs Scott-Brydges had helped each other out during their time of sickness between November 2016 and May 2017, they were often not there. If Ms Rose herself was not there, Shann or Angela would fill in. She had never seen staff not following the required procedures, but she did not always have time to supervise them. Nevertheless, each morning she would set up the 10 L bucket in the sink with very hot water and detergent. The other staff would empty it during the day.

73. Ms Rose was later recalled to the witness box. By way of further evidence in chief, she said she did not recall the inspection by Sue Anderson as she had not been there. She had received a text from one of the girls at 9:00 p.m. on Saturday night telling her there would be an inspection on Monday but took no further action.

74. The email cc address given as hers on the 20 January 2017 internal email (exhibit R1), purportedly from Ms Anderson’s supervisor Matt Kelly but actually from Ms Anderson herself as she was using his mobile, had been used only for the purposes of opening an account with Vodafone and she had never received any emails on it. Consequently she had never received Ms Anderson’s inspection report. Her actual email address at work was [email protected].

Mrs Carolyne Scott-Brydges

75. In her oral evidence at the hearing Mrs Scott-Brydges, like her husband the applicant, had some tendency to answer questions by making submissions rather than simply giving the facts, making the process somewhat time-consuming. She appeared to believe strongly in the correctness of the applicant’s case.

76. In examination in chief she adopted her statutory declaration dated 22 December 2017 in which she stated inter alia that she commenced nursing training at Berrima District Hospital in 1957. For particular reasons connected with the training program, she experienced more than the usual amount of training and experience in cleansing, sanitizing and sterilization of all medical and sanitary equipment, covering 50 beds and patients over 5 wards. She gave up nursing in 1959 when she left for New York, where she commenced a course in interior design at the New York School of Interior Design. Deciding she needed a second career choice to back up interior design, she commenced training in June 1959 under Michael Davey, head chef. After returning to Australia, she became head chef at the Gearin Hotel, Katoomba. In 1971 after her marriage to the applicant, they moved to Canberra and she opened an interior design business. One of her commissions was to interior design the Prime Minister’s Lodge, then occupied by E.G. Whitlam. She sold that business in 1983 when they moved to Queensland.

77. In 2005 they relocated to Nimbin, where they purchased a business, the “Retro Café”, and renamed it “The Coffee House”. After the lease on that business was surrendered by consent, they purchased the “Choices” café business, which they refurbished and renamed “Contented Tummy”, operating from leased premises at shop 2/45 Cullen Street. Both businesses were in the applicant’s name, but at all times she was an equal partner in their operation.

78. Cleanliness and style were always dominant aspects of their café businesses. At all times from 2005 to 2017 they operated with a single sink and followed the sanitization procedure set out in the applicant’s statutory declaration of 17 October 2017. To her knowledge, many food premises in Nimbin have single bowl sinks, as did both the Retro Café and the Choices Café. They had regular health inspections, usually by Cameron Smith from Lismore City Council, and no inspector ever complained about the single sink or their sanitization procedure. Cameron Smith himself used to dine at the café.

79. At no time over 12 years did the health inspectors, or the public, raise any problem with regard to their cleanliness, sanitization or sanitization procedures. At no time did the health inspectors conduct scientific tests using swabs, patches or luminoscopes. The council granted them a certificate of approval every year, knowing that there was a single-bowl sink. It was not until 2017 that a new health inspector, David Muntz [scil. ‘Mundt’] began demanding that they install a double bowl sink. She told him that was unnecessary and an excessive cost. She said words to the effect that, “For 12 years we have been using containers to rinse and sanitize and we have never had a health complaint from the public or any criticism from the health inspectors. We would need a four-bowl sink to do things your way – one for washing, one for rinsing, one for sanitizing and one for emptying wastewater. Your demands are costly, inefficient and ridiculous for a small business”. She had several disagreements with Mr Mundt, during which she gained the impression that he did not like shopkeepers standing up to him.

80. The single bowl stainless steel sink at Contented Tummy was very deep. Tall people had to bend down into it and short people could not reach into it. They solved that problem by inserting a 32 L plastic basin into the bowl, where it sat on top of two stainless steel receptacles that raised it up. They washed up with sudsy water in that basin and it was regularly emptied into the sink so as to keep the water clean and hot. Rinsing and sterilizing water were usually emptied out through the sink at the same time as the sudsy water was emptied. An exception, however, was the 5 L bucket of water sterilizing the cutlery; that was changed less often and was sometimes tipped out at the back of the insert. At all times sink and bench surfaces, the insert and the exterior of the buckets were themselves kept sanitized using the bleach mixture.

81. On Anzac Day 2017 a man in a wheelchair, whom they had let through the kitchen to reach the toilet, knocked the hand basin on the kitchen wall and broke the collar on its drainage pipe. Despite many efforts they found it difficult to secure a plumber because of the massive Lismore floods on 30 March 2017. Consequently, for about three weeks staff had to wash their hands under running water from the spout. The water was collected in a separate bucket which was emptied into the hand basin in the toilet room. Only mop water (from the wringer bucket) was ever emptied into the toilet bowl itself. At no time was any sink washing, rinsing or sanitizing water taken elsewhere (especially to the toilet room) for emptying. The sink was repaired by a plumber on 15 May 2017.

82. Their procedures for cleaning and sanitizing utensils and services at both their cafés remained basically unchanged over 12 years and were well known to all the health inspectors who visited during that period. Both cafés were small; they attended to washing and sanitization constantly, so they usually had no large buildup of washing up and sanitization deal with. The hot soapy water in the sink, and the rinsing and sanitizing water, were all changed constantly whenever they started to become sudsy. She used to wash and dry tea towels at home each night and bring in a fresh supply each day.

83. Plates, cups, glasses and cutlery were collected on a trolley. They were scraped with a spatula when required, the scraps going into a dedicated 10 L bucket. Used napkins, drink cans and inorganic waste was placed in a second 10 L bracket. Plates were stacked in a 32 L tub of soapy water and cutlery into a 5 L bucket of soapy water. A fourth 5 L bucket contained fresh soapy water for wiping down tables.

84. All utensils, including those collected by the outside trolley, were then processed at the single bowl stainless steel sink. The cutlery went through a 5-step process. First, it was placed in a 5 L bucket of hot water and detergent for soaking. It was then washed individually in hot soapy water in the sink and sorted and stacked in two stainless steel canisters with holes. Those canisters were then submerged for rinsing in 10 L bucket of hot (71.3°) water. Then the canisters were lifted out and again submerged for a couple of minutes to sanitize in a separate 5 L bucket of lukewarm water with 25 ml of White King bleach at 4 percent. The cutlery was then removed, allowed to drip dry, then polished using clean tea towels.

85. The plates and saucers were scraped with a spatula if required, then washed one at a time in the sink in hot soapy water. The saucers were dealt with first, then the plates. They were first rinsed in a 10 L bucket of hot water, then submerged for at least 30 seconds, for sanitization, in 10 L bucket of lukewarm water with 25 ml of White King bleach at 4 percent. Some larger plates had to be inserted diagonally, and they had one single plate that was quite large, which had to be reversed and inserted holding the other end. The saucers and plates were stacked in the sanitizer. The plates were then removed and stacked on a sanitized sink surface for air drying.

86. The cups and glasses were washed in soapy water, then rinsed in very hot water at 71.3°. They were not submerged in sanitizer, as that was found to affect the taste of the beverages. They were not towel-dried, but rather placed for air drying on the hot surface above the coffee machine.

87. At all times they had two thermometers, one being a digital probe and the other a probe with a needle on a graduated disc scale. Sometimes Carolyne took the former home to cook meat and cakes for use in the café on the next day. Usually she had to keep the latter one, which was used for coffee. It was hidden in order to prevent casual staff from stealing it.

88. Unfortunately she was absent in hospital as a result of her husband’s attack of meningitis on 19 January 2017 when a sudden inspection occurred. The digital thermometer was at her home that day, and the senior staff member, Sharon Rose, could not locate the coffee probe. They were fined for not having any thermometer and that fine was paid. Also, they were both absent at Tweed Heads on 4 May 2017 when another sudden inspection occurred. The digital thermometer was at their home that day.

89. The statutory declaration goes on to say that Carolyne is now 76 years of age and Garry is 67. Over the past two years they have both been experiencing increased fatigue and suffering from ailments that have necessitated hospitalization. While that did not prevent her from teaching and regulating employees (she had the reputation of ruling with an iron fist), absences at hospital prevented her from performing that role. Her husband always drove her to the hospital and visited her there constantly, and she visited him when he was hospitalized, so hospitalization of one tended to mean the absence of both. At those times they left Sharon Rose in charge.

90. On 19 January 2017 her husband fell very sick and was admitted to Lismore Base Hospital with cerebral meningitis and animal salmonella, probably contracted from chickens or wallabies in their yard. She stayed with him for 3 consecutive days, sleeping in a chair. She herself was hospitalised at Tweed Heads on 5 May 2017 for a knee replacement and released on 11 May 2017, but immediately developed pneumonia and was hospitalised in Lismore on 12 to 14 May, then was transferred by ambulance back to Tweed Heads for three days.

91. Cameron Smith telephoned her mobile number while she was at the hospital admissions, signing paperwork, on 4 May 2017. He said he was at the shop and asked where the thermometer was. She said to him words to the effect, “I think the big digital thermometer is at my home. I used it to cook meat curries. We have no need for thermometers in the shop as there are little thermometers in the fridge and cake cupboard, and all our cooking is short-order. The steaks come as whole rumps packed in cryo-vac. We take these out of the fridge, slice off about 30 steaks and these are used within 2 days and not frozen. You can tell the steak is thoroughly grilled by cutting a nick. Garry and I are at the admissions section of Tweed Heads hospital. I go in for surgery tomorrow. We won’t be back at the shop for 5 or 6 days”.

92. Owing to her impending hospitalization at Tweed Heads, neither Garry nor she was present when the LCC inspectors made an unannounced visit on 4 May 2017. The employee shown in the photograph at Tab 8 of Cameron Smith’s statement was a casual, “K.O”. [his name is anonymized in these reasons as he suffers from an intellectual disability], who was only with them for a couple of months. Whether he made any mistakes following the procedure she had taught him, she could not say. However, she would have corrected him immediately if she had witnessed an error. The photographs show him pouring sanitizer or rinse water out of a 5 L bucket down the back of the insert, then refilling it. A 10 L bucket full of sanitizer can be seen to his left. Three cutlery canisters are in front of him.

93. In 2016 they obtained a lease over shop 3, next to the Contented Tummy. As it had previously been a shop for musical instruments, it took them many months to lodge and comply with the development application to enable change of its use into a restaurant. An interim occupation certificate issued on 17 November 2016, conditional on installation of a mop bucket within 6 months, and a final occupation certificate was issued on 8 September 2017. However they never commenced operation of the shop 3 venue on a continuous basis as they had decided to sell both businesses and leases and retire. When a prohibition notice was issued against shop 2 requiring installation of a double-bowl sink or dishwasher, they shifted all the utensils into shop 3 and in shop 2 left only the electronic till (which was hard-wired for EFTPOS) and the coffee machine, which was plumbed into a water source and too large to move. Orders were usually made and paid for at the till, and all coffees were made in shop 2, but all utensils were washed and sanitized, and all food (apart from coffee) was handled exclusively in shop 3.

75. The prohibition notice, served late on Friday 2 June 2017, forced them to close shop 2 on the following Saturday and Sunday. On the Saturday they had to shift utensils and equipment out of shop 2 into shop 3. From 5 June 2017 to Sunday 11 February 2017 shop 2 was closed. The 2-bowl sink requested by LCC was installed on Friday 9 June 2017, but LCC did not re-inspect until Sunday 11 February 2017, when it gave them a clearance certificate. That, however, was the Queen’s Birthday long weekend, so on Monday 12 February 2017 they had no food. Also, all the shop 3 utensils and most equipment (not the coffee machine or till) were in shop 3, from which they were trading. By the time they obtained a food resupply, reorganized their casual staff (who had scattered), and relocated the equipment over the weekend of 17 and 18 June, it was Monday 19 June 2017 before they could trade normally again.

76. In oral examination in chief at the hearing, the witness said that sterilization was always uppermost in her mind because the business depended on it. A single case of sickness can cause a business to go “down the tubes”. Everything about cleanliness and sterilization matters.

77. The Retro Café also had a single bowl sink. There were regular inspections every two months, mainly by Mr Smith. He had coffee and lunch several times at the café during those 6 years. There was never any mention of the one-bowl sink. The same procedures were used as at the second café, except that she did all the washing up. Mr Smith would watch the cleanup process and there were never any complaints. The correct amount of bleach to use in the mixture is given on the bottle, but also in s 3.2.2-3 of the code. That is the proportion used in hospitals and similar settings and staff complied with it by using four capfuls of 70 ml each. She taught staff all they needed to know, but no notices were placed on the walls because some of them could not read English. As long as the staff did the dishes, proper standards did not depend on the staff, because the bleach did it.

78. After washing and rinsing, the dishes, usually 6 to 10 plates at once, were sanitized, drained and air dried. One plate was too big and therefore had to be dipped twice, but they disposed of it when Mr Mundt said it was too big. Cups and glasses were not placed in the bleach but in very hot water, 70.3°. Water was tipped down behind the black tub in the sink where there was a gap of 3 or 4 inches, but it was sanitized. Drying hands on tea towels was always banned and a paper towel dispenser was located near the basin. The tea towels were only to be used for polishing cutlery. She was very strict about maintaining standards and earned the nickname the “Iron Lady”.

79. A double bowl would make no difference. Even 2 bowls would not be enough, as 4 would be needed to achieve what she did with 1 bowl and buckets. The new sink they installed in the Contented Tummy was of the single bowl type and many other cafés used single bowls. Only in the last six months was the issue of twin bowls raised, and that was by Suzanne Anderson. The first reference to it she saw was in her statement for the purposes of the present proceedings. As her husband went into hospital on 19 January, she was tired and did not realize that Ms Anderson had performed an inspection until 4 days later. She did not see her report or receive the email. She knew Sharon could look after the business. After that Cameron Smith came out and told them they needed a two-bowl sink.

80. The inspectors had never performed swab tests, saying that the council did not supply them. Nor did they use luminometers or other similar testing methods. Then on 2 June at 4:30 LCC closed the business down at a time when the owners were still expecting to hear from Mr Murphy.

81. She had always used a digital thermometer, although the café did not require one. She used to take it home because of her cooking for the café. They could have used a coffee thermometer at the café. Their employee Kate Debus had had a food safety supervisor certificate, but she left to open her own business. Then “a South Australian lass” fulfilled that role, but moved to Queensland because her father was sick. Eli had begun to work for the qualification online. In any event she herself had 45 years’ experience and knew the applicable standards. A food safety supervisor certificate would not be affected by having a 2-bowl sink as the sanitization process would be the same.

82. After shop 2 was shut down in June, they moved all their equipment into shop 3 and used it for everything except making coffee, because the machine was hardwired. The machine was sterile and the coffee was never touched by hand. They then closed for 4 days when the 2-bowl sink was installed and obtained a clearance certificate, but were unable to use it because they had no food. They were closed from the 5th to the 14th June, with Mr Mundt watching, which included the busiest weekend they could have had. They were devastated.

83. They were intermittently away during about a 2½ month period by reason of sickness but that did not interfere much in the running of the business because Sharon was very competent and took care of everything. Staff did not always listen to her, however, because she was not an owner of the business. As long as the staff put the utensils in the bleach it would have been sterilized. The inspectors never used swab tests, which is wrong, as they should have to prove that there was contamination by germs. They overstepped their authority. She thought they wanted to make an example of the best café in Nimbin.

84. The applicant had not received Cameron Smith’s 19 May 2017 email about the double bowl sink, and she herself did not read it, but knew that they wanted a 2-bowl arrangement. The meeting on 30 May attended by Messrs Jeuken and Murphy, and his secretary, lasted 2 hours and there was much discussion, a major focus being the 2-bowl issue, which she said would not work. On the basis of her experience she believed her method was better. Mr Murphy said he would check on whether the legislation required a 2-bowl sink, but did not get back to them and the café was simply closed. Mr Jeuken took a few notes at the time, but in October he wrote a more detailed account which was partly wrong.

85. She disagreed with the paragraph in Mr Jeuken’s statement dated 31 October 2017 (exhibit R3) that quoted her as saying, “David Mundt and I don’t like each other. He is starting to victimise us by nit-picking about compliance issues. It would be better if he was under the ground”. In fact she had used words to the effect that, “If he doesn’t like his job, he should get a job in a mortuary where his patients can’t complain”.

86. Mrs Scott-Brydges’ cross-examination resumed on the following day, 21 February. She agreed that with 2 bowls, one bowl could be emptied out, but that would waste water, and Nimbin was under water restrictions. If any of the sterilization water splashed into the washing up water, there would be no harm done as only the cutlery water was tipped down the gap at the back, and that was sanitized. With a double-bowl arrangement, a sanitization bucket would still be needed. Further, even with 4 bowls one could not be certain that staff were following correct procedures unless one was actually watching, but she was known as the “Iron Lady” and after training for minor infringements she would dismiss staff who failed to observe standards. The inspectors had observed K.O. at work, and he was later dismissed. He suffered from an intellectual disability, as from time to time they would employ a disabled person sent by a special school in order to give them a chance to get started in life. The photograph at Tab 8 of Cameron Smith’s statement (exhibit R4) showed K.O. pouring bleach water from the cutlery bucket over the back of the black washup water tub. That [round white] bucket was not used for anything else. Sharon would be watching him and would stop him if he attempted to use it for another purpose. Consequently it would not matter if the water splashed into the washing up tub. The picture showed how the bleach water was changed and did not indicate any failure to observe proper methods. She could not guarantee what others would do while she was not watching, but she was only actually away for 2 weeks and 4 days. She seldom went out during the day to go shopping, as they made most of their purchases of supplies on Thursday nights.

87. The witness was asked about the photograph time-stamped 11:59 which showed K.O. filling the round white sanitization bracket with water. It was put to her that this raised an issue as the bottom of the bucket was in the wash up liquid and if placed on the bench could have caused contamination. She replied that he would have tipped out the washup water at that point.

88. It was then put to her that with a 2-bowl sink they could drain the sinks, place the buckets in the sink and take them out without the risk of contamination. She replied that if they emptied the sinks before they were ready to do so, that would be a waste of water. Their practice was to change them all together, while if the sinks were emptied every time, there would be water wastage. While it would be possible when emptying buckets to drain a bowl and pour the contents of a bucket down into it if needed, then refill them, that was just like tipping it down behind the black tub. Any water that spilled into the black washing up tub was bleached and therefore sterile.

89. Counsel suggested that the photographs showed that the tipped water was sudsy, rather than sanitized. The witness denied that because she had taught K.O. the proper approach and Sharon was there. She would not let the bucket sink into the suds, but in any event that employee was dismissed. She did not recall Cameron Smith speaking to her after his 18 May visit about a glass being briefly dipped in hot water. He had reported seeing a girl drying her hands on a tea towel, but that was “an absolute no-no” and paper towels were provided for that purpose. She disagreed that LCC had been saying for two months that a double bowl would be better – it had been for a short time only. A dishwasher would not fit in the work area and their established method was effective. They would need 4 bowls to match the efficiency of the established system, but that was not practicable for a small business. She could not control staff 100 percent, but if she saw them doing something incorrect they were dismissed. If they did anything wrong while she was not there, it was not her fault. Sharon supervised the staff when they were not there, but sometimes they did not obey her. In such cases she would tell them. LCC had not used a swab test.

90. When Messrs Jeuken and Smith came to inspect on 2 June 2017, she showed them two thermometers, although they did not need thermometers in the shop. She had not changed their system. She had removed the black tub from the sink, but that was the inspectors’ idea as they thought it presented a sanitization problem. It was not a case of not liking their advice, as Mr Mundt did not advise, he demanded. There were arguments in the weeks preceding 2 June over the 2-bowl issue. LCC wanted to make an example of them because there had been problems at Nimbin, including some cases of sickness. Nevertheless they did not perform any swab test and there was no evidence of any sanitization problems.

91. It was put to her that after Mr Murphy had said on 30 May that he would check the legislation, they had changed their system. She denied that. They had removed the black tub, but that was because they had been told to do so. They used a mixer tap to ensure that the bleach water would not exceed 40°, as the efficacy of the bleach declines as temperatures rise above that level. The photograph taken at 11:02 on 20 January (when neither of the owners was there) showed the sink with no black bucket in it. That was because the tubs had not yet been set up. It could have been a quiet day, as that January was generally quiet overall, and the practice was to stack a few plates until they needed to wash them, then set up the system, which took only 4 to 6 minutes. It was dismantled at the end of each day. Sharon had been on duty that day. The food inspection report p 8 showed that the authorities did not understand their system.

92. In re-examination the witness said that the bucket K.O. was seen emptying into the sink in the photograph in appendix 6 to Suzanne Anderson’s statement (exhibit R2) could only have been used sanitizing water. That was the only thing that bucket was ever used for, and all staff knew that. Their practice was to change the sanitizing water every 30 minutes or an hour at the most. The sanitizing solution remains active even when it is cooler.

93. The improvement notice had not mentioned a requirement for a second bowl. Even if the café had a second sink or a dishwasher, there would remain a chance of failure. For example, staff could leave the utensils in the dishwasher too long, and particles of food in the filter could deteriorate, causing bacteria to multiply. The photograph did not show that the system was not working – it had simply not been set up. Nothing was ever emptied into the lavatory, except the contents of the mop bucket.

94. They had removed the black tub from the sink when the council told them to, but the arrangement did not work because it was too deep. Further, they could not use it to tip out the washup water unless they pulled the plug out and wasted the water.

Respondent’s evidence

Ms Suzanne Anderson

114. Although Mr Jeuken and Mr Cameron Smith were the respondent’s lead witnesses, Ms Suzanne Anderson was interposed for reasons of convenience. Ms Anderson explained that on 20 January 2017 she had been working for Lismore City Council. At that time she had been working five days a week, four days with Ballina Council and one day with Lismore, as an environmental health officer. She adopted her statement dated 26 October 2017 in which she stated inter alia that at about 10: 28 am on 20 January 2017 she entered a food shop at 2/45 Cullen Street, Nimbin, trading as “Contented Tummy”, to conduct a routine inspection under the Food Act 2003.

115. The shop was open and she saw customers purchasing meals and drinks. She introduced herself and was told that the proprietors were away for a personal emergency. During the inspection she observed a single bowl sink and a container with utensils in it. She was informed that they used the sink and the container to wash and sanitize utensils and equipment. The only other thing she observed was a basin identified as the hand wash basin, adjacent to the back door of the shop.

116. In her inspection report she made a note that there was a single bowl sink only. She mentioned that as part of her report to a staff member, and that the minimum requirement for a food shop such as that one was a double bowl sink or a single tub plus a dishwasher. She informed the staff that she would leave that as a note on the report to be followed up by the officer who usually conducted the inspection.

117. As part of the inspection she also identified that there was no copy of a Food Safety Supervisor certificate, no accurate probe type thermometer, and some cleaning of equipment was to be completed. She requested evidence of the most recent pest control treatment and mentioned the use of gloves during food preparation. She asked for and obtained the proprietors’ email address from a staff member after they called Mrs Scott-Brydges, and at the conclusion of the inspection emailed the report to the proprietor on the email address provided (exhibit R1). She left a business card and informed staff if there were any concerns to use the contact details on the card. She then left the premises at about 11:04.

118. In oral evidence the witness said she had not been asked to postpone the 20 January inspection. The report was produced by her. She collected the information at the time on an i-Pad and sent it to Sharon, as neither of the owners had been there. It was under the sender name “Matt Kelly” because she was using his i-Pad. The minimum standard for food service laid down by the Food Standards Code chapter 3 was a 2-bowl sink. As she was only assisting, she left the matter to be followed up by other officers.

119. In cross-examination the witness said she had been concerned because the arrangements were not how she would expect. She agreed that the code chapter 3 does not require double bowls, but said the guidelines that accompany the code are “the Bible”, and they lay down a 2-bowl standard. A single bowl would not be consistent with how the Code is enforced. She did not think the standard was excessive even if the desired outcome were achieved by other means, as the use of a sink together with containers showed that the facilities were not adequate.

120. She was aware of the use of luminoscopes and ATP testing but had not been trained in their use and had no practical experience with them. Swab testing was not part of an initial inspection and was not carried out unless there was a particular reason. Ms Anderson agreed that there was thus no scientific evidence of bacterial load and that 12 years without complaint or incident was a good record. She had not known that a single-bowl arrangement had been approved.

121. The witness agreed that the inspection report (exhibit R2, p 4) gave the applicant a 95 percent score (the score was generated automatically by computer). She nevertheless thought the arrangements were a concern, but as she was assisting she wanted to deal with the matter on a low-key basis. She had not flagged the situation as urgent. The practice was to use an escalating approach that would lead to an improvement notice, which would have to identify a failure. A prohibition notice was a further step and was a serious one. It was usually issued shortly after the improvement notice, usually giving less than a week to carry out the required works. In this case there was no urgent threat. She had seen urgent threats such as those contemplated by s 60(1), such as the presence of cockroaches and inadequate cleaning.

122. In the present case she had been concerned about the capacity to cleanse, but had no intimate knowledge of the methods used or of the background of the case. She did not recall following up the matter with Matt Kelly, but she might have done so.

123. In re-examination the witness said the picture in appendix 6 showed slops of coffee. The bucket contained froth and soap bubbles and there had been no other buckets in use. The council’s practice was to work through the improvement notice with the operator, perhaps holding a meeting. But once the authority has the required reasonable belief, it is entitled to issue a prohibition notice.

Mr Peter Jeuken

124. Mr Peter Jeuken, Manager Development and Compliance at Lismore City Council, adopted his statement dated 31 October 2017 (exhibit R3) in which he said inter alia that he had taken part in a meeting with the Council’s general manager, Garry Murphy, that had been requested by the applicant and Carolyne in response to the improvement notice issued on 4 May 2017.

125. At the outset Carolyne had said they had some concerns about David Mundt and that they did not like each other. “He is starting to victimise us by nit-picking about compliance issues. It would be better if he was under the ground”. She complained that Council officers had carried out inspections when the applicant was in hospital. “Our employed staff do not know what to do when either Garry or myself are not there supervising, because our employees are mainly backpackers on work visas and we have a high turnover of staff”. She and the applicant were confused about the requirements for thermometers, but thermometers were used regularly for the coffee machine and were regularly sanitized. Mr Jeuken had said it was normally expected that thermometers would be provided in different areas, depending on the food safety risk presented. That would often require more than one thermometer to monitor temperatures in different food preparation and storage areas.

• Inappropriate use of raw egg foods; and

• Lack of skills and knowledge.

220. In relation to cl 20 the improvement notice particularized the contravention as follows: “The inspection revealed that eating and drinking utensils were being washed and dried with no means of sanitisation present. You are required to ensure utensils are effectively washed and sanitised. Sanitisation can be achieved through the use of hot water (at the appropriate temperature) or chemicals”.

221. On 4 May, the same day as the improvement notice, Mr Mundt wrote a letter to the applicant that began “I am writing this letter to help explain the enforcement action council is taking in regards to the above food premises. This is in relation to an Improvement Notice….” After dealing with the wash-basin and thermometer problems, the letter continued: “Thirdly, at the time of the inspection on 28 April 2017, it was observed that a staff member was washing and drying crockery and utensils without any rinsing or sanitising. As you have only one sink in place to perform this task, council is directing you to rectify this…. Best industry practice is for a commercial dishwasher [to] be used to perform these tasks….”

222. On 19 May Mr Smith sent an email to the applicant referring to the improvement notice and acknowledging that two of the items on the notice had been complied with, the provision of a thermometer and an operative hand wash-basin. The email then continued:.

The other item on the notice, cleaning and sanitizing of specific equipment (Food Standards Code 3.2.2 cl 20) was still not being achieved. The officers observed one of the staff members washing glassware in a black tub (which was taking up most of the single bowl sink), and then quickly dip (submerge ¾) of the glass into another white bucket (the staff member then proceeded to wipe their hands on a nearby tea towel).

223. The applicant denied that allegation, but as both he and Carolyne were absent for substantial periods while the inspection was taking place, they were not in a position to state with certainty that such things did not happen. The email continued:

It was also observed that staff would try and tip wastewater in and around the black container in the sink, which may give rise to contaminating the washing up water.

224. The applicant conceded that this did happen and said the staff member had been “pulled up” about it. The email went on:

This practice clearly doesn’t work and is not considered to be an acceptable practice of being able to effectively clean and sanitise eating and drinking utensils as there is insufficient heat being applied to the item to assist with sanitation and allow air drying.

225. The applicant disputed that proposition and said the water was hot enough. More from the email:

As there is only one available sink on the premises (which has the black tub in it) this also causes the problem of being able to dispose of waste water, and rinse, clean and sanitise any other utensils and equipment.

The officers were also advised that the sink was too deep, which is why the black tub was there to make it easier for staff to reach the bottom. It should be noted the sink needs to be big enough to be able to wash effectively the largest item.

Council is advising you that a single sink is not acceptable, and that an alternate system must be in place (whether it is a double bowl sink, single bowl sink and dishwasher or double bowl sink and dishwasher).

Since the time frame on the improvement notice has passed, Council is granting an additional 7 days to ensure compliance with the notice. Therefore Council will conduct an inspection on Tue 30 May 2017.

If the notice has not been complied with, Council will be serving a prohibition order….

226. The applicant submitted that semi-penal provisions such as part 5 had to be construed strictly and that generalities were insufficient. Specific directions on the action to be taken were required. As the improvement notice had said nothing about a 2-bowl sink, there was a procedural gap that invalidated the notice and the enforcement process.

227. Section 62, however, states that an improvement notice or prohibition order “must specify any provision of the Food Standards Code to which it relates” (my emphasis). The improvement notice did so specify, by referring to cl 20. The section also states that such a notice or order “may specify particular action to be taken by a person to ensure compliance with the provision of the Food Standards Code to which it relates” (my emphasis).

228. Thus, while specifying the code provision is mandatory, specifying particular action to be taken is optional. The improvement notice did state that, “You are required to ensure utensils are effectively washed and sanitised. Sanitisation can be achieved through the use of hot water (at the appropriate temperature or chemicals”. Strictly speaking, though, it did not need to provide even that degree of guidance – it was enough to identify the problem and refer to cl 20.

229. The applicant also submitted that “extraneous emails” and conversations could not be relied on as constituting the necessary directions. That appears to be incorrect. First, as was said above, the legislation does not require the council to supply directions on how to comply with the code provision. That, as Mr Smith said, was left up to the applicant, who could choose the appropriate steps to take in order to implement the required improvements. Secondly, nothing in the provisions suggests that they are intended to involve canons of strict pleading rather than commonsense interpretations that can readily be applied by practical compliance authorities and business operators.

230. Sub-issue (3): Did the council have reasonable grounds for believing that a code provision was being contravened?

231. Under s 60, the first requirement that must be satisfied for a prohibition order to issue is that when issuing the order the agency (the council) believes on reasonable grounds that any of the circumstances specified in s 57 exists. The relevant paragraph in this case is (d), that “any provision of the Food Standards Code with which a food business is required to comply is being contravened in relation to the handling of food intended for sale on any premises….” The respondent’s case is that it had reasonable grounds for believing that cl 20 was being contravened.

232. Mr Mundt’s report following his inspection of 28 April 2017 notes that no food safety supervisor had been appointed and there was no certificate of appointment on the premises. Section 106C of the Food Act requires that all food businesses appoint at least one FSS for the premises. It is a general requirement and not specific to cl 20, but the evidence shows that it is relevant to cleaning and sanitization. Mr Smith explained that an FSS needs to be a person who has been trained and certified and has the authority to order staff to observe the required cleaning and sanitization practices. The appointment of an FSS also facilitates communication between the council health authorities and the operator in relation to food service issues.

233. The applicant’s business did have an FSS at various times, but as a result of staff turnover they did not currently have one. Sharon Rose held some supervisory responsibilities for ensuring proper practices, but as she was not an owner of the business, the staff did not always comply with her instructions. Both the applicant and Carolyne acknowledged that when they were not there, staff would sometimes do wrong things.

234. Mr Mundt’s report also noted some minor noncompliances, a buildup of foreign matter on the floor around the doorway and under refrigerators, dirty walls around the wash basin and a staff member observed washing crockery and placing it on the bench to dry. The dried crockery was then stacked up with clean crockery which was later used to serve food to customers.

235. Mr Smith’s inspection in company with Mr Mundt on 4 May confirmed the latter’s observations about lack of an FSS and thermometer and the discharge of mop water into an open drain, but noticed other matters of concern. One was staff members’ safe handling of food. He observed poor washing up and sanitizing standards, and saw staff members wiping their hands on aprons after handling or preparing food. He saw staff not using the designated hand basin, which contained a large plastic container. Plumbing was not connected to the basin and it was the only designated hand basin within the shop. He observed a staff member rinse his or her hands by turning the tap on and allowing water to flow over them in the single bowl kitchen sink.

236. He saw an employee washing up items in a black tub that was placed within a single bowl sink. He then saw him pour waste water from a small round white container behind the black container, trying to dispose of it down the sink. He noticed the liquid being poured splashing into the black tub. The employee then proceeded to fill the small white round container under the tap by partially submerging it in the wash up water, so that the white container could fit under the tap. Mr Smith thought that created two potential sources of contamination: first, potentially contaminated water from the bucket falling into the insert. Carolyne argued that it would not matter, as the contents of the white bucket would have been sanitizing liquid and would not have contaminated the washing up water. Mr Smith, on the other hand, said that it was not clear where the liquid in the white bucket had come from and he had to assume it was waste water.

237. Secondly, Mr Smith thought that there could have been contamination from any potential contaminants on the exterior of the bucket that was placed into the black insert. He also saw that food contact surfaces and eating and drinking utensils were being handled following a sanitizing regime that was not adopted in a manner consistent with that required by standard 3.2.2.

238. The applicant submitted that while his procedures might appear somewhat antiquated, they were effective, as could be seen from the fact that they had experienced no sickness problems or health-related customer complaints in the 12 years they had been operating the Retro and the Contented Tummy. Carolyne, who had some nursing training, was in charge of that side of the business’s operations and was known as the “Iron Lady”, having a reputation for maintaining strict standards and dismissing staff who did not maintain them (although the applicant himself only said that a single staff member had been dismissed, not that it was a regular practice). Nevertheless, she admitted that as many of their employees were backpackers who did not speak good English or were inexperienced, when the owners were not supervising they sometimes used improper practices.

239. Standards have evolved in recent years, moreover, Mr Smith saying that there was a special focus on cleaning and sanitizing, no doubt in part as a result of the New South Wales government’s Food Safety Strategy 2015 – 2021. The council had evidence of shortcomings starting with Suzanne Anderson’s report of 20 January 2017 which, although generally not unfavourable (she said she had been reluctant to make sweeping recommendations as she was only temporarily assisting Lismore Council) did note the lack of an FSS and a thermometer and pointed out that it was good practice to provide food handler gloves in food preparation. As regards cleaning and sanitizing, she reported a minor problem with the exhaust canopy and filters, the tiled wall behind the cooking appliances and the tiles behind the hand basin needing to be cleaned. She also noted in her report that only a single bowl sink was in use and told staff that the minimum requirement for a food shop of this type was a double bowl sink or a single tub plus a dishwasher.

240. The council also had before it the results of Mr Mundt’s and Mr Smith’s inspections, which expressed concerns relating to a number of matters relevant to cl 20, including staff wiping their hands on aprons or a tea towel or washing their hands over the sink instead of the hand basin, possible contamination of washing up water, a tendency for bottlenecks to develop because of the single-bowl sink arrangement, failure to check concentrations of sanitizing agent with sufficient regularity and failure to maintain sufficient water temperatures. As to the last point, Carolyne argued that the water was hot enough, but the thermometer readings indicated the contrary.

241. While the applicant’s record of 12 years of incident-free operation is an important fact in support of his case, the evidence before the council at the time the prohibition order was issued was sufficient to constitute reasonable grounds for the council’s belief (through its officers) that a code requirement was being contravened.

Sub-issue (4): Did the council have reasonable grounds for its belief that the applicant had not complied with the improvement notice?

242. For a prohibition order to be valid, the council must on reasonable grounds hold the belief that the relevant circumstances in s 60 exist at the time the order is issued. That inquiry entails evaluating the evidence relating to what the council officers observed and what passed between the parties on 2 June 2017 and on the immediately preceding days. Mr Jeuken, who at the relevant time was employed by the council as Manager Development and Compliance, attended the meeting at the premises with the applicant and Carolyne in company with the council’s general manager, Gary Murphy, on 30 May 2017.

243. He relates that, after some provocative personal remarks, Carolyne said “Our employed staff to not know what to do when either Gary or myself are not there supervising, because our employees are mainly backpackers on work visas and we have a high turnover of staff….” The applicant did not deny that, but added that Sharon Rose was on the premises. Carolyne then said that they were confused about the rules relating to thermometers and asked about the requirements, which Mr Jeuken proceeded to explain. Carolyne then said they had tried to obtain information from the health department about how hot the dishwashing water needed to be but after 10 days had received no answer. “We still have no idea how hot the water needs to be”.

244. Carolyne then said in relation to the improvement notice requirement about a double bowl sink that they did not need one: “We can manage in one sink quite adequately. We just need to train staff”. In her evidence Carolyne said she did not know if she had used those words, but the applicant denied that anything to that effect had been said. Carolyne then described their cleaning process for plates, utensils and cutlery and said that with that process, a 2-bowl sink would be useless, and besides, a single sink had been approved. She added that as they were selling the business and in the process of retiring, they did not want the expense of putting in a new sink. (She had, incidentally, said in examination in chief that when they had taken over the Contented Tummy, they had in fact installed a new sink, which was of the single bowl type.)

245. Carolyne then presented a handwritten note to Mr Jeuken and explained, “This is the draft procedure for dishwashing that I have written up, but we didn’t manage to get it to the shop today. We better get it to the shop and explain it to staff”.

246. As he had concerns about the complicated dishwashing process and the lack of any properly documented procedures and supervision, Mr Jeuken asked for the name of their certified appointed FSS. The applicant had replied that they did not have one and had been without one for 4 months, but their employee Eli (Eliapo Matamata) was taking the course online and would have a certificate by the end of the week. Carolyne had then said they did not intend to install a 2-bowl sink. The applicant said she would not have said that, but Mr Smith stated that they both said “No” together.

247. At the 2 June inspection, Mr Smith explained that the system of cleaning and sanitizing dishes was inadequate to meet the required standards. Mr Jeuken noted how café staff were using buckets of bleach solution, and observed that large plates did not fit within the 5-litre buckets being used at the time of his attendance.

248. He also observed that there was no evidence of any written procedure or instruction about the cleaning and sanitizing process, and no certified FSS. He was informed that no staff had completed the required training. In view of the applicant’s failure to comply with the notice or indicate any satisfactory intention to achieve compliance, the prohibition order was issued at the conclusion of the inspection.

249. At the 18 May inspection that he attended with Mr Mundt, Mr Smith sought to determine how far the improvement notice had been complied with. Two of the three items in the notice had been dealt with, the provision of a thermometer and a working hand basin. The third item, cleaning and sanitizing of crockery, glasses and utensils had not been complied with. In his largely unchallenged evidence, he said that he noticed inter alia that items were not rinsed between being removed from the black [washup water] insert before they were placed in the white [sanitizing] bucket. He also observed glassware merely being dipped and not entirely submerged in the white bucket, with only about 75 percent of each item being immersed. In his opinion there was insufficient contact with the liquid in the white bucket to achieve sanitization. He also observed a staff member wiping her hands on a tea towel after dipping a glass in the sanitizing solution. At no time during that visit did he observe the contents of the white bucket being emptied and refilled, nor did he see any means of checking that the contents were still active.

250. At the 2 June inspection together with Mr Jeuken, he saw that a single bowl sink remained the only means of washing dishes. It was full of sudsy water. To the right of the sink he saw two square white buckets and asked Carolyne how the waste from those buckets was disposed of. She replied that, “It is tipped down the toilet when it gets below 60° Celsius”. “You would not have to empty buckets in that manner,” he pointed out, “if you had a double bowl sink. That is not an appropriate way to sanitize crockery to be used to serve food – emptying buckets down the toilet”. On checking the temperature of the two white buckets, he found that one was 43° and the other 50°. Then followed an argument in which Carolyne disputed Mr Jeuken’s statement that they had undertaken to the general manager that a person would have finished FSS training by the day of the inspection. Mr Jeuken then asked, “Are you going to comply with the requirement to install a double bowl sink?”, to which the owners replied “No” at the same time. On receiving that response, Mr Jeuken indicated that it would be an appropriate time for Mr Smith to serve a prohibition order, which he did. The applicant took the document, crushed it and threw it in the bin.

251. Mr Smith stated that he last inspected the premises, now under new ownership, on 29 October 2017. He took a photograph showing that there is now a double bowl sink and a dishwasher in the kitchen area of the premises (exhibit R4, tab 12).

252. Some of the owners’ replies to the evidence of Messrs Jeuken and Smith have been evaluated above. In addition, when Carolyne was asked about Mr Smith’s raising the point about a glass being only briefly dipped in hot water, she said she did not recall the exchange. Mr Smith had also said he had seen an employee wiping her hands on a tea towel. Carolyne said that was “an absolute no-no” and that staff were to use paper towels. Nevertheless, she did not recall the comment. She reiterated her belief that their method was satisfactory and that the council could not prove the contrary as they did not swab any surfaces. She added that a dishwasher would not fit in the kitchen. Although she could not control staff 100 percent, they were dismissed if they were following incorrect procedures. If she herself was not there, any errors were not her fault. Even if a second sink or a dishwasher were installed, there would still be a chance of failure. Nothing from the sink was tipped into the lavatory, but rather into the hand basin in the washroom.

242. The applicant in his evidence repeatedly mentioned that some staff tried to take shortcuts, but Carolyne supervised them until she fell sick. He himself had difficulty supervising as he was fully occupied at the coffee machine. Nevertheless, they could not supervise all the time, and the taking of shortcuts was a continuing problem because of high staff turnover and language difficulties. At the 30 May meeting, the officers had said they would inform the onus about their decision by the Friday, but instead came and closed them down. They were not prepared to work it out. They had asked them to post a written statement of their procedures on the wall, but they had high employee turnover and there were language and literacy problems. At the meeting they had tried to convince the officers that they did not need a 2-bowl sink, and they could not afford one. He agreed that a double sink would make the process easier and that there would be less chance of error, but did not believe it would be a better method of cleaning and sanitizing.

The sink at the Retro

254. In support of their claim that they had without incident used the same cleaning and sanitizing procedure for 12 years, both at the Retro/Coffee House and at the Contented Tummy, the owners repeatedly asserted that the Retro had been equipped with only a single-bowl sink. Carolyne so stated in her sworn evidence, adding that there were regular inspections every two months, mainly by Mr Smith. He had coffee there several times in the six years and at weekends occasionally came for lunch. In the six years they had operated the Retro, there was never any mention of a problem single bowl sink.

255. The applicant also said in oral evidence that they had always used a single bowl sink during the whole 12 years they had done business at Nimbin. They underwent inspections, initially two per year, but that later increased to 6 per year.

256. That assertion was flatly contradicted by the statement of Mr Matthew Cook (exhibit R7), who stated that when he leased the shop at 76 Cullen Street [the Retro] to the applicant, it had a 2-bowl sink and that at all times when he leased the property to Mr Scott-Brydges, it had a double bowl sink. That sink remains in place today. Mr Cook was not required for cross-examination and the applicant then withdrew the allegation.

257. As Mr Shume pointed out, it is hard to see how one could make a mistake about whether there was single or double bowl sink in a kitchen in which one had worked for 6 years up until only a few years ago. Mr Shume argued that the tribunal should conclude that the applicant’s case was built on a foundation of lies. I would not go as far as that – the absence of any health-related incidents over a 12-year period, for example, is an important unchallenged fact supporting the applicant’s case. Although the statement about the Retro sink was repeated multiple times on oath and related to a material fact in the case, it does not necessarily mean that the owners’ evidence on other contested points should be disregarded. Nevertheless, the false statement significantly damaged the owners’ credibility and weakened their case.

258. I am therefore satisfied, and accordingly find, that at least the following matters relevant to cl 20 and the improvement notice had not been complied with by the time of the prohibition order:

• the lack of a food service supervisor and a certificate of appointment on the premises;

• the lack of a written cleaning and sanitizing system displayed at the premises; and

• cleaning and sanitizing of specific equipment.

259. The business had apparently been without an FSS for 4 months following the departure of a qualified employee. Section 106C(3) of the Food Act provides for cases where an appointed FSS has departed, – a new FSS must be appointed for the premises within 30 days (s 106C(3)(b). A written cleaning and sanitizing system on display was needed because, as Mr Smith observed and the owners admitted several times, the single-bowl procedure was complicated, there was high staff turnover and language difficulties. Staff did not always know what they were doing and sometimes took shortcuts when an owner was not watching. A written policy would have been a constant reminder and language or intellectual difficulties could be managed by proper explanation and emphasis.

260. The cleaning and sanitizing issue had been discussed with the owners a number of times and the desirability of 2-bowl sink repeatedly raised, starting in January 2017 when Ms Anderson pointed out to staff that two bowls were the norm. Mr Smith’s evidence was that double bowls reduced the risk of contamination and prevented bottlenecks and the taking of shortcuts. With the single bowl he had observed insufficient immersion, lack of rinsing and lack of testing sanitizing compound concentrations. The applicant admitted that the cleaning and sanitizing process would be easier with a double-bowl sink. The Food Authority information sheet on cleaning and sanitizing assumes that either a double bowl sink or a dishwasher would be used: “Items that can fit in the sink can be washed and cleaned in the left-hand bowl and then immersed in a chemical sanitiser solution in the right-hand bowl” (exhibit R4, tab 3). Clause 20 does not specifically mandate a 2-bowl sink, but the evidence shows that two bowls (or one bowl and a dishwasher) are now, as Ms Anderson said, the norm.

Layers of protection analysis

261. Mr Smith explained that the council had decided that a prohibition order was needed so that the café could be closed down for a period in order to permit the establishment of a proper system. Though the council does not describe it as such, its position can be conceptualized as an example of what is known as “layers of protection analysis”, which has developed from the work of Emeritus Professor James Reason of the University of Manchester and has since spread globally in a wide range of industries that involve safety risks. Professor Reason has pointed out that accidents seldom have only a single cause and has proposed a now-famous image of Swiss cheese to explain the occurrence of system failures such as medical mishaps. According to that metaphor, hazards are prevented from causing human losses by a series of barriers or layers. Each barrier has unintended weaknesses, or “holes” – hence the similarity with Swiss cheese. These weaknesses are inconstant, that is, the holes open and close at random. When by chance all holes are aligned, the hazard reaches the patient and causes harm.

262. Layers of protection analysis was adopted in the context of safety regulation merits review in Re Heavylift Cargo Airlines Ltd and Civil Aviation Safety Authority [2007] AATA 1005 (I was on the panel in that case, but as far as I know the reasons have never been criticized). The tribunal had this to say:

Mr Yeomans referred to the work of Professor James Reason whose work emphasises accident prevention through the multiplicity of overlapping and mutually supporting defences that makes complex technological systems such as nuclear power plants and modern commercial aircraft, largely proof against single failures, either human or technical. Mr Yeomans said that Professor Reason’s work provides a template for the theoretical framework within which safety regulation of AOC [air operator certificates] holders is conducted.

Professor Reason draws a distinction between the complementary application of “hard defences” (such as design-engineered safety features, including alarms, annunciators, interlocks, non-destructive testing etc.) and “soft” defences, the latter relying on “paper and people; legislation, regulatory surveillance, rules and procedures, training, drills and briefings, administrative controls and supervisory oversight (James Reason, Managing the Risks of Organizational Accidents, Ashgate 1997, 7,9) [at [443] – [444].

263. In Australia, Professor Reason’s analysis has been seen as relevant to the restaurant industry: R Wright, Internal Audit, Internal Control and Organizational Culture, Victoria University 2009, 39. By insisting on the appointment of a food service supervisor, the enunciation and display of a clear procedure, appropriate equipment and proper training and supervision, the respondent is in effect implementing layers of protection analysis, though not under that name. The applicant in his evidence expressed the view that having an FSS, and an appointment certificate on display, was not relevant to the sanitizing process. A written document setting out sanitizing procedures was not needed, he added. But while individual regulatory requirements may seem relatively inconsequential in isolation, each one adds a further layer of protection. Carolyne unintentionally came close to saying the same thing in her examination in chief when she stressed that in cleaning and sanitization, “everything matters”.

Conclusion: Application of s 66

264. In construing s 66 there appears to be no reason why the literal or plain meaning rule should not be applied: D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn., LexisNexisButterworths 2014, 35 – 36. Neither party suggested the contrary. The parliamentary explanatory notes merely paraphrase the section and cast no additional light on the Legislature’s intention.

265. The phrase “there were no grounds for the making of the order” in s 66(1) and (2) must therefore be given its ordinary meaning, which is unambiguous and categorical. Section 66(1) is thus satisfied because the person bound by the prohibition order, the applicant, has at all times maintained that the order was groundless. Section 66(2), however, requires the tribunal to find that there were in fact were no grounds for making the order. On the basis of all the evidence, I have found that the council had at least three grounds for making the order. It did not need to go further and adduce scientific evidence to show that the owners’ cleaning and sanitizing system had in fact failed and that tests using swabs or similar methods had revealed microbiological contamination.

266. Consequently, the applicant’s case under s 66(2) has not been made out and the application must fail.

267. At the start of the hearing, the applicant stated that if successful he would be seeking an order for costs, while the respondent said it would follow the normal rule in s 60 of the Civil and Administrative Tribunal Act 2013 that each party should bear its own costs. At the conclusion of the hearing, however, the parties’ positions had reversed, the applicant not seeking costs and the respondent foreshadowing an application for costs. The parties agreed that a telephone hearing would be satisfactory for that purpose.

Order

268. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 September 2018