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Southgate Management Pty Ltd v Nitschke

Southgate Management Pty Ltd v Nitschke

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Case Copied 14 May 2018 41 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03296

Southgate Management Pty Ltd	Plaintiff
v
Helen Nitschke (City of Melbourne)	First Defendant
and
The Magistrates’ Court of Victoria	Second Defendant

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2018
DATE OF JUDGMENT:	14 May 2018
CASE MAY BE CITED AS:	Southgate Management Pty Ltd v Nitschke
MEDIUM NEUTRAL CITATION:	[2018] VSC 236

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CRIMINAL LAW — Regulatory offences — Judicial review — Offences of handling and selling unsafe food — Alleged failure to provide adequate particulars of charges — Application for relief in the nature of certiorari — Whether magistrate erred in finding that charges gave reasonable information as to the nature of each offence — Food Act 1984 ss 11, 16 — Criminal Procedure Act 2009 sch 1, cls 1–3 — Johnson v Miller (1937) 59 CLR 467; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 applied — DPP v Kypri (2011) 33 VR 157 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D D Gurvich QC with Ms S J Keating	Wotton + Kearney
For the First Defendant	Dr S B McNicol QC with Mr S Reid	Maddocks

HIS HONOUR:

Charges are laid with respect to unsafe food

In July 2015, the plaintiff, Southgate Management Pty Ltd (‘Southgate’), operated the Langham Hotel, Melbourne (‘the hotel’).

On 14 July 2015 and days following, the City of Melbourne Environmental Health Office received complaints that a significant number of people had fallen ill, having eaten at the hotel on 11 July 2015 and days following.

An investigation was conducted, and on 30 June 2016, the first defendant, Helen Nitschke, the Environmental Health Officer for the City of Melbourne (‘the informant’), filed 39 charges against Southgate in the Magistrates’ Court, alleging that between 8 and 28 July 2015 Southgate had contravened three provisions of the Food Act 1984 (‘the Act’). Thus, charges 1, 2 and 5 alleged contraventions of s 11(1) of the Act; charges 3, 4, 6 and 7 alleged contraventions of s 11(2) of the Act; and charges 8 to 39 alleged contraventions of s 16(1) of the Act (’the charges’).

Relevant provisions of the Food Act 1984

Before proceeding further, it is convenient to set out those provisions of the Act alleged to have been contravened.

Section 11 of the Act is in the following terms:

11 Handling and sale of unsafe food
(1)A person must not handle^[[1]] food intended for sale in a manner that will render, or is likely to render, the food unsafe.
[1]Section 4(1) of the Act defines ‘handling’:
handling, in relation to food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food; …
Penalty:$40 000 in the case of an individual and
$200 000 in the case of a corporation.

(2)A person must not sell food that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 236
Decision Date: 14 May 2018

CaseChat Overview and Summary

In the case of Southgate Management Pty Ltd v Nitschke, the applicant sought judicial review of decisions made by a magistrate in a criminal proceeding brought against the applicant under the Food Act 1984. The applicant was charged with handling and selling unsafe food, and alleged that the charges against them did not provide adequate particulars of the offences. The case was heard in the Supreme Court of Victoria, which was required to determine whether the magistrate erred in finding that the charges gave reasonable information as to the nature of each offence.

The legal issues before the court were whether the magistrate had erred in finding that the charges gave reasonable information as to the nature of each offence, and whether the applicant was denied a fair hearing as a result of this error. The court considered the relevant statutory provisions, as well as previous case law on the issue of particulars in criminal charges.

The court found that the magistrate had not erred in finding that the charges gave reasonable information as to the nature of each offence. The court held that the particulars provided in the charges were sufficient to inform the applicant of the nature and particulars of the offence, and that the applicant was not denied a fair hearing as a result of this error. The court also noted that the particulars did not need to be as detailed as those required in indictments, and that the statutory provisions and previous case law supported this conclusion. The applicant's application for judicial review was dismissed.

The Supreme Court of Victoria dismissed the applicant's application for judicial review and affirmed the decisions of the magistrate. The court held that the charges provided reasonable information as to the nature of each offence, and that the applicant was not denied a fair hearing as a result of this error. The court also noted that the statutory provisions and previous case law supported this conclusion.

Orders