Tesbury Meats Pty Ltd v Victorian Meat Authority
[2002] VSC 476
•11 November 2002
| SUPREME COURT OF VICTORIA | Not Restricted |
| PRACTICE COURT |
No. 7056 of 2002
| TESBURY MEATS PTY LTD | Plaintiff |
| v | |
| VICTORIAN MEAT AUTHORITY | Defendant |
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JUDGE: | BONGIORNO J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2002 |
DATE OF JUDGMENT: | 11 November 2002 |
CASE MAY BE CITED AS: | Tesbury Meats Pty Ltd v Victorian Meat Authority |
MEDIUM NEUTRAL CITATION: | [2002] VSC 476 |
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Administrative Law – Licensing of meat processing – construction of licence conditions – whether compliance with conditions – Meat Industry Act 1993.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R Berglund QC | Stephen Peter Byrne |
| For the Defendant | Ms P Tate | James Syme Victorian Government Solicitor |
HIS HONOUR:
By originating motion filed 3 September 2002 the plaintiff seeks declaratory relief in relation to a licence issued to it by the defendant (the Authority) pursuant to the provisions of the Meat Industry Act 1993. On 11 September 2002 the defendant issued a summons seeking, inter alia, an order pursuant to Rule 23.01 of the Rules of the Supreme Court that this proceeding be permanently stayed or dismissed. The defendant's summons and a summons by the plaintiff on its originating motion also issued on 3 September 2002 came on for hearing before the Court on 9 October 2002..
The plaintiff company operates a pet meat processing facility or knackery situated in Camperdown using the trade name "Jacka the Knacker". It does so pursuant to an annual licence issued to it by the defendant under s.17 of the Act. Its licence for the 2002-2003 financial year was issued on 29 July 2002.
Although not expressed on the face of the licence, it is subject to conditions set out in the covering letter which sent it to the plaintiff. The licence is subject to the plaintiff complying with:-
•the Victorian Standard for the Production of Pet Meat and Pet Food ("the Standard");
•A Guide to the Implementation and Auditing of HACCP (“The Guide”);
• The Meat Industry Act 1993 and
• The Meat Industry Regulations 1994.
The Authority may specify at the time of granting a licence that it is subject to conditions pursuant to s.17(2) of the Act. By operation of s.17(4) the licence is subject to the condition that the licensee must comply with any quality assurance programme approved by the Authority for the facilities covered by the licence. In his affidavit sworn on behalf of the plaintiff on 2 September 2002 Mr John Rivett, a director of the plaintiff, acknowledges that there is a quality assurance programme in existence for the premises the subject of the licence. He identifies it as being contained in a quality assurance manual dated 25 March 1995 which appears to have been compiled by Tulloch Quality Management and Veterinary Consultants Pty Ltd for a previous owner of the business, one Preece. That document makes numerous references to the business of the plaintiff and appears to be based on an underlying assumption that the plaintiff's business carried out at the licensed premises consists of the collection of animal carcasses from the local farming community for processing as pet food. The manual describes the plaintiff's business in para 2.0.0 in the following terms:-
"Jacka the Knacker is a privately owned knackery operation located in Hoses Road Camperdown[1] that has the dual policy of providing an efficient service to the local farming community by collecting unwanted livestock and supplying high quality fresh pet meat to our wholesale and retail customers. The prompt collection of unwanted livestock has the benefits of assisting farmers and obtaining the maximum yield of pet meat."
In paragraph 6.4.1 the Manual describes "company policy" in the following terms:-
"At Jacka the Knacker the prosperity of the business depends upon a consistent supply of carcasses from the local farming community. Emphasis is placed upon creating a reliable company image so farmers know that animals will be removed from their property as soon as it is practicable and economical to do so."
The process flow chart set out in Appendix 2 to the manual clearly contemplates the company's business commencing at the point at which a phone call is received from a farmer concerning a beast to be collected and continuing until the pet meat is subject to what is referred to as "Loadout".
[1]The current licence refers to premises at Black Rock Road, Camperdown but Mr Rivett's affidavit implies that those premises are the ones referred to in the manual.
By letter dated 12 June 2002 the plaintiff informed the defendant that it intended to “source dead cattle from other knackeries in Victoria and transport them to our Camperdown plant for processing. The carcasses will be gutted at the source and then transported with hide intact to Camperdown for processing”. The defendant responded in a letter dated 17 June 2002 stating “…as a condition of licence Tesbury Meat Pty Ltd are required to comply with the Victorian Standard for Production of Pet Meat and Pet Food. The Standard describes the requirements for processing animals for pet meat and pet food and part processing of an animal carcass does not comply with the Standard. Accordingly you are not permitted to source dead cattle that have been gutted from other knackeries in Victoria.”
The plaintiff seeks a declaration that this statement by the defendant is wrong and that its licence for the Camperdown knackery does permit it to source dead cattle in the manner described. Mr Berglund for the plaintiff submitted that there was nothing in the Act, the Regulations or the Standard which prevented the plaintiff from accepting part processed carcasses from other licensed knackeries for final processing at Camperdown. Further, he submitted that by asserting that the plaintiff could not accept part processed carcasses the defendant had purported to vary its licence so as to impose a restriction less favourable than those in the original license without complying with the requirements of s.21(4) of the Act.
Ms Tate for the defendant made three principal submissions. Firstly, she said that the orders sought were futile as the defendant had now approved part processing by the plaintiff, subject to approval of the plaintiff’s quality assurance program incorporating part processing; secondly, that while there is no express prohibition of part processing in the Standard, it is a novel process requiring approval by the Authority of a new quality assurance program; and thirdly, that the application by the plaintiff was not competent as it was in substance an application for administrative review and should have been brought under Order 56 within the relevant time limit or application made for an extension of time. This final submission was not persisted with so there is no need to consider it further.
In order to determine the nature and extent of the licence granted by the defendant to the plaintiff, it is useful to set out briefly the regulatory scheme for pet meat production in Victoria. The Act provides in s.40(1) that “A person must not operate a meat processing facility of any kind unless the person is licensed to operate that facility”. By s.17 of the Act the Defendant is vested with the power to grant or refuse applications for licenses and to specify any conditions or restrictions on any licence granted. The structure of the Act is such that, other than in the case of “declared facilities”, there is no provision requiring an applicant for a licence to submit and have approved have a quality assurance program. Instead, the Act provides (in s.10) that the Authority may approve quality assurance programs and in s.17(4) that “each licence is subject to the condition that the licensee must comply with any quality assurance program approved by the Authority for the facilities covered by the licence”. However, Chapter 4 of the Victorian Standard for Production of Pet Meat and Pet Food, compliance with which constitutes a condition of the plaintiff's licence, effectively imposes a requirement upon a licence holder to have in place a quality assurance programme. The Standard refers to Hazard Analysis and Critical Control Point (HACCP) and incorporates by reference certain principles, numbered 1 to 7, as specified in "A Guide to the Implementation and Auditing of HACCP". As has already been noted, compliance with the Standard is a condition of the licensee's licence, by a convoluted process of reference and cross-reference, compliance with the quality assurance programme exhibited to Mr Rivett's affidavit is itself a condition of the licensee's licence.
As explained by counsel for the defendant, the system of regulation administered by the Authority does not specify a method of processing binding on all licensees. It is based on the submission by an individual applicant of a quality assurance program or manual developed by the proposed licensee to comply with the Standard and the Guide which may then be approved by the Authority. Compliance with that individual program or manual thus forms a condition of the licence for that premises.
Contrary to the statement of the Authority in its letter of 22 June 2002, it is clear that part processing of animal carcasses does not, of itself, contravene the Standard. It is therefore unnecessary to analyse the Standard further. However, the defendant maintains that the proposal by the plaintiff to accept part processed carcasses is a departure from the process described in the plaintiff’s own quality assurance manual and therefore it must obtain approval of a new or amended manual before such an activity is effectively licensed. Absent such approval, says the defendant, the plaintiff would be in breach of its licence if it engaged in the practice of accepting partly processed carcasses from other knackeries, whether operated by it or by others. Paragraph 4.1.0 of the manual contemplates approval of amendments made after the manual was initially published.
It follows from the above that the determination of this dispute turns on the question of whether the quality assurance programme referred to in Mr Rivett's affidavit is sufficiently wide to cover the part processing of animal carcasses as contemplated by the plaintiff in its letter of 12 June 2002.
As already outlined, the quality assurance programme under which the Camperdown knackery operated referred to the collection of carcasses from the local farming community. It did not contemplate the plaintiff's proposal whereby carcasses would be collected in other parts of Victoria, part processed in knackeries convenient to the point of collection and then transported to and further processed at the Camperdown knackery. Mr Berglund's argument that the Standard does not prohibit the part processing of animal carcasses and that there is nothing in the quality assurance programme which expressly prohibits such processing is not to the point. The fact of the matter is that the business engaged in by Tesbury Meats Pty Ltd at its Camperdown knackery as described in the manual is not one which contemplates the reception into that knackery and subsequent processing of carcasses collected in the way it now wishes to do. When the quality assurance manual exhibited to Mr Rivett's affidavit was drawn it was drawn for only one type of operation, namely the one to which it was directed. Just as it did not contemplate the transportation of live animals to the knackery for subsequent killing and processing it did not contemplate part processing at another knackery and the reception of part processed carcasses at Camperdown.
It follows that although the Authority was somewhat misleading in its letter of 17 June 2002 when it sought to rely upon the Standard as prohibiting the plaintiff's proposed process the process was, in fact, prohibited by reason of its not having been covered by the quality assurance programme under which the Camperdown knackery operated.
Further, even if Chapter 4 of the Standard had not required an approved quality assurance programme to be implemented by the plaintiff, the fact that it did have such a programme for the facilities covered by its licence means that s.17(4) of the Act imposes upon it compliance with that quality assurance programme as a condition of its continuing to hold its licence. Thus, by reason of the Act itself the failure of that quality assurance programme to lay down procedures for the receipt of carcasses which have been part processed elsewhere means that such receipt is not permitted by the present licence which the plaintiff holds.
In the circumstances, there is no need to consider further the defendant's other submissions as to the novelty of the procedure contemplated by the plaintiff or the futility of the relief which it was seeking. Having regard to the very strict controls already imposed upon the plaintiff's operation and the relatively minor difference between what it actually does and what it proposes to do I find the novelty argument somewhat difficult to accept. Some of the evidence tendered in respect of it could be described as tendentious. Novelty, by itself, would not necessarily have required amendment to the quality assurance manual.
Similarly, had the quality assurance manual under which the plaintiff operates been drawn sufficiently widely so that it contemplated the part processing of animal carcasses the relief sought by the plaintiff would not have been futile at all. A declaration in the terms sought would have permitted it to have engaged in part processing without being in breach of its licence and in conflict with the defendant.
Such material as is before the Court in respect of the issue of the Authority already having approved the plaintiff's proposal suggests that the reaching of an appropriate agreement as to amendments to the quality assurance programme should not be difficult, having regard to the fact that the plaintiff's proposals involve all of the processing of the carcasses which it collects at premises licensed by the Authority. Further, of course, so far as handling and transportation of carcasses is concerned, the plaintiff is already subject to the strict controls imposed by the Act, the Regulations, the Standard and its own quality assurance programme. Indeed, it would be difficult to imagine a more bureaucratically complex system of regulation. Given that it is now effectively conceded by the Authority that the practice of part processing is not contrary to the Act, the Regulations or the Standard it is not surprising that the plaintiff took the view that the Authority was wrong in its assertions in its letter of 17 June 2002.
Orders
The plaintiff's originating motion of 3 September 2002 and its summons of the same date will be dismissed as will the defendant's summons of 11 September 2002. I shall hear counsel on the question of costs.
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