Will Studd Enterprizes Pty Ltd and Food Standards Australia New Zealand

This matter concerned an application by Will Studd Enterprizes Pty Ltd (WSE) to the Administrative Appeals Tribunal (AAT) for review of a decision made by Food Standards Australia New Zealand (FSANZ). WSE sought to vary certain standards within the Australian New Zealand Food Standards Code to permit the sale of raw milk cheeses produced according to specific international standards. FSANZ, represented by Mr Costello, argued that WSE's application lacked substance and had no reasonable prospects of success.

The AAT was required to determine whether WSE's application was valid and properly before it. Specifically, the court needed to consider whether the application sought to vary standards that were still in force, whether it was seeking review of an unmade decision, and whether it correctly understood FSANZ's functions and powers. Furthermore, the court had to assess whether WSE had provided sufficient evidence to demonstrate that the current standards were incorrect or required variation.

The court reasoned that WSE's application was fundamentally flawed because it sought to vary standards that were no longer in force at the time the application was assessed. It was noted that WSE was free to lodge a new application to amend the current Code and provide evidence supporting such amendments, but had not done so. The court also found that WSE misunderstood FSANZ's role, as it was not FSANZ's function to assess the safety equivalence of imported cheeses or grant permission to sell them; these responsibilities lay with other food regulatory authorities. Crucially, the court found that WSE had failed to provide any evidence to demonstrate why the existing standards, and the risk assessments and management conclusions upon which they were based, were incorrect or required variation, despite opportunities to do so.

Consequently, the AAT dismissed WSE's application under section 42B of the AAT Act, finding that each of the identified reasons was independently sufficient grounds for dismissal.