Woolworths (Vic) Pty Ltd v Sorell Council
[2000] TASSC 69
•16 June 2000
[2000] TASSC 69
CITATION: Woolworths (Vic) Pty Ltd v Sorell Council [2000] TASSC 69
PARTIES: WOOLWORTHS (VIC) PTY LTD
(ACN 004 177 155)
v
SORELL COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 8/2000
DELIVERED ON: 16 June 2000
DELIVERED AT: Hobart
HEARING DATES: 4 May 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
Health Law - Food and Drugs, qualities of - Procedure - Limitation of time - Analysis - Meaning of term "a sample taken under this Act" - Food handed to inspector by purchaser.
Food Act 1998 ss3, 41, 89.
Lawson v Gorring [1986] 1 Qd R 26; Crown Ambassador Holdings Pty Ltd & Anor v Maebus [1999] VSC 209, followed.
McMaster v Yallourn Pty Ltd [1976] VR 233, distinguished.
Herman Jennings & Co Limited v Slatcher [1942] 2 KB 115, considered.
Aust Dig Health Law [30]
REPRESENTATION:
Counsel:
Applicant: A B Walker
Respondent: P G J Zeeman
Solicitors:
Applicant: Dobson Mitchell & Allport
Respondent: Murdoch Clarke
Judgment Number: [2000] TASSC 69
Number of Paragraphs: 9
Serial No 69/2000
File No LCA8/2000
WOOLWORTHS (VIC) PTY LTD (ACN 004 177 155)
v SORELL COUNCIL
REASONS FOR JUDGMENT SLICER J
16 June 2000
On 27 February 1999 a person purchased an item of food, later found to contain foreign matter, from the applicant. The item was taken to an officer of the respondent on the same day. On 5 March 1999 the item was forwarded to a government analyst who on 11 March issued a certificate in accordance with the provisions of the Food Act 1998 ("the Act"). A complaint alleging a breach of the Act, s28(2) was made and filed on 3 June 2000. The Act, s89(2) provides that:
"(2) Proceedings must be ¾
(a)instituted within 3 years after the date on which an offence is alleged to have been committed; or
(b)if the proceedings are in respect of a sample of food, within 90 days after the date on which the sample was obtained".
The legislation distinguishes between an offence which is detected by means of the exercise of power conducted by a public officer and one which comes to the notice of the council by other means. The Act, Part 5, provides for the taking of samples, their testing and analysis. Section 41 relevantly states:
"4 ¾ (1) An authorised officer may require a person to provide a sample of food to be taken in the prescribed manner for analysis for the purposes of this Act.
(2) If any food is supplied in an unopened package, an authorised officer may require a person to provide the whole package as a sample."
Subsection (3) imposes a requirement to comply whilst subs(5) requires the authorised officer to pay for the sample taken. The officer is required to inform the person from whom the sample is taken that the same is to be analysed. The remaining provisions of Part 5 relate to procedure, authorisation of laboratories, analysis and certification. Section 42 requires that a sample be divided into three parts, one of which is to be provided to the person from whom the sample was taken. The term "sample" is defined as "a sample taken under this Act". The scheme adopted by Parliament is similar to that employed in other jurisdictions, (Food Act 1984, s45 (Vic), Food Act 1989, s5B (NSW), Food Act 1981, s45 (Qld)), although the wording differs in some respects. The question is whether a sample obtained otherwise than by statutory power, must be dealt with in accordance with Part 5 and any prosecution thereby governed by the provision of s89(2)(b). The applicant relies as authority for its contention on the decision of the Victorian Supreme Court in McMaster v Yallourn Pty Ltd [1976] VR 233. In that case the court was required to interpret the provision of the Health Act 1958 (Vic) which provided:
"Where any food drug or substance has been procured or purchased from any person for the purpose of analysis any prosecution … shall not be instituted after the expiration of sixty days from the time of the purchase."
The food which was the subject matter of that prosecution had been purchased by a customer who, having detected the presence of foreign matter, handed it to a health inspector. Harris J preferred the interpretation which required that prosecution be commenced within 90 days. Harris J held that the word "procures" was to be read as meaning "obtained" or "get possession of", and that there were means other than exercise of statutory power whereby an authorised officer could obtain a sample for analysis. In his Honour's view, at 236:
"When one finds the word 'procured' used again in s295, one finds that it is used in a clause expressed in impersonal terms. There is no apparent reason why such an impersonal clause should be limited in operation to authorized officers. It is capable of being applied, at least as far as concerns food which has been purchased for the purpose of analysis, to persons other than authorized officers. I do not see any reason why the word 'procured' should be read as a condensed expression for 'procured by an authorized officer pursuant to his powers under this Act'. In my opinion, the reference in s295 to the alternative of 'purchased' is not sufficient to produce such a result. Hence, in my opinion, the word 'procured' in s295 is to be read as meaning 'obtained' or 'got possession of', without any further connotation."
In the Tasmanian legislation reference is made to s89(2)(b) to "the date on which the sample was obtained" whilst a sample is defined by s3 as "a sample taken under this Act".
The Victorian legislation was subsequently amended by the Food Act 1984 so as to read:
"45 Proceedings for offences …
(2) … a prosecution for an offence against this Act in respect of any food obtained for analysis under this Act shall be instituted not later than 90 days after the day on which the food was so obtained."
In Crown Ambassador Holdings Pty Ltd & Anor v Maebus [1999] VSC 209, Warren J distinguished the earlier decision in McMaster (supra) on the ground that the legislation had included the words "under this Act". As her Honour stated at par22:
"The key difference in legislation for present purposes between the Health Act and the Food Act is that the words 'under this Act' are inserted in s45(2) and govern the phrase 'food obtained for analysis'. Under the Health Act there were no equivalent words such as 'under this Act' governing or qualifying the word 'analysis'. Consequently, the learned judge in McMaster adopted the approach he did. If the words 'under this Act' were omitted after the word 'analysis' in s45(2) of the Food Act in its present form I would, with respect, in all likelihood agree with the learned judge in McMaster and adopt the same approach."
A similar approach had been taken by the Queensland Full Court in the case of Lawson v Gorring [1986] 1 Qd R 26 in which the material taken had been handed to a medical practitioner by the patient who had purchased the same from a pharmacist, who in turn forwarded the tablets to the Health Department. The Queensland legislation, the Health Act 1937 - 1984 (Qd) relevantly provided:
"145 ¾ (4) When any drug or article has been taken or obtained for analysis pursuant to Division V of this Part of this Act, no prosecution under this Act in respect thereof shall be instituted after the expiration of 90 days from the time when it was so taken or obtained."
Connolly J, who delivered the leading judgment, said in relation to this provision at 28:
"Section 145(4) is probably designed to meet the case of a prosecution as the result of the analysis of a sample taken by compulsory process at a time when the parts of the sample may have deteriorated. However, the fact that a similar consideration could well apply when the sample is voluntarily given by the purchaser or by a third party, as is this case, cannot alter the fact that it is only in cases within Part V that s145(5) applies."
Having referred to an English authority of Herman Jennings & Co Limited v Slatcher [1942] 2 KB 115, he observed:
"The case is not directly in point but it shows that the mere fact that a sample has been provided and analysed will not necessarily bring a provision such as s145(4) into operation."
Connolly J concluded that:
"… it was not shown that there was a taking or obtaining or analysis pursuant to Division V of Part IV of the Health Act."
That approach is to be preferred in any consideration of the Tasmanian provision. The purpose of the Act, Part 5, Division I is to permit the compulsory taking of samples and to regulate the procedures to be followed upon that taking. Division 2 is concerned with the licensing and regulation of laboratories and analysis. Only samples taken in accordance with the provisions of s41 are subject to the procedures required by s42. It would make little sense to require an authorized officer to leave one part of that sample with a member of the public who had furnished an item already purchased. Doubtless, the provisions of the Act ss41(5), 42(1)(a), 89(2)(b) are designed to afford protective rights to the supplier when a statutory power is exercised. But such protective rights do not attach to an item purchased in the normal manner and about which complaint is made. The phrase "after the date on which the sample was obtained" refers to an "obtaining" effected by virtue of the provisions of s41. Reference to the word "sample" in s3 is to "a sample taken under this Act". In this case the food item was obtained by a member of the public in the normal course of commerce, and not taken as a sample. That person was not required to hand the item to an authorized officer and its receipt by that officer did not amount to his "taking under the Act".
In my opinion, the learned magistrate was not in error in concluding that the provisions of s89(2)(b) did not apply.
The motion to review is dismissed.
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