Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited

..………………….. (b) the supply of such products for sale in NSW and elsewhere; and/or (c) any safety issues associated with such inclusion. 110 During the hearing I was informed by counsel that I need not make any ruling at this stage with regard to para 5(b) (transcript p 85). 111 Paragraphs 3 and 5(c) of the notice to produce require the production of documents relating to safety issues. 112 It was submitted by counsel for the defendant that any such documents were irrelevant, because safety, or rather lack of safety, was not an element of the offences charged. Under s 14 of the Act it is an offence to sell food that a person knows is unsafe but no charge had been brought under s 14. 113 It was submitted by counsel for the plaintiff that evidence of knowledge on the part of the defendant that it had not been established that adding the nutritive substances to infant formula was safe, while not amounting to an offence under s 14 of the Act, might be relevant to the objective seriousness of the offences charged and would also be relevant to any defence of due diligence under s 26 of the Act. 114 I consider that I should set aside para 3 and para 5(c) of the notice to produce. Lack of safety is not an element of the offences charged. If the defendant is found guilty of one or more of the offences charged, then the objective seriousness of the offences will be relevant to penalty, provided that there is no infringement of the principle in The Queen v De Simoni (1980-1981) 147 CLR 383 but it is not relevant to proof of the offences charged. It may be that the documents can be required to be produced, if and when the defendant is found guilty of one or more of the offences charged. 115 Having regard to the nature of the offences charged under s 21(2) and s 21(3), I do not consider that the documents sought would be relevant to establishing or rebutting a defence of due diligence under s 26 of the Act.

The application by the plaintiff to set aside parts of the defendant's notice to produce 116 Documents falling within the terms of the notice to produce had already been produced by the plaintiff to the defendant in compliance with a notice to produce given by the defendant to the plaintiff in earlier civil proceedings between the parties. 117 Counsel for the plaintiff did not object to the defendant's legal representatives having access to the documents already produced in the civil proceedings for the purpose of the present criminal proceedings. However, counsel for the plaintiff did not wish to concede that the documents which have already been produced were all of the documents falling within the wide terms of the notice to produce in these proceedings. 118 This problem was overcome by counsel for the defendant conceding that the previous production by the plaintiff of documents in compliance with the notice in the civil proceedings did not amount to a concession by the plaintiff that the documents previously produced were all of the documents within the terms of the notice to produce given by the defendant in the present proceedings. 119 I released the defendant from its implied undertaking not to use the documents produced in the civil proceedings for any purpose other than the civil proceedings, thereby enabling the defendant to use the documents already produced for the purposes of the present criminal proceedings. 120 In the circumstances, there was no remaining issue in the application I am presently considering.

1. Defendant's application of 11 September 2007 Set aside paras 3 and 5(c) of the plaintiff's notice to produce to the defendant of 23 August 2007. Dismiss the application to set aside the notices given pursuant to s 37 of the Food Act on 4 and 6 September 2007.
2. Defendant's application of 14 September 2007 Set aside the last two notices purportedly given pursuant to s 37 of the Food Act on 13 September 2007 (the Woolworths notices). Dismiss the defendant's application to set aside the first notice given pursuant to s 37 of the Food Act on 13 September 2007.
3. The plaintiff's application Dismiss the application to set aside parts of the defendant's notice to produce. Stand over the rest of the application. **********

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