Plaintiff v Defendant

Food Act 1984 - ss 3, 4D, 4E, 19, 19W, 20, 44, 44A, 44D, 44F; Interpretation of Legislation Act 1984 - ss 35, 37

1 Section 19 of the Food Act 1984 ('the Act') confers wide ranging powers on a relevant authority to make orders relating to a food premises if the authority is satisfied that the food being prepared at the premises is likely to cause physical harm to a person who might later consume it. In February 2019 Dr Brett Sutton was the Acting Chief Health Officer for the State of Victoria and a delegate of the Secretary of the Department of Health and Human Services ('DHHS'). As such, he was a relevant authority for the purposes of the Act.

2 In February 2019 I Cook Foods Pty Ltd ('ICF') operated a longstanding business making ready to eat meals for a large number of local government authorities, nursing homes and private hospitals. One of ICF's private hospital customers was the Knox Private Hospital. On 4 February 2019 an 86 year old woman (AB) died whilst an inpatient at the hospital. AB had been an inpatient since 13 January 2019. During the period 13 January to 4 February 2019 meals provided to AB included sandwiches which had been made at ICF's premises in Dandenong. AB's death certificate recorded listeria meningoencephalitis as a significant condition contributing to her death. Samples of food manufactured at ICF's premises were taken on 1 February 2019 and were tested. Test results received by DHHS on 18 February 2019 detected listeria monocytogenes in samples of: ham; sliced silverside; egg and lettuce sandwiches; ham, cheese and relish sandwiches; and sliced continental cucumber. On 21 February 2019 DHHS received supplementary results which disclosed molecular markers (binary type and molecular serotype) in the food samples which corresponded with blood samples taken from AB.

3 At approximately 10.00pm on 21 February 2019 Dr Sutton made an order pursuant to s 19(2)(b) and (3) of the Act requiring ICF, inter alia, to immediately cease production of food and to destroy all food manufactured since 13 January 2019 ('the Order'). The Order had an immediate prejudicial effect on ICF's business. Within a matter of weeks all of ICF's customers had terminated their contracts. All of ICF's 41 employees were dismissed. ICF never resumed trading post 21 February 2019. ICF contends that the Order was invalid and that Dr Sutton was recklessly indifferent as to its invalidity. ICF contends that in making the Order Dr Sutton committed the tort of misfeasance in public office and that DHHS is vicariously liable for his conduct. To establish the tort of misfeasance in public office ICF must establish that the Order was invalid and that Dr Sutton was recklessly indifferent as to its invalidity.

4 I have concluded that the Order was invalid because DHHS failed to observe the requirements of procedural fairness when Dr Sutton made the Order. I have rejected all of the other grounds upon which ICF contends that the Order was invalid.

5 Prior to making the Order, Dr Sutton sought advice from a senior departmental lawyer. He did not receive advice that he was subject to any obligation to observe the requirements of procedural fairness prior to making the Order. Dr Sutton was not recklessly indifferent as to whether the Order was invalid by reason of a failure to observe the requirements of procedural fairness. As ICF has failed to establish that Dr Sutton was recklessly indifferent as to the validity of the Order its claim for damages based on misfeasance in public office must be dismissed.

6 In addition to claiming damages based on misfeasance in public office, ICF seeks a declaration that the Order was invalid. ICF's claim for declaratory relief is upheld. The Order made by Dr Sutton on the evening of 21 February 2019 had an immediate and significant adverse impact upon ICF's business reputation. Although ICF is no longer trading the company is still in existence and is the plaintiff in the present proceeding. A declaration that DHHS failed to observe the rules of natural justice when making the Order will go some way to redressing damage to ICF's business reputation. Further, public interest considerations favour the grant of declaratory relief. Section 19(2)(b) and (3) of the Act, which confer power on a relevant authority to make a food destruction and cease production order continues to the present day in the same form it was in when Dr Sutton made the Order on 21 February 2019. It is in the public interest to formally record by way of declaration the Court's conclusion that an order made under s 19(2)(b) and (3) of the Act requiring a party to destroy food and immediately cease production is subject to the requirements of natural justice, and that an order made without observing those requirements will be invalid.

The objects of this Act include the following -

(a) to ensure food for sale is both safe and suitable for human consumption;

(b) to prevent misleading conduct in connection with the sale of food;

(c) to provide for the application in Victoria of the Food Standards Code.

8 Part III of the Act contains the power to make orders relating to food premises. Section 19 of the Act is as follows:

19 Orders relating to food premises

(1) This section applies if the relevant authority is satisfied from the report of an authorized officer that -

(a) a food premises is in an unclean or unsanitary condition or in a state of disrepair; or

(b) food being prepared, sold or otherwise handled at a food premises is unsafe or unsuitable; or

(c) food is prepared, sold or otherwise handled at a food premises in a manner that makes it likely the food is unsafe or unsuitable.

(2) The relevant authority may by written order direct that, within a specified time, either or both of the following things must be done -

(a) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer;

(b) specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.

(3) The relevant authority may in an order made under subsection (2) or in a subsequent written order direct that until the matters referred to in subsection (2) are complied with -

(a) the food premises must not be kept or used for the sale, or the handling for sale, of any food; or

(b) the food premises must not be kept or used for the preparation of food; or

(c) the food premises must not be used for a specified purpose or for the use of any specified equipment or a specified process.

(4) If an order under this section includes a direction under subsection (3)(a) or (3)(b) -

(a) in any case -

(i) the relevant authority may direct that a copy of the order be affixed to a conspicuous part of the premises in such a manner that the order can be read by a member of the public from outside the premises; and

(ii) the relevant authority may, by notice published in a newspaper or by any other means, inform the general public that the order has been made and the terms of the order;

(b) if the relevant authority is anyone other than the Secretary, the relevant authority must notify the Department of the making of the order;

(c) if the relevant authority is not the registration authority for the premises, the relevant authority must notify the registration authority of -

(i) the making of the order; and

(ii) any appeal made under section 19BA against the order and the outcome of the appeal.

Note

Under section 43(2) the record of registration maintained by the registration authority in respect of a food premises must include the details of any order in force under this section that includes a direction under subsection (3)(a) or (b) in relation to the premises.

(5) An order under this section takes effect -

(a) when it is given to or served on the proprietor of the food premises; or

(b) if the name and address of the proprietor is unknown, when it is affixed to the premises.

(6) If satisfied that an order made under this section has been complied with, the relevant authority must -

(a) revoke the order; and

(b) give written notice of the revocation of the order in the same manner in which the order was given or served.

(7) A person must not contravene an order made under this section.

Penalty: 120 penalty units.

(8) A person must not remove the copy of an order affixed to a food premises under subsection (4)(a)(i) while that order remains in force.

Penalty: 60 penalty units.

(9) For the purposes of this section, relevant authority means any one of the following -

(a) the Secretary;

(b) the council that is the registration authority for the premises;

(c) if the premises is a temporary food premises or a mobile food premises, the council of the municipal district in which the premises is being operated;

(ca) DFSV in relation to any food premises in respect of which it has issued a dairy industry licence under Part 3 of the Dairy Act 2000;

(cb) PrimeSafe in relation to any food premises in respect of which it has issued a licence under Part 4 of the Meat Industry Act 1993 or a seafood safety licence under Part 3 of the Seafood Safety Act 2003;

(d) the chief executive officer of a council referred to in paragraph (b) or (c).

9 Sections 4D and 4E of the Act include definitions for 'unsafe food' and 'unsuitable food', respectively. These definitions are as follows:

4D Meaning of unsafe food

(1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming -

(a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and

(b) nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and

(c) it was consumed by the person according to its reasonable intended use.

(2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons.

(3) In subsection (1), processes include processes involving storage and preparation.

4E Meaning of unsuitable food

(1) For the purposes of this Act, food is unsuitable if it is food that -

(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or

(b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or

(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or

(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.

(2) However, food is not unsuitable for the purposes of this Act merely because -

(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical; or

(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or

(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or

(d) it contains any matter or substance that is permitted by the Food Standards Code.

(3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.

10 The reference to the 'Food Standards Code' in s 4E(2) of the Act is a reference to the Australia New Zealand Food Standards Code, as defined in the Australia New Zealand Food Authority Act 1991 (Cth).[1]

11 The definition of an 'authorized officer' is found in s 4 of the Act. The definition includes 'a person who is authorised by the Secretary or appointed by a council to be an authorized officer under section 20'. Section 20(1) of the Act permits the Secretary to authorise in writing that a person employed under the Public Administration Act 2003 is to be an authorized officer for the purposes of the Act.

12 Section 19W contains powers to make directions concerning food safety:

19W Directions concerning food safety

(1) The Secretary or the registration authority may direct the proprietor of a food premises to comply with any requirement under this Part relating to the premises.

(2) Without limiting subsection (1), a direction may be given -

(a) to comply with any record keeping requirements applying to the premises under section 19CB;

(b) to comply with any specified requirement in the food safety program for the premises;

(c) to comply with the staff training requirements of a QA food safety program;

(d) to have the premises audited in accordance with this Act.

(3) The Secretary or the registration authority may direct the proprietor of a food premises -

(a) to have staff at the premises undertake training or instruction within a specified time to ensure that the requirements of this Act applying to the premises are met;

(b) to have details of any staff training incorporated into the minimum records required to be kept or food safety program of the premises.

(4) A direction given under this section must be in writing and must allow the proprietor at least 28 days to comply with the direction.

(5) A failure to comply with the direction within the time allowed is a ground for -

(a) the refusal of the registration, renewal of registration or transfer of registration of the premises;

(b) the revocation or suspension of registration of the premises.

Business operations of I Cook Foods Pty Ltd in early 2019

13 ICF is a food manufacturing business established in 1985 by sole director Mr Ian Cook.[2] In early 2019 ICF operated out of factory premises at 212 Zenith Road, Dandenong South ('ICF premises').[3] ICF employed 41 staff members.[4] The general manager of ICF was Mr Ian Cook's son, Mr Ben Cook.[5] In the financial year ending 30 June 2018, ICF had a turnover of $6.8 million and a profit margin of between 5 and 8 per cent.[6] Following the events the subject of this proceeding, ICF is no longer trading.[7]

14 In early 2019 ICF's business consisted of the manufacture of chilled meals and meal components.[8] Its customers were councils, hospitals, and aged care facilities.[9] ICF did not sell food products directly to the public.[10] ICF produced four lines of food:

• ready-to-eat sandwiches, soups, deserts and salads ('ready-to-eat foods');
• extended shelf-life, pasteurized food products, which are meal components such as individual portions of proteins or vegetables ('extended shelf life foods');
• texture modified, pasteurized, formed food products for persons with dysphasia and swallowing disorders ('texture modified foods'); and
• modified, atmospheric, packaged food products such as chilled meals prepared for council Meals on Wheels programs ('MAP foods').[11]

15 In January 2019, ICF supplied food to the following customers:

• Knox Private Hospital
• Frankston Private Hospital
• Holmesglen Private Hospital
• Northpark Private Hospital
• Melbourne Private Hospital
• St Vincent's Kew
• St Vincent's Fitzroy
• St Vincent's East Melbourne
• Mercy Health Ballarat
• Mercy Health Rosebud
• Yallambee Aged Care
• Fairway Hostel Aged Care
• Kingston City Council
• Yarra Ranges Council
• Knox City Council
• Monash City Council
• Glen Eira City Council
• City of Whitehorse
• City of Ballarat
• City of Boroondara...[12]

16 ICF had contracts with the majority of its customers. Some customers did not hold contracts with ICF and purchased from it as required (such as Yallambee Aged Care).[13] ICF had a contract with Healthscope in January 2019 for the supply of food to several hospitals including Knox Private Hospital.[14] Knox Private Hospital purchased between 3,000 and 3,500 sandwiches from ICF per week.[15]

17 In January 2019 ICF prepared between 7,000 and 10,000 meals per week for Meals on Wheels programmes run by councils.[16] It prepared approximately 50,000 meal components per week,[17] such as individual portions of proteins or vegetables.[18] It also prepared approximately 5,000 sandwiches per week.[19]

18 On 13 January 2019, AB was admitted to Knox Private Hospital via the emergency department.[20] AB was experiencing diarrhoea and abdominal pain. [21] On the morning of 23 January 2019 AB was discharged from Knox Private Hospital to Donvale Rehabilitation Hospital.[22]

19 Records from Knox Private Hospital disclose that between 14 and 15 January 2019, AB was offered a 'light ward' diet.[23] Between 16 and 23 January 2019 AB was offered a 'regular' diet.[24] Knox Private Hospital did not keep records of food items ordered by each patient.[25] The nursing discharge statement dated 23 January 2019 records that AB was seen by a dietician on 21 January 2019 and states:

Clinical: patient reports a chronic poor appetite with nil nausea or vomiting present... On review, patient had some nausea this morning now resolving.

Appetite good.

Diet: ... Since admission patient has commenced on Fortisip Compact Protein drinks twice a day.

On review, patient enjoying Fortisip Compact Protein twice a day.

Patient is also managing 3 small meals a day...

Plan

1. Full diet and fluids

2. Fortisip Compact Protein BD

3. Focus on protein items during meal...[26]

20 At 7.45pm on 23 January 2019, AB was re-admitted to Knox Private Hospital via the emergency department,[27] presenting with confusion and dysphasia.[28] On 25 January 2019, listeria monocytogenes was isolated by Dorevitch Pathology from blood cultures collected from AB on 23 January 2019 and AB was diagnosed with listeria.[29] On 25 January 2019, Dorevitch Pathology notified DHHS that listeria had been detected via blood culture.[30]

21 On 26 January 2019, Dr Torresi, a medical practitioner employed by Knox Private Hospital, wrote a progress note in respect of AB, stating:

Unclear where she has acquired listeria...

Possible that the initial gastro / diarrhea [sic] presentation 2 weeks ago would have been due to listeria...[31]

22 On 29 January 2019 Ms Atkinson, a Public Health Officer within the Communicable Disease Prevention and Control Unit of DHHS, completed a Communicable Disease Prevention and Control Case Questionnaire in respect of AB's medical history and potential food sources in the four weeks prior to illness with the assistance of AB's daughter.[32] In respect of foods consumed during hospital admission, Ms Atkinson records in the questionnaire that AB 'would have eaten food provided by the hospital' and that 'she often liked sandwiches or ham/salad but didn't eat lots'.[33] The investigation notes attached to the questionnaire record: 'b/c of case being in hospital for some of incubation period will sample both foods ate while @ home & foods from hospital'.[34] Further, an email from Ms Lyon (Principal Infection Control Consultant at Healthcare Infection Control Management Resources) to Ms Atkinson dated 29 January 2019 states:

Patient Food History:

Food at Knox Private Hospital is provided by 3rd party 'i Cook Foods', this includes cook / chill meals, texture modified foods, salads, sandwiches and soups.

'i Cook Foods' are registered and assessed routinely by Dandenong City Council, independent 3rd party auditor and are HACCP Certified.

The patient in question during admission from 13/1/19 - 23/1/19 was on a full ward diet.

There is a weekly (7 Days) menu.

Unfortunately, food items ordered by the patient are not on a computerised system, therefore a record is not maintained.

However, the Diet / Menu Monitor staff member from Food Services was familiar with the patient's ordering preferences and stated these were mainly cooked meals or ham and cheese sandwiches or 'chicken Caesar', 'pork salad', 'beef salad' or 'ham salad' were not to their recollection ever ordered.

However cannot be confirmed.

Sandwiches are prepared and provided by 'i Cook' these are delivered the evening before, patient consumption the following day. Food Services staff then plate and place that day's 'use by' date on each portion of sandwiches. Those not consumed are discarded at the end of every day.

There are no pre-prepared salads and pre-chopped fruit purchased from an alternate supplier.

The patient was on nutritional drinks, however these were all commercially provided, pre-packaged single use disposable units.

Any potentially 'high risk' food items in terms of Listeria are supplied through 'i Cook'.

An actual food history from the patient was unable to be obtained due to current medical condition, (a little confused).[35]

23 Records from Knox Private Hospital state that between 25 and 28 January 2019, AB was offered a diet described as 'Soft Bite Sized'.[36] Between 29 and 30 January 2019 AB was on 'Nil By Mouth'.[37] Between 31 January and 4 February 2019 AB was offered a 'Puréed' diet.[38]

24 AB died on 4 February 2019.[39] The death certificate records AB's cause of death as acute pulmonary oedema with the antecedent cause of ischaemic heart disease.[40] It further records listeria meningoencephalitis as a significant condition contributing to the death but not related to the disease, injury or condition causing death.[41]

25 There are numerous species of listeria, listeria monocytogenes being the species which poses a risk to human health via listeriosis infection. Laboratory testing can provide information as to the presence of listeria monocytogenes ('detection') as well as quantify the concentration of listeria monocytogenes in a sample ('enumeration'). Further, laboratory testing can provide information as to the characterisation of variants of listeria monocytogenes based on the presence or absence of molecular markers ('binary type' and 'molecular serotype') and genetic material ('genotype'). This information can be used to compare listeria monocytogenes variants found in clinical samples (such as blood cultures) with food and environmental samples and provide a scientific basis for the identification of the source of listeria infection.

26 On 31 January 2019 Ms Atkinson sent a request to Ms Johnson, a co-ordinator of the City of Greater Dandenong ('Dandenong Council') Environmental Health Department, to collect environmental swabs and food samples from the ICF premises.[42] On the same day Ms Johnson instructed Ms Rogerson, an Environmental Health Officer, to attend the ICF premises.[43] On 1 February 2019 Ms Rogerson collected food samples and environmental swabs.[44] Ms Rogerson collected environmental swabs and the following food samples: ham; silverside sliced on premises; sandwiches (egg and lettuce, corned beef and mustard, tomato and cheese, chicken and mayo, ham, cheese and relish); sliced continental cucumber; shredded carrot; tasty cheese; egg and mayonnaise; sliced lettuce; cooked and shredded chicken; mayonnaise; tomato; and margarine.[45]

27 On 31 January 2019 Ms Atkinson sent a similar request to the Manningham City Council to collect environmental swabs and food samples from food retailers identified by AB's daughter in the questionnaire as supplying food to AB in the four weeks prior to illness: Mirabella Bros, Jackson Court, East Doncaster; Coles, Tunstall Square, Doncaster; Woolworths, The Pines, Doncaster East; Domain Café, Aveo Domaine Retirement Village.[46]

28 On 14 and 18 February 2019, DHHS received result reports from the Microbiological Diagnostic Unit of the Public Health Laboratory ('MDU/PHL') in respect of the environmental swabs and food samples taken from the Coles and Woolworths supermarkets and Aveo Domaine Retirement Village. No listeria species were detected.[47]

29 Further, on 18 February 2019 DHHS received result reports from MDU/PHL in respect of the environmental swabs and food samples taken from the ICF premises on 1 February 2019. Listeria monocytogenes was detected in the following food samples: ham;[48] sliced silverside;[49] egg and lettuce sandwiches;[50] ham, cheese and relish sandwiches;[51] and sliced continental cucumber.[52] No listeria species were detected in the following food samples: corned beef and mustard sandwiches;[53] tomato and cheese sandwiches;[54] chicken and mayonnaise sandwiches;[55] shredded carrot;[56] tasty cheese;[57] egg and mayonnaise.[58]

30 On 19 February 2019 DHHS received result reports from MDU/PHL in respect of food samples taken from Mirabella Bros, East Doncaster. No listeria species were detected.[59] On the same day, DHHS received result reports from MDU/PHL in respect of further food samples taken from the ICF premises. Listeria monocytogenes was detected in a sample of corned beef and mustard sandwiches.[60] No listeria monocytogenes was detected in samples of tomato and cheese sandwiches, chicken and mayonnaise sandwiches, egg and lettuce sandwiches,[61] or sliced lettuce.[62]

31 On 21 February 2019 DHHS received supplementary results from MDU/PHL which stated that certain molecular markers called the binary type and molecular serotype were the same as those found in AB's blood culture on 11 February 2019.[63] The MDU/PHL supplementary results stated that the food samples of corned beef and mustard sandwiches,[64] egg and lettuce sandwiches,[65] sliced continental cucumber,[66] and sliced silverside[67] had the same binary type and molecular serotype as AB's blood culture. The binary type and molecular serotype of the ham, cheese and relish sandwiches[68] and ham[69] were not consistent with AB's blood culture.

32 At 4:56pm on 18 February 2019 Mr Goldsmith (Acting Manager Regulation and Incident Management within DHHS Food Safety Unit and an authorised officer under s 20 of the Act[70]) emailed Dr Bone (Deputy Chief Health Officer) and Dr Canil (Senior Manager of Food Safety and Regulation). Mr Goldsmith stated:

FYI - CDPC [Communicable Disease Prevention and Control] are investigating an 86 year old female who has been diagnosed with listeriosis. Unfortunately, we have been informed today the case has passed away.

Earlier this month CDPC interview[ed] the case and arranged Dandenong City Council to collected and submitted samples from a sandwich manufacturer that supply's [sic] aged care facilities.

Dandenong City Council was requested to collect the following samples from a manufacturer known as I Cook Catering based in Dandenong South;

Assorted Sandwiches including chicken, ham, turkey roll and silverside,

Cheese and ham sandwiches, I Cook [sic], cucumbers, ham and silverside.

All the samples (apart from one) have been reported as being detected with LM today (18/02/2019). We are still waiting for enumeration/water activity and genotyping which is expected on Friday.

As you would expect all the sandwiches that were tested positive have a short shelflife and are not available as the use by dates were in early February.

The two samples of smallgoods, the ham and silverside have a longer shelf life and the use by dates are still current. We have requested further information about these samples today such as were they sealed packaged products and the supplier details. If enumeration and water activity results indicated growth then we may need to take further action with the company via relevant authorities.

Further to above action with the smallgoods given the wide spread [sic] contamination the council have been requested to oversee a clean down of the site and taken extra samples including environmental swabs.

We have also requested information about the distribution of the products as a precaution although at this stage we are not aware of any other cases.[71]

Dr Sutton gave unchallenged evidence that this email was the first occasion on which AB's diagnosis with listeria was brought to his attention.[72]

33 At 8:19pm on 18 February 2019, Dr Bone replied to Mr Goldsmith and carbon-copied Dr Sutton. Dr Bone stated:

Thanks for the update and I'm sorry to hear the person has subsequently died. I understood from health issues this morning that she had eaten several different foods recognised to be associated with a higher risk of LM prior to her illness.

The presence of positive samples from a range of foods from this manufacturer is concerning, particularly as this manufacturer supplies an aged care facility which will likely have residents who may be more vulnerable.

I agree that in order to better understand the situation and risk we need:

• further information on the food samples already taken and the foods they were taken from

• environmental samples

• typing of isolates from foods and case,

• an understanding of where these foods are distributed (particularly high risk consumers)

I'd consider sampling of further sandwiches too, to determine if this is an on-going issue.

Pending this information a thorough clean is warranted, which council is overseeing.

No doubt are [sic] CD colleagues we stay alert to identify any further cases that could be linked.[73]

34 At 8:27pm on 18 February 2019, Dr Sutton replied to the above email:

Thanks Angie and agree with the approach.

As you say, the multiple detections are suggestive of possible environmental contamination at the manufacturer and so further sampling, as well as environmental swabbing, is warranted. I also wonder if the affected aged care facility knows what the possible manifestations of listeriosis in residents looks like, so that they are prompted to seek care and GPs know to consider it - ie. fever/sepsis, meningo-encephalitis, and gastro illness (where listeria needs a special request on a faecal specimen to be grown/isolated).[74]

35 On 18 February 2019, Ms Garlick (Environmental Health Officer with Dandenong Council) and Mr Little-Hales (Senior Environmental Health Officer with Dandenong Council) attended the ICF premises to conduct an inspection.[75]

36 On 19 February 2019 Ms Garlick issued an order under s 19(1) and 19(2) of the Act ('Clean Order'). The Clean Order was served on Mr Ben Cook at the ICF premises by Ms Garlick and Mr Little-Hales.[76] It stated:

I, Elizabeth Garlick, being an authorised officer and delegate of the City of Greater Dandenong Council, am satisfied from my report dated 18 Feb 2019 that the food premises situated at 2/12 Zenith Road, DANDENONG SOUTH 3175, known as l Cook Foods Pty Ltd, is in an unclean and unsanitary condition and is in a state of disrepair.

Pursuant to section 19(2) of the Food Act 1984 I hereby direct that the food premises must be put into a clean and sanitary condition, in a state of good repair, ensure that food prepared, sold or otherwise handled is safe and suitable, and the specified steps specified below be taken to the satisfaction of an authorised officer within the specified time periods.[77]

The Clean Order sets out 37 corrective actions to be completed by specified dates between 19 February 2019 and 1 July 2019.[78] The Clean Order is set out at Annexure A. Ms Garlick also issued an order under s 19W of the Act ('s 19W Order'), directing Mr Ian Cook as proprietor of the ICF premises to take specified steps by 18 March 2019. The s 19W Order is set out at Annexure B. When Dr Sutton made an order for ICF to cease production on 21 February 2019 pursuant to s 19(3) of the Act, he was not aware of the existence of the Clean Order or the s 19W Order.[79]

37 At 4:30am on 20 February 2019 ICF staff members performed 'a full thorough clean down' of the ICF premises.[80] This involved the use of a chlorine-based cleaning solution.[81] During the afternoon ICF staff members also performed a 'normal clean down'.[82] Ms Garlick and Ms Johnson attended and inspected the ICF premises during the afternoon of 20 February 2019. Ms Garlick told Mr Ben Cook that she was not satisfied with the cleaning performed by ICF staff members and requested that ICF employ a professional cleaning company.[83]

38 On the evening of 20 February 2019, a company called Melbourne Forensic Cleaning performed a 'forensic clean' of the ICF premises.[84] Melbourne Forensic Cleaning undertook a clean from 6:00pm until the late night or early morning.[85] A tax invoice records that ICF was billed for 48.5 hours of labour.[86]

39 On the morning of 21 February 2019, Ms Garlick and Ms Johnson attended the ICF premises and advised Mr Ben Cook that in their opinion the cleaning had not been effective.[87] In the evening of 21 February 2019, a company called Jaymak performed chlorine fogging at the ICF premises.[88] The process of chlorine fogging took approximately four hours.[89]

40 Mr Ben Cook gave evidence that on 22 February 2019, Ms Maloney and Mr Chatterton from DHHS attended the ICF premises and he explained to them the cleaning operations that had been undertaken by Melbourne Forensic Cleaning and Jaymak.[90] At this meeting, Mr Ben Cook provided Ms Maloney, Mr Chatterton and Ms Johnson with copies of a report prepared following the chlorine fogging by Jaymak.[91]

41 Dr Sutton gave evidence that he was satisfied that the food being produced at the ICF premises was unsafe for the purposes of s 19 of the Act based on information he received from multiple individuals including written reports and oral statements at an Incident Management Team ('IMT') meeting on 21 February 2019.[92] Dr Sutton's evidence as to his state of satisfaction was strongly challenged by Mr Clarke KC, who appeared with Ms Plain for ICF. It is necessary to set out in detail the evidence relating to emails received by Dr Sutton and meetings in which he participated during the course of 21 February 2019.

42 At 11:35am, Dr Canil emailed Dr Sutton, stating:

Please find information available to date as discussed:

(i) abridged excerpt from issues register submitted yesterday:

• current investigation into the death of an 86 year old female from listeriosis - case was first notified to the Department on 25 January 2019 from a blood sample collected on 23 January 2019.

• The case was initially admitted to Knox Private Hospital on 13 January 2019 with diarrhoea symptoms and subsequently discharged on 23 January 2019 to a rehabilitation facility where she spent only a few hours before being returned to Knox Private Hospital having developed fever and generally deteriorated. It was not until the readmission on the 23 January 2019 that listeriosis was diagnosed.

• When interviewed following the notification of listeriosis, the case indicated that prior to her admission to Knox Private Hospital she had consumed a wide range of foods that are considered high risk in terms of contamination with L. monocytogenes (the foods consumed included processed meats, soft cheeses and rock melon). The case had also regularly frequented a local cafe where she had also consumed foods considered high risk.

• While in Knox Private Hospital, the case had consumed sandwiches were sourced from a commercial manufacturer.

• Following interview CDCP found that there were no high risk foods available in the case's home to sample, but purchased and tested similar products to those purchased by the case at her local supermarket and also investigated the possibility of the food consumed at her local cafe as a source. These investigations did not return any positive results. However, the possibility that the listeriosis was acquired while at home has not been dismissed.

• Dandenong Council attended the manufacturing facility of the sandwiches supplied to Knox Private Hospital and took samples of assorted sandwiches and ordered a clean down of the premises.

• All but one of the samples indicated the presence of l. monocytogenes. Results of enumeration and water activity (important considerations in determining legislative compliance) and genotyping are expected by the end of the week. The genotype of the samples will confirm whether the sandwiches/manufacturing premises was the source of the illness.

(ii) information received this morning:

• Clean down of the manufacturing premises occurred last night to address widespread listeria contamination of the site

• Council considered closing the premises but was concerned about the impact that the immediate closure would have on distribution chain (food supplied to meals on wheels, aged care facilities and hospitals).

• Production recommenced at 4.30am today.

• Food Safety Unit has obtained a copy of councils, hospitals and aged care facilities supplied from this manufacturer.

• Food Safety Unit awaiting advice from the manufacturer about what food was produced today and to where it has been distributed.

Action proposed:

• set up IMT (Finn to lead?)

• Contact council to stop further production

• request council to sample from each production line (raw materials through to end product) and request urgent laboratory results

• manufacturer to contact all suppliers requesting that high risk foods (eg sandwiches and fruit salads) be accompanied with instructions to consume within 24 hours and then dispose, and that cooked, frozen food be reheated until piping hot

• manufacturer to advise suppliers to find alternatives until production recommences

• council to close facility until return of laboratory results from today's testing...

Please advise if you are happy with this course of action or wish to take alternative measures.[93]

43 At 1:11pm, Dr Sutton emailed Ms Skilbeck (Deputy Secretary, Regulation, Health Protection and Emergency Management, and Dr Sutton's superior at DHHS):

I think the overall risk of linked cases is low but further testing will help quantify that. Incubation periods for meningitis or septicaemia can be up to two weeks, so active surveillance is required.[94]

44 In respect of the above email, Dr Sutton gave the following evidence:

'Overall risk is low'... And that was your view at that time at 1.11?---Yes.

And it never changed, the risk was low?---No, it refers only to the overall risk of linked cases being present then.

HIS HONOUR: Just to be clear, what exactly do you mean by the expression, 'Linked cases'?---Cases that would be linked by virtue of having already consumed food produced up to this point in time by I Cook premises.

But wouldn't the risk in fact have been very high because, as I raised with you before lunch, by this time from 13 January, in total I Cook Foods are producing 5,000 sandwiches a week?---Yes.

So by this time, that's 30,000 sandwiches have come out of I Cook Foods into the community. So a linked case is where numerous people eat contaminated sandwiches, there is 30,000 sandwiches in the community - am I missing something, shouldn't that be saying the exact opposite? The overall risk of linked cases is very high?---So not linked exposures. Obviously there were thousands of people who were also exposed to those foods.

Yes?---But cases that were going to be notified to the department having eaten food on that day or just earlier.

Why, because on that day or just earlier, that's 10,000 sandwiches?---Yes.

Consumed by hundreds, thousands of people?---Yes, the reality is there are food borne illnesses in a handful of people notified to the department every day out of millions of retail meals being sold. It only takes a tiny proportion of those enormous volumes of food for there to be cases manifest. This is a relatively smaller volume with again, individually a small risk to an individual. But at that point in time with only one case notified to the department, I felt the risk that there were other linked cases at that point in time was low, but that the risk should food production continue, for those vulnerable populations, that the risk would be high, that there would be subsequent cases if no action were taken... I'm reflecting here on the fact that with an incubation period of just a few days on average, that they would have already been identified to the department if they were going to be. So it is really around the fact that it is for those who have had food exposures in the previous few days, if they haven't been identified to us now there is a small risk of them being notified to us in the next few days.[95]

45 At 1:30pm, the IMT meeting took place. The meeting was chaired by Dr Romanes (Public Health Physician within DHHS Regulation Health Protection and Emergency Management Division and an authorised officer under s 20 of the Act).[96] The IMT was attended by a further 14 DHHS officers, [97] including Dr Sutton by teleconference and other authorised officers under s 20 of the Act: Mr Goldsmith, Dr Ivan,[98] Ms Atkinson,[99] Ms Antoniou,[100] and Mr Wressell.[101] The meeting agenda outlined the following 'Draft Proposed Plan of Action':

Risk assessment

• Background

• Clinical and epidemiological investigation

• Listeriosis death - details, date of death, admissions and dates

• Potential foods consumed, and knowledge of consumption at Knox

• Wider listeriosis epidemiology if relevant

• Was case hospital acquired - probability, timing of matching?

• Food investigation - general

• Foods sampled from potential community sources and results

• Food investigation - Knox Private Hospital

• Nature of food supplied

• Food Safety Program

• Food investigation - iCook caterer

• Foods sampled from iCook - range, date, findings

• Timing of further results of positive Lm findings

• iCook food safety profile - regulator, FSP, previous issues

• Current findings of any inspection of iCook, any risks identified?

• Distribution and recipients of iCook products from kitchen

• Suppliers to iCook and actions to investigate source products

• Assessment of risk

• Was iCook correctly classified under the Food Act?

• Which populations are at risk?

• What's the level of risk associated with iCook?

Risk management

• Cessation of production

• Controls already implemented at food premises

• Criteria for re-opening, who decides

• Food recall parameters

• Agree the need to initiate - ACHO has indicated threshold met

• Agree date of first risk (period to message there is risk) - date food that was positive was sampled?

• Control measure for food not yet consumed - discard, not eat, eat if well cooked only?

• Implementation of food recall

• Areas for guidance

• Case management and case finding

• Letters to suppliers, recipient organisations, Alert and public awareness

Risk communication

• Merits in naming parties involved

• Communication with recipients of potentially contaminated foods -letter, factsheet, request for case

• finding

• CHO Alert?

• Media holding lines or media release?

• Situation Report / internal email summary

• Issues Register Entry

Other actions

• Date and time of next meeting[102]

The meeting concluded at approximately 2:30pm.[103]

46 At 5:27pm Dr Romanes emailed Dr Sutton, stating:

Situation

As a precaution, the Acting Chief Health Officer has this afternoon requested that the City of Greater Dandenong issue an Order under the Food Act 1984 to iCook Foods that it cease production effective immediately, because of multiple positive findings of Listeria monocytogenes across a range of foods. These foods were sampled as part of an investigation triggered by a case of listeriosis in a patient at Knox Private Hospital, who has subsequently died. The investigation is active and ongoing and no definitive links have been made. We do not know how long it will take to lift the Order but in confidence it could be some days or longer at a minimum.

The ACHO is writing this evening to eight councils, five private hospitals, five public hospitals and two aged care facilities, and two other parties who are all recipients of iCook Foods products, to indicate that they need to dispose of all food they currently hold from iCook Foods, and that they need to raise awareness of the potential for Listeria infection amongst vulnerable people (patients, clients or staff) who have consumed food sourced from iCook Foods since 13 January 2019. This list is below.

We are not able to determine on current information what proportion of food supplied to clients and patients is from iCook Foods in each service, but it could range from a small proportion to a large proportion. We have spoken to Health Purchasing Victoria who indicate that the public hospitals on the list have contingency plans for food, but are unable to comment on the privates or aged care facilities. Councils are understood to rely on iCook Foods for some part of their meals-on-wheels services.

Which services are listed as receiving food distributed from iCook Foods?

The list of services from food supply records is:

• Knox Private Hospital

• Frankston Private Hospital

• Holmesglen Private Hospital

• Northpark Private Hospital

• Melbourne Private Hospital

• St Vincent's Kew

• St Vincent's Fitzroy

• St Vincent's East Melbourne

• Mercy Health Ballarat

• Mercy Health Rosebud

• Yallambee Aged Care

• Fairway Hostel Aged Care

• Kingston City Council

• Yarra Ranges Council

• Knox City Council

• Monash City Council

• Glen Eira City Council

• City of Whitehorse

• City of Ballarat

• City of Boroondara...[104]

47 At 8:21pm Dr Romanes emailed Dr Sutton, stating:

I thought it may be helpful to summarise where we are, what the risk is and what the next steps are at this point. I am not working on Friday 22 February, but help can be sought from PHMCD Unit and of course actions are being led through FSU.

The most important two actions on Friday morning are to ensure the Order has been served, and that an officer personally contact each service and also IGA and the final recipient service to ensure the actual lead / CEO of the service is aware of the email and ACHO advice (as they were sent tonight to the only points of contact we had, which could be out of date / incorrect / insufficiently senior people as they are the food contacts only).

Overall situation

As we learned last night and this morning, there are now concerns with the food safety arrangements at the manufacturer and now a clear knowledge of the widespread distribution to vulnerable groups through hospitals, councils and aged care facilities. As such, an Incident Management Team was held. The meeting determined production should cease, and food produced since 13/1/2019 be discarded and those who have consumed should be made aware to look out for symptoms and signs of listeriosis. After the meeting, we impressed on Council the importance of an Order to cease production and are hopeful that will be served very late tonight, we have written to internal stakeholders across the sector, and letters from the ACHO have gone out to the food supply record client list for the services.

Review of risk from the Incident Management Team

Some critical observations at the IMT were:

• The deceased case who was an 86 year old female was admitted to Knox Private on 13/1/2019, discharged and readmitted on 23/1/2019 and died on 4/2/2019 due to complications of invasive listeriosis

• The listeriosis was probably hospital-acquired, based on published data indicating the likely upper limit for invasive listeriosis presenting as meningo-encephalitis at 14 days, and exposures to a range of high risk foods for listeria, and the knowledge now of a range of positive findings of Listeria monocytogenes in foods produced from iCook Foods who supply Knox Private Hospital, and data showing that four of six Listeria monocytogenes isolates are of the same binary type as the Listeria isolated from the case (more details awaited - match is consistent, not confirmed) .

• Sampling and swabbing of the manufacturer at iCook Foods was requested by DHHS on 31/1/2019 and enacted on 1/2/2019 and 25 samples were taken, of which DHHS was informed on 18/2/2019 that seven were positive for Listeria and six of those seven positive for Listeria monocytogenes. No environmental swabs were positive.

• Council inspections of the manufacturer indicated considerable concerns about cleaning of equipment and food safety standards at the manufacturer, and the findings were discussed at the IMT and the IMT confirmed on the basis of reported findings that there was not suitable or adequate control of the risk of Listeria proliferation, and there was some evidence that the manufacturer's kitchen was likely to be the point of contamination of multiple samples that were subsequently positive

• No food sampling from community exposures has been positive (foods matching those purchased and consumed in the community from supermarkets or cafes).

• There was a material risk of Listeria contamination of food produced at the premises from 13/1/2019 onwards to the present time, given, that there were negative findings on inspection, risks identified, positive Lm findings in a range of foods and suggestion of transmission to a vulnerable case who subsequently died, and as such, Council would be formally requested to Order cessation of production.

• The period of production risk was agreed to be from 13/1/2019 (because there was a material risk that was not controlled, samples were positive from 1/2/2019 but a person appeared to have acquired the infection from inpatient stay whilst exposed to foods likely from iCook Foods at some point from 13/1/2019 onwards)

• The public health advice would be that food produced prior to cessation of production should be discarded, and patients / persons who had consumed any food sourced from iCook Foods since 13/1/2019 should be identified and advised of a potential risk

• The name of the premises (iCook Foods) should be released if asked as it was important for transparency and to enable services to identify which food to dispose of / when to warn patients / clients / staff

• The fact there was a deceased confirmed case of listeriosis as part of this investigation should be released if required, as that was the prompt for the investigation

• Lead for IMT is via Environment Section, under ACHO and OCHO(E) with Dr Finn Romanes chairing until close 21 February 2019...

Next steps and agreed actions from IMT and subsequently

• Ensuring an Order is served and production ceases:

• Council should finalise and serve the Order after 10pm tonight

• In the event Council does not do that, it is hoped the CEO of Council will discuss with ACHO at that time, and then ACHO will authorise serving of a CHO Order directly on the premises before 0430AM potentially via Victoria Police (for which an Order is currently under legal review with a view to finalising)

• Checking all services have received the advice:

• FSU to call each service and check email from ACHO received and identify CEO and ensure it has been forwarded to CEO, or resend to CEO (noting that the email containing letters from ACHO has not been sent to CEOs of any service, since that information was not available this evening - which means if the point of contact for that service as held by iCook Foods is wrong or out of date or the person is on leave, the email from OHHS will not have been received and acted on)

• FSU to identify contact and provide the ACHO advice to IGA Rowville and Gloria Jeans, who have not yet been informed

• CDPC / Sally to obtain details of the patient profile of Knox Private Hospital, especially whether there are maternity and oncology services

• FSU / Pauline to investigate finding that food premises was incorrectly classified as a class 2 food premises under the Act, to determine cause and rectify

• CDES/FSU Joy / Paul to feedback further results of food sample Listeria characterisation, especially to identify if MLST and molecular typing are a match for the findings in the human case

• FSU / Paul to develop a clear set of criteria required to be met before production can recommence, including elements around correct classification of the food premises, an appropriate food safety programme and Listeria management programme, validation testing

• FSU / Pauline to ascertain volume of meals served at each service for purposes of estimating and understanding the impact of the food withdrawal

• FSU to map and investigate supply chain of iCook Foods for any Listeria-related risk

• Media / Graeme to draft holding media lines

• PHMCD / FSU to draft CHO Alert on Friday 22 February 2019 in preparation for use if deemed necessary only - a CHO Alert was judged likely to be required if certain events occurred, for example more cases (an outbreak), concern patients and treating doctors may need to be made aware through media and direct communication (other than through writing to services), or other factors

Records management

There is a TRIM file with key documents at:

IIEF/19/971...[105]

DHHS requests Dandenong Council consider making a cease production order

48 Prior to February 2019 Dr Sutton's understanding of the respective roles of DHHS and local councils in respect of food safety powers was that 'it was overwhelmingly council that exercised powers in relation to the Food Act... But that they were available nonetheless to delegated individuals within the Department of Health.'[106] Dr Sutton stated that because he understood that the local council would normally be the entity to take action under the Act with respect to premises within its jurisdiction, the preferred option arising from the IMT meeting was for Dr Sutton to request that the Dandenong Council make a cease production order.[107]

49 At 12:41pm on 21 February 2019, Dr Canil emailed Dr Sutton the following proposed text of a request to Dandenong Council to issue an order requiring ICF to cease food production:

Hi chaps, are you comfortable with these words ....

Dear Leanne

The Acting Chief Health Officer, Dr Brett Sutton, has considered information about the detection of Listeria moncytogenes [sic] in 6 of 7 food samples taken from the food premises icook, concerns raised by Council following its inspection of the premises and the clean down that occurred last evening. On the basis of that information, the Acting Chief Health [sic] has requested that Council consider ordering the premises, under section 19 of the Food Act, to cease all further production for today, 21 February 2019.

This recommendation is based on the Council findings that the food premises were not, prior to clean down, in a clean or sanitary state and that until results of further testing of premises and foods are available, the Acting Chief Health Officer cannot be assured that the premises are in a state that is suitable for food production.

Further advice will be sought from you in relation to distribution, food types distributed, sampling regime and sampling results to inform the Acting Chief Health Officer's further decision about this issue including his recommendation in relation to the recommencement of production.[108]

50 At 1:05pm Dr Sutton approved of the above wording and asked for the email to be sent.[109] At 2:45pm Dr Canil emailed Ms Johnson the above, in addition stating:

I would be grateful for your confirmation of receipt of this email and confirmation that Council has issued the section 19 Order, as soon as possible[110]

51 At 1:01pm Dr Sutton forwarded the 11:35am email from Dr Canil to Ms Skilbeck and Ms Kilpatrick, stating:

Please see below for an issue with a food manufacturer in Dandenong Council.

As a result of this information and in discussion with Food Safety and CD Section, I've ordered production at the icook kitchen in Dandenong to cease immediately. We are developing communications for services and for recipients of food, in particular Meals on Wheels, where consumption of potentially contaminated food may have been ongoing for some weeks and where immediate alternative MOW supply arrangements need to be made.

Please call me if you need further detail, but hopefully we'll have an update and SitRep today.[111]

52 In respect of the statement 'I've ordered production at the icook kitchen in Dandenong to cease immediately', Dr Sutton gave the following evidence:

... I don't know why I have used those words. Clearly I hadn't ordered production at the kitchen to close and we're in the process of having council draft an order.

You haven't signed an order at that stage but you had in fact formed your view that it had to be closed?---I hadn't ordered production to close and I hadn't drafted an order.

Orally or in writing?---Sorry?

Either verbally or in writing?---Neither.

So that's just false, is it?---That's correct.

Can you explain why you have made a false statement to your boss?---I don't know why I used those specific words, no.

HIS HONOUR: On one view of it, it is a shorthand way of you saying that you had made a recommendation to the council that the council issue the order, isn't that what you're referring to?---Yes, yes, it's a clumsy way to express it though.

So it's a shorthand, presumably when you made the recommendation to the council presumably you anticipated that your recommendation would be complied with and the order would be made by the council?---Yes, I had made that assumption at the time, yes.

So you agree that is a fair reading of your statement, 'I have ordered production at I Cook kitchen to cease immediately' is a reference to you having made a recommendation to the council to make such an order?---Or at least forming the view that the email should be sent, yes.[112]

53 Further, Dr Sutton gave evidence that 'it was essentially at the end of the incident management team meeting that I came to the view that we would make a recommendation to council to consider closing the premises.'[113] The IMT meeting concluded at approximately 2:30pm on February 2019.[114]

54 At 4:44pm, Dr Romanes emailed Dr Sutton a '[d]raft letter for CEOs of eight councils, five private hospitals, five public hospitals and two aged care facilities, and two other parties, for review and approval.'[115] The email attached the following draft letter:

Please be advised that the department and the City of Greater Dandenong are currently investigating the detection of Listeria monocytogenes in a range of foods produced by the manufacturer, I Cook.

On the basis of information provided by the company, it is understood that foods have been supplied by I Cook to you at .

As you would be aware, food contaminated with Listeria monocytogenes is dangerous, and can lead to death, if consumed by vulnerable people - these include older adults, pregnant women and the immunocompromised.

The Acting Chief Health Officer has requested that the City of Greater Dandenong issue an Order under the Food Act 1984 to I Cook that it cease production effectively immediately. Any food distributed to you by I Cook prior to today, including refrigerated and frozen foods, should be discarded immediately.

Listeriosis predominantly affects people who have immunocompromising illnesses such as leukaemia, diabetes or cancer; the elderly; pregnant women and their foetuses; newborn babies; and people on immunosuppressive drugs such as prednisolone or cortisone. Healthy adults are usually not affected but may experience transient, mild to moderate flu-like symptoms.

Those from any vulnerable groups who has [sic] consumed foods produced by I Cook since 13 January 2019 should be ·on the lookout of signs and symptoms of listeriosis. These include fever, headache, tiredness, aches and pains. These symptoms may progress to more serious forms of the illness, such as meningitis (brain infection) and septicaemia (blood poisoning). Less common symptoms are diarrhoea, nausea and abdominal cramps. After eating contaminated food, on average, symptoms appear after about three weeks but can occur from 3 to 70 days after consumption.

Attached is a fact sheet outlining the signs and symptoms of Listeria, and what foods are at high risk for listeria.[116]

At 4:47pm Dr Sutton approved the contents of the draft letter.[117]

55 At 6:34pm Dr Romanes emailed Ms Johnson from Dandenong Council, stating:

Thanks for the chance to speak just now.

As discussed:

• the Acting Chief Health Officer is formally and urgently requesting that Council issue an Order to cease production at iCook Foods effective immediately

• further it is particularly imperative that this Order is issued prior to the commencement of the next production which we understand commences at around 0430AM tomorrow Friday 22 February 2019

• the Acting Chief Health Officer would like to speak to the Chief Executive Officer of Council without delay,

• should there be any concern or reason why Council considers it cannot issue such an Order, so that a discussion can take place to understand and address any concerns

• the Acting Chief Health Officer is available on [...] for the purposes of an urgent call

As I explained to your Director just now on the telephone, we understand the pressure of time and appreciate that all parties are in a Council meeting expected to run until 10pm tonight. I hope that if the Order is prepared now, it will be able to be made and served as soon as possible after 10pm tonight.[118]

56 As at 6:34pm Dr Sutton was not aware of any concerns on the part of Dandenong Council regarding the issuing of an order but was aware that Dr Romanes 'was having difficulty in getting an assurance from council that the order would be in process and would come into effect.'[119] He received a copy of a draft order at approximately 7:30pm.[120] Upon receiving the draft he read s 19 of the Act.[121] Although he had been aware of the wording of s 19 at an earlier date by virtue of the instrument of delegation, this was the first occasion on which he had looked at s 19 'in detail'.[122] He did not read the definitions of 'unsafe' and 'unsuitable' in ss 4D and 4E of the Act prior to making the order.[123] Although he was aware on 21 February 2019 of the existence of emergency powers under Part VII of the Food Safety Act 1984 he did not consider making a cease production order under s 44,[124] because he was satisfied that Dr Canil and Mr Morrison (Acting Director of DHHS Legal Services Branch) as 'the experts with respect to food regulation and legislation' had selected s 19 as the most appropriate provision.[125] Dr Sutton considered the ICF premises to be 'unsafe' rather than 'unsuitable' within the meaning of s 19 of the Act. His satisfaction that the food being produced at ICF's premises was 'unsafe' provided the basis for the making of the Order.[126] When he made the Order he had an understanding of the meaning of 'unsafe' for the purposes of s 19 of the Act, informed by his experience in the DHHS.[127]

57 At 8:21pm Dr Romanes emailed Dr Sutton, stating:

Update on issuance of an Order and communication with clients of the company and internal stakeholders

• Two emails have been sent to Council firmly requesting an Order to cease production be served, and indicating the strong recommendation that this must occur prior to first production on 22/2/2019 at 4.30am

• The Council Authorised Officer is preparing an Order to cease production, but has not guaranteed that Council CEO will issue the Order, and this may not occur until after 10pm tonight 21/2/2019...[128]

58 Between 8:21pm and 9:16pm Dr Sutton spoke on the telephone with the CEO of Dandenong Council.[129] He stated:

He told me that he was conflicted and would be unable to issue an order because he was on the board of a competitor kitchen... I accepted that conflict was real and that I would have to make an order.[130]

59 At 9:16pm, Dr Sutton emailed Dr Bone: 'Council order not progressing; will be CHO order. But all in progress.'[131]

60 At 6:59pm Dr Sutton emailed Dr Canil and Mr Morrison, stating:

Sean Morrison is happy to review the order you are drafting (thanks Sean). He'll be home in 20 minutes so can review then and will provide advice to me on any changes etc required. I'll then confirm with you that it is good to go.

It can be served by a local council authorised officer or we can explore a police officer or other alternative if we're stuck.[132]

61 Dr Sutton gave evidence about the advice that he envisaged Mr Morrison might provide, as referred to in the 6:59pm email. He stated:

Anything of relevance. As an experienced and senior legal practitioner within the department supporting the public health division, ensuring the robustness of legal language and appropriate exercise of powers and charter review.

When you say charter review, what's that a reference to?---The Victorian Charter of Human Rights and Responsibilities.[133]

62 At 7:19pm Dr Canil sent Mr Morrison a copy of a draft order pursuant to s 19 of the Act, stating: 'I have given this Order a crack. I would be grateful for your review and advice'.[134] At 9:30pm Mr Morrison emailed Dr Canil attaching a draft order pursuant to s 19 of the Act.[135]

63 At 9:30pm Mr Morrison emailed Dr Romanes and Dr Canil, carbon-copying two DHHS legal officers:

I believe the attached is fit for purpose. Please give it a read to see if you understand the conditions. If you have any questions then please give me a call. I am typing a short advice now which will follow in a minute.[136]

64 At 9:53pm Mr Morrison emailed Dr Canil again, stating:

Things to follow up on/know:

• please make sure Brett has the correct delegation under the Food Act;

• the order is valid when served;

• the Food Act requires us to notify the relevant council (the registering authority I assume for the premises) when we have served such a notice;

• in making such an Order the Charter of Human Rights and Responsibilities must be considered.

• Based on the available facts I believe the issuing of the Order is compliant with the charter for the following reasons:

• it limits, but not arbitrarily, the right to property but enhances the right to life.

• Brett can use an electronic signature pursuant to section 9 of the Electronic Transactions Act.

• Happy to discuss any issues you may have.

Please send me a copy of the order when signed.[137]

65 At 10:00pm Dr Canil emailed Dr Romanes and Dr Sutton:

Please find Order attached into which brett's [sic] signature has been inserted. Please pdf before sending to Leanne at council. thanks.[138]

Thanks so much Milena and Sean.

I know the website has a title of iCook foods but I think the name (listed at bottom of webpage) may be 'I Cook Foods Pty Ltd'.

Maybe doesn't matter but thought I'd highlight.[139]

The timestamp attached to this email is 11:08am. However, the email was part of an email thread and sent subsequent to Dr Canil's email at 10:00pm and prior to Mr Morrison's email at 10:19pm. Dr Sutton gave evidence, which I accept, that at the time of this email, he had received from either Mr Morrison or Dr Canil a copy of the draft order intended to be made by him.[140] On receiving the draft order he 'went through it line by line.'[141]

67 At 10:09pm Dr Romanes emailed Ms Johnson a copy of the Order and requested Dandenong Council to serve the Order.[142]

68 At 10:18pm Mr Morrison replied to Dr Sutton, stating:

Given the lateness in the day I think this will be ok. The Act allows where the name is unknown for the order to take effect if affixed to the premises, which will happen in any event.[143]

69 At 10:24pm Dr Sutton replied to Mr Morrison, stating:

All good. It's been sent and I'm sure will have desired effect.

Thanks so much all for urgent work on this.[144]

70 At 10:33pm Dr Romanes confirmed to Dr Sutton that Ms Johnson had received and would serve the order.[145] The Order states:

I, Dr Brett Sutton, Acting Chief Health Officer, Department of Health and Human Services and delegate of the Secretary to the Department of Health and Human Services for the purposes of Section 19 of the Food Act 1984, am satisfied from the report of an authorized officer of the Department's Food Safety Unit that -

in relation to the food premises known as iCook Foods and situated at 2/12 Zenith Road, Dandenong South, Victoria 3175 ("the food premises)", food being prepared, sold or otherwise handled at this food premises is unsafe or unsuitable.

Pursuant to Section 19(2) of the Food Act 1984 I HEREBY ORDER AND DIRECT THAT within 14 days of the date of the serving of this notice:

a) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer; and

b) specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.

Pursuant to Section 19(3) of the Food Act 1984 I HEREBY ORDER AND DIRECT, EFFECTIVE IMMEDIATELY ON THE SERVICE OF THIS NOTICE, THAT:

a) the food premises must not be kept or used for the sale, or the handling for sale, of any food; and

b) the food premises must not be kept or used for the preparation of food.[146]

The Order set out further steps to be taken pursuant to s 19(2)(b) of the Act, including the destruction of all short shelf life and extended shelf life food manufactured since 13 January 2019. The full text of the Order is set out at Annexure C.

71 The Order was served by Ms Johnson at 4:00am on 22 February 2019 at the ICF premises.[147]

72 After making the Order on 21 February 2019, Dr Sutton participated in discussions about differentiation of types of food being produced at the ICF premises.[148] A proposed variation to the Order was communicated to him by Dr Canil and Dr Bone based on the advice of Mr Goldsmith and other DHHS officers of the Food Safety Unit.[149] He stated:

I was told that there was insufficient information to be able to make a detailed risk assessment in order to stratify the risks for those different food types. But there was potential contamination of any and all of those foods... that was the essential reason for the variation of the order being drafted and put into effect... The variation was to be made in order to allow food that we were satisfied could be managed with the, you know, lowest feasible risk to contamination to go back into production, while higher risk foods, in particular ready to eat foods, would in all likelihood require further changes to food safety management, processes and procedures and structural changes within the kitchen, in order to get them to a point where they could also go back into production.[150]

73 Dr Sutton gave the following evidence in respect of information received by him between 21 and 23 February 2019:

Was there any further information or reports between the making of the first order on the 21st and the 23rd, that you considered?---Yes, there were further conversations that we had within the food safety unit with me about the progress with respect to the first closure order, and the risk stratification of the foods that were produced in the I Cook kitchen....

What were those reports?---As I said, they were conversations, they were information given to me that the ready to eat foods were the highest risk foods in that kitchen, and that other foods produced that would go through a further kill or cooking process could be considered of a lower risk stratification, and could be treated differently in a varied order.

Any further reports that satisfied you that the food prepared, sold, or otherwise handled was unsuitable or unsafe?---There was no new information that changed my view about unsafe or unsuitable food.[151]

74 At 1:30pm on 23 February 2019 Mr Morrison emailed Dr Sutton and Dr Canil a 'notice of variation, varied order and original order.'[152] At 1:47pm Mr Morrison sent them another email, stating:

As discussed the "stop order" only applies to premises, and not part of them, that is I don't think it's possible to issue a part stop order. I have therefore varied the order to set out the requirements in relation to the three production lines you believe can resume on Monday (subject to adherence with the conditions).

The original order could not be revoked, as Brett not be satisfied that they had met all of the conditions, that is why it has been varied.

The original Charter assessment applies, which is the variation is Charter compliant as it does not arbitrarily limit the right to property, and in some respects is a step closer to company enjoying the full use of their property, and it enhances the right to life. If this is not consistent with Brett's view then please let me know.

PROCESS

Serve the notice of variation, the varied order and the original order (all should be displayed).

If the company meets all of the requirements in relation to the three production lines before Monday morning then the order will have to be revoked and a new order served. This new Order will NOT be able to be a stop order but an order that requires them to clean up the facility - see 19(2)(a) and (b). It can of course set out the conditions you expect to be adhered to when making the facility safe - that is they can be specific to the unused production line.

If the company does not meet the conditions of the varied order, the stop order and conditions remain. As we gave them only 14 days to rectify, we would need to vary the order again to provide further time.

If you agree with the above I will now draw the revocation and new order along these lines.[153]

75 At 2:51pm Dr Sutton emailed Mr Morrison and Dr Canil stating that he agreed with the amendments and the Charter assessment.[154]

76 On 23 February 2019 Dr Sutton issued a second order under s 19 of the Act ('Varied Order').[155] The Varied Order is set out at Annexure D. It sets out specified steps to be taken to ensure that specific lines of food produced at the ICF premises (namely ICF's extended shelf life foods, texture modified foods and MAP foods) were safe and suitable. In particular, it specified that a microbiological test and hold program for each production batch of these three lines of food was required before any product could be released. Under the Varied Order, ICF continued to be prohibited from preparing ready-to-eat foods including sandwiches.

77 By 2:27pm on 21 February 2019 DHHS had received MDU/PHL results stating that listeria monocytogenes had been detected in food samples taken from the ICF premises, and that the molecular markers (binary type and molecular serotype) of certain food samples were consistent with those found in AB's blood culture.[156]

78 Other laboratory testing results remained outstanding as at 21 February 2019. At 11:35am on 21 February 2019 Dr Canil emailed Dr Sutton, stating that DHHS expected to receive further results by 25 February 2019:

Results of enumeration and water activity (important considerations in determining legislative compliance) and genotyping are expected by the end of the week. The genotype of the samples will confirm whether the sandwiches/manufacturing premises was the source of the illness.[157]

79 On 25 February 2019 DHHS received genotyping results from MDU/PHL. The results stated that the multilocus sequence typing ('MLST') of the egg and lettuce sandwiches,[158] corned beef and mustard sandwiches,[159] sliced continental cucumber,[160] sliced silverside[161] matched the MLST genotype found in AB's blood culture. The MLST type of the ham, cheese and relish sandwiches and ham samples were not consistent with AB's blood culture.[162]

80 On 28 February 2019 DHHS received enumeration results from MDU/PHL. The results stated that there were less than 10 colony-forming units per gram ('cfu/g') in the samples of ham, cheese and relish sandwiches,[163] ham,[164] sliced silverside[165] and sliced continental cucumber.[166]

ICF's business operations after 21 February 2019

81 Mr Ian Cook gave evidence that no food was produced at the ICF premises after midday on 21 February 2019.[167] Following service of the Order, ICF destroyed approximately 10 tonnes of food.[168]

82 Mr Ian Cook gave evidence of ICF's contractual arrangements with its customers. He stated:

We were contracted to produce what they required to their specification and that was a written contract with Healthscope Operations, and we did quite a few of their hospitals.

So Knox Hospital was a Healthscope - - -?---Was a Healthscope hospital.

So your contract was with Healthscope Operations?---Correct. The failure to supply was obviously a breach of the contract. I think it was within seven or 14 days that that contract went into - we got a show cause notice and then it was terminated. I can't remember the exact date but shortly after that. And we had a contingency which was built into that contract, not particularly for sandwiches but particularly for the meal components, that was the more important part for them, where we had to have basically two weeks supply of all the items that they require, on hand so that if there was a failure of the electricity grid or something else went down they needed to be satisfied that they would get meals into their hospitals. Obviously the order to destroy all that meant that the contingency was gone as well.[169]

83 In late February 2019 ICF began to receive show cause notices from customers with whom it held contracts.[170] Within two weeks of ICF's failure to produce food, Healthscope issued a show cause notice.[171] By mid-March 2019 ICF began to receive termination notices from its customers.[172]

84 The cessation of production on 21 February 2019 coupled with customers terminating their contracts with ICF resulted in all of ICF's employees losing their jobs.[173]

85 On 22 February 2019 Ms Maloney and Mr Chadderton (both Senior Food Policy Officers within the DHHS Food Safety Unit) attended the ICF premises to conduct a site walk-through and discuss the necessary steps to enable the orders to be revoked.[174] Mr Ben Cook stated that this was the first occasion on which DHHS officers had personally attended the premises.[175]

86 Mr Ben Cook gave evidence that throughout late February and into March 2019 ICF attempted to comply with the Order and Varied Order.[176] Throughout this period he was in regular contact with DHHS officers including Ms Maloney about compliance with the orders.[177] He stated that by 20 March 2019, the only outstanding issue in respect of which DHHS was not yet satisfied was the flooring at the ICF premises.[178]

87 On 28 March 2019 Dr Sutton revoked the Order and Varied Order pursuant to s 19(6) of the Act ('Instrument of Revocation').[179]

88 ICF's primary cause of action is misfeasance in public office. In addition, it seeks a declaration that the Order and the Varied Order were invalid. There are four elements of the cause of action of misfeasance in public office:

(i) The defendant is a public officer or holder of public office;

(ii) The public officer has engaged in conduct either by way of act or omission that was invalid, unauthorised or beyond power;[180]

(iii) The defendant's conduct occurred in the exercise, or purported exercise of their public duties;[181]

(iv) The defendant engaged in the impugned conduct either in the knowledge that the conduct was beyond power or was recklessly indifferent as to the validity of their conduct.[182]

(i) That Dr Sutton was the holder of a public office when he made the Order; and

(ii) That the Order was made in the exercise of Dr Sutton's public duties as Acting Chief Health Officer.

Further, DHHS accepts that if the cause of action in misfeasance in public office is made out, it is vicariously liable for Dr Sutton's commission of the tort. As to the fourth element of the tort, ICF does not contend that when Dr Sutton made the Order he knew that the Order was invalid by reason of being beyond power. Rather, ICF contends that the fourth element is satisfied because Dr Sutton was recklessly indifferent as to the validity of the Order.

I. Was the Order invalid because:

a. Dr Sutton issued the Order without having received the report of an authorised officer; and/or

b. Dr Sutton could not have been satisfied that the food prepared, sold or otherwise handled at ICF's premises was unsafe or unsuitable?

II. Was the Order invalid because it was made in breach of the rules of natural justice?

III. Were the Order and Varied Order invalid because:

a. On 19 February 2019 Ms Garlick exercised the same power under s 19(2) of the Act in issuing the Clean Order; or

b. Dr Sutton asked himself the wrong question prior to making the Order?

IV. If the Order and/or the Varied Order were invalid on one or more of the grounds in (I) to (III):

a. Was Dr Sutton recklessly indifferent as to the invalidity of the Order?

b. If so, did the invalid exercise of power cause loss and damage to ICF?

V. If the Order was invalid, but Dr Sutton was not recklessly indifferent as to its invalidity with the consequence that ICF's claim for misfeasance in public office fails, is ICF entitled to a declaration that the Order was invalid?

91 The first issue to be addressed is whether the Order was invalid. If ICF establishes that the Order was invalid it is then necessary to address the question of whether Dr Sutton was recklessly indifferent as to the invalidity of the Order. If the Order was invalid but ICF fails to establish that Dr Sutton was recklessly indifferent as to the invalidity of the Order, it will be necessary to address ICF's claim for a declaration that the Order was invalid.

92 On 26 July 2023, the Court made orders pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 that the question of liability be determined separately from the question of quantum. The present judgment concerns only the question of liability.

Was the Order invalid because it was made before Dr Sutton received a report of an authorised officer?

93 A pre-condition to the valid exercise of the power conferred by s 19 is that the relevant authority be satisfied of one or more of the matters prescribed in s 19(1)(a)-(c) 'from the report of an authorised officer'. It is common ground that in accordance with s 37 of the Interpretation of Legislation Act 1984 the singular reference to 'report' in s 19(1) includes 'reports'.[183] It is also common ground that for the purposes of s 19 the report of an authorised officer may be written or oral and does not have to be contained in a formal document.[184]

94 The Order was made at approximately 10.00pm on 21 February 2019. Dr Sutton gave evidence that when he made the Order his satisfaction that food being prepared at ICF's premises was unsafe was not based on a single document from a single authorised officer.[185] Rather, it was based on 'the entire collection of information provided by authorised officers in the Department'.[186] He gave evidence that during the IMT meeting between 1.30pm to 2.30pm on 21 February 2019, everyone in attendance formed the view that s 19(1)(b) was the appropriate section to underpin the Order because it related to unsafe or unsuitable food and 'it was becoming evident to us that an individual in hospital became seriously unwell as a consequence of eating food that was contaminated with listeria and from the I Cook Foods kitchen'.[187] This was a unanimous view of the IMT members including Dr Sutton.[188]

95 ICF submits that the Court should place no weight upon the evidence set out above. ICF submits that DHHS is bound by its response to pre-trial discovery orders made by Daly AsJ on 17 February 2020 which required it to produce 'the report' of an officer of the Department's food safety unit referred to in the first paragraph of the Order. In response to her Honour's order, DHHS produced the 8.21pm email to Dr Sutton from Dr Romanes. A covering letter from DHHS' solicitors confirmed that the 8.21pm email was the only document responsive to the pre-trial discovery order.[189]

96 Upon receipt of the correspondence from DHHS' solicitors attaching the 8.21pm email, ICF was entitled to assume that the sole report of an authorised officer provided to Dr Sutton prior to the making of the Order was the 8.21pm email of Dr Romanes. However, ICF was not justified in maintaining this assumption once it received the defence to the further amended statement of claim on 16 December 2022. Paragraph 28 of the defence pleads that 'the information contained in the 8.21pm email did not satisfy Dr Sutton that food being prepared, sold or otherwise handled at the plaintiff's premises was unsafe or unsatisfactory'. Further, subparagraphs 13(q)-(r) of the defence plead:

13. It admits the allegations made in paragraph 13 and says further that:

...

q. On 21 February 2020 [sic], authorized officers further reported to Dr Sutton the history of the investigation into the positive results and the plaintiff's premises

Particulars

The first defendant refers to the following:

I. oral communications at an "Incident Management Team: listeria-related food recall" meeting chaired by Dr Finn Romanes and commencing at approximately 1:30pm on 21 February 2019;

II. an email at 5.27pm on 21 February 2019;

III. an email at 8.21pm on 21 February 2019.

The emails are in the possession of the first defendant's solicitors and can be inspected by appointment

r. On 21 February 2019, as a result of the information reported to him by authorized officers relevant to the investigation into the food eaten by the deceased patient, the two sets of positive results from samples taken at the plaintiff's premises, the condition of the plaintiff's premises and its food safety practices and the general vulnerability of the community members being served by the plaintiff, Dr Sutton was satisfied that food being prepared, sold or otherwise handled at the plaintiff's premises was unsafe or unsuitable.

97 The defence to the further amended statement of claim placed ICF squarely on notice that DHHS would contend at trial that the 8.21pm email was not the only report of an authorised officer received by Dr Sutton prior to the making of the Order. Further, the question of what reports of authorised officers were received by Dr Sutton prior to making the Order is primarily a question of fact to be determined on the basis of evidence admitted at trial.

98 Dr Sutton's evidence that he was satisfied on the basis of multiple reports from multiple authorised officers that food produced at the ICF premises was unsafe was admitted into evidence without objection. It is legitimate for ICF to submit that the weight to be attributed to Dr Sutton's evidence should be diminished because of the prior inconsistent statement of DHHS' solicitor that the 8.21pm email was the only document responsive to the pre-trial discovery order of Daly AsJ. However, there is no basis for disregarding the evidence of Dr Sutton because it is inconsistent with the correspondence of DHHS' solicitors which attached the 8.21pm email.

99 The issue for determination is whether the evidence supports a finding that the Order was invalid because it was made before Dr Sutton had received a report of an authorised officer. ICF submits that the Court should conclude that Dr Sutton had made up his mind by 1.00pm on 21 February 2019 (prior to the commencement of the IMT at 1.30pm) that the food being prepared at ICF's premises was unsafe. ICF submits that there is no evidence to support a finding that Dr Sutton had received any reports from any authorised officers prior to 1.00pm on 21 February 2019 which could have satisfied him that food being prepared at ICF's premises was unsafe. ICF submits that as Dr Sutton was satisfied that food being produced at ICF's premises was unsafe without having the benefit of a report from an authorised officer, the Order which he subsequently made was invalid.

100 ICF's submission that Dr Sutton had made up his mind by 1.00pm on 21 February 2019 that food being prepared by ICF at its premises was unsafe is based primarily upon an email which Dr Sutton sent to Ms Skilbeck at 1.01pm on 21 February 2019:

Please see below for an issue with a food manufacturer in Dandenong Council. As a result of this information and in discussions with Food Safety and CD Section, I've ordered production at the icook kitchen in Dandenong to cease immediately. We are developing communications for services and for recipients of food, in particular Meals on Wheels, where consumption of potentially contaminated food may have been ongoing for some weeks and where immediate alternative MOW supply arrangements need to be made.

Please call me if you need further detail, but hopefully we'll have an update and Sit Rep today.[190]

101 Prior to sending the email to Ms Skilbeck, Dr Sutton had received an email from Dr Canil at 12.41pm which contained the draft of an email to Dandenong Council requesting the council to consider making an order under s 19 of the Act.

Hi chaps, are you comfortable with these words ....

Dear Leanne

The Acting Chief Health Officer, Dr Brett Sutton, has considered information about the detection of Listeria moncytogenes [sic] in 6 of 7 food samples taken from the food premises icook, concerns raised by Council following its inspection of the premises and the clean down that occurred last evening. On the basis of that information, the Acting Chief Health [sic] has requested that Council consider ordering the premises, under section 19 of the Food Act, to cease all further production for today, 21 February 2019.

This recommendation is based on the Council findings that the food premises were not, prior to clean down, in a clean or sanitary state and that until results of further testing of premises and foods are available, the Acting Chief Health Officer cannot be assured that the premises are in a state that is suitable for food production.

Further advice will be sought from you in relation to distribution, food types distributed, sampling regime and sampling results to inform the Acting Chief Health Officer's further decision about this issue including his recommendation in relation to the recommencement of production.[191]

At 1:05pm Dr Sutton approved of the above wording and asked for the email to be sent.[192] At 2:45pm Dr Canil emailed Ms Johnson the above, in addition stating:

I would be grateful for your confirmation of receipt of this email and confirmation that Council has issued the section 19 Order, as soon as possible[193]

102 It is clear that, contrary to the statement in Dr Sutton's email to Ms Skilbeck at 1.01pm, Dr Sutton had not ordered production at ICF to cease immediately as at 1.00pm on 21 February 2019. I accept Dr Sutton's evidence that he did not turn his mind to the making of an Order in his own right until approximately 9.15pm on 21 February 2019 when he was advised by the CEO of Dandenong Council that the CEO was not willing to make an order because of a perceived conflict of interest arising from the fact that he was a director of a company which competed with ICF.

103 Dr Sutton gave the following evidence regarding his email to Ms Skilbeck:

... I don't know why I have used those words. Clearly I hadn't ordered production at the kitchen to close and we're in the process of having council draft an order.

You haven't signed an order at that stage but you had in fact formed your view that it had to be closed?---I hadn't ordered production to close and I hadn't drafted an order.

Orally or in writing?---Sorry?

Either verbally or in writing?---Neither.

So that's just false, is it?---That's correct.

Can you explain why you have made a false statement to your boss?---I don't know why I used those specific words, no.

HIS HONOUR: On one view of it, it is a shorthand way of you saying that you had made a recommendation to the council that the council issue the order, isn't that what you're referring to?---Yes, yes, it's a clumsy way to express it though.

So it's a shorthand, presumably when you made the recommendation to the council presumably you anticipated that your recommendation would be complied with and the order would be made by the council?---Yes, I had made that assumption at the time, yes.

So you agree that is a fair reading of your statement, 'I have ordered production at I Cook kitchen to cease immediately' is a reference to you having made a recommendation to the council to make such an order?---Or at least forming the view that the email should be sent, yes.[194]

104 Dr Sutton's email to Ms Skilbeck was sent immediately prior to his approval of the terms of an email to be sent to Dandenong Council requesting the council to consider making a Order under s 19. The statement in Dr Sutton's email to Ms Skilbeck that he had ordered production at ICF to cease immediately is a reference to his recommendation that Dandenong Council make an order to cease production.

105 Dr Sutton did not make the Order until 10.00pm on 21 February 2019. By that time he had received oral reports from several authorised officers who attended the IMT meeting between 1.30pm and 2.30pm. He had also received a lengthy email at 8.21pm from Dr Romanes, which included a detailed summary of the matters which had been discussed at the IMT meeting earlier that day.[195] Mr Clarke's submission is an invitation to the Court to disregard the reports received by Dr Sutton during the IMT meeting as well as the email of 8.21pm from Dr Romanes. This is an artificial and misconceived approach to the construction of s 19. The question of construction is as follows: When Dr Sutton made the Order at 10.00pm on 21 February 2019 was he satisfied from the report(s) of an authorised officer(s) that food being prepared at ICF's premises was unsafe?

106 When Dr Sutton made the Order he had received multiple oral reports from authorised officers during the IMT, as well as a detailed written report in Dr Romanes' email of 8.21pm. In effect, Mr Clarke submits that the email exchange with Ms Skilbeck at 1.01pm on 21 February 2019 forecloses any consideration of reports from authorised officers received by Dr Sutton during the following nine hours leading up to the making of the Order at 10.00pm. I reject this submission.

107 I reject ICF's contention that the Order was invalid because Dr Sutton had decided to make the Order without having received any report of an authorised officer. I accept Dr Sutton's evidence that prior to making the Order at 10.00pm on 21 February 2019 he had received multiple reports from authorised officers during the IMT which provided the basis of his satisfaction that food being produced at ICF's premises was unsafe.

Was the Order/Varied Order invalid because when these orders were made there was an extant order made by Ms Garlick on 19 February 2019?

108 On 19 February 2019 Ms Elizabeth Garlick, an environmental health officer employed by Dandenong Council, issued an order under s 19(1) and (2) of the Act. The preamble to the order is as follows:

I, Elizabeth Garlick, being an authorised officer and delegate of the City of Greater Dandenong Council, am satisfied from my report date 18 February 2018 that the food premises situated at 2/12 Zenith Road, Dandenong South 3175, known as I Cook Foods Pty Ltd, is in an unclean and unsanitary condition and is in a state of disrepair.

109 The order set out 37 items of corrective action to be taken by ICF within the period 19 February 2019 to 1 July 2019 ('clean up order').

110 When Ms Garlick made the clean up order Dandenong Council was the council of municipal district in which ICF's premises was located. As such, the Council was the registration authority for ICF's premises.[196] As a delegate of Dandenong Council Ms Garlick was a relevant authority as defined in s 19(9) of the Act. Neither party put in issue the validity of Ms Garlick's clean up order.

111 The jurisdictional fact underpinning the clean up order was Ms Garlick's satisfaction of the matters prescribed by s 19(1)(a), namely, satisfaction that ICF's premises was in an unclean and unsanitary condition and in a state of disrepair.

112 In its written closing submissions ICF contends that Dr Sutton could not make a valid order under s 19(2) whilst the clean up order was extant. It advances two alternative arguments in support of this contention. First, that in circumstances where an order had been made on 19 February 2019 by Ms Garlick as 'the relevant authority', Dr Sutton had no jurisdiction to constitute himself as 'the relevant authority' for the purposes of making a s 19(2) order. Second, if Dr Sutton did have the power to constitute himself as the relevant authority, he had no power to make the Order because the relevant authority (Ms Garlick) was functus officio.

Section 19 Creates "the Relevant Authority" as a Separate Statutory Office and Decision-Making Body

115. A proper construction of section 19 of the Food Act 1984 leads to the following conclusions as to the general effect and operation of that statutory provision with respect to the creation of a separate statutory office:

(a) Section 19 creates the statutory office of "the relevant authority" by naming it in those terms. Key considerations that lead to this conclusion include the following:

(i) Parliament chose to use the grammatical determiner "the" (definite article) to preface the words "relevant authority", which connotes particularity of the office, rather than the grammatical determiner "a" (indefinite article) which might otherwise have indicated that no separate office was intended to be created.

(ii) Parliament defined "the relevant authority" in subsection 19(9).

(b) Section 19(2) reposes specified powers in the office of "the relevant authority".

(c) Section 19(9), when read with section 40 of the Interpretation of Legislation Act 1984 (Vic), provides that the office of "the relevant authority" may, in relation to any particular "occasion" on which the power under s.19(2) is capable of being exercised "for the time being", be constituted by "any one" (and only one) of five other statutory offices (for present purposes, only the offices of "the Secretary" and "the council" are relevant).

(d) By necessary implication:

(i) There is only one office of "the relevant authority" in relation to a particular "occasion".

(ii) Only one of the five eligible statutory office holders referred to in subsection 19(9) can constitute "the relevant authority" in relation to a particular "occasion", and remains "the relevant authority" "for the time being" while the power under section 19 is deployed and remains operative.

(iii) There cannot, in relation to any particular "occasion", be two relevant authorities because Parliament created only one "relevant authority".

(iv) Nor can there be two or more eligible statutory office holders constituting "the relevant authority", exercising power under section 19 "for the time being" in relation to the same "occasion" cause Parliament made it clear that only "one" such eligible office holder can constitute the "the relevant authority" under subsection 19(9).

116. Accordingly, "the relevant authority" is to be treated as a statutory decision-making office, in the same way that "the court" or "the tribunal" is to be treated as a decision-making office under other legislation, for the purpose of the application of principles of administrative law.

...

Dr Sutton Had No Power to Be "the Relevant Authority"

121. In making his section 19(2) decision, Dr Sutton may have believed that, as a delegate of the Secretary, he had jurisdiction exercise power as "the relevant authority" in relation to the plaintiff and its food premises. However, at the time he purported to exercise that power:

(a) The council had already validly exercised that power in relation to:

(i) the same food premises;

(ii) the same proprietor of the food premises; and

(iii) the same occasion and state of affairs in relation to which the power under section 19(2) was capable of being exercised.

(b) Accordingly, the council constituted and remained "the relevant authority" for the purposes of the particular occasion on which the section 19(2) power was exercised.

(c) By the terms of the council's section 19(2) order, the order remained effective and operative.

(d) The plaintiff was bound to comply with the council's section 19(2) order.

(e) The council continued to exercise its function as "the relevant authority" by monitoring the plaintiff's compliance with its section 19(2) order.

(f) The council had not revoked its order either:

(i) in accordance with subsection 19(6); or

(ii) section 41A of the Interpretation of Legislation Act 1984.

(g) The occasion on which the council constituted "the relevant authority" had not come to an end.

(h) The council had no power to deconstitute itself as "the relevant authority".

(i) Dr Sutton had no power to reconstitute himself as "the relevant authority".

(j) By the terms of Dr Sutton's section 19(2) order, the matters raised in it, which were directed to be addressed by the Plaintiff, covered the same ground as the council's section 19(2) order. The subject matter of Dr Sutton's as not ancillary, severable and distinct from the subject of the council's section 19(2) order.

(k) The Plaintiff did not induce, acquiesce in or waive the irregularity of Dr Sutton's attempt at constituting himself as "the relevant authority" (on the contrary, the Plaintiff appealed his purported decision).

(l) Dr Sutton's attempt to constitute himself as "the relevant authority" was procedurally not appropriate.

122. Accordingly, Dr Sutton had no jurisdiction to issue his section 19(2) order because he was not "the relevant authority". His purported decision under section 19(2) was a nullity.[197]

114 I reject ICF's contention that, by reason of the Council having validly made an order under s 19(2) on 19 February 2019, Dr Sutton had no jurisdiction to make the Order on 21 February 2019 because he was not the relevant authority. The premise of ICF's submission is that prior to 21 February 2019 Ms Garlick had already validly exercised the power under s 19(2) in relation to 'the same occasion and state of affairs'. This submission would have some force if the jurisdictional fact underpinning Ms Garlick's order was her satisfaction that the food being prepared at ICF's premises was unsafe or unsuitable. However, Ms Garlick's order was based on her satisfaction that ICF's premises was in an unclean, unsanitary condition and a state of disrepair. This was not the same occasion and state of affairs which underpinned the exercise of the s 19(2) power by Dr Sutton.

115 If the making of an order under s 19(2) by one of the relevant authorities listed in s 19(9) on the basis of a jurisdictional fact prescribed in s 19(1)(a) prevented another relevant authority from making an order under s 19(2) on the basis of different jurisdictional facts under s 19(1)(b) or (c), this would be contrary to the object in s 3(a) of the Act of ensuring food for sale is both safe and suitable for human consumption. A construction which promotes the object of the Act is to be preferred to one that would not.[198]

116 I accept Dr Sutton's evidence that he was advised by the Chief Executive Officer of Dandenong Council at approximately 9.15pm on 21 February 2019 that the CEO would not issue an order under s 19(2) because of a perceived conflict of interest arising from his membership of the Board of a company competing with ICF. If ICF's construction of s 19 is accepted, Dr Sutton had no power to make the Order notwithstanding his belief that food being produced at ICF's premises was likely to cause harm to persons who consumed the food.

117 Section 19(2)(b) is the source of power to order that 'specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable'. If ICF's construction of s 19 is accepted a relevant authority would be excluded from exercising the powers conferred by s 19(2)(b) if a clean up order had previously been made under s 19(2)(a). This outcome would be contrary to the object in s 3(a) of the Act.

118 When Dr Sutton made the Order at 10.00pm on 21 February 2019 he had been provided with multiple reports from authorised officers which provided the basis for his satisfaction that food being produced at ICF's premises was unsafe. The reports included advice concerning the results of testing of food samples taken from ICF's premises received by the Department of Health on 21 February 2019.[199] The details of these reports had not been provided to Dandenong Council prior to Dr Sutton making the Order at 10.00pm on 21 February 2019. It would be anomalous and inconsistent with the object of the Act if Dr Sutton was precluded from making an order intended to protect members of the public from consuming unsafe food by reason of Ms Garlick having previously made a clean up order on 19 February 2019.

119 In the alternative, ICF submits that Dr Sutton did not have the power to make the Order because he was functus officio:

123. In the alternative, it is contended that even if Dr Sutton did have jurisdiction to assume the office of "the relevant authority" (reconstituted), he had no power to make a second decision under section 19(2) given that:

(a) "the relevant authority" (as constituted by the Council) was functus officio in that a decision under section 19(2) had already been made in relation to the "occasion" that presented itself for the valid exercise of power under that provision;

(b) the "relevant authority" remained the "the [same] relevant authority" in relation to that "occasion" when reconstituted by Dr Sutton...[200]

120 This contention is plainly untenable. It is underpinned by the erroneous proposition that a 'decision under s 19(2) had already been made in relation to the 'occasion' that presented itself for the valid exercise of power under that provision'. The 'occasion' for the clean up order was Ms Garlick's satisfaction that ICF's premises were in an unclean and unsanitary condition. The 'occasion' for the Order was Dr Sutton's satisfaction that food being prepared at ICF's premises was unsafe. I reject ICF's contention that once Ms Garlick made the clean up order, the s 19(2) power was 'spent'. The clean up order made by Ms Garlick was underpinned by a different jurisdictional fact (s 19(1)(a)) compared to the Order (s 19(1)(b)). The clean up order involved the exercise of power under s 19(2)(a) whereas the Order involved the exercise of power under s 19(2)(b) and (3).

Was the Order invalid because Dr Sutton asked himself the wrong question?

121 The Order records that Dr Sutton was satisfied from the report of an authorised officer that 'in relation to food premises at I Cook Foods', food being prepared, sold or otherwise handled at this food premises is unsafe or unsuitable'. ICF accepts that the Order records that Dr Sutton addressed the requisite question under s 19(1)(b). However, it submits that the Order is not a reliable, accurate and complete record for the purpose of ascertaining what questions Dr Sutton actually asked himself when exercising the power conferred by s 19(2).[201] ICF places considerable weight upon public statements made by Dr Sutton during a press conference on 22 February 2019. Dr Sutton made the following statement before responding to questions:

Good Afternoon, Brett Sutton acting chief health officer for Victoria.

You may be aware that overnight I ordered the closure of a food premises in Dandenong South - that's a food premises that is called I Cook Foods. The reason for the closure is because we are investigating a case of listeriosis or listeria infection that occurred in a woman in her 80s who subsequently died in early February.

In the course of investigating that illness, we understand that she has consumed a number of high-risk foods, they were investigated in the community but they have also been traced back potentially to I Cook Foods in Dandenong South.

And in the course of looking into the food produced there, there have been a number of positive samples that have turned up in the kitchen, that haven't been linked directly to the unfortunate case who's died but that's still under investigation so I have acted out of abundance of precaution really in closing it. I understand that it has been in... deeply disruptive to meals on wheels, age care facilities and a number of private hospitals in the eastern suburbs and in the south-east. But I have acted because I want to have absolute assurance that no contaminated food would be supplied to these places which, after all, have a number of vulnerable individuals who are there. There are also a couple of outlets but I am not concerned that they pose a risk to the general public because they have foods that are normally cooked and therefore will kill the listeria bacteria.

The reason for strong action when listeria has been identified is because it can be a very serious illness, as many as a third of people who get infection can die, it can cause blood poisoning or septicaemia or meningitis and it finds its place in food contamination to[o] easily so it needs a thorough clean and a thorough review processes when it is identified in kitchens and in this case because it was a production facility for so many potentially vulnerable people, we have stopped production overnight.

We hope that review and retesting and improvements to processes can occur so that they can open at the very earliest but we know that Councils need to have contingency plans in place to have alternative suppliers for meals on wheels, the same applies for hospitals or age care facilities, that they need to find alternative food producers so that they can keep their services and programs running.

My heart goes out to the family of this woman who has died, she was in her 80s, that in itself is a risk and really it's a lesson that anyone who is elderly, immunosuppressed or indeed pregnant women are in particular risk of invasive listeria disease and some of the high risk foods include soft cheeses, hams and other sliced meats, or even fruits, you would have heard of rock-melon outbreak where it was identified with listeria as the cause of multiple illnesses. So really for those of us who are healthy and well and young, it's almost always not an issue but for those risk groups it can cause very serious illness.[202]

122 ICF submits that Dr Sutton's statement discloses the following reasons for exercising the s 19(2) power:

149. Moreover, on 22 February 2019, less than 24 hours after he had made the section 19(2) order, Dr Sutton decided to make a public announcement about his reasons for making the order. Dr Sutton stated that the reasons for exercising the section 19(2) power were:

(a) he was investigating a case of Listeriosis or Listeria infection in a woman in her 80s who died in early February;

(b) the woman consumed a number of high risk foods;

(c) those foods were traced back to potentially iCook Foods in Dandenong South;

(d) there are a number of positive samples taken from food produced there that haven't been linked directly to the case of the woman who died, but it's still under investigation;

(e) he had acted out of "an abundance of caution" in making the closure order;

(f) he had acted because he wanted to have "an absolute assurance that no contaminated food will be supplied" to certain food delivering services, aged care facilities and private hospitals.

150. In making that public statement, Dr Sutton admitted to having asked himself the following questions prior to making the section 19(2) order:

(a) "Did food sourced from iCook Foods cause the death of the woman in her 80s?" (Question 1)

(b) "Have tests of food samples taken from iCook Foods returned positive results for Listeriosis?" (Question 2)

(c) "Do I need to exercise my power under section 19(2) and close iCook Foods out of an abundance of caution?" (Question 3)

(d) "Do I need to be absolutely assured that no contaminated food will be supplied by iCook before I exercise my power under s.19(2)?" (Question 4)

[Questions 3 and 4] combined to create a much lower state of satisfaction than the language of s 19(2) demanded in order for the power to be validly exercised. In that regard:

(a) Question 3 implicitly introduces a low risk threshold test with the words "out of an abundance of caution" that is not reflective of the standard of proof required in the words "is unsafe or unsuitable" as contained in the Correction Question.

(b) Question 4 implicitly places a burden on the proprietor of the food premises to prove to the level of "absolute assurance" that it will not supply any contaminated food in the future, in circumstances where:

(i) Section 19(2) imposes no such burden;

(ii) The stated standard of proof, "absolutely assured" is unknown to the law, and would appear to represent an even higher standard of proof of "beyond reasonable doubt" which is only known to the criminal law;

(iii) It would be impossible for any proprietor of any food premises to discharge that burden as Dr Sutton defined it.[203]

124 I reject ICF's contention that the Order was invalid by reason of Dr Sutton having failed to address the question required by s 19(1)(b), namely whether the food being prepared at ICF's premises was unsafe or unsuitable. First, the Order records that Dr Sutton did address the requisite question under s 19(1)(b). Second, I accept Dr Sutton's evidence that prior to making the Order at 10.00pm he had read through a draft of the Order line by line,[204] had read s 19 and understood the meaning of the words 'unsafe or unsuitable'[205] and had formed the view that food being prepared at ICF's premises was unsafe.[206] Third, the statements made by Dr Sutton which ICF identifies as questions 3 and 4 did not evidence Dr Sutton 'abandoning his statutory obligation to be satisfied that food was unsafe or unsuitable'.

125 The statement that Dr Sutton acted out of 'an abundance of precaution' is not incompatible with Dr Sutton having been satisfied that food prepared at ICF's premises was unsafe. The statement was made in the context of Dr Sutton having referred to the death of a woman in her 80s which was subject to ongoing investigation. The statement 'I want to have absolute assurance that no contaminated food would be supplied to these places' is a reference to the Order preventing the supply of food by ICF to aged care facilities and private hospitals 'which after all have a number of vulnerable individuals who are there.' The statement is consistent with Dr Sutton having formed the requisite satisfaction that food prepared at ICF's premises was unsafe.

126 In effect, based on the statements made by Dr Sutton at a press conference on 22 February 2019, ICF invites the Court to not accept Dr Sutton's evidence that he was satisfied that the food being prepared at ICF's premises was unsafe. I reject ICF's submission that the statements made by Dr Sutton during the press conference warrants the rejection of his evidence that he was satisfied that the food produced at ICF's premises was unsafe.

Was Dr Sutton's state of satisfaction unreasonable?

127 ICF submits that Dr Sutton could not have been satisfied from the report of an authorized officer that food prepared, sold or otherwise handled at ICF's premises was unsafe or unsuitable.[207] It refers to the following matters:

• That the reports received by Dr Sutton did not provide an enumeration of the listeria monocytogenes in the 1 February 2019 samples;
• That the reports relied upon observations in respect of ICF's premises made by officers of Dandenong Council;
• That DHHS knew that Dandenong Council was in a position of conflict with respect to ICF.[208]

128 As developed during the course of submissions, ICF raises a number of further matters bearing upon the reasonableness of Dr Sutton's state of satisfaction. ICF submits that Dr Sutton could not reasonably have reached the requisite state of satisfaction in the absence of laboratory results in respect of the genotype of the listeria monocytogenes in the 1 February 2019 samples.[209] Further, it submits that Dr Sutton could not reasonably have reached the requisite state of satisfaction in circumstances where cleaning of the ICF premises had been undertaken between 19 and 21 February 2019 pursuant to the Clean Order.[210]

129 ICF submits that in light of these matters - the absence of enumeration, reliance on observations of officers of Dandenong Council, the position of conflict between Dandenong Council and ICF, the absence of genotype results and cleaning conducted at ICF premises - Dr Sutton could not reasonably have been satisfied that food prepared, sold or otherwise handled at ICF's premises was unsafe, and that the Order was invalid.[211]

130 This ground of challenge to the Order does not permit the Court to undertake a review of the merits of the decision and substitute its own view for that of Dr Sutton. The question for determination is whether Dr Sutton's satisfaction that food being prepared at ICF's premises was unsafe was legally unreasonable. When addressing this question assistance can be derived from judgments which have considered statutory regimes under which the power to make orders is enlivened by a decision-maker's satisfaction of prescribed matters.

131 In Hossain v Minister for Immigration and Border Protection,[212] s 65 of the Migration Act 1958 (Cth) imposed a duty on the Minister to grant or refuse a visa depending on the existence of one or other of two mutually exclusive jurisdictional facts (the Minister's satisfaction of matters set out in s 65(1)(a), or the Minister's non-satisfaction of one or more of those matters).[213] Kiefel CJ, Gageler and Keane JJ stated:

Formation of the Minister's state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Migration Act and the Migration Regulations for the visa in question.[214]

132 Their Honours cited with approval Minister for Immigration and Multicultural Affairs v Eshetu, which concerned the same provisions of the Migration Act 1958 (Cth).[215] Gummow J stated:

The "jurisdictional fact", upon the presence of which jurisdiction is conditioned, need not be a "fact" in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase "jurisdictional fact" is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were "satisfied" that the prosecutor answered the description in s 36(2).

... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.[216]

133 In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[217] s 133C(3) of the Migration Act 1958 (Cth) empowered the Minister to cancel a visa if the Minister was satisfied that a ground for cancelling the visa under s 116 existed. The Minister's delegate purportedly cancelled Mr Djokovic's visa under s 116(1)(e)(i) of the Migration Act 1958 (Cth) on the basis that the Minister was satisfied that the presence of Mr Djokovic in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Allsop CJ, Besanko and O'Callaghan JJ stated:

The state of "satisfaction"

Thus it is not the fact of Mr Djokovic being a risk to the health, safety or good order of the Australian community; rather it is whether the Minister was satisfied that his presence is or may be or would or might be such a risk for the purposes of s 116(1)(e)(i), through s 133C(3).

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion...

The expression of the requirements of lawful satisfaction have been set out in a number of High Court cases beyond which it is unnecessary to go...

Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.

Chief Justice Latham in R v Connell approached the matter as presenting the question: "whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous".

Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must "act in good faith; [he or she] cannot act merely arbitrarily or capriciously" and "where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached".

Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker "must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere".

Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at [137]:

.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.[218]

134 The Order records that Dr Sutton directed his mind to s 19(1)(b) and was 'satisfied from the report of an authorized officer that... food being prepared, sold or otherwise handled at a food premises ... is unsafe or unsuitable.' It is not the fact of food being prepared, sold or otherwise handled at a food premises being unsafe or unsuitable which is a jurisdictional precondition to the exercise of the powers under s 19(2) and (3). Rather, it is Dr Sutton's satisfaction of that state of affairs.

135 In Minister for Immigration and Citizenship v SZMDS,[219] the High Court considered a challenge to the reasonableness or rationality of a finding of jurisdictional fact. Crennan and Bell JJ stated:

In the context of the tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion...

However, the correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it...

On the probative evidence before the tribunal, a logical or rational decision maker could have come to the same conclusion as the tribunal. While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[220]

136 In Minister for Immigration and Border Protection v SZVFW,[221] Nettle and Gordon JJ (with whom Kiefel CJ agreed) stated:

The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.

Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'".[222]

137 In Plaintiff S183/2021 v Minister for Home Affairs,[223] Gordon J applied the above statements from SZMDS and SZVFW in the context of a challenge to the reasonableness of a decision-maker's state of satisfaction:

It may be accepted that the Migration Act does not impose an obligation on a decision-maker to give reasons for exercising the discretion conferred by s 622. Nonetheless, it was common ground that the power must be exercised reasonably.

The principles are well established and may be stated shortly. "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker" (emphasis in original). That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process...

As stated above, unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage" and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) "if there is no logical connection between the evidence and the inferences or conclusions drawn".[224]

138 Whether Dr Sutton's satisfaction was unreasonable turns upon whether it was open to him to engage in the process of reasoning which he did, and whether there was a logical connection between the material available to him and his satisfaction that the food being prepared at ICF's premises was unsafe. Before addressing this question, it is necessary to set out the evidence concerning enumeration, reliance on Dandenong Council officers, genotype results and cleaning at some length.

139 When the Order was made on 21 February 2019, DHHS had not received enumeration results quantifying the concentration of listeria monocytogenes in the positive food samples.[225] DHHS received the enumeration results from MDU/PHL on 28 February 2019.[226]

140 Dr Sutton gave the following evidence concerning enumeration:

Are you able to tell His Honour why you were satisfied in the term stated in the order that you signed, notwithstanding the absence of those enumeration results?---That we had multiple pieces of evidence and a line of causation between the deceased case in hospital and her sample with a particular - obviously Listeria monocytogenes with a particular binary type and a particular molecular serotype linked to multiple samples across numerous food types in I Cook Foods' kitchen of the same binary type, of the same molecular serotype and it was incontrovertible that that hospitalised case had developed invasive Listeria. So by virtue of that and the combination of the same characterisation of the Listeria mono, and the food history that indicated to me very significant probability that the case consumed food from I Cook Foods' kitchen, and maybe exclusively from I Cook Foods in terms of ready to eat foods. So the enumeration was not the relevant element here because we had a case who had developed invasive Listeriosis that was linked to the kitchen by the epidemiological investigation and by the characterisation of the bacteria, and supported in terms of the plausibility of Listeria being present in multiple foods at I Cook Foods' kitchen from council's reflections on all of the matters that they found on the occasion when they went to I Cook's kitchen for the clean.[227]

141 Dr Sutton stated that '[e]numeration is an important feature, it is not the determinant of whether food is dangerous or not.'[228] There was the following exchange between myself and Dr Sutton:

But that seems to me that's Mr Clarke's point about why he's putting to you that in terms of the balance, the balance of the very significant risk to the business of I Cook Foods as against the public health risk, it is a very low risk given that fact that you haven't received any notifications during the six previous weeks. He's putting to you that against that background the reasonable thing to do was rather than take action which was going to almost inevitably have a very significant adverse effect on the business of I Cook Foods and its employees, that you wait till you get enumeration; that's what's being put to you. What's your response to that?---That enumeration in and of itself doesn't change the reality that a case is almost unequivocally linked to foods from that kitchen and that Listeria monocytogenes has been identified in multiple foods in that premises. And therefore there is very strong prima facie evidence of Listeria contamination that can cause illness in at risks populations. And that if food production were to continue over time, that there would be a number of other people who would get invasive Listeriosis and potentially die.[229]

142 It was put to Dr Sutton that prior to the IMT meeting a position had been adopted to wait for the enumeration results. Dr Sutton stated that there was no such position[230] and that '[w]e would have waited if there had not been a collective decision that I absolutely supported, to cease production on that Thursday.'[231] He stated that 'certainly at the IMT meeting with all of the information before us, including the binary type and the molecular serotype in particular being a match with the deceased's case, there was a view that we should not be waiting for other results.'[232]

143 In support of the contention that Dr Sutton could not reasonably have been satisfied that food being prepared at ICF's premises was unsafe, ICF points to the references to the desirability of having enumeration results in DHHS correspondence between 18 and 21 February 2019, as set out above.[233] It submits that the references to the enumeration results which DHHS expected to receive on 22 February 2019 supports a finding that Dr Sutton could not reasonably have been satisfied from the report of an authorised officer that the food being prepared, sold or otherwise handled at ICF's premises was unsafe or unsuitable.

144 ICF submits that it is necessary to obtain enumeration results in order to determine whether food samples comply with the Australia New Zealand Food Standards Code ('FS Code') Standard 1.6.1. The microbiological limits for listeria monocytogenes in ready-to-eat foods in which the growth of listeria monocytogenes will not occur is less than or equal to 100 cfu/g, and in ready-to-eat foods in which the growth of listeria monocytogenes can occur is zero.[234]

145 The relevance of the FS Code is limited by the fact that it applies only to certain food samples taken from the ICF premises. The FS Code sets microbiological limits for listeria monocytogenes only in ready-to-eat foods such as sandwiches.[235] Several of the food samples which tested positive for listeria monocytogenes were not ready-to-eat foods, but meal components: ham;[236] sliced silverside;[237] and sliced continental cucumber.[238] Food safety expert Mr Stone accepted that there is no relevant microbiological limit for listeria monocytogenes in such foods under the FS Code.[239]

146 Dr Sutton gave the following evidence concerning the FS Code:

In February 2019, Dr Sutton, were you aware of the existence of the Food Standards?---Yes.

Were you aware of the fact that under Standard 1.6.1 it was complied or permissible for a food premises to produce ready to eat food that did not support the growth of Listeria monocytogenes even if the test results for a sample of that food showed the presence of Listeria as long as it was below 100 colony forming units per gram?---Yes, I was aware of that.

And I want you to assume therefore that when you made the order on 21 February 2019, that it remained possible that the positive samples from I Cook Foods' premises, that the results from those samples might subsequently come through and show that the enumeration of those results in each instance was below 100 colony forming units per gram. Do you understand that assumption?---Yes, I was aware of the possibility that that could play out.

And aware of that possibility, why nevertheless were you satisfied in the terms stated in your order in the absence of awaiting such enumeration results?---Because the Food Standards Code applies to the enumeration in foods, all other things being equal. So really with the assumption that there are no major processing failures, unsafe or unsanitary conditions within a food premises, and that there isn't additional evidence that an individual has already become unwell by virtue of contaminated food being consumed.[240]

147 Dr Sutton stated that the thresholds set by the FS Code meant that '[i]f in and of itself the only consideration is the levels in food then it would not be considered unsafe or unsuitable',[241] but stated:

As you know s19 provides that food can be unsafe if I am satisfied or if an authority is satisfied that food is unsafe, and you can come to that conclusion through enumerated results alone, if it is above the threshold, but you can come to it through other intelligence or information... When you consider that the Food Act states that food is unsafe if it is likely to cause physical harm to an individual, I think it could be considered different because the Food Standards Code goes to the issue of thresholds as the sole source of that determination.[242]

148 Further, Dr Sutton gave evidence that listeriosis outbreaks could occur in circumstances where no food samples exceeded the microbiological limits set by the FS Code:

...when the limits are set at 100 colony forming units per gram, that is quite low, isn't it, compared to what level you have to reach to become ill?---Yes, that said there are outbreaks of Listeriosis that have occurred where there has never been detection above 100 colony forming units and still with outbreaks and deaths.

What, deaths with less than 100?---No - - -

Colony units per gram?---Well, the rock melon outbreak that you referred to earlier had seven deaths, I think, and a miscarriage and 22 cases, and no detections above 100 colony forming units.

You know that for a fact, do you?---I have read the report, yes.[243]

149 ICF tendered evidence of Mr Stone, a food safety expert. In a report dated 8 August 2023, Mr Stone addressed questions in respect of enumeration:

(c) Is it necessary or not necessary to await the enumeration results contained in bundle "B" before determining whether:

(i) the maximum tolerances have been exceeded;

The maximum tolerances referred to under Standard 1.6.1 of the Food Standards Code apply only to the RTE [ready-to-eat] food samples, specifically the sandwiches.

The standard refers to a maximum number of Listeria Mono CFU of 100 CFU/g.

It is necessary to have enumerated results in order to determine if the maximum tolerances have been exceeded. It is impossible to come to a conclusion without enumerated results.

(ii) the food sampled is safe or unsafe;

...

It is necessary to have enumerated results in order to determine if the food is considered safe or unsafe. It is impossible to come to a conclusion without enumerated results.

(iii) the food sampled is suitable or unsuitable?

...

It is necessary to have enumerated results in order to determine if the food is considered suitable or unsuitable. It is impossible to come to a conclusion without enumerated results.

(d) Is it possible to determine whether the sampled food is safe or unsafe without enumeration?

5.26 It is impossible to determine whether the sampled food is safe or unsafe (or suitable or unsuitable) without enumeration. The Standard 1.6.1 and Schedule 27 provide an exact numerical limit (100 CFU/g) for Listeria Mono in RTE Foods where the growth of Listeria Mono will not occur. As discussed in my previous report, levels below this limit are considered safe.[244]

150 Mr Stone accepts that his opinion of whether food is safe or suitable depends on whether it complies with Standard 1.6.1 of the FS Code.[245] As set out above, the FS Code concerns only ready-to-eat foods and not meal components. Mr Stone's evidence does not address the importance of awaiting enumeration in respect of foods other than ready-to-eat foods.

151 Mr Stone gave evidence that in circumstances where a council officer undertakes random sampling and testing of food from a food premises, or a business chose to submit a food sample for analysis, the objective of the sampling and testing is to determine whether the food samples are compliant with the FS Code.[246] He stated that this is the viewpoint he adopted in answering the questions set out above.[247] Mr Stone accepted that sampling and testing has a different objective in circumstances where a patient has been diagnosed with listeriosis and a relevant authority is seeking to compare the characteristics of listeria monocytogenes found in food samples with those causing the patient's illness.[248]

152 There was the following exchange in cross-examination:

I want you to assume a couple of further facts. I want you to assume now that the sampling and testing does first reveal the presence of Listeria monocytogenes in multiple samples from one food premises and one food premises alone. Do you understand that assumption?---Yes.

And I want you to assume a second matter, that multiple positive samples from that one food premises show some of the same characteristics of the particular species of Listeria monocytogenes that the patient has?---Some but not all?

Let's assume that of those known, it shows the same characteristics. Would you agree that with those two assumptions the particular enumeration of the positive samples would not be material?---I think it would be material in terms of knowing what to do with that organisation and how it should manage itself going forward. I think it is still quite important. I believe that - yes, you should enumerate the samples to make a decision of what to do with this particular operation and how to manage the situation going forward.

Let me accept that proposition for a moment, Mr Stone, and I want to ask you about a slightly different proposition. Would you agree that from the perspective of the relevant authority trying to identify the source of the Listeria bacteria that has caused the person to become ill, that for that authority the question of enumeration would not be material?---Well, I think it still would be because unless you're absolutely certain that it is the only place that that Listeria could have come from, and unless you're absolutely certain that it is an identical genotype of Listeria - and please be advised that genotypes of Listeria is not my area of expertise. But unless you have that information in place then I'm not sure what you have discovered. I mean, it is certainly a clue. Microbiology is an inexact science, and it is interesting to work in this field because we often look at, you know, the presence or no presence of the bacteria and we consider the enumerations in indices of 10 so, you know, less than 10, 10 to 100 to 1,000 to 10,000, small variations, it is an inexact science, microbiology. So from what you have described to me certainly I think they've established some good clues to be looking further, but I think enumeration is important to know as to what happens next.

By what happens next - - -?---One of the most important things... in terms of looking at microbiological data is historical evidence and trends over a period of time. And so a single result doesn't necessarily mean that you found the smoking gun. I think you need to consider historical evidence.

When as part of your answer you referred to you think it is material for the steps going forward, do I take it you mean it may impact upon the particular steps taken in the food premises relevant to correcting the existing problem?---That's correct...[249]

153 Mr Caleo submits that Mr Stone's evidence does not support a finding that, in circumstances where the listeria monocytogenes found in food samples shares characteristics with those causing the patient's illness, it is not possible to conclude that food is unsafe without enumerated results.[250] I accept this submission. Mr Stone's evidence was that enumeration results in respect of the samples taken from ICF's premises would have informed future corrective steps to manage listeria risk.[251] However, the evidence does not support a finding that absent enumeration results Dr Sutton could not have been satisfied that food being prepared at ICF's premises was unsafe.

154 ICF contends that it was not reasonable for Dr Sutton to arrive at the requisite state of satisfaction in circumstances where reports provided to him by authorised officers relied upon observations of the ICF premises made by officers of Dandenong Council, and DHHS knew that Dandenong Council was in a position of conflict with respect to ICF.[252] This contention was not developed in ICF's written or oral closing submissions. I accept Mr Caleo's submission that Dr Sutton relied upon information sourced not only from Dandenong Council officers but also records from Knox Private Hospital, the food history collected by DHHS officers and MDU/PHL laboratory results.[253] Further, although Dr Sutton stated that he was aware that the CEO of Dandenong Council declined to make a cease production order because he was the director of a competitor kitchen,[254] his unchallenged evidence was that he did not know the name or business activities of the relevant competitor at the time he made the Order.[255] I accept Mr Caleo's submission that, in light of this evidence and the absence of submissions to the contrary concerning the relevance of Dr Sutton's reliance in part on information from Dandenong Council Officers and the situation of conflict, these matters do not support ICF's challenge to the reasonableness of the Order.

155 Dr Sutton gave evidence that prior to the IMT meeting, he had been provided with information in respect of the binary type and serotype of the listeria monocytogenes found in food samples taken on 1 February 2019.[256] He stated that DHHS was still awaiting 'the full genomic analysis.'[257]

156 In cross-examination Dr Sutton was taken to an email from Dr Canil to himself at 11:35am on 21 February 2019:

Results of enumeration and water activity (important considerations in determining legislative compliance) and genotyping are expected by the end of the week. The genotype of the samples will confirm whether the sandwiches/manufacturing premises was the source of the illness.[258]

So you know samples have been taken?---Yes...

'Results of enumeration water activity is an important consideration in determining legislative compliance, and genotyping, are expected by the end of the week.' So the end of the week is the 22nd?---End of the working week or end of the calendar week?

Well, the 23rd then, is a Saturday, if MDU works on a Saturday, that was expected within the next couple of days but you weren't prepared to wait?---I didn't think we should wait, no.

And it says here in bold, 'The genotype of the samples', now, you understood this to be the gold standard genotyping sequencing, didn't you, the sequencing?---It is the best way to show the relationship of samples.

Anything prior to sequencing is fairly unreliable ---?---No, not unreliable, but it's not as ---

Nowhere near as accurate?---It's not as definitive as genotyping can be.

No. Nowhere near as accurate, are they, they are just markers?---No, they can be quite accurate and they have been used in order to show the relationship of food and human samples in many, many outbreaks.

Well, according to this you only had to wait one day, to the 22nd, or possibly two to the 23rd ---?---I think it took a week.

--- to get the geno sequencing?---In reality I think it took a week, but that was ---

It took a few more days, to the 25th, that's on that following Monday, that's all you had to wait for, but you thought it was so urgent you had to do something that day?---Yes.

And it says, 'The genotype of the samples will confirm whether the sandwiches manufacturing premises was the source of the illness.' So all you had to wait for is one day to find out whether this was the source, and you didn't wait?---It wasn't going to take one day, that was Finn's view or his view at the time.

Well, they had been given over, hadn't they, all these samples had been given over on 1 February to Doherty, so you're saying Finn disagreed with that, it wasn't going to take just one more day, that is 25 days after they have been given the samples it was going to take ---?---They don't do genotyping from the time of receipt, that's a special request made of the reference laboratory.

If you make a special request from DHSS you don't think they will be provided by the next day which is when it's expected anyway, you expect it on the following day, don't you ---?---I don't expect it on the following day. It is possible it was going to be done on the following day but ---

Didn't you think it was going to be important to wait for the sampling, or the genotype sequencing to be performed and the results provided on the following day. That would be completely sensible to work out whether there was some commonality in source?---We were satisfied as an IMT and I was satisfied individually, that with the information we had on the molecular serotype and the binary type and food history, and the condition of the kitchen that closure was appropriate on that day.[259]

158 Dr Sutton was also taken to the following paragraph from the expert report of Dr Price, an expert in microbial genetics and genomics.[260]

I identified that 294 L. monocytogenes strains belong to sequence type 3 (ST-3), the strain genotype implicated in the human isolate and non-human isolates from I Cook Foods. Nearly half (146; 49.7%) of these strains are from Australia (see Appendix 3). The isolation date of these strains (where provided) ranges from 2001-2010. All appear to have been uploaded by the Microbiological Diagnostic Unit, as the isolate names all contain the prefix, 'AUSMDU-LM'. Most (131/146 strains) include their serotype; all are 2b, the same serotype as the human case.[261]

159 It was put to Dr Sutton that in light of the fact that 131 of 146 isolates under review by Dr Price included serotype 2b, found in four of the food samples from the ICF premises as well as AB's blood culture,[262] it was necessary to wait for genotype results. Dr Sutton rejected this proposition:

It is that common, isn't it, 131 out of 146 strains doesn't really give you much information, does it?---If that's the only information, no.

So you would have to wait for sequencing, wouldn't you, to get a far better idea?---No, you wouldn't. There was binary type and molecular serotype and food history.[263]

160 I accept Mr Caleo's submission that Dr Price's evidence is of limited weight as it is confined to the prevalence of serotype 2b. Dr Price did not provide an opinion about the binary type or the other serotypes recorded in the MDU/PHL results dated 21 February.[264] AB's blood culture records binary type results of 158 and molecular serotype results of 1/2b, 3b and 7. Four test results of food samples also record binary type results of 158 and molecular serotype results of 1/2b, 3b and 7. I accept Mr Caleo's submission that Dr Price's report does not express an opinion on the full range of binary type and molecular serotype results available to DHHS as at 21 February 2019.

161 Insofar as ICF relies on the prevalence of serotype 2b as a matter militating in favour of Dr Sutton waiting for genotype results, this consideration must be weighed against the fact that further test results were available to DHHS which were not addressed by Dr Price but which were taken into account by Dr Sutton.

162 Dr Sutton stated that as at 21 February 2019 he was not aware of the existence of the Clean Order or the s 19W Order each dated 19 February 2019.[265] Dr Sutton gave evidence that he was aware that cleaning of ICF's premises had occurred but he was not aware 'whether it was voluntary or because of an order being made'.[266]

163 Dr Sutton gave evidence that cleaning was 'an important part of the process' to address listeria contamination'.[267] Notwithstanding that he 'was satisfied that the cleaning had taken place and... was satisfactory',[268] he was concerned about the risk of listeria establishing itself in an environmental niche in the ICF premises and causing cross-contamination:[269]

HIS HONOUR: ... What did you understand when you made the order as to what was the actual nature of the cleaning which had been undertaken? Did you have any detailed knowledge as to the actual nature of the clean?---I didn't have detailed knowledge. I had prior experience with clean ups that there are specific chlorine concentrations that you need to dismantle, processing machinery in order to do a thorough clean, that you have to clean all surfaces and machinery and floors in order for that clean to be satisfactory.

Yes. Well, when you made the order had you received any report from anybody as to the effectiveness or otherwise of the cleaning which had been undertaken prior to you making the order?---The clean had been completed but that a number of other significant concerns had been noted during that clean up.

Who conveyed that to you?---That came through Paul Goldsmith in speaking to, I believe, the authorised officers at council.

So is it your evidence that irrespective of how clean the premises actually were, because there is a report in evidence from a forensic cleaning company which records the premises as ultra clean. Assume the evidence is the premises is ultra clean on 21 February when you make the order, that wouldn't preclude you from concluding that food being prepared in that ultra clean premises is unsafe?---The reality of Listeria bacteria is that it is a ubiquitous environmental organism. It finds an environmental niche and it can be in drains, in uneven flooring, in rusted surfaces, and survive in those circumstances and reintroduce itself to even ultra clean areas or areas that have been cleaned satisfactorily, that unless the food safety program and supervision and processes that minimise the risk of cross-contamination or re-contamination have been addressed, then the ongoing risk is that that Listeria will reintroduce itself into that environment and make food unsafe again. But maybe for food produced on that day in an ultra clean environment it would be low risk of Listeria on that day, having been cleaned.[270]

164 Mr Stone gave evidence that once listeria monocytogenes is identified in a food premises it can be very difficult to eradicate, and that 'you tend to find Listeria in cleaner facilities rather than a facility that you could actually walk into and say this place is filthy'.[271] He stated that a characteristic of listeria is that 'it can form a bio film which protects itself... from clean sanitation and makes it a little bit more hard to eradicate as well.'[272] He stated that listeria can be found in drains, cracks in walls and floors, rusty trolley wheels and areas of equipment that were difficult to access, as well as areas affected by rust, wet and damp.[273] He gave the following evidence:

Is part of the difficulty in dealing with Listeria once it has entered a food premises the risk of what is called cross-contamination?---Yes, so Listeria is ubiquitous but it will tend to accumulate in reservoirs within a food facility, an area which has not been cleaned properly or has escaped attention like possibly in an air-conditioning duct or in a drain or under a set of stairs, inside a wall cavity, something of that nature. So it is typically found in an unusual area that escapes cleaning and sanitation. And then for that Listeria to then actually get into the food or onto the food it requires a vector, some means of cross-contamination to get onto that food. So cross-contamination, you know, is an important part of Listeria management when it comes to ensuring that the source of Listeria doesn't affect the food itself.

And is it correct that one means by which cross-contamination might occur in a food premises is due to particular work processes such as poor separation of different functions in the food premises?---That is possible.

And a second example might be where a particular piece of equipment such as a slicer is used on an ingredient that is itself infected and then the slicer is used on a food product that was previously not infected?---Without sanitation that is possible as well.[274]

165 The question for determination is whether it was open to Dr Sutton to engage in the process of reasoning which he did and be satisfied on the material provided to him by authorised officers prior to making the Order that the food being prepared, sold or otherwise handled at the ICF premises was unsafe. That state of satisfaction will not be unreasonable if there is a logical connection between the evidence and the conclusions drawn, such that there is room for a rational person to reach the same decision on the basis of the same material.

166 ICF submits that Dr Sutton could not reasonably have reached the requisite state of satisfaction, particularly in light of the absence of enumeration and genotype results and the cleaning conducted at the ICF premises. Dr Sutton gave evidence that despite the absence of enumerated results he was satisfied that the food being produced at the ICF premises was unsafe. There was other material contained in the reports of authorised officers provided either before or during the IMT on which he relied: the food samples which tested positive to listeria monocytogenes; the match between the binary type and serotype results of those food samples and AB's blood culture; and AB's food history.

167 DHHS correspondence between 18 and 21 February 2019 refers to the desirability of enumeration and/or genotyping. These statements reflect the developing factual matrix in which DHHS was operating prior to receipt of the binary type and serotype results on 21 February 2019. By the time of the IMT meeting, DHHS had the benefit of those results.

168 The microbiological limits set by the FS Code are of limited relevance. First, they apply only to ready-to-eat foods, whereas food samples of several meal components from the ICF premises returned positive listeria monocytogenes results as well as displaying matching binary types and serotypes. Second, I accept Dr Sutton's evidence that in order for him to be satisfied that the food being prepared at ICF's premises was unsafe, it was not necessary for the food samples taken from the premises to exceed the prescribed microbiological limits. In this regard, I accept Dr Sutton's evidence that a contaminated rockmelon caused multiple invasive listeriosis infections and deaths in circumstances where no sample detected more than 100 cfu/g.

169 In support of the proposition that it was unreasonable for Dr Sutton to have made the Order absent enumerated results, ICF referred to Tickner v Bropho ('Tickner')[275]. In Tickner a submission was advanced that the minister's decision was so unreasonable that no reasonable person could have so exercised the power, because the minister had failed to obtain information readily available to him that was of critical importance to his decision. Black CJ stated:

It should be inferred that up to date information about a matter that went directly to the fundamental basis for the minister's decision was readily available to him for the asking. Given the crucial importance of that information and the serious prospect of a fundamental change in the situation with regard to the protection of the site under State law, the making of the decision to refuse the s 9 application without obtaining up to date information was, I conclude, an improper exercise of the minister's power. It was improper because the making of the decision involved an exercise of the power that was unreasonable in the sense used in s 5(2)(g) of the ADJR Act.[276]

170 The judgment in Tickner is distinguishable. The passage set out above follows a line of authority concerning unreasonableness by reason of a failure to ascertain information known to be readily available to the decision-maker at the time of the decision.[277] When the Order was made on 21 February 2019, DHHS had not received enumeration results quantifying the concentration of listeria monocytogenes in the positive food samples.[278] DHHS received the enumeration results from MDU/PHL on 28 February 2019.[279] The enumeration results were not information readily available to Dr Sutton at the time of the decision.

171 In respect of genotype results, I accept Dr Price's evidence that serotype 2b is prevalent in listeria monocytogenes isolates and would not of itself be determinative of the relationship between human and food samples. However, Dr Price's evidence is of limited weight because it concerns only one of a number of molecular markers which Dr Sutton took into account.

172 Dr Sutton accepted that genotyping is the most definitive way to show the relationship between samples. However, he also gave evidence that binary type and serotype results are quite accurate and have been used to identify matching samples in other outbreaks. Therefore, he was satisfied on the basis of the matching binary type and serotype results as between AB's blood samples and the food samples taken from ICF. There is a logical connection between the binary type and serotype results (taken together with the other evidence to which Dr Sutton had regard) and his state of satisfaction, notwithstanding the absence of genotype results.

173 Dr Sutton did not expect to receive the genotype results by 22 February 2019 and was not prepared to wait beyond that date. The genotype results in fact arrived on 25 February 2019. Based on his experience managing other incidents of foodborne illness and communicable disease at DHHS, Dr Sutton had a reasonable basis to doubt that the genotype results would be received by 22 February 2019.

174 In respect of cleaning, Dr Sutton did not have specific knowledge of the cleaning activities undertaken at the ICF premises between 19 and 21 February 2019. However, based on his prior experience with clean-ups it was likely to entail the use of chlorine products. The cleaning which took place did in fact involve chlorine-based solutions as well as chlorine fogging.

175 Dr Sutton considered that even if the ICF premises had been satisfactorily cleaned, there remained the risk that listeria had established itself in an environmental niche in the ICF premises and that unless food safety processes had been reviewed to minimise the risk of contamination, there was an ongoing risk that food produced at the ICF premises would be likely to be unsafe. This is consistent with the expert opinion of Mr Stone as to the characteristics of listeria, its propensity to establish itself in environmental niches, the difficulty of removing listeria from food premises once it is present, and the need to pay attention to food safety processes in order to avoid cross-contamination.

176 Dr Sutton's state of satisfaction was within a range of possible, acceptable outcomes defensible in respect of the facts and law. There is a logical connection between the factual material before him and his state of satisfaction that food being prepared, sold or otherwise handled at ICF premises was unsafe. ICF's challenge to the validity of the Order on the grounds of legal unreasonableness must fail.

177 In Annetts v McCann[280] the plurality stated:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment... In Tanos, Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice... In Kioa v. West, Mason J. said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."[281]

178 The existence of a duty to accord procedural fairness is a question of statutory interpretation.[282] Section 19(2)(b) and (3) of the Act conferred upon Dr Sutton, as a delegate of the Secretary to the DHHS, the power to make orders prejudicial to the interests of ICF. Prima facie, s 19(2)(b) and (3) enlivened the presumption that the exercise of the powers were subject to a requirement to accord ICF procedural fairness. Notwithstanding the breadth of judicial statements in respect of that presumption,[283] DHHS submits that the nature of the power conferred by s 19 obviates any requirement to accord procedural fairness to a party affected by an order.

179 ICF submits that the Order is invalid by reason of a breach of the rules of natural justice. It contends that it was a breach of the rules of natural justice to issue the Order:

(i) without providing ICF a copy of the report of an authorised officer giving rise to Dr Sutton's satisfaction that the food being prepared, sold or otherwise handled at the ICF premises was unsafe or unsuitable;

(ii) allowing ICF an opportunity to respond to the report; or

(iii) allowing ICF an opportunity to respond to the Order prior to issuing it.[284]

180 Contentions (i) and (ii) are premised on Dr Sutton's satisfaction having been based on the report of an authorised officer. I accept Dr Sutton's evidence that his satisfaction was not based on a single report but rather multiple reports from multiple authorised officers. Consequently, the question of whether ICF was denied procedural fairness turns upon whether it was denied an appropriate opportunity to respond to the Order prior to it being made.

181 Mr Caleo submits that s 19 of the Act does not give rise to a duty to accord natural justice. In support of this submission, he cited Disorganized Developments Pty Ltd v South Australia ('Disorganized Developments'),[285] in which Kiefel CJ, Gageler, Gleeson and Jagot JJ stated:

Since Twist, the law has evolved to include an established and "strong" common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates "unless clearly displaced by the particular statutory scheme".

Notwithstanding the breadth of the stated presumption, there remain statutory powers that are not conditioned upon a duty to give procedural fairness. In particular, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness. Thus, in Kioa v West, members of this Court emphasised the need for people to be affected as individuals for procedural fairness to apply where a decision affects many people. Mason J adopted a distinction between a decision which directly affects the person individually and one which simply affects her or him as a member of the public or of a class of the public. Brennan J considered that (subject to displacement by the text of the statute, the nature of the power and the administrative framework created by the statute) the presumption "applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public". Deane J referred to a direct effect on, relevantly, rights and interests of a person in her or his individual capacity, as distinct from a member of the general public or of a class of the general public.[286]

182 Mr Caleo also referred to the following passage from the judgment of the plurality in Ainsworth v Criminal Justice Commission:[287]

It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations". Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.[288]

183 Mr Caleo submits that the nature of the power under s 19 is 'necessarily temporary and short-term in its objective.'[289] He submits that s 19(2) envisages orders for the matters in paragraphs (a) and (b) to be done 'within a specified time', and further that paragraphs (a) and (b) themselves require specific things to be done at a food premises.[290] He submits that s 19(3) operates as an adjunct to s 19(2), empowering a relevant authority to make orders under paragraphs (a) to (c) only until the matters referred to in s 19(2) are complied with.[291]

184 In Commissioner of Police v Ryan,[292] Basten JA (with whom Spigelman CJ and Santow JA agreed) stated:

[T]here are cases where the nature of the power may be seen as "inconsistent with an obligation to accord an opportunity to be heard": see Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241 (Wilcox J); National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 319 and 322-323 (Mason, Wilson and Dawson JJ).

In order to determine whether, in relation to the exercise of the power in question, procedural fairness required notification of the material on which the application was based, prior to the order being made, it is, as the Respondents noted, clear that "the statutory framework within which a decision-maker exercises statutory power is of critical importance": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at [26].[293]

185 In respect of the exclusion of the rules of natural justice by necessary implication, Aronson, Groves and Weeks' Judicial Review of Administrative Action and Government Liability states:

Procedural fairness may be excluded by implication but the possibility is complicated by the modern evolution of fairness... We suggest that the critical issue, regardless of a statute's 'age', is whether the application of natural justice is inconsistent with the proper operation of the statute as it stands at the time the court considers the question. That approach is timeless.[294]

186 Mr Caleo submits that the powers under s 19 'envisage that there is no destruction or defeat or prejudicing of rights entirely but rather a hiatus period to achieve compliance with particular specified food regulatory obligations',[295] and therefore that they are statutory powers that are not conditioned upon a duty to give procedural fairness. It is not necessary, in order for the exercise of power to be attended by a requirement to accord procedural fairness, that a person's rights, interests or legitimate expectations be prejudiced entirely. A duty to accord procedural fairness arises under s 19 if the exercise of power may prejudice a person's rights, interests or legitimate expectations. It is unnecessary to express a concluded view as to whether every order made under s 19(2) will enliven an obligation to accord procedural fairness to a party affected by the order. Insofar as the Order made under s 19(2)(b) required ICF to destroy 10 tonnes of food with a value in excess of $700,000, it had an immediate prejudicial effect upon ICF which was attended by an obligation to accord procedural fairness. So too the order made pursuant to s 19(3) which required an immediate cessation of production.

187 A right to be accorded procedural fairness is not confined to the exercise of statutory power which destroys, defeats or prejudices rights entirely. The right to procedural fairness is enlivened if the exercise of statutory power has a prejudicial effect. The Order had significant and immediate prejudicial effect upon ICF. The order that ICF destroy all food manufactured since 13 January 2019 resulted in the destruction of in excess of 10 tonnes of food with a value in excess of $700,000.[296] The order for destruction of food was neither temporary nor short-term in its effect. It had immediate and irreversible adverse consequences for ICF.

188 Further, putting to one side the destruction of food, the order pursuant to s 19(3) requiring ICF to cease production and distribution of food had an immediate prejudicial effect. In February 2019 ICF supplied food to 20 customers, comprised of private hospitals, nursing homes and local government authorities. Any disruption to the supply of food to these customers necessitated the customers making alternative arrangements to ensure continuity of supply of meals to hospital patients, nursing home residents and recipients of Meals on Wheels. As conceded by Dr Sutton, as soon as the Order was made, it was likely to have a significant adverse effect upon the business of ICF.[297]

189 I reject Mr Caleo's submission that there was no obligation to accord procedural fairness to ICF because s 19 envisages 'a hiatus period to achieve compliance with particular specified food regulatory obligations'.[298] As is clearly demonstrated by the present case, the exercise of the powers conferred by s 19(2)(b) and (3) are capable of having an immediate prejudicial effect upon a party subject to an order.

190 Mr Caleo also submitted that ICF did not have a right to be heard because the exercise of the s 19 power is inconsistent with the existence of such a right, or because it is a case involving the exercise of statutory power under conditions of emergency.[299]

191 First, Mr Caleo submits that the exercise of s 19 powers is by necessary implication inconsistent with the rules of natural justice. He referred to Marine Hull & Liability Insurance Co Ltd v Hurford ('Marine Hull'),[300] Pacific Century Productions v Watson ('Pacific Century')[301] and Mowburn Nominees Pty Ltd v Palfreyman (No 2) ('Mowburn Nominees').[302]

192 Marine Hull concerned the exercise of powers under the Insurance Act 1973 (Cth) by the Treasurer to issue a direction prohibiting an insurer from renewing its policies and disposing of its assets. The Treasurer submitted that there was no obligation to afford the insurer a hearing because the decision to issue a direction is one which may sometimes need to be taken as a matter of urgency. Wilcox J stated:

The necessity for prompt action is widely recognised as constituting an exception to the application to administrative decisions of the duty to afford a hearing to the affected party: see de Smith, Judicial Review of Administrative Action, (4th ed), pp 190-191; Flick Natural Justice - Principles and Practical Application, (2nd ed), pp 40-41; Halsbury's Laws of England, (4th ed), vol 1, par 74. But the nature and extent of the exception is not well defined. There may exist statutory powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard: for example, a power to destroy dangerous animals or forcibly to enter premises at a time of fire or natural disaster. It is not difficult to impute to the legislature, by the very specification of the power, intention to exclude a hearing in such cases. Upon such a basis it was held, in White v Redfern [1879] UKLawRpKQB 73; (1879) 5 QBD 15, that there was no duty to afford a hearing before destroying diseased meat. A similar approach was taken in R v Davey [1899] UKLawRpKQB 98; [1899] 2 QB 301 in respect of the removal to hospital of a child suffering from a dangerous infectious disease.[303]

193 Pacific Century concerned the exercise of a power to order goods into quarantine under the Quarantine Act 1908 (Cth). Whitlam J (with whom Dowsett and Stone JJ agreed) stated:

Counsel for Mr Watson do not dispute that he was obliged to afford procedural fairness to the appellant. So much may be assumed for the purposes of this appeal. (However, I may say that I can conceive of many occasions when a quarantine officer, acting on information received, could not reasonably be required to give a person any opportunity to be heard before making an order under s 35 of the Act. Furthermore, as a safety valve, there is an express power conferred by s 6B to revoke any order made under the Act.) In the present case, counsel for the appellant singled out for criticism the fact that their client had no opportunity to comment on the contents of Dr Robert's affidavit, which Mr Watson took into account prior to making his order on 7 August.[304]

194 Mowburn Nominees concerned the exercise of a power to issue a quarantine notice under the Stock Act 1915 (Qld). Carmody CJ stated:

Section 14(1) of the Stock Act is in mandatory terms. The precondition for issuing the notice is a belief or suspicion based on findings or inferences of fact supported by some probative material or logical grounds. Once the state of mind exists as a fact, as it did here, the stock inspector had no choice or discretion as to whether or not to issue the quarantine notice.

Prior to 28 November 2014 the applicants were well aware of the department's concerns about the nature and extent of the suspected infection of their stock. They did not provide any extra material to the department between 6 November 2014, when the last application was heard, and 28 November 2014, when it was decided. Presumably that is because none existed.[305]

195 In the absence of an express exclusion of the rules of natural justice by Parliament, the question is whether, by the very nature and purpose of the power in question, Parliament intended to exclude the rules of natural justice. In addressing this question, conclusions reached in the context of other statutory regimes are of limited assistance. In Mowburn Nominees, Carmody CJ considered the implied exclusion of the rules of natural justice in a statutory context in which a mandatory duty was imposed on inspectors to issue a quarantine notice once they were satisfied that stock was or was suspected to be infected with a disease. His Honour's conclusion that there was no requirement to afford procedural fairness turned on the particular provisions underpinning the mandatory regime under the Stock Act 1915 (Qld). These provisions are of a very different character to the discretionary powers under s 19 of the Act.

196 The power under s 19 to order the destruction of food and the cessation of production of food is to be construed by reference to the Act as a whole.[306] The statutory context includes the power to make orders pursuant to the emergency powers under Part VII. Section 44 and 44A of the Act provide:

44 Making of order

An order may be made under this Part by the Secretary if the Secretary has reasonable grounds to believe that the making of the order is necessary to prevent or reduce the possibility of a serious danger to public health or to mitigate the adverse consequences of a serious danger to public health.

44A Nature of order

(1) An order under this Part may do any one or more of the following -

(a) require the publication of warnings, in a form approved by the Secretary, that a particular food or type of food is unsafe;

(b) prohibit the cultivation, taking, harvesting or obtaining, from a specified area, of a particular food or type of food or other primary produce intended to be used for human consumption;

(c) prohibit a particular food or type of food from being advertised or sold;

(d) direct that a particular food or type of food consigned or distributed for sale or sold be recalled and specify the manner in which, and the period within which, the recall is to be conducted;

(e) direct that a particular food or type of food or other primary produce intended to be used for human consumption be impounded, isolated, destroyed or otherwise disposed of and specify the manner in which the impounding, isolation, destruction or disposal is to be conducted;

(f) prohibit absolutely the carrying on of an activity in relation to a particular food or type of food, or permit the carrying on of the activity in accordance with conditions specified in the order;

(g) without limiting the generality of paragraph (f), impose conditions for or with respect to requiring the taking and analysis of samples of the food or of water or soil or any other thing that is part of the environment in which that activity is carried on in relation to the food;

(h) specify methods of analysis (not inconsistent with any methods prescribed by the Food Standards Code) of any samples required to be taken in accordance with the order.

(2) An order under this Part may be varied or revoked by the Secretary in the same manner as the order was made.

Compensation

(1) A person bound by an order under this Part who suffers loss as a result of the making of the order may apply to the Secretary for compensation if the person considers that there were insufficient grounds for the making of the order.

(2) If there were insufficient grounds for the making of the order, the Secretary is to pay just and reasonable compensation to the applicant...

Person has no right to be heard before order made

In making an order under this Part, it is not necessary for the Secretary to give any person who may be affected by the order a chance to be heard before the order is made.

199 Whereas s 44F provides an express exclusion of the right to be heard before an order under Part VII is made, there is no express exclusion of the right to be heard before an order under Part III is made. It would be anomalous for Parliament to expressly exclude the right to be heard in respect of any orders under Part VII while also impliedly excluding the right to be heard in respect of any orders relating to food premises under Part III.[307] Construing the Act as a whole, Parliament did not intend to exclude by implication a right to be heard prior to the making of an order under Part III of the Act. Whether a person subject to an order made under Part III has a right to be heard turns upon whether the order destroys, defeats or prejudices the person's rights, interests or legitimate expectations. An order made pursuant to s 19(2)(b) and (3) for the destruction of food and the cessation of production prejudices the interests of the person subject to the order and is attended by a right to be heard.

200 Mr Caleo submits that in contradistinction to an order under s 19, an order made under s 44 may be of much longer duration, much wider impact and potentially industry-wide. I accept this submission. I also accept Mr Caleo's submission that, absent s 44F, the power conferred by s 44 would be attended by an obligation to accord procedural fairness. However, the fact that an order made pursuant to s 44 can have broader application than orders under s 19 does not mandate a finding that an order made pursuant to s 19 requiring the destruction of food and the cessation of production will not be attended by an obligation to accord procedural fairness. The Order made by Dr Sutton had an immediate prejudicial effect on ICF's interests and was attended by an obligation to accord procedural fairness.

201 Further, the existence of a right to be accorded procedural fairness must be considered in the context of any right to compensation. Whereas s 44D provides a right to compensation in circumstances where an order under Part VII is made on insufficient grounds, there is no corresponding right under Part III. The exercise of the power to issue an order for the destruction of food and the cessation of production under ss 19(2)(b), (3) or 44 is likely to result in financial loss to the affected party. The potential adverse impact of an emergency order made on insufficient grounds where the affected party has no right to be heard prior to the making of the order, is mitigated by a right to compensation. Under Part III there is no right to compensation for financial loss as a consequence of an order for the destruction of food or cessation of production. It would be anomalous if a party bound by an order under s 19(2)(b) and (3) for the destruction of food and the cessation of production had neither a right to procedural fairness nor a right to compensation, whereas a party bound by an order under Part VII, with no right to procedural fairness, does have a right to compensation. The absence of a right to compensation of a party bound by an order under s 19(2)(b) and (3) requiring destruction of food and cessation of production is explicable by the fact that a party bound by such an order has a right to procedural fairness prior to the order being made.

202 I accept Mr Caleo's submission that in Pacific Century and Mowburn Nominees the existence of a statutory scheme for review and revocation of the order militated in favour of the implied exclusion of a right to procedural fairness. However, the express power of revocation in s 19(6) and appeal process in s 19BA do not warrant the conclusion that the rules of natural justice do not apply to an order for destruction of food and cessation of production made under s 19(2)(b) and (3). The Order requiring ICF to destroy food and cease production had an immediate prejudicial effect. By the time the Order had been revoked in late March 2019 all of ICF's customers had terminated their contracts. The facts of the present case demonstrate that the power of revocation and appeal processes under Part III may be of no benefit to a party ordered to destroy food and cease production. The Act does not exclude the rules of natural justice by necessary implication in respect of orders made for the destruction of food and cessation of production under s 19(2)(b) and (3) Act.

203 Having found that the rules of natural justice apply, it is necessary to address the content of the requirement to accord ICF procedural fairness. The requirements of the rules of natural justice depend on the statutory regime in question and the factual circumstances.[308] As Tucker LJ observed in Russell v Duke of Norfolk:[309]

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.[310]

204 The 'ordinary incidents' of natural justice/ procedural fairness 'include the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity to be heard'.[311] The purpose of according an appropriate opportunity to be heard is to bring to an affected party's attention the critical issue or factor on which an administrative decision is likely to turn and give an opportunity to that party to deal with it.[312] As stated by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd:[313]

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.[314]

205 In Ackroyd v Whitehouse,[315] Kirby P (as his Honour then was) stated:

The general rule governing the duties of a person such as the Director and the rights of a person such as the appellant is laid down by Barwick CJ in Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110:

'The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal .... But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power.'

Accordingly, unless the Act makes it plain to the contrary, or some other reason disqualifies the appellant, he was entitled to expect that the Director would observe the rules of natural justice. At the least, these imposed upon the Director, before acting in the way he did, an obligation to afford the appellant, before his rights were affected, the opportunity to be heard.[316]

206 In respect of the content of the duty to give notice, in Hall v The University of New South Wales[317] McClellan J (as his Honour then was) stated:

A fundamental element of procedural fairness is the hearing rule or the 'right to be heard'. The elements of the right will vary in particular cases but will generally include some or all of the following:

• a reasonable opportunity to make submissions (Annetts v McCann (1990) 170 CLR 96), give evidence (Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49), and call witnesses in support (R v Hull Prison Board of Visitors; ex parte St Germain (No 2) [1979] 1 WLR 1401 (DC);

• notice of various matters (Andrews v Mitchell [1904] UKLawRpAC 28; [1905] AC 78 at 80 (Lord Halsbury: 'impossible to disregard'); R v Small Claims Tribunal; ex parte Cameron [1976] VicRp 41; [1976] VR 427 at 432 (Anderson J: 'a cardinal principle'); Re Hamilton [1981] AC 1038 at 1047 (Lord Fraser: of 'constitutional importance') including:

...

• the subject matter (Kanda v The Government of Malaya [1962] UKPC 2; [1962] AC 322 at 377) and potential adverse consequences of the decision (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565 (NSWCA Mahoney ACJ, Sheller and Powell JA); Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34 at 41);

• the case to be answered (Kanda v The Government of Malaya [1962] UKPC 2; [1962] AC 322 at 377; R v Solicitors' Disciplinary Tribunal; ex parte L (a solicitor) [1988] VicRp 72; [1988] VR 757); and

• adequate time to prepare submissions and gather evidence (Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41; Claro v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342)...[318]

207 Prior to the service of the Order on the morning of 22 February 2019, neither Mr Ian Cook nor anyone else at ICF had any contact with any officer from DHHS.[319] Mr Ian Cook gave evidence, which I accept, that there had been no opportunity to resist the making of the orders prior to service.[320]

208 Mr Caleo submitted in the alternative that if there was an obligation to accord procedural fairness, that obligation was satisfied. Mr Caleo submitted as follows:

But before 21 February either Mr Cook, Ben Cook or both knew the following matters: one, that a patient at a hospital that their company supplied had become sick with Listeriosis; secondly, that samples had been taken from their premises; thirdly, that several of those samples had tested positive for Listeria monocytogenes; fourthly, that the council officer was satisfied within the terms of s19(1)(a) that the food premises were in an unclean and unsanitary condition and in a state of disrepair - that was communicated by the provision of the s19 order by Ms Garlick and the fact, as Mr Ben Cook confirmed, that she sat down and took him through it; fifthly, that the council officer had made a series - had made an order under s19(2), including a series of specified steps; sixthly, once an order under s19(2) had been made, s19 permitted a further order to be made under s19(3) that production cease. That was something that Mr Ben Cook identified he was conscious of from how the legislation operated.[321]

209 Mr Caleo submitted that prior to the Order being made by Dr Sutton the prospect of the extant circumstances giving rise to the exercise of the power to make a closure order had been brought to ICF's attention.[322] In support of this submission Mr Caleo referred to body camera footage recording an exchange between Mr Ben Cook, Ms Garlick and Ms Johnson at approximately midday on 21 February 2019.[323] The transcript of this exchange records Ms Johnson receiving a call on her mobile telephone from an unidentified person. At the conclusion of the telephone call Ms Johnson stated: 'Chief Health Officer from State of Victoria just said to cease production now'.[324]

210 Neither Ms Johnson nor Ms Garlick were called to give evidence. Ms Johnson's statement that the 'Chief Health Officer from State of Victoria just said to cease production now', is inconsistent with the evidence of Dr Sutton. His evidence was that he did not turn his mind to making a closure order until after 9.00pm on 21 February 2019. Dr Sutton gave evidence, which I accept, that he did not tell Ms Johnson that production was to cease. He also denied having directed anyone to have a conversation to that effect with Ms Johnson.[325]

211 The body camera footage evidences that Mr Ben Cook was told by Ms Johnson at approximately midday on 21 February 2019 that Dr Sutton had directed that production was to cease. Putting to one side my finding that no such direction was given by Dr Sutton, or anyone acting on his behalf, the advice provided to Mr Ben Cook by Ms Johnson did not satisfy the requirements of procedural fairness. ICF was not given any opportunity to be heard prior to the closure order being made.

212 Mr Caleo submits that the requirements of natural justice depend upon the circumstances of a particular case. I accept this submission. As Gageler J observed in Isbester v Knox City Council,[326] the requirement of natural justice is to accord an appropriate opportunity to be heard. What is appropriate will depend on the circumstances of the particular case, including the urgency attending the exercise of power.

213 I accept Dr Sutton's evidence that once he was satisfied that food being prepared at ICF was unsafe there was an urgent need to make an order for cessation of production.[327]

214 The need for urgency did not relieve Dr Sutton of the obligation to provide ICF with an appropriate opportunity to be heard prior to the Order being made. Notwithstanding Dr Sutton's satisfaction that food being produced was unsafe he was required to provide ICF with some opportunity to be heard prior to an order being made for production to cease and 10 tonnes of food to be destroyed.

215 Dr Sutton gave the following evidence as to the basis for his satisfaction that food being prepared at ICF's premises was unsafe:

Are you able to tell His Honour why you were satisfied in the term stated in the order that you signed, notwithstanding the absence of those enumeration results?---That we had multiple pieces of evidence and a line of causation between the deceased case in hospital and her sample with a particular - obviously Listeria monocytogenes with a particular binary type and a particular molecular serotype linked to multiple samples across numerous food types in I Cook Foods' kitchen of the same binary type, of the same molecular serotype and it was incontrovertible that that hospitalised case had developed invasive Listeria. So by virtue of that and the combination of the same characterisation of the Listeria mono, and the food history that indicated to me very significant probability that the case consumed food from I Cook Foods' kitchen, and maybe exclusively from I Cook Foods in terms of ready to eat foods. So the enumeration was not the relevant element here because we had a case who had developed invasive Listeriosis that was linked to the kitchen by the epidemiological investigation and by the characterisation of the bacteria, and supported in terms of the plausibility of Listeria being present in multiple foods at I Cook Foods' kitchen from council's reflections on all of the matters that they found on the occasion when they went to I Cook's kitchen for the clean.[328]

216 In light of Dr Sutton's evidence as to the basis for his satisfaction that the food being prepared at ICF's premises was unsafe, the following adverse material was relevant to the decision to issue the Order:

• AB's food history indicated that she had likely consumed food prepared by ICF during her admission to Knox Private Hospital between 13 January 2019 and her death on 4 February 2019;
• AB had been diagnosed with listeriosis on 25 January 2019;
• Laboratory results stated that food samples taken from the ICF premises on 1 February 2019 had tested positive for listeria monocytogenes;
• Further laboratory results stated that some of the positive food samples had the same binary type and molecular serotype as AB's blood culture;
• Laboratory results stated that food samples taken from other possible food sources had tested negative for listeria and listeria monocytogenes;
• Based on observations made by Dandenong Council officers, DHHS had concerns in relation to the state of the ICF premises and ICF's food safety practices.

217 In the circumstances of the present case the rules of natural justice imposed on DHHS a duty to accord ICF prior notice of its intention to make a s 19 order and the basis of Dr Sutton's satisfaction that food being prepared at ICF's premises was unsafe. DHHS was required to put ICF on notice of the critical issues underlying its intention to make a s 19 order and to accord ICF any opportunity to respond. DHHS did not put ICF on notice of the critical issues underpinning the proposed s 19 order, in particular that Dr Sutton had satisfied himself that the food being prepared at ICF's premises was unsafe. It did not alert ICF to possible adverse consequences such as the immediate cessation of all production and destruction of all food manufactured since 13 January 2019. I find that DHHS breached the rules of natural justice by failing to provide ICF with an opportunity to respond to the Order prior to issuing it.

218 It was a breach of the rules of natural justice to issue the Order without according ICF an appropriate opportunity to be heard. It is necessary to address the issue of whether the failure to accord ICF natural justice was material, thereby resulting in the invalidity of the Order. Materiality is established if ICF establishes that it was deprived of a realistic possibility of a different outcome.[329] Materiality is essential to the existence of jurisdictional error.[330]

219 In Nathanson v Minister for Home Affairs,[331] Kiefel CJ, Keane and Gleeson JJ stated:

As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made" . This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition".

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome...

SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.[332]

220 The formulation of the materiality threshold in Nathanson has been applied by appellate courts on numerous occasions.[333]

221 The question is whether as a matter of reasonable conjecture the decision whether to make the Order could have been different had ICF been provided an appropriate opportunity to be heard. This threshold is undemanding.

222 There are matters which ICF could have brought to Dr Sutton's attention had it been accorded an opportunity to be heard. First, ICF could have made Dr Sutton aware of the existence of the Clean Order and s 19W Order issued by the Dandenong Council on 19 February 2019. It could have explained the steps that it had already taken and planned to take to comply with the terms of those orders. Dr Sutton stated that when he made the Order he was unaware that Dandenong Council had made orders in respect of the ICF premises.[334] Second, ICF could have provided Dr Sutton with detailed information concerning the volume of food it had produced and distributed since 13 January 2019 without there having been any other reported cases of listeriosis. Third, ICF could have proposed a regime under which, pending the receipt of enumeration and genotype reports, food manufactured since 13 January 2019 would be retained but would not be distributed. Fourth, ICF could have proposed that it would continue to manufacture food but not distribute food to customers.

223 There was a realistic possibility that the decision making process in respect of the Order could have resulted in a different outcome if ICF had been provided with an opportunity to be heard prior to the making of the Order. DHHS' breach of the rules of natural justice was material. As a consequence the Order was invalid.

Was Dr Sutton recklessly indifferent to whether the Order was invalid by reason of DHHS breaching the rules of natural justice?

224 The tort of misfeasance in public office extends to acts by public office holders that are beyond power for want of procedural fairness.[335] ICF submits that Dr Sutton was recklessly indifferent as to whether the Order was invalid by reason of ICF being denied procedural fairness.

225 ICF's allegation that the making of the Order constituted misfeasance in public office is a very serious allegation. A finding that a public office holder has committed misfeasance in public office 'should only be reached having regard to the seriousness of such a finding based on evidence that gives rise to reasonable and definite inference that he or she had the requisite state of mind'.[336] I have applied this standard of proof when addressing the question of whether Dr Sutton was recklessly indifferent as to whether the Order was invalid for want of procedural fairness.

226 Prior to making the Order Dr Sutton had not received advice that he should give ICF notice of his intention to make the Order and an opportunity to put forward reasons why an order should not be made. He gave evidence, which I accept, that he did not know prior to making the Order that he was under any obligation to provide ICF with an opportunity to be heard prior to the Order being made. He did not turn his mind to the question of whether ICF had a right to be heard.[337] He did not seek legal advice about whether ICF had a right to be heard prior to a closure order being made.[338] He did not turn his mind to whether ICF had a right to be heard because he was making an order for the protection of individuals at risk of consuming unsafe food.[339] I accept this evidence.

227 Mr Clarke submitted that the Court should reject Dr Sutton's evidence that when he made the Order he did not turn his mind to the question of whether ICF should be provided with a right to be heard prior to the making of the Order. Mr Clarke based this submission on two matters. First, that Dr Sutton had an understanding in February 2019 as to what natural justice entailed. Second, that Dr Sutton was an unreliable witness whose evidence should not be accepted.[340]

228 Dr Sutton gave evidence that in February 2019 he understood that the expression 'right to be heard' was a right to be able to make a case for a different cause of action or a modified cause of action.[341] It does not follow from this evidence that Dr Sutton understood that ICF had a right to be heard when he made the Order. Dr Sutton took the step of involving Mr Morrison in the drafting of the Order. I infer that Dr Sutton took this step because he wished to ensure that the Order would not be invalid by reason of a failure to comply with any relevant legal requirement. Dr Sutton was relying upon the advice which he received from Mr Morrison as to the validity of the Order. He received no advice from Mr Morrison that he was subject to a requirement to accord ICF procedural fairness prior to making the Order. I accept Dr Sutton's evidence that he did not turn his mind to the question of whether he needed to accord procedural fairness to ICF prior to making the Order. Further, I reject Mr Clarke's submission that Dr Sutton was an unreliable witness. The events which are the subject of the present proceeding occurred in February 2019. When giving his evidence Dr Sutton gave an honest account of the events of early 2019 based on his best recollection of those events. He was a reliable witness.

229 Earlier in this judgment I have set out a number of emails between Dr Sutton, Dr Canil and Mr Morrison, the Acting Director of DHHS Legal Services Branch, between 6.59pm and 10.24pm on the evening of 21 February 2019. I accept Dr Sutton's evidence that he sought the involvement of Mr Morrison prior to making the Order to ensure 'the robustness of legal language and appropriate exercise of powers and charter review'.[342] Having taken the step of involving a senior department legal officer in the drafting of the Order, Dr Sutton did not receive any advice that he was subject to a requirement to accord procedural fairness to ICF prior to making the Order. There is no basis for concluding that Dr Sutton was recklessly indifferent as to a requirement to observe procedural fairness as a condition of the valid exercise of the power to make an order requiring ICF to destroy food and to cease production. To the contrary, he acted prudently by issuing an order which had been drafted and reviewed by a senior department legal officer.

230 In Sanders v Snell, the Minister for Tourism in the administration of Norfolk Island (Sanders) terminated the employment of Mr Snell, the Executive Officer of the Norfolk Island Government Tourist Bureau. Prior to doing so, Mr Sanders was told by another Minister and the Chairman of the Bureau that he should afford Mr Snell natural justice prior to terminating his employment.[343] Mr Sanders ignored this advice and went ahead with the termination of Mr Snell's employment. The Full Court of the Federal Court held that the Minister was liable for misfeasance in public office:

Having been warned of his obligation to give natural justice to Mr Snell, and knowing that the correctness of the report on which he was relying was challenged by Mr Nobbs, Mr Sanders gave to the Bureau a statutory direction to take steps that same day to terminate Mr Snell's employment. When the original members of the Bureau requested more time, he removed them from office and appointed members who, he expected, would carry out his wishes. The time limits he imposed made it impossible for anybody to put before him a response to the report. But Mr Sanders was not interested in anybody else's views; there "was not going to be a debate". Mr Sanders' acts were "calculated in the ordinary course to cause harm" and "done with reckless indifference to the harm that [was] likely to ensue", to use the words of the Mengel joint judgment. This is a case of a public officer recklessly disregarding both a known constraint on his power and an obvious means of fulfilling his known duty of fairness.[344]

231 On appeal, the High Court overturned the Full Federal Court's finding of misfeasance in public office:

At most, the trial judge's finding (made in the context of his conclusion that the appellant had procured a breach of the respondent's contract) was that the appellant had acted peremptorily and with no regard to what he had been told would be fair. That is very different from finding that the appellant knew that he was acting beyond power. Nothing in what was found by the judge to have happened, and nothing that was revealed in the evidence, warranted the Full Court in making a finding that the appellant knew or was reckless to the possibility that what he was doing was without power for want of procedural fairness let alone making a finding of want of honesty on his part. And yet that is what the Full Court found.[345]

232 The High Court ordered that there be a new trial limited to the claim alleging misfeasance in public office. That claim was upheld at first instance.[346] On appeal, in Sanders v Snell (No 2)[347] the Full Court of the Federal Court overturned the finding of misfeasance in public office:

In the circumstances we conclude that there was no basis upon which it could have been concluded that misfeasance in public office had been made out by reason of actual knowledge of want of power or reckless indifference to the absence of power based upon want of procedural fairness. In this respect Sanders' position is analogous to that of the defendant, Cornwall, in Rowan v Cornwall. It will be recalled that Debelle J found Dr Cornwall liable for misfeasance in public office in its first form. As to the second form, in connection with absence of procedural fairness in the decision to withdraw funding from the women's shelter, Debelle J said (at 358):

The power to withdraw funding of course existed but Dr Cornwall did not turn his mind to the question of procedural fairness, that is to say, whether he should give the shelter an opportunity of being heard before funding was withdrawn. Nor did he receive any advice on the question of procedural fairness. He was plainly set upon a course to close the shelter. So fixed was his purpose that he was oblivious to the obligation to accord procedural fairness. He simply did not think of that obligation. I do not think that constitutes a reckless indifference as to the question whether he had power because, plainly, the power existed subject to the obligation to accord procedural fairness.

His Honour quoted Brennan J in Mengel (at 356):

The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of a power when the act is ultra vires.

True it is that there was evidence that Sanders had been told of the desirability of according procedural fairness but not on the basis that this went to power, nor was he cross-examined on that basis. His Honour's decision in favour of Snell cannot be upheld by reference to the second form of the tort.

233 This reasoning is apposite in the present proceeding. Dr Sutton did not turn his mind to the question of whether ICF should be accorded procedural fairness prior to the making of the Order. Nor was he advised by Mr Morrison that the valid exercise of the power to make an order to cease production was subject to a requirement to accord ICF procedural fairness. Dr Sutton erred by making the Order without first providing ICF with an opportunity to be heard. However, this did not constitute misfeasance in public office.

234 ICF has failed to establish that Dr Sutton was recklessly indifferent as to whether the Order was invalid for want of procedural fairness. It follows that ICF's claim that Dr Sutton committed misfeasance in public office must be rejected.

235 ICF seeks declarations that the Order and the Varied Order were ultra vires and invalid. DHHS resists the claim for declaratory relief. It contends that there would be no foreseeable consequence from the grant of declarations because ICF has ceased trading and there is no evidence which supports a finding that there is any prospect that it will resume trading.

236 The jurisdiction of the Supreme Court of Victoria to make a binding declaration of right without granting consequential relief arises pursuant to s 85 of the Constitution Act read in conjunction with s 36 of the Supreme Court Act 1986. A declaration is not an equitable remedy. It is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court.[348]

237 In Ainsworth v Criminal Justice Commission[349] the plurality stated:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which 'it is neither possible nor desirable to fetter... by laying down rules as to the manner of its exercise. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that have not occurred and might never happen' or if 'the court's declaration will produce no foreseeable consequences for the parties'.

The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under section 2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done.[350]

238 Mr Caleo submitted that the reasoning set out above has no application in the present proceeding because ICF ceased trading in early 2019. He submitted that what persuaded the High Court to grant a declaration in Ainsworth was the prospect of foreseeable consequences redressing the damage to the appellants' reputation.[351] In support of the proposition that a declaration will not be granted if there are no foreseeable consequences from the grant of relief Mr Caleo referred to Gardner v Dairy Industry Authority (NSW)[352] and Minister for Immigration and Ethnic Affairs v Ozmanian.[353]

239 Mr Caleo did not submit that the making of the Order did not adversely affect ICF's reputation. He was plainly correct not to advance any such submission. The Order records Dr Sutton's satisfaction that food being prepared at ICF's premises was unsafe. Under s 4D of the Act food is unsafe if it would be likely to cause physical harm to a person who might later consume it. For a longstanding business engaged in the production of food consumed by the elderly (Meals on Wheels) and infirm individuals (food supplied to hospitals and aged care facilities) it was inevitable that the Order would have adverse consequence for ICF's business reputation. I have no hesitation in concluding that the making of the Order caused immediate and significant damage to ICF's business reputation.

240 ICF ceased trading in early 2019. Its business premises in Dandenong have been sold. Neither Mr Ian Cook or Mr Ben Cook gave evidence which supports a finding that there is any prospect of ICF resuming trading at any time in the future. It does not follow, however, that a declaration that the defendant failed to observe the requirements of procedural fairness when making the Order will not have any foreseeable consequence. Although it is no longer trading, ICF still exists and is the plaintiff in the present proceeding. A declaration that the defendant failed to observe the requirements of procedural fairness when making the Order will redress some of the damage to ICF's business reputation arising from the Order. It will also provide ICF with vindication that it has been subject to a wrong done by a public office holder.[354]

241 If, contrary to the conclusion set out above, a declaration would have no foreseeable consequence for ICF, it does not follow that declaratory relief is not available. There is a well-established line of authority, which was not referred to by either party, to the effect that a declaration may be granted even if there is no foreseeable consequence for the moving party, if there is a wider public interest in the making of the declaration. This line of authority[355] is set out in Cavanough J's judgment in Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission.[356]

242 Dr Sutton made the Order in his capacity as a delegate of the Secretary of the DHHS. The Secretary is one of six relevant authorities authorised by s 19(9) of the Act to make an order under s 19(2) or (3). The powers conferred on a relevant authority by s 19(2) and (3) are wide-ranging. As is clearly demonstrated by the present proceeding, where the exercise of those powers involves the making of an order to cease production, such an order can have a devastating effect upon an affected business and its employees. The question whether the valid exercise of the powers conferred upon a relevant authority to make an order requiring destruction of food and cessation of production is subject to a requirement to accord procedural fairness attracts the public interest. The powers under 19(2)(b) and (3), which were exercised by Dr Sutton in February 2019, continue to exist in the same terms to the present day. Although ICF has ceased trading there are numerous businesses which could potentially be subject to orders of the same type made by Dr Sutton in February 2019. There is utility in granting declaratory relief which gives formal effect to the Court's conclusion that the valid exercise of the power to make an order to destroy food and cease production is subject to a requirement to accord procedural fairness to a party affected by such an order.

243 ICF is entitled to a declaration that the Order and the Varied Order are invalid by reason of the defendant's failure to observe the requirements of procedural fairness. Mr Caleo submitted that any declaration should not state that the Order was invalid. He submitted that there is no utility in the Court declaring the Order was invalid because the Order was revoked in late March 2019. I reject this submission. First, as the Order was made without according ICF any procedural fairness whatsoever it was invalid and of no legal effect from the time it was made.[357] Consequently, there never was a valid order in existence capable of being varied or revoked. The revocation of the Order is not a matter which weighs against a declaration that the Order was invalid and of no effect. Second, the public interest considerations which support a declaration that the Order was made without observance of the requirements of procedural fairness also support a declaration that the Order was invalid.

1. The order made by the Acting Chief Health Officer on 21 February 2019 pursuant to s 19 of the Food Act 1984 (the Order) was invalid by reason of the failure of the defendant to observe the requirements of procedural fairness.
2. The variation to the Order made by the Acting Chief Health Officer on 23 February 2019 pursuant to s 41A of the Interpretation of Legislation Act 1984 was invalid by reason of the failure of the defendant to observe the requirements of procedural fairness when making the Order.

245 ICF's claim for damages based on misfeasance in public office is dismissed. ICF's claim for declaratory relief is upheld. I shall provide the parties with an opportunity to make submissions as to the costs of the proceeding.

Annexure A - Clean Order dated 19 February 2019

Annexure B - s 19W Order dated 19 February 2019

Annexure C - Cease Production Order dated 21 February 2019

Annexure D - Varied Cease Production Order dated 23 February 2019

[1] Food Act 1984 (Vic) s 4 (definition of 'Food Standards Code').

[2] Transcript of Proceedings, T 282 L 5-10.

[9] Ibid T 289 L 1-9; CB260, Email from Dr Finn Romanes dated 21 February 2019.

[10] Transcript of Proceedings, T 308 L 1-4.

[12] CB4684-5, Email from Dr Romanes dated 21 February 2019.

[13] Transcript of Proceedings, T 289 L 1-11.

[20] CB345, Nursing Discharge Summary dated 23 January 2019.

[21] Ibid; CB336, Emergency Nursing Observation Chart dated 13 January 2019; CB323, Emergency Department Record dated 13 January 2019.

[23] CB4858-9, Nutrition Details of AB dated 14 to 23 January 2019.

[25] Transcript of Proceedings, T 331 L 13-16.

[26] CB346, Nursing Discharge Summary dated 23 January 2019.

[27] CB450, Progress Notes dated 23 January 2019.

[28] CB327, Emergency Department Record dated 23 January 2019.

[29] CB4473, Pathology Report dated 25 January 2019; CB349, Nursing Discharge Summary dated 4 February 2019.

[30] CB4472, Conditions Notifiable by Medical Practitioners in Victoria Form dated 25 January 2019.

[31] CB462-3, Progress Notes dated 26 January 2019.

[32] CB4476-87, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.

[33] CB4481, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.

[34] CB4486, Communicable Disease Prevention and Control Case Questionnaire dated 29 January 2019.

[35] CB5548-9, Email from Ms Lyon dated 29 January 2019.

[36] CB381-2, Nutrition Details of AB dated 24 January to 4 February 2019.

[39] CB723, Medical Certificate of Cause of Death dated 4 February 2019.

[40] CB724-5, Medical Certificate of Cause of Death dated 4 February 2019.

[41] CB725, Medical Certificate of Cause of Death dated 4 February 2019.

[42] CB4488, Email from Ms Atkinson to Ms Johnson dated 31 January 2019; CB811, Request Form for Environmental Samples, Swabs and Equipment dated 1 February 2019; CB813, Request Form for Food, Food Ingredient and Packaging Samples dated 1 February 2019.

[43] Transcript of Proceedings, T 346 L 10-22.

[45] CB814, Request Form for Food, Food Ingredient and Packaging Samples dated 1 February 2019.

[46] CB4489, Email from Ms Atkinson to Manningham City Council dated 31 January 2019.

[47] CB4516-8, Results Report dated 14 February 2019; CB4519-4524, Results Report dated 18 February 2019.

[48] CB828, Results Report dated 18 February 2019.

[49] CB831, Results Report dated 18 February 2019.

[50] CB817, Results Report dated 18 February 2019.

[51] CB822, Results Report dated 18 February 2019.

[52] CB825, Results Report dated 18 February 2019.

[53] CB817, Results Report dated 18 February 2019.

[56] CB834, Results Report dated 18 February 2019.

[57] CB835, Results Report dated 18 February 2019.

[58] CB836, Results Report dated 18 February 2019.

[59] CB4557-8, Results Report dated 19 February 2019.

[60] CB4560, Results Report dated 19 February 2019.

[62] CB4559, Results Report dated 19 February 2019.

[63] CB4497, Results Report dated 11 February 2019.

[64] CB4674, Results Report dated 21 February 2019.

[65] CB4677, Results Report dated 21 February 2019.

[66] CB4676, Results Report dated 21 February 2019.

[67] CB4679, Results Report dated 21 February 2019.

[68] CB4764, Results Report dated 21 February 2019.

[69] CB4765, Results Report dated 21 February 2019.

[70] CB4401, Instrument of Authorisation/Appointment dated 15 April 2015.

[71] CB4551, Email from Mr Goldsmith dated 18 February 2019.

[72] Transcript of Proceedings, T 487 L 19 - T 488 L 2.

[73] CB4550, Email from Dr Bone dated 18 February 2019.

[74] CB4553, Email from Dr Sutton dated 18 February 2019.

[75] Transcript of Proceedings, T 291 L 23 - T 293 L 4; T 316 L 9-11; T 351 L 24 - T 352 L 1.

[76] Transcript of Proceedings, T 352 L 12-18.

[77] CB1623, Order dated 19 February 2019.

[78] CB1624-7, Order dated 19 February 2019.

[79] Transcript of Proceedings, T 523 L 23-28; T 540 L 30-31.

[80] Transcript of Proceedings, T 293 L 24-31.

[83] Ibid T 353 L 2-5; T 354 L 24 - T 355 L 14.

[85] Ibid T 353 L 14-16; T 356 L 21-22.

[86] Exhibit-P2, Bundle of Documents Headed Re Gastro Outbreak Claim, 4.

[88] Ibid T 295 L 1-2, 13-14, T 296 L 3-4.

[92] Ibid T 526 L 26-31; T 527 L 16-25; T 528 L 18-21.

[93] CB4662-3, Email from Dr Canil dated 21 February 2019.

[94] CB4667, Email from Dr Sutton dated 21 February 2019.

[95] Transcript of Proceedings, T 626 L 3 - T 628 L 5.

[96] CB4399, Instrument of Authorisation/Appointment dated 22 February 2013.

[97] CB4671, Incident Management Team Meeting Agenda dated 21 February 2019.

[98] CB4400, Instrument of Authorisation/Appointment dated 9 May 2014.

[99] CB4402, Instrument of Authorisation/Appointment dated 18 June 2015.

[100] CB4403, Instrument of Authorisation/Appointment dated 11 May 2016.

[101] CB4404, Instrument of Authorisation/Appointment dated 14 October 2016.

[102] CB4671-2, Incident Management Team Meeting Agenda dated 21 February 2019.

[103] Transcript of Proceedings, T 538 L 15-16.

[104] CB4684-5, Email from Dr Romanes dated 21 February 2019 (emphasis in original).

[105] CB4687-9, Email from Dr Romanes dated 21 February 2019.

[106] Transcript of Proceedings, T 486 L 23-29.

[108] CB4665-6, Email from Dr Canil dated 21 February 2019.

[109] CB4665, Email from Dr Sutton dated 21 February 2019.

[110] CB4673, Email from Dr Canil dated 21 February 2019.

[111] CB4661, Email from Dr Sutton dated 21 February 2019.

[112] Transcript of Proceedings, T 542 L 18 - T 543 L 16.

[113] Ibid T 531 L 22-25; See also T 538 L 6-26.

[114] CB4671, Incident Management Team Meeting Agenda dated 21 February 2019.

[115] CB4682, Email from Dr Romanes dated 21 February 2019.

[116] CB4680-1, Draft Letter dated 21 February 2019.

[117] CB4682, Email from Dr Sutton dated 21 February 2019.

[118] CB264, Email from Dr Romanes dated 21 February 2019.

[119] Transcript of Proceedings, T 508 L 24-26.

[120] Ibid T 525 L 20-21; T 544 L 24-26.

[127] Ibid T 528 L 22 - 529 L 7; T 639 L 7-12.

[128] CB4687-9, Email from Dr Romanes dated 21 February 2019.

[129] Transcript of Proceedings, T 511 L 21 - T 512 L 1.

[131] CB4753, Email from Dr Sutton dated 21 February 2019.

[132] CB4686, Email from Dr Sutton dated 21 February 2019.

[133] Transcript of Proceedings, T 510 L 5-12.

[134] CB4745, Email from Dr Canil dated 21 February 2019.

[135] CB4741, Email from Mr Morrison dated 21 February 2019.

[137] CB4745, Email from Mr Morrison dated 21 February 2019.

[138] CB4748, Email from Dr Canil dated 21 February 2019.

[139] CB4747, Email from Dr Sutton dated 21 February 2019.

[140] Transcript of Proceedings, T 513 L 20-21.

[142] CB4691, Email from Dr Romanes dated 21 February 2019.

[143] CB4747, Email from Mr Morrison dated 21 February 2019.

[144] CB4749, Email from Dr Sutton dated 21 February 2019.

[145] CB4749, Email from Dr Romanes dated 21 February 2019.

[146] CB1681, Cease Production Order dated 21 February 2019.

[147] Transcript of Proceedings, T 310 L 9-12.

[152] CB4777, Email from Mr Morrison dated 23 February 2019.

[153] CB4776, Email from Mr Morrison dated 23 February 2019.

[154] CB4775, Email from Dr Sutton dated 23 February 2019.

[155] CB5585-9, Varied Cease Production Order dated 23 February 2019.

[156] CB4674-5, Results Report dated 21 February 2019.

[157] CB4669, Email from Dr Canil dated 21 February 2019.

[158] CB4794, Result Report dated 25 February 2019.

[159] CB4800, Result Report dated 25 February 2019.

[160] CB4796, Result Report dated 25 February 2019.

[161] CB4798, Result Report dated 25 February 2019.

[162] CB4792, Result Report dated 25 February 2019; CB4802, Result Report dated 25 February 2019.

[163] CB4837, Result Report dated 28 February 2019.

[164] CB4810, Result Report dated 28 February 2019.

[165] CB4839, Result Report dated 28 February 2019.

[166] CB1826, Result Report dated 28 February 2019.

[167] Transcript of Proceedings, T 299 L 19-20.

[169] Transcript of Proceedings, T 288 L 8-29.

[172] Ibid T 375 L 12-14; T 375 L 12-14.

[174] Ibid T 371 L 25-28; T 372 L 9-14.

[178] Ibid T 392 L 6-30; Exhibit-D6, Email exchanges between Ben Cook and Pauline Moloney commencing 20 March 2019.

[179] CB4849, Instrument of Revocation dated 28 March 2019.

[180] Sanders v Snell (1998) 196 CLR 329, 344 [37] ('Sanders v Snell'); Northern Territory v Mengel (1995) 185 CLR 307, 347, 356 (Brennan J), 370 (Deane J) ('Mengel').

[181] Three Rivers District Council v Bank of England (No 3) [2002] EWCA Crim 2949; [2003] AC 1, 191E.

[182] Sanders v Snell (n 180) 344-5 [38]; Mengel (n 180) 357 (Brennan J), 370-371 (Deane J).

[183] Transcript of Proceedings, T 760 L 6.

[189] CB245, email from Philip Stefanovski to David Brett, 28 February 2020.

[190] CB4661, Email from Dr Sutton dated 21 February 2019.

[191] CB4665-6, Email from Dr Canil dated 21 February 2019.

[192] CB4665, Email from Dr Sutton dated 21 February 2019.

[193] CB4673, Email from Dr Canil dated 21 February 2019.

[194] Transcript of Proceedings, T 542 L 18 - T 543 L 16.

[195] CB4687-9, Email from Dr Romanes dated 21 February 2019.

[196] Food Act 1984 (Vic) s 35.

[197] Plaintiff's Closing Submissions dated 30 August 2023, [115]-[116], [121]-[122].

[198] Interpretation of Legislation Act 1984 (Vic) s 35.

[199] Transcript of Proceedings, T 502 L 5-26; T 630 L 13-20.

[200] Plaintiff's Closing Submissions dated 30 August 2023, [123].

[201] Plaintiff's Closing Submissions dated 30 August 2023, [148].

[202] CB3228, Transcript of 22 February 2019 press conference.

[203] Plaintiff's Closing Submissions dated 30 August 2023, [154].

[204] Transcript of Proceedings, T 514 L 9-12.

[206] Ibid T 539 L 6-9; T 541 L 1-25; T 546 L 5-12.

[207] Plaintiff's Second Further Amended Statement of Claim dated 10 August 2023, [28].

[209] Ibid [17.2]; Transcript of Proceedings, T 45 L 6-25; T 47 L 12-28; T 64 L 3-17; T 68 L 6-12; T 72 L 23-24; T 785 L 12-15; T 795 L 26 - T 796 L 2; T 830 L 5-6.

[210] Plaintiff's Closing Submissions dated 30 August 2023, [101]; Plaintiff's Chronology, Schedules K, L; Transcript of Proceedings, T 77 L 7 - T 78 L 1; T 83 L 16 - T 84 L 30.

[211] Plaintiff's Closing Submissions dated 30 August 2023, [98], [101].

[212] [2018] HCA 34; (2018) 264 CLR 123 ('Hossain').

[213] See Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179, 188-9 [34].

[214] Hossain (n 212) 136 [34] (emphasis added) (citations omitted).

[215] [1999] HCA 21; (1999) 197 CLR 611.

[216] Ibid 651 [130] (emphasis added).

[217] [2022] FCAFC 3; (2022) 289 FCR 21.

[219] (2010) 240 CLR 611.

[220] Ibid 647-50 [130]-[131], [133], [135].

[221] [2018] HCA 30; (2018) 264 CLR 541.

[223] [2022] HCA 15; (2022) 96 ALJR 464.

[224] Ibid 470-1 [30]-[31], [43] (emphasis added).

[225] Transcript of Proceedings, T 519 L 17-22; CB4837, Result Report dated 28 February 2019; CB4810, Result Report dated 28 February 2019; CB4839, Result Report dated 28 February 2019; CB1826, Result Report dated 28 February 2019.

[227] Transcript of Proceedings, T 519 L 23 - T 520 L 18.

[230] Ibid T 618 L 9-13; T 619 L 28 - T 620 L 12.

[233] Plaintiff's Closing Submissions dated 30 August 2023, [101].

[234] CB3249-51, Australia New Zealand Food Standards Code standard 1.6.1 'Microbiological limits in Food'.

[235] Exhibit-P13, Expert Report of Mr Stone dated 8 August 2023, 7 [5.19].

[236] CB828, Results Report dated 18 February 2019.

[237] CB831, Results Report dated 18 February 2019.

[238] CB825, Results Report dated 18 February 2019.

[239] Transcript of Proceedings, T 457 L 25-9.

[240] Ibid T 520 L 19 - T 521 L 15. See also T 555 L 10-30.

[244] Exhibit-P13, Expert Report of Mr Stone dated 8 August 2023, 7 [5.19]-[5.26].

[245] Transcript of Proceedings, T 459 L 17 - T 460 L 8.

[252] Plaintiff's Second Further Amended Statement of Claim dated 10 August 2023, [27.1]-[27.3].

[253] Transcript of Proceedings, T 737 L 15-27.

[258] CB4669, Email from Dr Canil dated 21 February 2019.

[259] Transcript of Proceedings, T 588 L 15 - T 590 L 16.

[260] CB740, Expert Report of Dr Price dated 24 July 2023, [1.1].

[261] CB746, Expert Report of Dr Price dated 24 July 2023, [7.52].

[262] CB4497, Results Report dated 11 February 2019; CB4674, Results Report dated 21 February 2019; CB4677, Results Report dated 21 February 2019; CB4676, Results Report dated 21 February 2019; CB4679, Results Report dated 21 February 2019.

[263] Transcript of Proceedings, T 634 L 9-15.

[265] Ibid T 523 L 23-28; T 540 L 30-31.

[273] Ibid T 451 L 18-21; T 455 L 16-29.

[275] [1993] FCA 208; (1993) 114 ALR 409.

[278] Transcript of Proceedings, T 519 L 17-22; CB4837, Result Report dated 28 February 2019; CB4810, Result Report dated 28 February 2019; CB4839, Result Report dated 28 February 2019; CB1826, Result Report dated 28 February 2019.

[280] (1990) 170 CLR 596 ('Annetts').

[282] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 554 ('Kioa').

[283] Ibid 584; Annetts (n 280) 598**;** BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29, 46 [42]; Chief Commissioner of Police v Nikolic [2016] VSCA 248; (2016) 338 ALR 683, 705 [79].

[284] Plaintiff's Second Further Amended Statement of Claim dated 10 August 2023, [29].

[285] [2023] HCA 22 ('Disorganized Developments').

[287] [1992] HCA 10; (1992) 175 CLR 564

[289] Transcript of Proceedings T 716 L 7-8.

[292] [2007] NSWCA 196.

[293] Ibid [29]-[30] (emphasis added).

[294] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability, (Lawbook Co, 7th ed, 2021) [8.190] (citations omitted) (emphasis added).

[299] Defendant's Outline of Opening dated 24 July 2023, [30]-[31].

[300] (1985) 10 FCR 234 ('Marine Hull').

[301] [2001] FCA 1424; (2001) 113 FCR 466 ('Pacific Century').

[302] [2014] QSC 320 ('Mowburn Nominees').

[303] Marine Hull (n 300) 241 [26] (emphasis added).

[304] Pacific Century (n 301) 475 [25], see also 476-7 [33]-[34] (Dowsett J) 478 [41] (Stone J).

[305] Mowburn Nominees (n 302) Ibid 3-4.

[306] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69]-[70].

[307] Cf Tucker v Victoria [2021] VSCA 120, [253]-[254].

[308] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 2016 CLR 57, 69 [31].

[309] [1949] 1 All ER 109.

[310] Ibid 118, cited with approval in Kioa (n 282) 613.

[311] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, 154 [55] ('Isbester'); Kioa (n 282) 584-85, 628-9; Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 95-6 [15]-[17]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 162 [32].

[313] [1994] FCA 1074; (1994) 49 FCR 576.

[314] Ibid 591-2, cited with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 219 [22] (Gleeson CJ, Gummow and Heydon JJ).

[315] (1985) 2 NSWLR 239.

[317] [2003] NSWSC 669.

[318] Ibid [68], cited with approval in Re Burton; Ex Parte Lowe and Anor [2003] WASCA 306, [65] (Barker J, with whom Murray and Roberts-Smith JJ agreed).

[319] Transcript of Proceedings, T 299 L 2-6.

[323] Exhibit-P1, Transcript of Body Camera Footage.

[325] Transcript of Proceedings, T 544 L 8-15

[328] Ibid T 519 L 23 - T 529 L 18. See also T 301 L 2-4; T 305 L 4-11; T 387 L 16-25; T 396 L 23-28.

[329] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, 741 [1] ('Nathanson').

[330] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445 [45].

[332] Ibid 747-8, 750, [32]-[33], [46] (citations omitted).

[333] Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57; (2023) 409 ALR 719, 734 [79] (Mortimer CJ, with whom Anderson and Hespe JJ agreed); Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68, [46]-[47] (Moshinsky, Stewart and Jackman JJ); AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90, [76], [81], [88] (Banks-Smith, Jackson and Feutrill JJ); Bobrenitsky v Sydney Trains [2023] FCAFC 96 , [99] (Collier, Snaden and Goodman JJ); Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98, [62] (Katzmann, Jackson and McEvoy JJ); Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116, [154] (Logan, Rangiah and Goodman JJ); Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144, [56] (Stewart and Hespe JJ, with whom Feutrill J agreed), [75]-[76] (Feutrill J).

[334] Transcript of Proceedings, T 523 L 23-28; T 540 L 30-31.

[335] Mengel (n 180) 356-57 (Brennan J); Sanders v Snell (n 180) 344-5 [38].

[336] Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries and Forestry & Anor [2020] FCA 732; (2020) 274 FCR 337, 407 [284]; Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1, 28-9 [128]-[130]; Evidence Act 2008 (Vic) s 140(2)(c).

[337] Transcript of proceedings, T 577 L 25.

[343] Sanders v Snell (n 180) 349 [47].

[344] Sanders v Snell [1997] FCA 229; (1997) 73 FCR 569, 593.

[345] Sanders v Snell (n 180**)** 350 [48].

[346] Snell v Sanders [2000] NFSC 5.

[347] [2003] FCAFC 150; 130 FCR 149, 180.

[348] Ambridge Investments Pty Ltd (in liq) (Receiver appointed) v Baker & Ors [2010] VSC 59, [61]-[63].

[349] [1992] HCA 10; (1992) 175 CLR 564.

[351] Transcript of Proceedings, T 752 L22-27.

[352] (1977) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[353] [1996] FCA 1017; (1996) 71 FCR 1, 31-33 (Kiefel J, Sackville J agreeing).

[354] Bare v IBAC [2015] VSCA 197; (2015) 48 VR 129, 180 [152]; Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, 600 [556], 602 [563], 603-4 [568]-[569].

[355] Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89; ACCC v Eurong Beach Resort [2005] FCA 1134; Director of Consumer Affairs Victoria v DW International Trading Pty Ltd [2010] VSC 515; Director of Consumer Affairs Victorian v Mecon Insurance Pty Ltd [2016] VSC 42; Tax Practitioners Board v Hogan [2012] FCA 642; CMA19 v Minister for Home Affairs [2020] FCA 736; Antigua Power Co Ltd v Attorney General of Antigua and Bermuda [2013] UKPC 23.

[356] [2020] VSC 762, [111]-[113]; See also reported version Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission (2020) 61 VR 383.

[357] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 95 ALJR 128, 137 [48]-[49]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [13]; Hossain (n 212) 133 [24], 143 [62].