I Cook Foods has been denied damages despite the Supreme Court of Victoria ruling it was shut down by an “invalid order” by then-Acting Chief Health Officer Brett Sutton.
The Dandenong South-based kitchen had launched a $50 million lawsuit against the Department of Health and Human Services for misfeasance in February 2019.
In his judgement on 13 November, Justice Michael McDonald said the initial order to close down and destroy its food stocks was invalid because Sutton had failed to provide procedural fairness to ICF.
Sutton’s variation of the order several days later was also ruled invalid for the same reason.
However Sutton did not commit misfeasance because he was not “recklessly indifferent”, McDonald ruled.
By consulting with a departmental lawyer prior to issuing the order in February 2019, Sutton was not “recklessly indifferent” to failing to provide procedural fairness.
McDonald dismissed the misfeasance claim for damages but ruled in favour of “declaratory relief” for ICF which had suffered “immediate” and “adverse” impact.
Since the order, ICF effectively stopped trading. Its contracts with customers were terminated and its 41 staff were dismissed, McDonald said.
Declaratory relief – which is without damages – would go some way to restoring the business’s reputation, the judge stated.
The verdict came nearly five years after I Cook Foods’ kitchen was temporarily shut down and ordered to destroy its food stocks.
It was part of a DHHS investigation into the death of an 86-year-old listeria-infected patient at Knox Private Hospital.
Sutton had based his decision on lab tests confirming listeria mono (LM) were found on six food samples in the ICF kitchen, and preliminary genetic sequencing that compared the LM strain to the patient’s infection.
McDonald dismissed ICF’s other submitted grounds for the order being invalid.
ICF had argued that Sutton should have waited for more definitive lab tests.
It had been supplying 5000 sandwiches a week at the time – including 3500 a week to Knox Private – without another reported listeria case, it submitted.
The LM found in the ICF food samples was also within safe levels according to national food standards, ICF argued.
McDonald will award costs for the trial at a later date.
Meanwhile, Ian Cook – the owner of ICF – is running as an independent candidate in the Mulgrave by-election on Saturday 18 November.
