by Cam Lucadou-Wells
The state’s health department has been ordered to pay 50 per cent of I Cook Foods’ legal costs after a recent misfeasance trial in the Victorian Supreme Court.
In a ruling on 30 November, Justice Michael McDonald stated the apportionment of legal costs reflected ICF’s “partial success” in its lawsuit.
Earlier that month, the judge found that then-Acting Chief Health Officer Brett Sutton’s shutdown of the Dandenong South commercial kitchen in early 2019 was invalid.
However, McDonald ruled against damages because Sutton wasn’t proven to be “recklessly indifferent”.
The judge instead opted for “declaratory relief” – a declaration that Sutton’s orders were invalid due to failing to provide procedural fairness to ICF.
The Department of Health had submitted that ICF should pay part of the department’s legal costs. It argued that the declaration was of “limited utility” and didn’t support a costs order.
McDonald rejected the argument – noting Sutton’s shutdown orders had an “immediate and very significant adverse impact” on ICF.
“There was a direct nexus between the making of the order and the closure of the business which had previously operated for more than 30 years.
“The declaration as to the invalidity of the order provided ICF with vindication that it had been subject to a wrong done to it by a public office holder.”
McDonald also found that the department failed to comply with orders for pre-trial discovery and refused to answer an interrogatory without a proper basis for doing so.
It ordered the department to pay ICF’s full legal costs for these pre-trial stages.
In pre-trial discovery in 2020, the department was ordered to supply the report that justified Sutton’s order. It produced a single email from Dr Finn Romanes to Brett Sutton.
However at trial in 2023, the department argued Sutton’s order was based on “multiple reports from multiple authorized officers”, McDonald stated.
During interrogatories, the department also failed to produce the documents and correspondence reviewed by Sutton before he closed ICF. It claimed the request was too broad or oppressive.
The department’s barrister later conceded to the court that this refusal was “probably not appropriate”.
In February 2019, ICF was closed by Sutton as part of an investigation into a listeria-infected hospital patient’s death.
As a result, the business didn’t trade again, and 41 employees lost their jobs.
Meanwhile, ICF has launched a fresh lawsuit against Greater Dandenong Council and two council employees for alleged “malicious prosecution”.
ICF has been reportedly seeking $50 million damages for the destruction of its business.
