Greater Dandenong Council has stumbled in its latest step to strike out I Cook Foods’ ‘slug-gate’ lawsuit against the council.
On 5 December, the council was refused a subpoena bid in the Victorian Supreme Court to access ICF’s ‘privileged’ legal advice ahead of an appeal hearing.
Victorian Supreme Court judicial registrar Deirdre McCann ruled the council’s application as “impermissible fishing”.
She found Greater Dandenong “failed to describe with precision” how the sought documents would be used on appeal.
“I find also that it is not on the cards, that is, there is no reasonable possibility, that the production documents would assist the defendants.”
A final decision on costs had yet to be made. McCann said her “preliminary view” was to award costs against Greater Dandenong, subject to submissions from the parties.
In August, Supreme Court associate justice Caroline Goulden had dismissed – with costs -the council’s application to throw out ICF and Cook’s lawsuit.
Greater Dandenong is appealing the August decision.
The Dandenong South commercial caterer was shut down by health authorities as part of an investigation into a listeria-infected patient’s death at Knox Private Hospital in 2019.
In its lawsuit, ICF alleges malicious prosecution by the council and two officers Leanne Johnson and Elizabeth Garlick in charging ICF and Cook with 96 food-safety offences that were later withdrawn.
It also alleges public misfeasance against the council and officers in their inspections of ICF and ensuing prosecutions.
Among its claims are that inspector body-cam footage was altered and that a slug was planted in the factory by an inspector.
In its submissions in August, Greater Dandenong had argued that the lawsuit was an abuse of process – after ICF and the council had reached an out-of-court settlement for a previous malicious prosecution claim.
The council was seeking a waiver to accessing ICF’s “privileged” legal advice, claiming that ICF had “tactically” settled to pursue its misfeasance case solely against the State of Victoria.
After that case was concluded last year, ICF launched its new lawsuit against the council soon afterwards.
