City of Greater Dandenong will continue in its appeal to strike out I Cook Foods’ lawsuit against the council, despite losing a bid to subpoena ICF’s ‘privileged’ legal advice.
“Council is considering the (subpoena) decision, but it does not impact the Council’s appeal … which is listed to be heard by the Court on 18 December 2024,” says Greater Dandenong chief executive Jacqui Weatherill.
She said the council subpoena application was a “discrete issue regarding access to documents referred to by ICF and (director) Ian Cook in an affidavit and in the media”.
“Council maintains that this current action in the Supreme Court is an abuse of process, and an attempt to relitigate what has already been settled between the parties.”
Victorian Supreme Court judicial registrar Deirdre McCann ruled the council’s subpoena 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.
Greater Dandenong is appealing an August decision by Associate Justice Caroline Goulden to dismiss the council’s application to throw out ICF and Cook’s lawsuit.
In a long-running saga dubbed ‘slug-gate’, 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two officers Leanne Johnson and Elizabeth Garlick in charging ICF and Cook with 96 food-safety offences that were later withdrawn.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.
Greater Dandenong argued that the lawsuit was an abuse of process due to the parties having 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.
