Lawyers acting for Victoria’s Department of Health have defended a decision to shutter a catering company over an allegedly contaminated sandwich.
I Cook Foods Pty Ltd founder Ian Cook is suing Victoria’s Department of Health and Human Services for $50m, claiming his business was destroyed by the forced closure in February 2019.
Victoria’s then acting chief health officer Brett Sutton ordered the business to temporarily close on February 21 amid fears of a listeria outbreak after the death of an elderly Knox Private Hospital patient on February 4.
I Cook Foods supplied meals to the hospital.
In his order, Dr Sutton said he could not be assured that the business’s kitchen was suitable for food production.
Over a month-long trial before the Victorian Supreme Court, Mr Cook has claimed Dr Sutton could not have been satisfied to the requisite standard there was a risk posed by his business.
It’s claimed Dr Sutton had already decided to close the kitchen before all testing results had been received.
It’s alleged Dr Sutton acted with “reckless indifference”, denying Mr Cook procedural fairness and the right to respond to concerns.
Mr Cook’s counsel, Marcus Clarke KC, has previously told the court that the order “destroyed” his client’s business and led to millions of dollars in losses.
Delivering his closing remarks on Thursday, counsel acting for the Health Department, Christopher Caleo KC, argued there was no right for procedural fairness, and if there was, the “urgency” of the decision limited that right.
He argued the evidence indicated Dr Sutton had “carefully” addressed his statutory duty and was satisfied I Cook Foods’ meals were likely to risk physical harm if he did not act.
“Dr Sutton gave, we say, very cogent evidence why he could be, and indeed was, satisfied,” he said.
The court was told Dr Sutton was “devastated” in making the order, knowing the impact it would have on the business.
Mr Caleo argued there was no obligation to provide Mr Cook a chance to respond to concerns, saying the alternative was to allow potentially contaminated food to be produced and distributed.
He told the court that before February 21 Mr Cook, his son and co-owner Ben Cook, or both knew a patient had become sick, positive samples had been taken and council officers had ordered steps be taken to remedy sanitary issues.
“In those circumstances what obligation existed on the part of Dr Sutton,” Mr Caleo said.
“During evidence the only matter to which reference was made on more than one occasion was their desire to have a copy of the lab reports, one must ask why?
“They’d been told not only that it was listeria, but that it was listeria monocytogenes.”
The court was told the bacteria that causes listeria infections, listeria monocytogenes, was detected in six of seven food samples taken from the premises on February 18.
I Cook Foods, which had operated for 35 years, held contracts with Meals on Wheels and hospitals that were cancelled after the health order was made.
The court was told Dandenong City officers had already ordered the business to take steps to remedy what it deemed an unsanitary and unclean workplace, but the council’s chief executive was not prepared to make a closure order.
The long-running legal fight was dubbed “Slug Gate” in the media over allegations a health inspector planted a garden slug in I Cook Foods’ kitchen in early 2019.
Dandenong City was originally also named as a defendant in the claim, but the matter was settled outside of court before the trial began on August 2.
The trial, before Justice Michael McDonald, will hear closing arguments from Mr Clarke on Friday.