Tearful Ian Cook claims ‘bittersweet victory’ in slug gate trial

Ian Cook says he’s been vindicated after a judge ruled the Department of Health shut down his catering business with invalid orders, but his claim for $50m in damages has been dismissed.

Catering company I Cook Foods has claimed a “bittersweet victory” in its Supreme Court fight against the Department of Health following the long-running slug gate saga.

A judge found that Ian Cook’s business was shut down with invalid orders over an alleged contaminated sandwich in February 2019.

But its claim for $50m in damages has been dismissed after the court deemed there was no misfeasance in public office when the Dandenong South food supplier was closed by then-acting Chief Health Officer Brett Sutton.

Outside the Supreme Court, a tearful Mr Cook said “it’s a bittersweet victory”.

“The court has just ruled that Sutton was wrong — twice — but there is no compensation for myself, my family or my employees,” he said.

Mr Cook said “we’ve been vindicated by the judge” but “from my own point of view, this judgment can’t stand”.

“Otherwise, you know, you can just close businesses without any consequence? You can destroy people’s lives without any consequences?”

Ian Cook with son Ben outside the Supreme Court. Picture: Nicki Connolly

Mr Cook said “I Cook Foods is dead”, with his family forced to sell the factory to pay for the court case.

Standing with his son Ben where they addressed a waiting media pack, Mr Cook promised to “continue to fight”, with potential appeals and further action.

He said “this government has spent millions trying to destroy us”.

“Every Victorian should be very scared of this government,” Mr Cook stated.

Ben, who was I Cook Foods’ general manager, said the State Government “tried to bankrupt my dad so the filthy decisions that they made didn’t come out”.

“Sutton was wrong, the Department of Health was wrong, they knew it, we are a family and we fought, we fought every day side-by-side all the way and we’ve been vindicated here,” Ben said.

Justice Michael McDonald handed down his judgment on Monday morning following a 10-day civil trial earlier this year.

His Honour found that the Department of Health “failed to observe procedural fairness”, making invalid its February 21, 2019 order for I Cook Foods to immediately cease production and destroy stock.

A variation order two days later, on February 23, was also invalid.

A photo (left) showing a slug allegedly found in the I Cook Foods facility in Dandenong that was sent to owners, compared to the original photo (right) taken during a health inspection.

Justice McDonald stated that prior to making the February 21 order, Dr Sutton “sought advice from a senior departmental lawyer” but “did not receive advice that he was subject to any obligation to observe the requirements of procedural fairness”.

That made the orders “invalid and of no legal effect”.

In declaring that the Department “failed to observe the rules of natural justice”, Justice McDonald said that would “go some way to redressing damage to ICF’s business reputation”.

“It will also provide ICF with vindication that it has been subject to a wrong done by a public office holder,” the judge found.

However, His Honour ruled that Dr Sutton did not act with “reckless indifference” when he shut down the business accused of supplying a contaminated sandwich to Knox Private Hospital patient Jean Painter, 86, who died with listeria.

That finding meant I Cook Foods’ claim for damages for misfeasance in public office — of which it sought $50m — had to be dismissed.

Supreme Court documents record Ms Painter’s cause of death as being from fluid on the lungs caused by heart disease, with listeria a “significant condition contributing to the death but not related to the disease, injury or condition causing death”.

Mr Cook says he has been vindicated by the court’s ruling. Picture: Nicki Connolly

Following Ms Painter’s passing, allegations that a garden slug was planted by a Dandenong council health inspector in I Cook Foods’ kitchen would emerge, with the years-long saga coined “slug gate”.

Mr Cook, through his barrister Marcus Clarke KC, earlier told the court his business was destroyed by the forced closure, for which he was denied a chance to respond.

I Cook Foods never reopened, lost all its contracts within weeks and all 41 employees lost their jobs.

But the health department’s barrister Christopher Caleo KC said Dr Sutton’s decision to close I Cook Foods was lawful and made to protect the community from an outbreak.

The trial ran across 10-days in August and September, with His Honour reserving his decision until today.

Submissions over legal costs, understood to soar into the millions of dollars, will be made in court later this month.

Dandenong City Council was earlier named as a defendant in the matter, but the case was dropped against it a week before the trial.

Mr Cook ran as an independent in the last state election but lost in the seat of Mulgrave where he took on former Premier Daniel Andrews. He is again standing as a candidate in the Mulgrave by-election following Mr Andrews resignation.