By Erin Pearson
A Supreme Court judge has ruled the order used to shut down catering company I Cook Foods following allegations of a listeria outbreak was invalid.
The case, which became known as “slug gate” after allegations a slug was planted in the I Cook Foods kitchen, ended on Monday with the finding a win for business owner Ian Cook and his family, but he won’t be awarded any compensation.
An emotional Ian Cook outside court.Credit: Chris Hopkins
Justice Michael McDonald found then chief health officer Brett Sutton failed to observe procedural fairness but was not reckless in his decision to close the catering company in February 2019.
In failing to prove recklessness, the judge dismissed Cook’s claims for damages following a 10-day trial.
Outside court, Cook cried as he labelled the judgment a “bittersweet victory”.
He vowed to appeal the dismissal of damages and said the fight for justice wasn’t over.
“The court has just ruled that Sutton was wrong. But there was no compensation for myself, my family, my employees. We will continue to fight,” he said.
“We’ve been doing this for ourselves and every Victorian.
“This government has spent millions trying to destroy us. We will continue [to fight]... we’ll just have to work out how we’re going to afford it.”
The food supplier was forced to close in February 2019 after health officials found it provided a sandwich to Knox Private Hospital patient Jean Painter, 86, who later died with a listeria infection.
Cook has vowed to appeal the decision to refuse compensation.Credit: Chris Hopkins
McDonald said samples were later taken from I Cook’s premises and tested, detecting listeria in ham, silverside beef, egg and lettuce, and ham and cheese sandwiches. Listeria was also detected in sliced cucumber.
But those results came two days after Sutton ordered that the catering company immediately cease food production and destroy what was left on the premises.
This order, McDonald said, had an immediate impact on the business and within weeks, all customers had terminated their contracts and its 41 employees were dismissed. They never reopened.
“The order made by Dr Sutton on the evening of February 21, 2019, had an immediate and significant adverse effect on the business’ reputation,” McDonald said.
Cook’s legal team had argued Sutton acted with “reckless indifference” to the consequences of closing the kitchen, and that the closure resulted in the “complete destruction of the business”.
But the Health Department argued Sutton’s actions were lawful, considered and done without malice in an honest attempt to protect the community.
McDonald said the closure order was invalid because the department failed to observe the requirements of procedural fairness, which required it to give the business the opportunity to respond before the order was made. But he also found there was no reckless indifference in the decision, so Cook was not awarded any damages. He had sought up to $50 million.
“I accept Dr Sutton’s evidence that once he was satisfied that food being prepared at ICF was unsafe, there was an urgent need to make an order for cessation of production. The need for urgency did not relieve Dr Sutton of the obligation to provide ICF with an appropriate opportunity to be heard prior to the order being made,” McDonald said.
Independent candidate Ian Cook is again contesting the Mulgrave byelection.Credit: Eamon Gallagher
Cook had initially launched legal action against both the state government and Greater Dandenong Council after a slug was discovered by a food inspector on the premises during a follow-up inspection. He claimed it was planted.
The council has long denied planting the slug and was removed as a defendant on the eve of the trial in August.
The closure of the business has sparked a lengthy public political and legal battle.
Victoria Police last year closed their investigation into accusations the catering company was sabotaged and no charges were issued.
The court ruling comes just five days before the Mulgrave byelection in which Cook is running as an independent candidate for the seat previously held by former premier Daniel Andrews.
Labor holds the seat by a margin of 10 per cent, but Cook’s preferences are expected to play a crucial role in deciding who will win the electorate in Melbourne’s outer south-east after he secured 18 per cent of the primary vote and finished second on primaries at the state election last November.
Cook’s son, Ben Cook, said: “The Department of Health was wrong, they knew it… and we’ve been vindicated here.”
“They didn’t want us to lift the lid. Too bad, the Cook family stood up ... and said it’s wrong what you did. And we will make sure that the public know.”
More than 40,000 voters in the suburbs of Mulgrave, Wheelers Hill, Springvale, Noble Park and Dandenong North are expected to decide who will replace Andrews in the seat he represented for two decades before his retirement in September.
A Department of Health spokesperson said the decision to close I Cook was made for the protection of the community after listeria found in Painter’s blood was genomically linked to the facility.
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