Victoria’s former chief health officer Brett Sutton made ‘invalid’ order to close I Cook Foods

Court finds Victoria’s former chief health officer Brett Sutton failed to honour procedural fairness in a win for catering business.

Victoria’s former chief health officer Brett Sutton failed to honour procedural fairness when he made the “invalid” order to shut down a catering business, a court has been told.

Justice Michael McDonald told the Victorian Supreme Court in his judgement on Tuesday that Dr Sutton’s order to temporarily close I Cook Foods over fears of a listeria outbreak in February 2019 had an “immediate, prejudicial effect” on the business.

“Within a number of weeks, all of ICF’s customers had terminated their contracts. All of ICF’s 41 employees were dismissed. ICF never resumed trading after 21 February 2019,” he said.

“I have concluded that the order was invalid. Because DHHS failed to observe the requirements of procedural fairness when Dr. Sutton made the order.

“A declaration that DHHS failed to observe the requirements of procedural fairness when making the order will go some way to redressing damage to ICF’s business reputation.”

I Cook Foods founder Ian Cook launched legal action against Victoria’s Department of Health originally seeking $50m in damages.

Former Chief Health Officer of Victoria Brett Sutton arrives at the Supreme Court give evidence in the iCook trial in August. Picture: Mark Stewart

I Cook Foods, which had been in operation for more than 35 years, was issued a public health order by the then-acting chief health officer to temporarily close following the death of Knox Private Hospital patient Jean Painter.

The 86-year-old’s death certificate noted listeria listeria meningoencephalitis as a significant condition contributing to her death.

Ms Painter’s listeria is believed to be contracted from an allegedly contaminated sandwich prepared by I Cook Foods.

The then chief health officer issued the order shortly after 10pm on February 21, 2019 with the company served a notice at 4am the following day.

I Cook founder Ian Cook leaving Supreme Court in Melbourne in August. Picture: NCA NewsWire / David Geraghty

Justice McDonald however rejected ICF’s argument that Dr Sutton had committed the tort of misfeasance in public office in making the order.

He told the court that to prove the tort that the plaintiff must establish the order was invalid and that the former chief health officer was “recklessly indifferent” to its invalidity.

“Dr Sutton sought advice from a senior department lawyer. He did not receive advice that he was subject to any obligation to observe the requirements of procedural fairness prior to making the order,” the Supreme Court Justice said.

“Dr Sutton was not recklessly indifferent.”

Co-founder of I Cook Foods Ian Cook (L) and former Chief Commissioner of Victoria Police, Kel Glare, and with the "Slug Truck" alleged crimes surrounding the 2019 closure of Dandenong catering company, I Cook Foods. Picture: NCA NewsWire / Paul Jeffers

The long-running legal battle was dubbed “Slug Gate” over allegations a City of Greater Dandenong health inspector planted a garden slug in I Cook Foods’ kitchen.

The catering company manufactured and provided ready to eat meals to local government authorities, nursing homes and private hospitals.

Justice McDonald dismissed the claim for damages based on misfeasance in public office.

He invited I Cook Foods and DHHS to submit papers on what costs should be awarded.