Melbourne business owner Ian Cook has accused former chief health officer Brett Sutton of unlawfully ordering the closure of his catering company, I Cook Foods, when a woman died after eating a sandwich prepared by its kitchen.
On the first day of what has been deemed the “slug gate” trial – which centres on Cook’s claims that health authorities planted a slug on the company’s premises – lawyer Marcus Clarke told the Supreme Court on Wednesday that Sutton acted outside his powers as CHO and destroyed Cook’s business by prematurely ordering its closure.
I Cook Foods owner Ian Cook (centre) outside the Supreme Court.Credit: Jason South
The Dandenong South food supplier was forced to close in February 2019 after health officials determined it had provided food to 86-year-old Knox Private Hospital patient Jean Painter, who later died from a listeria infection.
Key to Cook’s argument is an email sent by an official, Paul Goldsmith, telling departmental staff there were outstanding results from tests seeking to identify the source of the listeria.
Cook’s legal team argue that, according to internal departmental emails sent by senior health public servant Dr Finn Romanes, Sutton had already decided to close the kitchen before all test results came back.
Cook claims that Sutton did not follow the law ordering the business be shut and that he breached Cook’s entitlement to natural justice to contest the allegations before unilaterally shutting it down.
“Dr Sutton could not have been satisfied of the report of the [food investigator] that the food prepared, sold or otherwise handled ... on the I Cook premises was unsafe,” Cook said.
“Dr Sutton breached the rules of natural justice by not allowing I Cook the opportunity to respond before an order was made.”
Clarke said Sutton acted with “reckless indifference” to the consequences of closing the kitchen, and that the closure resulted in the “complete destruction of the business”.
Health Department lawyer Christopher Caleo, KC, argued that Sutton’s actions were lawful, considered, without malice, based on evidence and were done in an honest attempt to perform his role of protecting the community.
According to court documents, Cook has argued that food inspector Elizabeth Garlick planted a slug in his commercial kitchen and that, along with council employee Leanne Johnson, she acted maliciously and recklessly to sabotage the business and shut it down. He also claimed they doctored photos to cover their tracks.
The Health Department denies liability for the actions of Garlick or Johnson, who are not department employees.
The closure of the business in 2019 sparked a public political and legal battle that originally alleged that Greater Dandenong Council and Sutton were complicit in a plot to destroy Cook’s business in favour of a council-owned catering business, Community Chef, serving the same area.
Cook previously cited CCTV images showing Garlick standing for 17 seconds in the corner of the kitchen where the slug was later photographed. A council employee told an inquiry in 2021 that she witnessed Garlick editing an image of the slug to remove traces of the tissue paper that it had allegedly been carried in.
Ian Cook ran as an independent candidate in last year’s state election.Credit: Eamon Gallagher
The council has long denied planting the slug.
Cook is suing the Department of Health and Human Services for $50 million in damages and has consistently claimed his business was targeted.
The council was originally also named as a defendant in the claim, but Cook settled the matter with it privately last week.
Council chief executive Jacqui Weatherill said each party bore their own costs and no settlement payment was made by the council to I Cook Foods.
Greater Dandenong Council denies planting evidence. Credit: Penny Stephens
“The fact that the claims were dropped shows that there was no substance to any of the claims made against council and its officers,” she said.
Cook is seeking damages alleging the serious tort of “misfeasance in public office” against Sutton. Misfeasance is the negligent or otherwise improper performance of a lawful act.
Victoria Police last year closed their investigation into accusations the catering company was sabotaged. No charges were laid.
Cook ran as an independent candidate in last year’s state election and challenged Premier Daniel Andrews in his home seat of Mulgrave but lost. He ran his campaign on anti-corruption messaging.
The trial continues.
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