Case Study: Food Act Prosecution – Resolution & Plea – Melbourne Magistrates’ Court
The company, its director and the manager of the business premises were each facing a total of 11 charges relating to serious breaches under the Food Act 1984.
These breaches included failing to prevent pests (mice and cockroaches) from entering the food premises; ongoing harbourage of pests; failing to maintain cleanliness; failing to maintain proper fixtures and fittings; failing to store food in a safe manner; and failing to ensure proper staff training in food safety.
The monetary penalties for such breaches can be as high as hundreds of thousands for a company, and tens of thousands for an individual.
Needless to say, when being prosecuted under the Food Act, it is imperative that you engage lawyers who specialise in this area to ensure that you avoid a crushing fine.
Our client owned a karaoke venue in the heart of the CBD, which prepared and served simple dishes like chicken wings and noodles; making it a Class 2 Food business.
On a routine inspection by the local council, the presence of mice and cockroaches were discovered. These pests have also caused some structural damage over time. The kitchen and bar areas were found to be unhygienic, and food was not stored correctly. Further, a number of employees did not have the requisite qualifications to undertake food preparation.
The council immediately shut down the business, a Closure Order remained in place for 10 days before it was lifted when all problems and defects had been remedied.
It is a common misconception among business owners that as long as they subsequently undertake enough corrective measures to the Council’s satisfaction at a re-inspection, the matter will not go to court. This is not the case at all, as the council can, and often will, issue charges against the company and individuals if the initial breaches were serious.
These are strict liability offences, and the prosecution always rely on a large number of photographs taken at the time of inspection as proof, making these charges very difficult to contest. This case was no different, and in addition, the client has made admissions.
Preparation was the key to achieving the best outcome in this case. Our lawyers took time to really get to know the client’s business, the location and layout of the premises, the personal circumstances of the individuals charged, and the preventative and remedial steps already taken by the clients. Having all this information allowed us to embark on effective case conferencing and deliver powerful plea submissions.
After many days of negotiating with the council, we were able to obtain a number of very important concessions, in particular was the council’s acceptance of how difficult it was to eliminate the pest problem at that location, inside an old building with tunnels underneath and a large food court directly below. The council ultimately agreed to drop 4 out 11 charges and proceed with a much less aggravating statement of facts. During the plea itself, we focused on the efforts made by the clients to fix everything up as quickly as possible post-inspection, the financial loss suffered as a result of the closure, the fact that there were no reports of contamination or food poisoning, and the stringent current management regime adopted by the business.
The end result was a very lenient fine of $4000 for the company and approximately $2000 for each of the individuals; and all three defendants avoided convictions. The non-conviction outcome was extremely desirable for the company and its director, who was a well-known figure in the Australian-Asian business community and thus did not want his reputation affected as a result of this matter.