In the recent case of City of Onkaparinga (the Council) against Supermarket Investments Pty Ltd and Seaford 7 Days Pty Ltd (the Defendants), Magistrate Davis handed down penalties and costs exceeding $200,000.00. It is important to note that these penalties and costs will be paid to the Council by virtue of Section 145 of the Local Government Act 1999.

Norman Waterhouse successfully represented the Council in the prosecution against the Defendants for breaches of the Food Act 2001 (the Act). This case is a landmark decision in terms of food prosecution, with the largest penalty in South Australian history imposed for breaches of the Act. Magistrate Davis stated in his reasons for judgment that:

“there is a need to send out a clear message that ongoing, large scale and serious breaches of the Act will attract significant penalties of general deterrence, particularly where some of the breaches occurred after warning notices had been served.”

It is clear from this case and the recent Woolworths decision that Norman Waterhouse has undertaken, that the Courts take these matters very seriously and from a public health perspective there is value for Councils to pursue food businesses who breach food safety laws.

ABC News South Australia’s reporting of this prosecution can be found here.

The Foodland case – facts

The Defendants’ store in Port Noarlunga South had numerous products ready to sell on its shelves ranging from one to 40 days past their use-by dates. These items included ready to eat meats, vegetables, yoghurt, dips, cooking sauce and many more. The Defendants also did not follow proper practices in relation to disposing of out of date foods.

The offending continually occurred for a sustained period of time against a backdrop of constant warnings and statutory notices issued by the Council. The Court found there was a lack of appropriate procedures and due diligence on the part of the Defendants’ management and relevant employees which allowed for the offending to occur.

The matter proceeded to the Adelaide Magistrates Court where the Defendants pleaded guilty to a combined total of 57 breaches of the Act. On top of any penalties and costs the Defendants have been the subject of significant negative publicity relating to these breaches.

Since the commencement of the proceedings, the particular Foodland store has retrained staff regarding safe food practices and procedures.

“Take-away” points

This case highlights that breaches of food safety legislation is considered highly unacceptable in Australian Courts. To keep public health at a high standard, unsuitable and unsafe food should not be accessible to consumers. Food-borne diseases do not just put the individual at harm but also puts the greater community at risk. Food-borne diseases can cause serious illness and injuries to people, especially vulnerable populations such as young children, pregnant women, the elderly and people with compromised immune systems.

The Act and corresponding Food Standards Code are in place to help prevent food-borne diseases from occurring in the public. Parliament wants to prevent poor food safety practices from occurring in the interests of ensuring good public health. Accordingly, Parliament has set harsh penalties for breaches of the Act in order to deter food businesses from keeping out of date, unsuitable or unsafe food on shelves.

This prosecution has demonstrated that food businesses will be subject to heavy fines if they do not clear products from their shelves. Food businesses will have no excuse for out of date food being stored on their shelves. The excuse of a break down in chain of command will not deter Courts from imposing heavy fines.