A catering company has accused former chief health officer Brett Sutton of destroying his business by unlawfully ordering its closure, a court has been told.
On the last day of what has been labelled the “slug-gate” trial, lawyers acting for I Cook Foods have urged Supreme Court Justice Michael McDonald to find Dr Sutton acted “recklessly”.
The Dandenong South business, which had operated for 35 years, was issued a public health order to temporarily close in 2019 following the death of Jean Painter, 86.
Ms Painter, a patient at Knox Private Hospital, was believed to have contracted listeria from an allegedly contaminated sandwich provided by I Cook Foods.
On Friday, counsel for I Cook Foods, Marcus Clarke KC said the business, which supplied food to 10 hospitals in Melbourne alongside aged care facilities and Meals on Wheels, lost its contracts and was “destroyed” by the publicity surrounding the public health order.
I Cook Foods is suing Victoria’s Department of Health for $50m, arguing the closure was unlawful and invalid and that Dr Sutton could not have been satisfied there was a risk to public health.
Dr Sutton, then-Victoria’s acting chief health officer, issued an order for the business to close shortly after 10pm on February 21, 2019.
I Cook Foods was served the notice at 4am the following day and was forced to destroy more than 10 tonnes of food.
The court was told when Dr Sutton made the order, preliminary testing showed six of seven samples of food taken from I Cook Foods had detected traces of the bacteria which causes listeria.
Officers from the City of Greater Dandenong had also inspected the premises, ordering the business to take steps to remedy what it deemed an unsanitary and unclean workplace.
In the order, Dr Sutton said he could not be assured the business’s kitchen was suitable for food production and there was a possible risk to the health of thousands of vulnerable people.
The court was told he was “devastated” to make the order, knowing the impact it would have on the business and its employees but felt the need to act urgently.
On Friday Mr Clarke said it was later determined Ms Painter had died from multiple small heart attacks and her Listeria infection was “incidental to death”.
He told the court further testing of the listeria samples taken from I Cook Foods found the quantity of the bacterium was below public health guidelines and was “safe and suitable”.
He argued the business and its founder, Ian Cook, suffered “significant” reputational damage from the order, alleging Dr Sutton committed misfeasance by not waiting for further test results.
“Dr Sutton recklessly proceeded without waiting for the numeration, contrary to the advice he was given,” he said.
He claimed Dr Sutton had “already made up his mind” and couldn’t have been satisfied to the requisite standard that there was a risk to public health.
Mr Clarke claimed Dr Sutton did not follow the law when ordering the business be shuttered and breached Mr Cook’s “natural justice” right to contest the allegations.
He argued Justice McDonald should find Dr Sutton, who was grilled in court about the decision in mid-August, was an “unreliable witness”.
Health Department lawyer Christopher Caleo KC submitted the evidence indicated Dr Sutton had “carefully” addressed his statutory duty and the order was lawfully done in an attempt to protect the community.
Mr Caleo argued there was no obligation to provide Mr Cook a chance to respond to concerns, saying the alternative was to allow potentially contaminated food to be produced and distributed.
The long-running legal fight was dubbed “Slug Gate” in the media over allegations a City of Greater Dandenong health inspector planted a garden slug in I Cook Foods’ kitchen.
The City of Greater Dandenong was originally also named as a defendant in the claim, but the matter was settled outside of court before the trial began on August 2.
Justice McDonald reserved his decision on the civil suit and will hand down his judgment at a later date.