I Cook Foods director Ian Cook says he’s relieved after the Victorian Supreme Court rejected City of Greater Dandenong’s bid to throw out his ‘slug gate’ lawsuit against the council.
In a ruling on 27 August, Associate Justice Caroline Gulden dismissed the council’s application and ordered it to pay Cook and ICF’s costs.
“The council had tried to stop the case from continuing but today’s judgement means the case will continue,” Cook said.
“I am relieved that the court has ruled fairly in this matter.
The Dandenong South commercial caterer was shut down by health authorities as part of an investigation into a listeria-infected patient’s death at Knox Private Hospital in 2019.
In its lawsuit, it alleges malicious prosecution by the council and two officers Leanne Johnson and Elizabeth Garlick in charging ICF and Cook with 96 food-safety offences that were later withdrawn.
It also alleges public misfeasance against the council and officers in their inspections of ICF and ensuing prosecutions.
Among its claims are that inspector body-cam footage was altered and that a slug was planted in the factory by an inspector.
“Finally, I will have a chance to prove in court what really happened, and Council staff will have to answer questions under the threat of perjury if they lie,” Cook said.
“The council and key members of its staff must be held to account for what they have done to myself and my 41 employees.”
In its submissions, Greater Dandenong Council had argued that the lawsuit was an abuse of process – after ICF and the council had reached an out-of-court settlement for a previous malicious prosecution claim.
The council claimed the further litigation was “oppressive” and brought the administration of justice into “disrepute”.
After the ruling, Greater Dandenong acting chief executive Sanjay Manivasagasivam said the council was “naturally disappointed” – “particularly given that the facts pertaining to Mr Cook’s application have already been addressed, resolved and settled”.
“We are disappointed that this matter continues, given the energy, time and costs it has already consumed.
“It is worth pointing out that this is not a determination of the case. Justice Goulden AsJ’s decision this week only related to our application to have the matter struck out as an abuse of process.
“We will take the necessary time to review the decision and will consider whether to appeal.”
Manivasagasivam said the council “continues to refute all allegations of wrongdoing made by ICF and Ian Cook”.
“Council and our officers have only ever acted in the best interests of public safety, in enforcing the Food Act 1984.
“Council categorically denies that officers ever planted a slug on ICF’s premises.
“We remain dedicated to supporting the mental health and well-being of our staff involved in this matter.”
Assoc Justice Gulden said she accepted that ICF settled the earlier case to preserve his “scarce financial resources” for its lawsuit against the State of Victoria.
“I do not consider that such a decision involves any underhanded or improper use of court resources, or in itself causes improper oppression to the present defendants.
“Having not obtained damages against the State of Victoria, his claims against the defendants here assumed an even greater importance.
“And of course they did. ICF’s business had ceased to operate.
“It had claims that it advanced against the State and the Council, seeking to recover the same heads of loss in order to compensate for the losses it alleged it had suffered by reason of the separate legal wrongs of each.”
The judge ruled there was “no unjustifiable oppression” and there was no evidence of a “deliberate abuse of process” by ICF and Cook.
In the earlier case against the State of Victoria, the court ruled that Chief Health Officer Brett Sutton’s shutdown of ICF was invalid due to depriving ICF of a prior opportunity to be heard.
However, Justice Michael McDonald found that Sutton’s conduct was not “recklessly indifferent” so didn’t meet the criteria for misfeasance. And damages were denied.
After that case was dismissed last year, ICF launched its new lawsuit against the council soon afterwards.
