City of Greater Dandenong has moved for dismissal of I Cook Foods’ latest ‘Slug Gate’ lawsuit against the council.
In a hearing at the Supreme Court of Victoria on 23 April, Greater Dandenong submitted a 800-plus page affidavit against what its barrister called an “abuse of process”.
ICF and director Ian Cook are pursuing damages for alleged malicious prosecution against the council and two officers Leanne Johnson and Elizabeth Garlick.
ICF and Cook were each charged with 48 food-safety offences – all of which were ultimately dropped by the council.
It is the latest hearing since the Dandenong South commercial caterer was closed by health authorities as part of an investigation into a listeria-infected hospital patient’s death in 2019.
Police and two parliamentary inquiries have followed, as well as ICF’s civil lawsuit against the Department of Health for alleged misfeasance last year. No charges have been laid.
Council’s barrister Chris Winneke KC said ICF was having “another crack” after it had previously “abandoned” its malicious prosecution claim against the council in last year’s lawsuit.
ICF made a “tactical withdrawal” by settling the case out of court with costs set aside last year. The case was then dismissed, Mr Winneke told the court.
He said the new claim was based on the same factual allegations as the earlier one, including that council officers fabricated evidence and that one planted a slug in the ICF factory.
The new lawsuit was oppressive on the council and the two officers, who had come under “intense scrutiny” by the media, Mr Winneke said.
“The way in which the plaintiff (ICF) has gone about it is a clear example – perhaps the clearest example – of an abuse of process.”
ICF’s barrister John Ribbands said the lawsuit was not unjustifiably oppressive nor bringing the legal process into disrepute.
ICF was not “coming back for a second go at it” – with none of the allegations against the council being tested.
In 2022, ICF was trying to manage the case and “get the trial on” during Covid, when the business was closed and under financial stress.
It was entitled to manage costs and “put their best foot forward on a limited budget” while up against the resources of the State and the council.
There was a public interest in holding the council and its officers to account, Mr Ribbands said. There was a benefit to both Mr Cook and the council in having the allegations resolved.
On 13 November, 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 after, Mr Ribbands said.
Associate Justice Caroline Goulden reserved her decision for a future date.
