Food Act Prosecution - City of Holdfast Bay v Liang

LG Leader December 2018

Earlier this year, KelledyJones Lawyers successfully prosecuted the proprietor of the food premises known as Montepellier (MP3) Café, on behalf of the City of Holdfast Bay. The proprietor was charged with and ultimately convicted of multiple offences under section 21 of the Food Act 2001 relating to breaches of the Food Standards Code, namely:

• failing to take all practical measures to prevent cockroaches from entering the food premises and failing to prevent their harborage on the premises;
• failing to maintain fixtures and fittings at the premises; and
• failing to maintain the premises to an acceptable standard of cleanliness.

The prosecution was pursued by the Council following a longstanding history of non-compliance by the proprietor with the Food Standards Code.  Whilst the Council had sought, in the first instance, to work with the proprietor to improve the situation, over time, the proprietor consistently failed to take adequate action.

Of particular concern, extensive clutter and food scraps persisted throughout the premises, which contributed to an infestation of cockroaches. This culminated in a complaint to the Council by a patron who, whilst dining at the restaurant, observed live cockroaches on an adjacent table and wall. In addition, fixtures and fittings were not properly maintained and replaced leading to poor standards of hygiene and cleanliness.

In light of the evidence against him, the proprietor pleaded guilty to all four charges at the earliest opportunity. He was ordered to pay fines totaling $4,800 (reduced from $8,000 on account of his early guilty plea), as well as $3,300 in costs to the Council. Convictions were recorded for the offences.

In imposing a sentence, the Magistrate noted that the kitchen had clearly not been maintained and cleaned over a protracted period and took into account the obvious risk to public health arising from the condition of the premises, including the potential risk of food contamination. In his remarks, he emphasised that a failure to comply with the Food Standards Code is a “serious offence” and that “members of the community are entitled to expect that food preparation will occur in properly maintained, clean premises, free from pests and vermin.”

Whilst the proprietor had, by the time of sentencing undertaken substantial repairs, cleaning and renovations to improve the premises, the Magistrate agreed with us that there was a need for the sentence to have a general deterrence. He also recognised the need to maintain the reputation of the hospitality industry due to its important contribution to the State’s economy.

Overall, an excellent outcome for the Council!

For more information please contact Cimon Burke on 08 8113 7105 or at cburke@kelledyjones.com.au.