Strike Two – Mount Barker Foodland Proprietor Fined for Breaches of the Food Act 2001 for the Second Time in as Many Years

In a recent decision, the Magistrates Court of South Australia has held that Mt Barker Supermarkets Pty Ltd, the proprietor of Mount Barker Foodland, failed to comply with several requirements of the Food Act 2001 (the Act) and the Australia and New Zealand Food Standards Code (the Code).

Notably, this was the second finding of guilt in the last two years against this proprietor for breaches of the Act and the Code. The actions against the proprietor of Mount Barker Foodland were brought by the Mount Barker District Council (the Council), who was represented by Norman Waterhouse Lawyers in both proceedings.

The 2018 Judgment

On 12 April 2019, Magistrate Smart delivered remarks on penalty relating to the proprietor of Mount Barker Foodland’s breaches of the Act and the Code for offences on 25 June 2018, 26 June 2018 and 7 August 2018 (the 2018 Judgment). His Honour held that there was a marked degree of negligence on behalf of this proprietor which resulted in the breaches of the Code and the Act.

Breaches to which the proprietor plead guilty included displaying for sale products past their use-by date, defacing labelling on packaged food, failing to label products with a use-by or best before date, possessing or displaying for sale products with a label that did not specify whether it was a use-by or best before date and possessing for sale/display products exhibiting mould.

Magistrate Smart stated that consumers fully expect that compliance with these statutory requirements will occur and that the legislation demands it does occur. This was despite there being no harm to any person as a result of the breaches. His Honour found that the responsibility for compliance ultimately lay with the employer and could not be blamed on human error.

Despite Mount Barker Foodland’s remorse for their actions, His Honour held that general deterrence is an important factor when considering a penalty.

The proprietor was ordered to pay fines and costs to the Council totalling $42,230.

The 2019 Judgment

On 13 November 2019, Magistrate Harrap delivered his remarks on penalty in relation to the proprietor of Mount Barker Foodland’s further breaches of the Act and the Code related to offending on 20 May 2019.

Breaches to which the proprietor plead guilty on this occasion included failing to ensure that persons undertaking food handling operations had skills in and knowledge of food safety and food hygiene matters commensurate with their work activities, possessing or displaying for sale food products past their use-by date, selling food products past their use-by date and possessing or displaying for sale products with no use-by or best before date.

In his findings, His Honour considered the proprietor’s submission that there was no history of offending at other supermarket locations operated by this proprietor. However, His Honour found that deficient policies and procedures, as well as a general lack of due diligence by the proprietor resulted in the breaches.

In delivering sentence, His Honour took into account the historical non-compliance by the proprietor, and the penalties handed down by Magistrate Smart in the 2018 Judgment.

Magistrate Harrap dismissed the proprietor’s submission that it was its staff who were responsible for the failure. Conversely, His Honour held that it was the proprietor’s responsibility to the public, as a retail food outlet, to ensure it was compliant with any laws.

In determining the penalties to be imposed, His Honour took into account that the proprietor was a repeat offender, the lack of any evidence of injury caused to other persons by the breach, the early guilty plea by the proprietor and that he expected that ultimately the media would report on the offending and penalties.

On this basis, Magistrate Harrap required the proprietor to pay fines and costs to the Council totalling $53,900.

Take Away Messages

It is both surprising and alarming that the proprietor of Mount Barker Foodland failed to comply with the requirements of the Act and Code following the 2018 Judgment.

These cases serve as a timely reminder that this type of offending will likely result in the imposition of significant penalties. The cases again highlight the important role played by Councils in identifying breaches of the State’s food safety standards and ensuring they are properly enforced.

For more specific information on any of the material contained in this article, please contact Paul Kelly on +61 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on +61 8210 1221 or dmazzachi@normans.com.au.