Russell Kennedy Lawyers was recently engaged by Monash City Council to prosecute the proprietor of ‘Archie’s Fish and Chips’ shop located in Mount Waverley (food premises) for a breach of the Food Act 1984 (Vic) (Act).
The outcome of the case highlights the significant penalties that can be imposed when the proprietor of a food business fails to register the premises with the Council in accordance with the Act. Where the registration of a food premises is required, it is a key safeguard in the Act to ensure that the food premises is known to the Council and that the food safety risks associated with the food business are appropriately assessed and regulated.
The Accused was charged with one breach of section 35A(1)(a) of the Act in respect of allowing his fish and chips business to operate at the food premises when the food premises was not registered in accordance with Part VI of the Act with Monash City Council.
Section 35A of the Act provides:
Requirement to be registered or to notify registration authority
- The proprietor of a food business must not allow the business to operate from any food premises—
(a) that is not registered with the registration authority—
(ii) in the case of a fixed premises that is the principal premises in relation to a temporary food premises, mobile food premises or food vending machine, in accordance with Division 3 or 4; or…
The maximum penalty for the offence is 120 penalty units (currently $19,826.40).
The food premises is a Class 2 food premises serving higher risk food products attracting street traffic directly from the strip shopping centre.
The fish and chips shop is a food business in accordance with section 4B of the Act, in that it is a business that involves the handling of food and the sale of food.
On 18 September 2019 the informant attended at the food premises and observed that it was trading.
Despite various efforts made by Council to alert the Accused including reminder emails he continued to allow the food business to operate without the premises being registered.
On 13 February 2020, an inspection was conducted at the food premises by the informant which confirmed the business continued to trade.
The informant spoke to the Accused and he confirmed he received a registration application from Council in October 2019 including a follow up email reminder.
The registration fee was $663.50.
Magistrates’ Court Decision
On 19 January 2021, the Accused failed to appear in the Ringwood (Online) Magistrates’ Court and Russell Kennedy Lawyers made an application that the matter be heard ex parte on the basis that a full brief of evidence had been served.
The matter was heard before Judicial Registrar Soldani who found the charge proven.
The Accused had prior matters relating to the same offending in 2018 and 2019.
Russell Kennedy Lawyers submitted to the Court the following:
- given the prior matters, the Court needed to send a message of specific and general deterrence;
- the offending required a conviction be recorded;
- the two previous findings of guilt were aggravating factors;
- the purpose of registration is to ensure that Council is satisfied that a food premises is compliant with the Act and the Food Standards Code; and
- that it is a serious public health risk where food businesses operate without being registered and therefore are potentially unknown to Council.
Ms Soldani imposed a conviction (criminal record) and ordered that the Accused pay a fine and legal costs totaling $4,500.00.
Ms Soldani agreed that the two previous findings of guilt were a factor in sentencing and she hoped the significant fine and costs order would ensure the food premises would be registered in the future.
Owners of a food business however large or small need to be aware of registration requirements or could potentially face prosecution.
Please contact our Prosecution and Enforcement Team should you require any further advice: Ian Pridgeon, Daniel Silfo, Marcus Heath and Elizabeth Flanagan.
If you’d like to stay up to date with any of Russell Kennedy's mailing lists, please sign up here.