Vikki Ship Supplies Pty Ltd v Safe Food Queensland
[2018] QCAT 58
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- Unreported Judgment
- Vikki Ship Supplies Pty Ltd v Safe Food Queensland[2018] QCAT 58
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Vikki Ship Supplies Pty Ltd v Safe Food Queensland[2018] QCAT 58
Vikki Ship Supplies Pty Ltd v Safe Food Queensland[2018] QCAT 58
CITATION: | Vikki Ship Supplies Pty Ltd v Safe Food Queensland [2018] QCAT 58 |
PARTIES: | Vikki Ship Supplies Pty Ltd (Applicant) v Safe Food Queensland (Respondent) |
APPLICATION NUMBER: | GAR331-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where applicant sought extension of time to file a review application – whether extension should be granted Food Production (Safety) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574, followed |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Vikki Ship Supplies is a ship providing company based in Gladstone which delivers frozen meat to ships in the harbour. The argument concerns the method of delivery of that meat.
- [2]Food Safety Queensland has specified a cold room on a delivery truck.
- [3]Vikki Ship Supplies wants to continue to use insulated bins, which it says it has been using for the previous 20 years. It says its warehouse is 2 km to 4 km from the various wharfs where it delivers frozen meat to ships.
- [4]Vikki Ship Supplies says fitting a cold room on a delivery truck is not practical as the delivery trucks cannot be loaded onto the ferries to deliver orders to ships at the Anchorage or LNG tankers berthing at Curtis Island.
- [5]On 16 September 2016, Vikki Ship Supplies made an application to Safe Food Queensland for accreditation under the Food Production (Safety) Act 2000 (Qld).
- [6]On 13 February 2017, Safe Food refused the application saying the method for transporting meat that Vikki Ship Supplies had proposed to employ did not meet the requirements of the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2007) and therefore, by implication, the Food Production (Safety) Regulation 2014 (Qld).
- [7]In the letter dated 13February 2017, Safe Food advised Vikki Ship Supplies of its review rights to this tribunal.
- [8]On 23 October 2017, Vikki Ship Supplies filed an application to extend time to allow them to review a decision of Safe Food Queensland concerning accreditation under the Food Production (Safety) Act 2000 (Qld) (FPS Act).
- [9]
- [10]Vikki Ship Supplies is now substantially out of time by some 7 months.
- [11]In an affidavit dated 6 November 2017, Mr Vicenta Valle, the company’s managing director, explained the delay in filing to the application for review was because he:
- feared going to jail after receiving the compliance notice;
- was busy finding an alternative method other than fitting delivery trucks with refrigeration;
- attempted to construct an apparatus combining a freezer, battery and inverter which could provide continuous refrigeration;
- was seeking advice from industry Associations operating in other Australian States, finding that all other Australian states except Queensland followed the Australian New Zealand Food Standards Code 3.2.2 and 3.1.1;
- was writing to the Queensland Ombudsman in October 2017 seeking a review of the refusal. He says he received a reply from the Ombudsman’s office on 19 October 2017 suggesting he contact QCAT determine whether to seek a review out of time.
- [12]The application is pursuant to s 61 of the QCAT Act.
- [13]The factors that are to be considered in respect of an application to extend time have been summarised in the leading case of Cardillo v Queensland Building Services Authority.[3] They are:
- Has a satisfactory explanation been given to account for the delay?
- The strength of the case the applicant will bring if allowed to proceed.
- Will other parties be prejudiced?
- Has the delay been short or long?
- Is it in the interests of justice to grant the extension?
- [14]No further submissions were received from Vikki Ship Supplies, despite direction being made by the tribunal on 20 November 2017.
- [15]Safe Food Queensland submits:
- The starting point is that the proceedings commenced outside the prescribed period and should not be considered because there is a strong public interest in finality of public administration.[4]
- This is a case about food safety in which public health has an overriding interest.
- The objective of statutory scheme under the FPS Act is to ensure that the production of primary produce is carried out in a way that makes the primary produce fit for human or animal consumption and maintains food quality provides for food safety measures for the production of primary produce consistent with other State laws.
- The FPS Act establishes an accreditation system to ensure the production of primary produce is carried out in a way that makes the primary produce safe for human and animal consumption.
- The letter of Safe Food dated 13 February 2017 refusing Vikki Ship Supplies’ application for a food accreditation expressly drew attention to the right of review to QCAT. Accordingly, the company was on notice from the outset that it had a remedy to review the refusal on its merits to QCAT.
- At that point in time, a simple inquiry would have revealed the existence of the statutory 28-day time limit within which to make application.
- Vikki Ship Supplies does not provide evidence or submissions that it was not aware of the 28-day time limit.
- It is disingenuous for Vikki Ship Supplies to attempt to rely on advice from the Ombudsman dated 19 October 2017.
- The claim by Mr Valle that he was in “fear of going to jail” after Safe Food issued a Compliance Notice is disingenuous if not absurd to such an extent as to completely undermine the application for an extension.
- This “fear” would not have been any inhibition to making application, but rather would have been an incentive to do so by bringing the whole matter to an independent Tribunal on a full merits basis for a review.
- Considerations of fairness between the applicant and other persons in a similar position militate against the grant of the extension.
- A significant prejudice is likely to be suffered by the consumers on the ships of the frozen meat if the meat does not meet the food safety compliance of AS4696:2007 and the health of these meat consumers is put at risk.
- There is an overriding and greater public interest to ensure safe food by the maintenance of Australian Standards.
- There is no merit in the substantive application because the company’s complaint is with the policy of law of Queensland.
- Vikki Ship Supplies submits that Safe Food should ignore Queensland law because “all other Australian states except Queensland are following the Australian New Zealand Food Standards Code 3.2.2 and 3.1.1”.
- Vikki Ship Supplies’ application for an extension of time has failed to demonstrate an acceptable explanation for delay and failed to show that it is fair and equitable in the circumstances to extend the time.
Discussion
- [16]I am not satisfied Vikki Ship Supplies has given a satisfactory explanation to account for the delay. The company was advised of its rights with the refusal letter on 13 February 2017 and none of the reasons provided by Mr Valle adequately explain why these right were not pursued.
- [17]The public interest in ensuring the safety of food is an important consideration. This is maintained by the setting of standards and the enforcing of same. There is a wider prejudice to the general public if food safety standards are not maintained.
- [18]The delay has been substantial and without proper explanation.
- [19]I am not satisfied it is in the interests of justice to grant the extension. The company has not provided an adequate reason for the delay and I am not persuaded there is a strong case in its favour if allowed to proceed on the evidence provided.
- [20]In this instance, I am not satisfied that the interests of justice require this extension being granted.
- [21]The application to extend a time limit filed on 23 October 2017 is dismissed.