NSW Food Authority v David Tri Chau-Ngoc

1. [1]

   PAYNE JA: On 22 October 2024, the plaintiff, the NSW Food Authority (the ‘Food Authority’), filed 10 summonses seeking orders in relation to 10 offences contrary to s 122(2) of the Food Act 2003 (NSW) (the ‘Food Act’) alleged to have been committed by the defendant, Mr David Tri Chau-Ngoc, a director of Inside Out Nutritious Goods Pty Ltd (‘Inside Out’).

2. [2]

   By an amended notice of motion dated 23 September 2025, the defendant sought orders that the proceedings be dismissed with costs for the reason that the plaintiff did not have power to institute this prosecution. This judgment deals with that question. For the reasons which follow, the defendant’s notice of motion must be dismissed.

The facts and procedural history

1. [3]

   The 10 summonses, each filed on 22 October 2024, sought an order to the following effect:

2. [4]

   This summons related to an offence allegedly committed on 24 October 2022, the particulars of which referred to the sale to Woolworths Limited of an identified quantity of Unsweetened Almond Milk, Unsweetened Oat Milk and Barista Oat Milk. The remaining summons dealt with the sale to Woolworths Limited of an identified quantity of Unsweetened Almond Milk, Unsweetened Oat Milk and Barista Oat Milk on 4 November 2022, 7 November 2022, 21 November 2022, 22 November 2022, 23, November 2022, 24 November 2022, 6 December 2022, 11 January 2023 and 12 January 2023.

3. [5]

   The basis of each charge was an allegation that Inside Out committed an offence against s 21(3) of the Food Act, that such an offence was an “executive liability offence” under s 122(1)(i) of the Food Act, and for which the defendant, as a director of Inside Out, was liable.

4. [6]

   Section 21(3) of the Food Act provides that a person must not sell or advertise for sale any food in a manner that contravenes a provision of the Australian New Zealand Food Standards Code (the ‘Food Standards Code’). Inside Out, the company, pleaded guilty in relation to the offences alleged to have been committed by it and has been sentenced: NSW Food Authority v Inside Out Nutritious Goods Pty Ltd [2025] NSWSC 1278.

5. [7]

   On 6 November 2024, N Adams J made orders pursuant to s 246 of the Criminal Procedure Act 1986 (NSW) for the defendant to appear before the Court to answer the 10 charges alleging that he committed an offence contrary to s 122(2) of the Food Act.

6. [8]

   On 15 July 2025, the defendant filed a notice of motion challenging the power of the plaintiff to prosecute the defendant. Later, on 29 September 2025, the Court granted leave for the defendant to file an amended notice of motion dated 23 September 2025, alongside an affidavit of Jason Benjamin Pham, the defendant’s solicitor, sworn on 23 September 2025. That affidavit annexed the amended notice of motion and the transcript of proceedings before N Adams J.

7. [9]

   The amended notice of motion sought the following orders:

8. [10]

   The plaintiff also filed an affidavit of Mr Lachlan Porteous dated 2 September 2025. Mr Porteous is the Manager of Compliance Investigations, Agriculture & Biosecurity employed by the NSW Department of Primary Industries & Regional Development. Mr Porteous was not cross-examined. He gave evidence that he is an authorised officer for the purposes of s 114 of the Food Act and that there has been no delegation by the Food Authority of the power to institute a prosecution for an executive liability offence contrary to s 122(2) of the Food Act.

Submissions

1. [11]

   The submissions of the parties were at times somewhat elusive. The original written submissions prepared for the hearing fixed for 2 October 2025 ultimately played little part, on either side, in the case presented. On 2 October 2025, the defendant sought, and was granted, an adjournment to 17 October 2025, essentially on the basis that he was taken by surprise by the Food Authority’s reliance on the principle of implied authority to commence prosecutions under the Food Act. In doing so the plaintiff relied on, by analogy, at least part of the reasoning in Sydney Catchment Authority v Bailey [2006] NSWLEC 616, a decision not referred to in the plaintiff’s original written submissions. A second set of submissions was prepared and served by each side and addressed orally on 17 October 2025.

2. [12]

   The defendant’s ultimate submission was that some sections of the Food Act, such as s 60, conferred an express function on the Food Authority and where there is an offence that relates specifically to the exercise of that function, in this case s 64 which deals with a breach of the s 60 prohibition notice, a sufficient nexus is met such that the power to prosecute (in this example a s 64 offence) is incidental to another power or incidental to the exercise of a function. The defendant submitted that no such specific function was conferred by the Food Act on the Food Authority in relation to either s 23 or s 122 Food Act offences and therefore no sufficient nexus was established such that the power to prosecute for the s 122 offence was incidental to another power or incidental to the exercise of a function. Accordingly, it was submitted that the Food Authority had no power to commence the present prosecutions.

3. [13]

   It was originally submitted that the Food Authority had power to delegate the power to prosecute s 23 or s 122 Food Act offences to a Local Council, but, ultimately, this submission was abandoned. The defendant’s ultimate submission, as refined in oral address, was that the only persons who could prosecute an offence under s 122 of the Food Act are those expressly or impliedly identified by the Food Act as persons who can prosecute an executive liability offence, which on their interpretation was limited to “the Crown”. The emanations of the Crown permitted to prosecute an executive liability offence were not identified in any detail. The defendant submitted that on its proper construction, the Food Act did not identify the Food Authority as a person who can prosecute such an offence. Accordingly, the Food Authority had no power to prosecute this offence.

4. [14]

   The plaintiff submitted that the legislative purpose of s 122(4) was simply to limit the ability to commence a prosecution for an executive liability offence to a person who can bring a prosecution for the offence, here, for offences contrary to s 21(3) of the Food Act. The plaintiff accepted that the Food Authority was not expressly identified in the Food Act as having the power to prosecute an executive liability offence. The plaintiff submitted that on the proper construction of the Food Act, however, the Food Authority is a person “who can bring a prosecution for the executive liability offence”.

5. [15]

   I will refer to the parties’ further submissions where appropriate in what follows.

Consideration

1. [16]

   Ultimately, I consider (and the parties accepted) that the question to be determined is one of statutory construction. The relevant question to be answered is thus: does the Food Authority have the power to commence these proceedings against the defendant? The answer to this question requires an analysis of the subject matter, scope and purpose of the Food Act.

2. [17]

   The prosecution of the defendant for offences contrary to s 122(2) of the Food Act was commenced pursuant to s 246(1)(a) of the Criminal Procedure Act, which provides as follows:

3. [18]

   By s 3 of the Criminal Procedure Act, a “prosecutor” means the Director of Public Prosecutions or “other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor”.

4. [19]

   The offence allegedly committed by the defendant was under s 122 of the Food Act, which provides:

5. [20]

   Subsection 122 (4) of the Food Act, like s 246(1)(a) of the Criminal Procedure Act, (read with the definition in that Act of a “prosecutor”) draws attention to whether the Food Authority is a person “who can bring a prosecution for the executive liability offence”, relevantly s 21(3).

6. [21]

   Whether an entity has power to prosecute for a criminal offence depends on a construction of the relevant statute said to confer such a power. Framed another way, the question is whether, for the purposes of s 122(4) of the Food Act, does the Food Authority have power to commence proceedings in relation to an “executive liability offence”.

7. [22]

   The relevant principles in determining whether a NSW Government entity has power to prosecute for a criminal offence have recently been considered by the Court of Appeal. In Gamage v Riashi [2025] NSWCA 84, the Court addressed the power of the Independent Commission Against Corruption (‘ICAC’) to prosecute criminal offences. Basten AJA (with whom Leeming JA and Griffiths AJA agreed) said of this question of statutory construction:

8. [23]

   I note in passing that s 14 of the Criminal Procedure Act is not relied upon by the Food Authority here, by reason of s 122(4) of the Food Act. The question in Gamage v Riashi, however, was the proper construction of the Independent Commission Against Corruption Act 1988 (NSW) (the ‘ICAC Act’) and its conferral of a species of prosecutorial function on ICAC.

9. [24]

   The Court of Appeal emphasised the importance of the proper construction of the powers of the ICAC Act. The existence of specific prohibitions in the ICAC Act on ICAC “recommending prosecution”, or even forming an opinion about the commission of an offence, were emphasised by the Court:

10. [25]

    I will shortly return to the question of the guidance provided by Gamage v Riashi but it is to be noted at this stage that the Court of Appeal found that the ICAC Act conferred implied or inferred power on the Commission to commence prosecutions for offences under that Act, despite the Commission being precluded from commencing prosecutions for more general criminal offences such as those under the Crimes Act 1900 (NSW).

11. [26]

    The principles of statutory construction are clear. Construing a statutory provision requires consideration of its text, context and purpose. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 28 at [69], McHugh, Gummow, Kirby and Hayne JJ held that the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”, with the meaning of the provision to be determined “by reference to the language of the instrument viewed as a whole” quoting Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 279 at 320. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

12. [27]

    In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, French CJ, Crennan and Bell JJ said this about the primacy of construing the words of the statute:

13. [28]

    The statutory text, however, cannot be considered without regard to its context and purpose. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Keane, Nettle and Gordon JJ said this:

14. [29]

    Context, when considered, is used in its widest sense “to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ). See also Project Blue Sky at [69].

15. [30]

    A statutory power can be derived expressly, impliedly or somewhere in between such as “whatever the language used [in a statute] necessarily or even naturally implies is expressed thereby”: Chorlton v Lings (1868) LR 4 CP 374 at 387. In Eades v Sundowner Caravan Parks Pty Ltd (1982) 48 LGRA 307 at 312, the Court referred to Chorlton v Lings saying (see also Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 372):

16. [31]

    In the present case, s 50 of the Interpretation Act 1987 (NSW) is important in determining the relevant powers of the Food Authority. That section empowers statutory corporations to do things that are “necessary for, or incidental to, the exercise of its functions”:

17. [32]

    The NSW Food Authority is constituted under Part 9 of the Food Act as a statutory body corporate representing the Crown: s107 Food Act.

18. [33]

    The objects of the Food Act are stated as follows:

19. [34]

    The Food Authority is defined as an “enforcement agency” by s 4 of the Food Act. That is, the Food Authority is the “enforcement agency” charged with ensuring food for sale is both safe and suitable for human consumption, preventing misleading conduct in connection with the sale of food and providing for the application in NSW of the Food Standards Code.

20. [35]

    The executive liability offence the subject of this prosecution was a contravention of a provision owing its existence to the Food Standards Code. That this is so is clear from the following:

    1. (1)

       Part 2 of the Food Act sets out the offences relating to food, including s 21, the subject of the prosecution in this case against Inside Out.

    2. (2)

       The principal offences allegedly committed by Inside Out were under s 21(3) of the Food Act. Section 21(3) of the Food Act provides an offence of strict liability:

    3. (3)

       The offences were allegedly contrary to s 21(3) of the Food Act because Inside Out sold food that was labelled in a matter that contravened a provision of the Food Standards Code.

    4. (4)

       The Food Standards Code governs food safety in Australia. The specific provision of the Food Standards Code that was contravened was Standard 1.2.6(2)(b) ‘Information requirements – directions for use and storage’:

    5. (5)

       ‘Food’ is defined in the Food Act s 5(1)(a) as:

    6. (6)

       Proceedings for an offence under the Food Act or associated regulations can be dealt with before the Local Court or before the Supreme Court: s 118 of the Food Act.

21. [36]

    As an initial observation, the subject matter of “Compliance with the Food Standards Code”, the explicit subject of s 21, is at the heart of the Food Act. The Food Authority is the principal actor charged by the Food Act with “enforcement” in NSW of the Food Standards Code. Whilst it is true that the Food Act does not provide a specific power to the Food Authority to prosecute offences arising under the Food Act, the role assigned by the Food Act to the Food Authority by s 4, and a number of other provisions I will shortly refer to, tends strongly in favour of the conclusion that for offences arising under the Food Act, the Food Authority has an implied power under the Food Act to prosecute offences arising under the Food Act.

22. [37]

    There are a number of other criminal offences provided for by the Food Act relevant in determining the present question of construction.

23. [38]

    Section 35 provides a criminal penalty for failing to comply with an emergency order. An emergency order is one made by the Food Authority under s 30 of the Food Act. In context, it would be a surprising conclusion that, as the “enforcement agency” given express power to issue an emergency order, the Food Authority was not also the body charged by the legislation as being responsible for prosecuting any breaches of the orders it had made.

24. [39]

    Section 43 provides a criminal penalty for providing information or a document that the person knows is false in a material particular. Again, it would be a surprising conclusion that when false information is provided to the Food Authority as the “enforcement agency”, the Food Authority is not, on the proper construction of the Food Act, empowered to prosecute the person who has provided it with that false information.

25. [40]

    Section 60 of the Food Act gives power to the Food Authority “or an enforcement agency” to issue a prohibition order. Section 64 provides for a criminal penalty for contravention of a prohibition order. Again, it would be a surprising conclusion that as the “enforcement agency” given express power to issue a prohibition order, the Food Authority, was not also the body charged by the legislation as being responsible for prosecuting any breaches of the orders it had made.

26. [41]

    Section 77 provides for a criminal penalty for a failure of an approved laboratory to notify the Food Authority about a change in the direct or indirect interest in the business of the laboratory. It would be a surprising conclusion that as the body to whom the declaration must be made, the Food Authority was not also the body charged by the legislation as being responsible for prosecuting any breaches of the section.

27. [42]

    Whilst of course it is not determinative in and of itself, it would be a strained and incoherent outcome if the Food Authority had an implied power under the Food Act to prosecute some but not all offences arising under the Food Act. The offences just mentioned, where the defendant ultimately accepted the Food Authority had power to commence a prosecution, are each important although, compared to the subject matter of ss 21 and 122 of the Food Act, peripheral. Why Parliament should be taken to have intended to have granted power to the Food Authority to prosecute some, but not all, offences arising under the Food Act was not explained by the defendant.

28. [43]

    I reject the submission that the Food Authority, as the principal defined "enforcement agency" under the Food Act, had an implied power to prosecute some but not all offences supporting these core objects of the Food Act. The prohibition effected by s 21 of the Food Act is a core requirement of the Food Act. Understood in context, the Food Act provides that the Food Authority is the principal entity charged with ensuring food for sale is both safe and suitable for human consumption, preventing misleading conduct in connection with the sale of food and providing for the application in NSW of the Food Standards Code.

29. [44]

    I do not accept that the Food Act should be construed as providing power to the Food Authority to commence a prosecution of some more peripheral offences provided for by the Act, but not offences at the core of effecting the objects of the Food Act. The Food Act’s defined “enforcement agency”, the Food Authority, has an implied power to commence prosecutions for alleged breaches of the Food Act, including breaches of ss 21(3) and 122.

30. [45]

    The scope of the identified powers and functions of the Food Authority may be guided by what is in Part 9, entitled “Administration”. It is necessary to consider a number of relevant provisions in that Part.

31. [46]

    Section 107 makes clear that the Food Authority is a statutory body representing the Crown:

32. [47]

    By s 108(1) of the Food Act, the Food Authority has such functions as are conferred or imposed on it by or under the Food Act or any other Act:

33. [48]

    None of these functions refer specifically to the power to commence or carry on a prosecution. Section 109(c), however, provides that the Food Authority is subject to the control and direction of the Minister, except in relation to “decisions whether to institute criminal proceedings in a particular case”:

34. [49]

    I have concluded that the better construction of s 109(c) of the Food Act is that it identifies a statutory function for the Food Authority to make decisions whether to institute criminal proceedings in a particular case free from the control and direction of the Minister. The contrary construction, that the function is limited to making some decisions to prosecute (not including for offences under ss 21 or 122 of the Food Act) in inconsistent with the achievement of the statutory objects of the Food Act.

35. [50]

    The Food Authority is an “enforcement agency” as expressly stated in s 4 of the Food Act. As I have said, I have concluded that the Food Authority’s responsibility as an “enforcement agency” extends to the prosecution of offences created by the Food Act. This is because that power is necessary for, or incidental to, the exercise of its functions within the meaning of s 50 of the Interpretation Act.

36. [51]

    Under s 111D of the Food Act, it is the duty of an “enforcement agency”, subject to s 135, to exercise the functions conferred or imposed on it by or under this Act or delegated to it under this Act. The Food Authority is the “appropriate enforcement agency” for the purposes of the Food Standards Code, as seen in s 4(1) of the Food Act, definition of “appropriate enforcement agency” (see also cl 6(1)(c) of the Food Regulation 2025 (NSW)).

37. [52]

    The Food Authority also has an express power to delegate enforcement functions. Section 109E of the Food Act provides that the Food Authority may delegate to specific persons or bodies “any function of the Food Authority under this Act”:

38. [53]

    The fact that the Food Authority cannot delegate any function under Part 3, including its powers to commence a criminal prosecution, is significant. It is a further demonstration of the intention of the legislature that the Food Authority’s responsibility as the principal “enforcement agency” under the Food Act extends to the prosecution of offences created by the Food Act.

39. [54]

    Under s 111(1) of the Food Act, the Food Authority may appoint a relevant body to be an “enforcement agency” for the purposes of the Food Act. A “relevant body” means “a local council, or the Secretary of the Department of Climate Change, Energy, the Environment and Water (but only in respect of Kosciuszko National Park)”: s 110, definition of “relevant body”.

40. [55]

    In turn, the “enforcement agency” can appoint a person to be an “authorised officer” for the purposes of the Act: s 114 of the Food Act. The powers of authorised officers include powers relating to inspection and seizure (see s 37), the issuing of improvement notices (see s 57) and the issuing of penalty notices where it appears that a person has committed a penalty notice offence (see s 120).

41. [56]

    Section 133 of the Food Act is an important provision. The Food Authority may keep a register of information about offences under the Food Act or the Food Regulation relating to the handling or sale of food. The register may contain information in relation to a person who has been convicted by a court of an offence under the Food Act or the Food Regulation relating to the handling or sale of food, or whose employee or agent has been convicted of such an offence, “including as to the enforcement agency or other body under the direction of which, or on behalf of whom, the relevant prosecution was conducted” (s 133(2)(g)):

42. [57]

    Section 133, and subsection (2)(g) more specifically, plainly contemplate that an “enforcement agency” is empowered to conduct prosecutions for offences under the Food Act. This clear language requiring an “enforcement agency” (which, as discussed, is defined as the Food Authority or other relevant bodies appointed by the Food Authority) to maintain a record of prosecutions conducted by or on its behalf under the Food Act, strongly supports a construction of the Food Act as empowering the Food Authority to conduct prosecution of those recordable offences, being offences committed in breach of the Food Act. It is significant that the recordable offences include all offences committed in breach of the Food Act, not merely the limited catalogue of offences accepted by the defendant here as open to the Food Authority to prosecute. That recording function is clearly given to the Food Authority by s133. The power to prosecute these recordable offences is necessary for, or incidental to, the exercise of the functions of the Food Authority.

43. [58]

    This is an important matter of context. The present version of s 133 was introduced into the Food Act by sch 1 cl 4 of the Food Amendment (Public Information on Offences) Act 2008 (NSW). The second reading speech of Mr Nathan Rees which accompanied the passage of the Bill in the NSW Legislative Assembly included the following (with emphasis added):

44. [59]

    The above passages confirm that the reference to “the enforcement agency or other body under the direction of which, or on behalf of whom, the relevant prosecution was conducted” in s 133(2)(g) of the Food Act is a reference to, at least, the Food Authority.

45. [60]

    As the plaintiff observed, there has been no delegation by the Food Authority to other relevant bodies of the power to institute a prosecution for an offence contrary to s 122(2) of the Food Act. I am satisfied that as a matter of construction of the Food Act, the Food Authority has the power to prosecute such offences, which power is necessary for, or incidental to, the exercise of the functions of the Food Authority.

46. [61]

    I have concluded that the legislative purpose of s 122(4) of the Food Act was to limit the ability to commence a prosecution for an executive liability offence to a person who can bring a prosecution for the offence under the Food Act. Whatever the limits imposed by the section, the Food Authority fell within the description of “a person who can bring a prosecution for the offence under the Food Act.” Steps taken by the Food Authority to prosecute s 21 Food Act offences protect the integrity of its core function as the designated “enforcement agency” charged with providing for the application in NSW of the Food Standards Code. Although the Food Authority was not expressly identified in the Food Act as having the power to prosecute any offence, including any executive liability offence such as s 21(3), on the proper construction of the Food Act, the power to do so is necessary for, or incidental to, the exercise of the core functions of the Food Authority, of ensuring food for sale is both safe and suitable for human consumption, preventing misleading conduct in connection with the sale of food and providing for the application in NSW of the Food Standards Code.

47. [62]

    The powers of the Food Authority contemplated in the Food Act are to be contrasted with other cases where courts have refused to find a prosecutorial power of a statutory corporation under the relevant statute. One of these cases that invites comparison is Gamage v Riashi, where Basten AJA (with whom Leeming JA and Griffiths AJA agreed) found that ICAC did not have a power to prosecute for criminal offences arising from offences created outside the ICAC Act itself. The following was said about the distinction between investigatory and prosecutorial powers, and the legislative intention not to grant the ICAC a more general power to prosecute:

48. [63]

    The statutory regime concerning ICAC is to be contrasted to that concerning the Food Authority. The expressed powers conferred by the Food Act in relation to decisions to prosecute and the conduct of prosecutions, as well as what the responsible Minister said about prosecutions of offences by the Food Authority and Local Councils when s 133 was introduced, weighs in favour of the Food Authority having such a power.

49. [64]

    As I have pointed out, however, in Gamage v Riashi the Court of Appeal held that ICAC did have power to prosecute offences arising under the ICAC Act itself:

50. [65]

    Similarly here, while it is true that there is no express function conferred on the Food Authority to prosecute offences under the Food Act, steps taken to by the Food Authority to prosecute such offences to protect the integrity of its core function as the designated “enforcement agency” charged with providing for the application in NSW of the Food Standards Code, may readily fall within the scope of the incidental powers as necessary in connection with or reasonably incidental to “the exercise of its functions”. Gamage v Riashi is not inconsistent with the conclusion I have reached about the powers of the Food Authority to prosecute offences arising under the Food Act.

51. [66]

    In Sydney Catchment Authority v Bailey [2006] NSWLEC 616, Biscoe J dismissed a notice of motion challenging the power of the Sydney Catchment Authority to institute prosecution for an offence against the Environmental Planning and Assessment Act 1979 (NSW). His Honour reasoned that, while the EPA Act did not confer an express prosecution power on the Catchment Authority to prosecute, s 50(1)(e) of the Interpretation Act, alongside s 17 of the Sydney Water Catchment Management Act 1998 (NSW) which gave the Catchment Authority such functions as were “necessary or convenient to carry out any concurrence… role” conferred on it under any environmental planning instrument in relation to a catchment area, implicitly empowered the Catchment Authority to prosecute in that case. The Catchment Authority has a role, functions and objectives which are vital to the health of the public and the protection of the environment. Its “functions” are defined broadly to include any power, authority or duty. The Catchment Authority, for example, has specific law compliance functions conferred on it by regulation, and has the concurrence function of deciding whether to concur in a council’s consent to the development of land in a special area. His Honour considered that the prosecution was necessary for the exercise of the Catchment Authority’s functions, in the sense of being appropriate or reasonably required, and thus the Catchment Authority had a (non-exclusive) power to commence criminal proceedings pursuant to s 14 of the Criminal Procedure Act.

52. [67]

    As regards the present prosecution, while s 14 is not relied upon by the plaintiff as a provision from which the Food Authority’s power to prosecute was derived, Biscoe J’s reasoning is instructive as it endorses the power of a statutory corporation to prosecute where such a power is not explicitly stated in the relevant instrument and where such a power is necessary to imply for the statutory corporation to properly exercise its explicit functions. To the extent that the provisions of the Food Act I summarised above (including the reference to the Food Authority’s power to decide whether to prosecute and responsibility to record offences prosecuted by it or at its direction) do not provide an express power on part of the Food Authority to prosecute, such a power is necessary for, or incidental to, the exercise of the enforcement functions the Food Authority was constituted to perform.

53. [68]

    Another case inviting comparison in this respect is Warren Gibson, NSW Fair Trading v Roberta Graham [2013] NSWSC 1909. In that case, Harrison J held that the Home Building Act 1989 (NSW) had not “expressed” an intention that only the Director-General or his duly appointed delegate could prosecute alleged contraventions of the Act (such that it would prevent other persons to prosecute pursuant to s 14 of the Criminal Procedure Act, as extracted above). Nevertheless, his Honour did not dispute that the Director-General or his duly appointed delegate had a power to prosecute. In so reasoning, Harrison J noted along similar lines that any express conferral of power should be made by, or can be found in, language that necessarily or even naturally implies it, although it may also be noted that, with respect to the question whether an authority has exclusive power to prosecute given it operates as an abrogation of a longstanding common law right to prosecute, courts may be generally more reluctant to imply such an intention if not expressly stated:

54. [69]

    It may furthermore be noted that prosecutions of executive liability offences with provisions equivalent to s 122(4) of the Food Act or similar have been the subject of decisions of the court. For example, s 169A(4) of the Protection of the Environment Operations Act 1997 (NSW) provides in identical terms that “[t]he offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence”. The Protection of the Environment Operations Act does not contain, in terms, an express conferral of the right or ability to bring a prosecution for an executive liability offence in the way that the defendant appears to contend is required.

55. [70]

    The explanatory memorandum and second reading speeches accompanying the passing of the Miscellaneous Acts Amendment (Directors’ Liability) Bill 2012 (NSW) do not provide guidance on the question of prosecutorial authority as to the interpretation of s 122(4) of the Food Act, its equivalent in the above mentioned Protection of the Environment Operations Act, nor other similar provisions enacted at the same time as s 122(4).

56. [71]

    The defendant’s most persuasive objection to the conclusion I prefer is the decision of James J in Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215. The defendant submitted that James J held that under that earlier version of the Food Act, the Food Authority had no express power, by virtue of s 109(c), to prosecute offences under the Food Act. The following passage was specifically relied upon by the defendant:

57. [72]

    At least five things should be said about Nutricia. The first is that the passage above was said in the context of his Honour’s finding that, on a proper construction of the Food Act, the Food Authority or its authorised officers did not have power to issue the s 37 notices against Nutricia, in circumstances where the Food Authority had already commenced criminal proceedings against Nutricia. James J's finding about the power to prosecute was clearly obiter.

58. [73]

    Secondly, the finding that s 109(c) does not expressly confer on the Food Authority of the right to institute a prosecution for an offence under the Food Act is not inconsistent with my finding about implied power. For the reasons I have given, the subject matter, scope and purpose of the Food Act makes clear that (when read together with s 50(1)(e) of the Interpretation Act) steps taken by the Food Authority to prosecute such offences to protect the integrity of its core function as the designated “enforcement agency” charged with providing for the application in NSW of the Food Standards Code, may readily fall within the scope of the incidental powers as necessary in connection with or reasonably incidental to “the exercise of its functions”.

59. [74]

    Thirdly, Nutricia concerned a prosecution commenced in reliance upon s 14 of the Criminal Procedure Act, a provision which is not relied upon here.

60. [75]

    Fourthly, Nutricia predated the inclusion in the Food Act of the current versions of s 122 and s 133. The current version of s 122 of the Food Act was substituted into the Act by sch 1 cl 1.13(13) the Miscellaneous Acts Amendment (Director’s Liability) Act 2012 (NSW). The present version of s 133 was introduced into the Food Act by sch 1 cl 4 of the Food Amendment (Public Information on Offences) Act 2008 (NSW). No reference was made to the former sections 122 and 133 in the judgment.

61. [76]

    Fifthly, Nutricia went on appeal and the Court of Criminal Appeal made no reference to the passage at [66] I have quoted above: NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252. If as part of the ratio of the case it had been held that the Food Authority had no power to bring the prosecution in the first place, that would necessarily have been the subject of consideration in the Court of Appeal.

62. [77]

    I have concluded that Nutricia does not stand in the way of my conclusion.

63. [78]

    Finally, the defendant also relied upon a recent decision of Pain J in Green Leaf Australia Group Pty Ltd v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2025] NSWLEC 109 in the Land and Environment Court. Her Honour found that the regulator in that case did not have the implied power to commence a prosecution. That decision is distinguishable.

64. [79]

    First, the regulator in that case, the Natural Resources Access Regulator (‘NRAR’), was required to determine whether proceedings for offences under that legislation should be instituted by the Crown. NRAR is a NSW Government agency and Pain J held that it was not the Crown.

65. [80]

    Secondly, NRAR was required to keep a register, however, unlike the present case, the register was only of civil matters, as evidenced by ss 60G, 78 and 109 of the Water Management Act 2000 (NSW), compared to s 133 Food Act.

66. [81]

    Thirdly, the extrinsic materials referred to by Pain J in Green Leaf tended against the conclusion that NRAR had an implied power to commence a prosecution. That is to be contrasted with the extrinsic materials to the Food Act to which I have drawn attention. Green Leaf is a quite different case to the present.

Conclusion and Orders

1. [82]

   I have concluded that on the proper construction of the Food Act as a whole, the Food Authority’s core responsibility was as an “enforcement agency” charged with providing for the application in NSW of the Food Standards Code. That core function extends to the prosecution of offences prescribed in the Food Act as a means of compelling compliance with standards of conduct in relation to which those offences are created.

2. [83]

   While the Food Authority was not conferred an express power to prosecute executive liability offences, having regard to the functions of the Food Authority I have described above and construing the Food Act in context as a whole, the power to prosecute offences arising under the Food Act falls within the scope of the incidental powers as necessary in connection with or reasonably incidental to the exercise of its functions which are, at their core, to ensure food for sale is both safe and suitable for human consumption, to prevent misleading conduct in connection with the sale of food, and to provide for the application in NSW of the Food Standards Code.

3. [84]

   By reason of the subject matter, scope and purpose of the Food Act, the Food Authority as the authorised “enforcement agency” was as “a person who can bring a prosecution for the executive liability offence”. The Food Authority was authorised to apply for the orders it sought from N Adams J under s 246(1)(a) of the Criminal Procedure Act in this case.

4. [85]

   The defendant’s amended notice of motion should be dismissed with costs. As summary prosecutions in the Supreme Court are now rare, after consulting the Chief Judge at Common Law, it has been determined that the Court of Criminal Appeal Registrar is best placed to make directions to prepare this matter for hearing. Accordingly, I will stand this matter over to his list on 20 November 2025 at 10 am to make directions to prepare the matter for hearing and, if appropriate, fix a date for hearing.

5. [86]

   I make the following orders:

   1. (1)

      Defendant’s amended notice of motion filed on 23 September 2025 dismissed with costs.

   2. (2)

      Stand over the proceedings to the Court of Criminal Appeal Registrar’s list on 20 November 2025 at 10 am to make directions to prepare the matter for hearing and, if appropriate, fix a date for hearing.