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Supreme Court 13 November 2025

NSW Food Authority v David Tri Chau-Ngoc

[2025] NSWSC 1333

Public order & justice offences
CRIME ABSENCE OF EXPRESS POWER STATUTORY INTERPRETATION LEGISLATIVE PURPOSE CONSIDERATION OF ACT AS A WHOLE TEXT AND CONTEXT

Citation: NSW Food Authority v David Tri Chau-Ngoc [2025] NSWSC 1333
Court: Supreme Court of NSW
Date: 13 November 2025
Judge(s): Payne JA

Background

The NSW Food Authority commenced ten prosecutions against the director of a food company, alleging he was personally liable as a director for his company's repeated sales of almond milk and oat milk products in breach of the Australian New Zealand Food Standards Code. The underlying company, Inside Out Nutritious Goods Pty Ltd, had already pleaded guilty to the corresponding offences. The director faced charges under section 122(2) of the Food Act 2003 (NSW), which creates what the Act calls an "executive liability offence" for directors of companies that contravene certain provisions.

The director did not contest the substance of the charges at this stage. Instead, he moved to have the proceedings dismissed on the basis that the Food Authority lacked the legal power to institute the prosecution at all. He argued the Food Act conferred no express prosecutorial power on the Food Authority in relation to section 21 or section 122 offences, and that no sufficient implied power could be found.

Legal Issues

  • Whether the NSW Food Authority, as a statutory body, has power to institute prosecutions for executive liability offences under section 122(2) of the Food Act, in the absence of an express prosecutorial power in the legislation.
  • Whether the proper construction of section 122(4) of the Food Act, which limits prosecution of executive liability offences to "a person who can bring a prosecution for the executive liability offence", includes the Food Authority.
  • Whether any implied prosecutorial power extends to all offences under the Food Act or only to some.

Decision

Issue 1: Statutory construction and the source of any prosecutorial power

Payne JA held that the question was one of statutory construction requiring analysis of the subject matter, scope and purpose of the Food Act as a whole (at [16]). The court applied established principles, including the primacy of text read in context and purpose, drawing on authorities including Project Blue Sky, Taylor v The Owners, and SZTAL (at [26]-[29]). A statutory power may be derived expressly, impliedly, or by necessary or natural implication, and section 50 of the Interpretation Act 1987 (NSW) empowers statutory corporations to do things necessary for or incidental to the exercise of their functions (at [30]-[31]).

Issue 2: Whether the Food Authority has an implied power to prosecute Food Act offences

The court found the Food Authority is the principal "enforcement agency" under section 4 of the Food Act, charged with ensuring food for sale is safe and suitable, preventing misleading conduct, and providing for the application of the Food Standards Code in NSW (at [34]). Several provisions of the Act pointed strongly to an implied prosecutorial power: the Food Authority issues emergency orders (section 30) and prohibition orders (section 60), yet a construction denying it power to prosecute breaches of those orders would be incoherent (at [38]-[40]). Section 109(c) identifies a function for the Food Authority to decide whether to institute criminal proceedings, free from ministerial direction (at [48]-[49]). Critically, section 133 requires enforcement agencies to maintain a register of offences prosecuted by or at their direction across all Food Act offences, plainly contemplating that enforcement agencies conduct such prosecutions (at [57]).

The court rejected the submission that the Food Authority had implied power to prosecute only some, more peripheral, offences but not the core offences under sections 21 and 122. Such a construction would produce a strained and incoherent outcome (at [42]-[44]). The power to prosecute all offences arising under the Food Act is necessary for, or incidental to, the exercise of the Food Authority's functions within the meaning of section 50 of the Interpretation Act (at [50]).

Issue 3: Application of section 122(4) and the Nutricia decision

The court held that the legislative purpose of section 122(4) is to confine prosecutions for executive liability offences to persons who can bring a prosecution for the underlying offence under the Food Act (at [61]). The Food Authority, as a person with implied power to prosecute Food Act offences, falls within that description (at [61]). The court distinguished the earlier remarks of James J in Nutricia [2007] NSWSC 1215 on five grounds: they were obiter, concerned a different statutory provision (section 14 of the Criminal Procedure Act), predated the current versions of sections 122 and 133, and the Court of Criminal Appeal on appeal made no reference to them (at [72]-[76]). The recent Land and Environment Court decision in Green Leaf was also distinguished on the basis that the regulator there was required to refer matters to the Crown rather than institute proceedings itself, its register covered only civil matters, and extrinsic materials pointed away from an implied prosecutorial power (at [78]-[81]).

Orders Made

  • The defendant's amended notice of motion filed 23 September 2025 was dismissed with costs.
  • The proceedings were stood over to the Court of Criminal Appeal Registrar's list on 20 November 2025 at 10 am for directions and, if appropriate, to fix a hearing date.

Key Takeaways

  • A statutory body designated as an "enforcement agency" under the Food Act 2003 (NSW) has an implied power to prosecute all offences arising under that Act, even in the absence of an express grant of prosecutorial power, where such power is necessary for or incidental to the exercise of its functions under section 50 of the Interpretation Act 1987 (NSW) (at [50], [83]).
  • Section 133 of the Food Act, which requires enforcement agencies to keep a register of all prosecutions conducted by or at their direction under the Act, was identified as a significant textual indicator that Parliament contemplated those agencies would conduct such prosecutions (at [57]).
  • Section 109(c) of the Food Act, which shields the Food Authority's decisions to institute criminal proceedings from ministerial direction, reflects a statutory function to make such decisions and supports the existence of a corresponding implied power (at [48]-[49]).
  • A construction that would confine an enforcement agency's implied prosecutorial power to peripheral offences while excluding the core offences the agency was created to address was rejected as incoherent (at [42]-[44]).
  • Obiter remarks in Nutricia [2007] NSWSC 1215 suggesting the Food Authority lacked prosecutorial power were found not to be binding or persuasive, particularly given the subsequent enactment of the current versions of sections 122 and 133 of the Food Act (at [72]-[76]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 3, 14, 246
- Environmental Planning and Assessment Act 1979 (NSW)
- Food Act 2003 (NSW), ss 4, 5, 6, 21, 107, 108, 109, 109E, 110, 111, 111D, 114, 118, 119, 122, 131, 132, 133
- Food Amendment (Public Information on Offences) Act 2008 (NSW) , sch 1 cl 4
- Home Building Act 1989 (NSW)
- Independent Commission Against Corruption Act 1988 (NSW)
- Interpretation Act 1987 (NSW), s 50
- Miscellaneous Acts Amendment (Director’s Liability) Act 2012 (NSW), sch 1 cl 1.13
- Protection of the Environment Operations Act 1997 (NSW) , s 169A
- Sydney Water Catchment Management Act 1998 (NSW), s 17
- Water Management Act 2000 (NSW) , ss 60G, 78, 109
- Miscellaneous Acts Amendment (Directors’ Liability) Bill 2012 (NSW)
- Food Regulation 2025 (NSW), cl 6

Cases
- Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215
- Chorlton v Lings (1868) LR 4 CP 374
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
- Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 279
- Eades v Sundowner Caravan Parks Pty Ltd (1982) 48 LGRA 307
- Gamage v Riashi [2025] NSWCA 84
- Green Leaf Australia Group Pty Ltd v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2025] NSWLEC 109
- Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361
- NSW Food Authority v Inside Out Nutritious Goods Pty Ltd [2025] NSWSC 1278
- NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 28
- Sydney Catchment Authority v Bailey [2006] NSWLEC 616
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
- Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
- Warren Gibson, NSW Fair Trading v Roberta Graham [2013] NSWSC 1909