A food safety incident may begin as a problem for a company. For its directors, it can become something much more personal: an investigation into what they knew, what they should have known and what they did to prevent a breach.
In NSW Food Authority v Chau-Ngoc (No 2) [2026] NSWSC 349, the Supreme Court of New South Wales considered whether answers given by a food manufacturer's director during a regulatory interview could be used against him in a personal criminal prosecution. The decision provides an important lesson for directors of food manufacturers, suppliers and other corporate food businesses: cooperating on behalf of a company and protecting your own legal position are not the same task.
The judgment was an evidentiary ruling, not a decision that the director was guilty or not guilty. Its significance lies in the distinction between corporate and individual responsibility, and the fairness of using admissions obtained when that distinction was not properly explained.
01 The judgment at a glance
Roberts J delivered the decision on 10 April 2026. David Tri Chau-Ngoc, a director and Chief Operating Officer of Inside Out Nutritious Goods Pty Ltd, faced ten charges under section 122(2) of the Food Act 2003 (NSW).
The charges concerned batches of almond milk and oat milk products sold by the company to Woolworths stores in NSW between 24 October 2022 and 12 January 2023. The prosecution alleged that the company had contravened section 21(3) of the Food Act by selling food in a manner contrary to the Australia New Zealand Food Standards Code.
A storage instruction with potentially serious consequences
The parties agreed that the products needed to be refrigerated at all times below 5 degrees Celsius. However, their labels stated: “Once opened, keep refrigerated and consume within 5 days”.
That distinction matters. A statement directing refrigeration only after opening does not communicate a requirement to keep an unopened product refrigerated. In this case, storage labelling was not merely a presentation issue. It was central to the alleged breaches.
The investigation followed a serious consumer illness and a product recall in February 2023. The judgment makes clear that the alleged or suspected connection between the products and the illness was context, not an element of the offences alleged against the director. It should not be treated as a judicial finding that he caused the illness.
The company’s alleged food-law breach and the director’s personal criminal liability were separate questions. One did not automatically establish the other.
What the Court actually decided
The Food Authority sought to rely on admissions from a recorded interview conducted on 15 November 2023. The Court excluded that interview under section 90 of the Evidence Act 1995 (NSW), finding that using it against the director personally would be unfair in the circumstances.
This ruling did not acquit the director, dismiss the charges or determine whether he had taken all reasonable steps. It decided whether one important piece of evidence could be used in the personal prosecution.
02 When can a food-business director be personally liable?
Operating through a company does not necessarily insulate its directors from criminal liability. Section 122 of the Food Act establishes executive liability for specified offences committed by a corporation. It is important to distinguish this statutory pathway from a general assumption that every director is responsible whenever a food business makes a mistake.
The prosecution must establish the statutory elements
In broad terms, section 122(2) requires proof that:
The prosecution bears the burden of proving the elements. A director's title alone is not a substitute for establishing the complete statutory case. Equally, saying “I did not know” may not answer an allegation that the director ought reasonably to have known.
Not just the person who approved the label
A manufacturer may use a quality-assurance team, an external consultant or a designer to assess and approve packaging. Those arrangements can be important evidence, but they do not resolve a director's position by themselves. The relevant questions include what compliance arrangements existed, whether the director monitored them, what information reached the director and what action was taken when problems emerged.
Section 122 can also extend beyond formally appointed directors to relevant individuals involved in management. Whether it applies to a particular executive must be assessed against the statutory requirements and their actual role.
Manufacturers, suppliers and hospitality operators
The case concerned a manufacturer supplying packaged products, but the executive-liability framework is relevant more broadly to corporate food businesses where a specified offence is alleged. A restaurant, wholesaler or other food company should not assume that personal exposure is confined to factories. The particular offence, corporate structure, individual role and evidence remain essential.
03 What does taking “all reasonable steps” mean?
Section 122 directs attention to practical prevention and oversight. Its considerations include professional assessments of compliance, compliance education and training, equipment and structures appropriate to the business, and systems for supervision, monitoring and compliance.
This does not mean every director must personally inspect every bottle. It does mean that a director's position cannot be assessed simply by pointing to a policy folder or identifying the staff member who made an error.
1. Understand the product's actual safety requirements
For a packaged-food manufacturer, the starting point is reliable technical information about the product: its storage requirements, shelf life, processing conditions and the assumptions underlying its safety assessment. The label should accurately communicate the requirements established for that particular product.
The below-5-degrees requirement in Chau-Ngoc was an agreed fact about the products in that case. It is not a universal storage rule for every food product.
2. Make label approval a controlled process
A useful approval process distinguishes technical food-safety review from design and marketing review. It records who assessed storage wording, what supporting information they used, which version was approved and whether a product change requires a new review.
These are practical risk-management measures, not findings that any particular checklist would necessarily have prevented the alleged offences in this case.
3. Give compliance staff the authority and resources to act
Training has limited value if the people responsible for compliance cannot stop an inappropriate label being printed or raise a concern before distribution. Directors should consider the competence, resources and reporting arrangements of the relevant team, including arrangements with external advisers.
4. Treat complaints as information, not inconvenience
A complaint about confusing storage instructions, an unexplained test result or an inconsistent retailer practice may call for investigation. The appropriate response depends on its substance and urgency. A documented escalation process helps ensure that relevant information reaches someone with authority to respond.
5. Test the system and record what happened
Contemporaneous assessments, training records, approval histories, meeting minutes and corrective-action records can help show how a compliance system actually operated. Records should be accurate and preserved in their original form. They should never be retrospectively altered to create the appearance of compliance.
Delegation can be part of a reasonable compliance system. It is not, by itself, proof that a director took all reasonable steps.
The Court in Chau-Ngoc (No 2) did not decide whether these statutory elements were established. This checklist draws practical lessons from the framework and the investigation materials described in the judgment, rather than presenting unmade findings about the defendant.
04 Why was the director’s interview excluded?
The most important feature of the decision was the way the interview had been arranged. The Authority's initial correspondence requested a representative with operational knowledge who was authorised to speak for the company. It presented the interview as an opportunity for the company to respond to the investigation and possible enforcement action.
A later email included a warning about compulsory compliance and penalties. The director reasonably understood that he was required to attend on the company's behalf. Before the interview, he was not told that the Authority had also decided to investigate him personally, or that participation in the interview was voluntary.
The warning misstated the law on self-incrimination
The email said that a risk of self-incrimination was not a reasonable excuse for refusing to answer. It also described a procedure by which a person could object before answering and thereby prevent the answers being used against them personally, subject to an exception for false information.
The Authority conceded that this advice was “legally wrong”. The Court explained that the Food Act did not contain the statutory abrogation of privilege or the objection procedure described in the email. A protection found in a different regulatory regime cannot simply be assumed to apply under the Food Act.
Six cautions did not resolve the personal-capacity problem
During the interview, the director was repeatedly told that he did not have to answer questions and that answers could be used against the company and himself. The Court's reasoning was more nuanced than a finding that the answers were simply compelled.
The judge found that the cautions conveyed that answering was a choice, and that the director voluntarily continued answering on the company's behalf. However, in light of the earlier correspondence and dealings, the cautions did not adequately communicate that he was being interviewed in his individual capacity and faced personal criminal prosecution.
The director's understanding of his personal jeopardy was therefore central. The Authority had blurred its dealings with the company and its investigation of him individually in a way that obscured the distinction.
Section 90: fairness of using admissions at trial
Section 90 allows a court in criminal proceedings to refuse prosecution evidence of an admission where, having regard to the circumstances in which it was made, using it would be unfair to the defendant. The defendant bears the burden of establishing that unfairness.
The focus is the fairness of using the evidence at trial, not merely whether the interviewer acted unfairly. The Court applied the principles discussed in Em v The Queen (2007) 232 CLR 67 and R v Swaffield & Pavic (1998) 192 CLR 159. The exercise is highly fact-specific.
No finding of personal impropriety by the interviewing officer was necessary for the exclusion. Nor does this decision establish that every interview arranged through a company is inadmissible against a director.
A company and its director do not share the same protections
The Court emphasised that the director had a privilege against self-incrimination that the company did not enjoy. Section 187 of the Evidence Act provides that a body corporate is not entitled to refuse to answer a question or produce a document on the ground that doing so might incriminate it or expose it to a penalty.
The right to silence and privilege against self-incrimination are related, but not identical. Their application to a particular question, document or requirement needs to be assessed carefully. The decision is not a licence to disregard lawful regulatory requirements.
05 Responding to a NSW Food Authority investigation
Directors should not wait until charges are filed to understand their personal position. A request for a meeting, a document pack or an account of what went wrong can have evidentiary significance even when the business has been cooperating with a recall.
Clarify the request before answering it
- Who is being investigated? Ask whether the request concerns the company, particular individuals or both.
- In what capacity are you attending? Confirm whether you are speaking as a corporate representative, a witness or a person whose own conduct is under investigation.
- What is compulsory? Distinguish a voluntary interview from a requirement said to be made under a statutory power. Ask for the legal basis, scope and deadline.
- What protections apply? Obtain advice about self-incrimination and legal professional privilege before responding. Do not assume an objection automatically creates immunity.
- Do the company and individual need separate advice? Their interests may align, but they can diverge where the investigation examines allocation of responsibility within the business.
Comply lawfully without guessing or misleading
Section 40 addresses a failure, without reasonable excuse, to comply with a duly made requirement of an authorised officer. Section 42 prohibits knowingly providing materially false or misleading information or documents in connection with a requirement or direction under the Act.
The appropriate approach is not blanket refusal or an improvised response. It is to establish what is lawfully required, meet applicable obligations, preserve relevant rights and ensure that the information given is accurate. If an answer depends on records, technical expertise or another person's knowledge, that limitation should be identified rather than filled with speculation.
Keep public safety and legal response moving together
Obtaining advice should not delay urgent measures needed to protect consumers or compliance with lawful directions. Recall action, product assessment, regulator engagement and individual legal advice may need to proceed in parallel.
A cooperative recall does not guarantee that enforcement has ended. In Chau-Ngoc, the company had cooperated with the February recall, but the recorded interview occurred in November. Directors should avoid assuming that a later “debrief” is legally inconsequential.
06 A practical checklist for food-business directors
The following questions help identify issues that deserve attention. They are a starting point for review, not a statutory safe harbour.
A director should be able to explain both the compliance system and their own response when that system raised a concern.
07 Common questions about personal food-law liability
Can a director be prosecuted if the company has not been convicted?
Section 122 allows proceedings against an individual whether or not proceedings have been taken against the corporation, and irrespective of the outcome of corporate proceedings. The prosecution must still prove the elements of the individual offence, including that the corporation committed a relevant executive liability offence.
Does appointing a quality-assurance manager protect a director?
It can be an important part of a compliance system, but it is not automatic protection. The adequacy of the appointment, training, resources, supervision and the director's response to relevant information must be assessed in context.
Does this case give directors a right to refuse every Food Authority request?
No. The case concerned a particular interview and the fairness of using its admissions in a personal prosecution. Lawful document and information requirements must be assessed separately. Advice should address the power invoked, the recipient, the material sought and any available privilege or reasonable excuse.
Did the Court decide that the director caused food poisoning?
No. The illness and recall formed part of the background. This judgment excluded interview evidence; it did not determine guilt, causation of illness or the ultimate merits of the charges.
Do all states apply the same executive-liability rules?
No assumption should be made that they do. This article addresses the NSW Food Act and a NSW Supreme Court decision. A business operating interstate needs advice on the applicable legislation and enforcement arrangements in each jurisdiction.
08 When should a director seek advice?
Seek advice early if a regulator requests an interview, asks who approved a label, examines complaints or training records, or raises possible enforcement action against the business or an individual. Those questions may concern the very matters relevant to executive liability: knowledge, influence, oversight and prevention.
GopherWood Lawyers advises food businesses and directors on NSW Food Authority investigations, regulatory requests and prosecutions. Our work includes assessing personal exposure, preparing responses and interviews, and considering the evidence and legal issues in contested proceedings.
If your business is responding to a food safety incident, label concern or regulatory investigation, become a client to discuss the circumstances with GopherWood Lawyers.
Sources and scope
This article analyses the supplied text of NSW Food Authority v Chau-Ngoc (No 2) [2026] NSWSC 349, decided on 10 April 2026, together with the relevant provisions of the Food Act 2003 (NSW) and the Evidence Act 1995 (NSW). It addresses this evidentiary ruling, not the ultimate outcome of the prosecution.
The image is an AI-generated editorial illustration, not a photograph of the business, products or events in the case.
This article provides general information, not legal advice. The application of legislation, available protections and appropriate response depend on the facts and the law applicable at the relevant time.