The Court of Appeal refused an extension of time to seek leave to appeal the dismissal of a misfeasance in public office claim against the State of Victoria arising from a s 19 Food Act 1984 order, holding that a delay of approximately 4.5 months was substantial and not satisfactorily explained, and that the merits were not sufficiently strong to overcome that deficiency. On the substantive merits, the Court held that where a decision-maker sought and relied upon legal advice before exercising a statutory power, and the trial judge accepted the decision-maker's evidence that he did not turn his mind to the possibility of invalidity, a finding that the decision-maker was not recklessly indifferent was plainly open and not glaringly improbable. Leave to cross-appeal on costs was also refused, the Court finding no error in principle in the trial judge's costs orders.
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