In June, the High court found that the Ministry of Primary Industries (formally MAF) was negligent in allowing the Psa disease into New Zealand in 2009 after a 12-week hearing. But a notice has since been filed in the Court of Appeal against the decision.
"Certainly, our legal team are very very confident that we have a legitimate case for standing up to any appeal in the Supreme Court," Kiwifruit Claim Chairman John Cameron said. "Along with LTF our funders are also very much committed to getting a positive result not for us but for them. Unless there is a major hiccup in the appeal court for us, it is going to be very difficult if the Crown does lose the appeal for them to go to the Supreme Court when they have lost twice already."
The plaintiffs successfully argued that a shipment arrived from Shaanxi Province, China, in 2009 containing 4.5kg of pollen, anthers and other plant material that were infected with Psa - and that consignment was required by law to have been inspected by MPI at the border and biosecurity clearance should not have been granted due to material discrepancies. The concept of whether the MPI owed a duty of care to kiwifruit growers was at the centre of the court case.
The MPI released a statement back in July, stating that it considers the High Court finding has the potential to significantly impact on the Ministry's biosecurity operations.
"The Court's finding traverses events dating back 12 years, pre-dating the establishment of the Ministry," it said. "The Ministry is continually enhancing and improving the way it manages pre-border risk and import processes at the border. We have confidence in our current biosecurity system and its continued robustness. New Zealand enjoys a high level of freedom from the most damaging pests and diseases as a result of the diligent actions of MPI officers, importers and others. MPI takes its biosecurity responsibilities seriously, and while the decision is being appealed, it must still be applied in the interim. The impact of this for importers and others will be delays in decision-making."
As the matter will go before the Court of Appeal, the MPI has indicated it will not be making any further comment. But Mr Cameron says the Crown still does not believe that they were negligent, hence the appeal, which is disappointing for the 212 growers involved in the claim that it is going to drag out longer.
"They did not meet their protocols, they did not meet their rules and do inspections," he said. "There was so many things that they did not do, and we proved that in court. The most important part, and the thing that they are most concerned about is the duty of care. Justice (Jillian) Mallon was clear that there was a duty of care because they did not do their protocols."
There were joint plaintiffs; with the growers under the name of Strathboss Kiwifruit, while Seeka presented a case for post-harvest losses, with the latter was rejected by Justice Mallon. The plaintiffs are expected to lodge a counter-claim, which Mr Cameron says has only come about because of the Crown's appeal.
"We would not have appealed had the Crown not appealed," he said. "Basically, we are appealing the post-harvest section of it and some of the rulings relating to the negligence clauses. While most of it was in our favour, there are a few things that we very much want to clarify. But the Crown is pretty much going through everything."
The damage from Psa was widespread with many growers losing everything when it hit – their orchards, businesses and their life savings. Even for those that were able to survive, some suffered a complete loss of income for several years, taking on huge debts to replant.
"At the end of the day, the growers are ecstatic that we have got this far already, and that was the most important part getting past stage one which was negligence and duty - and we've done that," Mr Cameron said. "The next part which was set to be stage two was compensation. This is continuing to grow, because Psa hasn't gone away - it's not going away. So, any year that any of the plaintiffs have a poor seasonal production because of Psa the cumulative cost continues to rise - so the cost to the government and the New Zealand tax payer will continue to rise the longer the process is drawn out."
For more information:John Cameron
The Kiwifruit Claim
Phone: +64 274979534
jcfarms@xtra.co.nz
www.thekiwifruitclaim.org