NZ: High Court rules in favour of Kiwifruit Claimants

The New Zealand High court has found that the Ministry of Primary Industries (formally MAF) was negligent in allowing the Psa disease into New Zealand in 2009.

A claim was heard last year involving 212 claimants, under the name of Strathboss Kiwifruit, seeking accountability for losses suffered in the incursion that devastated the kiwifruit industry. On Friday morning Justice Jillian Mallon released her 500-page ruling, in the plaintiffs favour.

"Today is a very significant day for the New Zealand kiwifruit industry." Kiwifruit Claim committee member Grant Eynon said. "This is a landmark decision and we hope it draws a line in the sand, after what has been a long and difficult eight years for growers. Biosecurity is critical to New Zealand and our primary producers. Our economy is heavily reliant on MPI to protect our borders against known biosecurity risks such as PSA."

Photo: Vines at the property of first plaintiffs, Strathboss Kiwifruit Ltd

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.

"I have found that MAF owed a duty of care to Strathboss to take reasonable skill and care in its actions or omissions prior to the New Zealand Psa incursion to avoid physical damage to property," Justice Mallon said in her ruling. "It also owed a duty to take care to avoid loss consequential on that damage to property. I have found that Psa entered New Zealand through the anthers consignment imported pursuant to the permit granted to Kiwi Pollen by MAF. I have also found that MAF breached its duty of care by acts or omissions at the pre-border stage when granting import permits to Kiwi Pollen."

She added: "In all the circumstances it is just, fair and reasonable that MAF has a duty of care to those within the class represented by Strathboss who have suffered loss to their property. The wrong to them should be remedied. Those within the Strathboss class will have to show they had property rights in the vines and crops or that their interest in the vines and crops is sufficiently direct or closely associated with those rights that they should be treated as though they have suffered loss to their property."

Photo: One of the plaintiffs, Strathboss' orchard taken earlier this year.

Justice Mallon also rejected the Crown claim that they had a complete defence because all the relevant MAF personnel had an immunity under the Biosecurity Act.

"I found that section 163 of the Biosecurity Act did not apply to MAF personnel’s acts or omissions leading to the granting of the import permits to Kiwi Pollen. This meant the Crown does have liability for the acts or omissions of MAF personnel under the first cause of action."

The Kiwifruit Claim members will now have the opportunity to seek compensation, which Mr Eynon says while the exact amount is "fluid", it could be around the $500million mark.

"We hope the government accepts the court’s decision, and the kiwifruit growers can be properly compensated for their losses," he said. "We believe the losses to have been incurred as a direct result of this Psa incursion to have been around $450million, and growing. However growers incurring the significant cost, are keeping costs to a minimum."

Photo: The plaintiffs legal team, Davey Salmon and Michael Heard

Major NZ produce company Seeka was part of the claim as second plaintiffs, however Justice Mallon ruled that the relationship between the MPI and Seeka was not close enough (as a post-harvest operator) to warrant a claim in this case. Mr Eynon says "it's not perfect", but suggested that could be appealed.

In a statement on its website, the MPI says it will not be rushing the decision whether to launch an appeal.

"The 500-page document traverses events dating back 12 years, pre-dating the establishment of MPI, and requires a thorough examination," the statement read. "Once we have completed consideration of the judgment, a decision will be made on whether to appeal. That decision must be made by the Solicitor-General, not MPI. Until then, we will be making no further comment."

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