The proposed kiwifruit court case against the Government – over the introduction of Psa-V to New Zealand in 2010 – could be another indirect attack on the industry's marketing structure.

That's the view of Mike Chapman, CEO for New Zealand Kiwifruit Growers Inc.

File photo.

'This case looks like it could be an attack on the industry's single point of entry status,” he told SunLive.

Special legislation gives the marketing company Zespri sole right to sell New Zealand kiwifruit in all international markets except Australia and has for many years been challenged by several groups, including the former owners of Turners & Growers, who unsuccessfully took cases to the High Court.

Taking the Government to court as is proposed by ‘The Kiwifruit Case' could, Mike says 'ultimately weaken the Government's resolve to continue to support the kiwifruit industry”.

Those behind The Kiwifruit Claim are inviting all kiwifruit growers to join the class action for a one-off fee of $500, $1000 or $1500 depending on the size of their orchard.

Post-harvest operators may join the class action for a one-off fee of $10,000. Only growers and post-harvest operators that sign up to the action can benefit from any settlement or award of damages.

The claim is based on a number of facets, including a DNA study which those taking the case claim identifies a shipment of material Biosecurity NZ allowed into the country in June 2009 was the source of Psa.

NZKGI is warning growers against getting involved, and that those who do sign up first seek legal advice.

Mike says NZKGI has looked carefully at whether there was sufficient grounds to take a successful case over the arrival of the bacterial disease Psa-V in New Zealand and found it would be extremely hard to do so.

'If there was a case to be taken, it would have been taken by now.”

While the case is focused on what claimants say is Biosecurity NZ's failure to stop Psa entering the country, Mike says those joining the claim should take a wider view.

'Would the same apply to Ebola or foot and mouth arriving here?”

In 2012, NZKGI asked Grant Illingworth QC for his legal opinion on the chances of a successful case over the introduction of Psa to New Zealand in 2010.

In a lengthy response Grant says in part: 'if any claim were to be brought against the Crown in respect of the entry of Psa, it would have to be based on either a breach of statutory duty or the tort of negligence”.

'In relation to the cause of action for breach of a statutory duty, the essential question is whether Parliament intended to confer a right of claim. This is an issue over which there has been much debate and more than a little confusion.”

Grants says in his view, there is a low likelihood of the courts concluding that, 'in enacting the Biosecurity Act 1993, Parliament intended to confer a right to claim compensation for breach of statutory duty”.

A claim for compensation in negligence would face formidable difficulties in relation to the threshold question of whether the Ministry could be liable in negligence for a failure to perform its duties with appropriate care under the Biosecurity Act, he says.

'To answer this question it would be necessary to engage in a comprehensive analysis of the Biosecurity Act with a view to identifying both its purposes and any pointers for or against the imposition of a duty of care.”

Grants says the relevant requirements for a successful claim in negligence are:

• The plaintiff must establish that the Ministry owed a duty of care to the plaintiff in respect of its responsibilities under the Biosecurity Act.
• The plaintiff must establish that the Ministry failed to take reasonable care and thus breached the relevant duty of care.
• The plaintiff must establish that the Ministry's breach of the duty of care caused the plaintiff to suffer the particular loss in question and the quantum of the loss suffered.

'In my assessment, a plaintiff would face formidable difficulties (and cost) at each of these three stages.

'In the event that any orchard owner wishes to proceed with a compensation claim, it would be necessary to engage in a much more detailed analysis of whether the pathway for infection could be established in that particular case and whether the Ministry is likely to have owed and to have breached a duty of care in the particular circumstances of that case.”