The Kiwifruit Claim class action by 212 growers and a post-harvest operator will go to the High Court next year, seeking $400 million in damages from the government.

The case alleges negligence in letting the vine disease Psa into New Zealand in 2010, but an initial judgment on the substantive points may not be available until mid-2017.

The deadline for growers to join the claim was October 9. Photo: File.

By last Friday's deadline, growers representing 32 per cent of the total gold kiwifruit crop as at 2009/10 and 13 per cent of the green crop had signed the claim.

'The growers who have signed up to the claim estimate they alone have suffered losses of $376.4 million as a result of the outbreak,” says Kiwifruit Claim spokesman Matthew Hooton.

'We expect the Treasury will need to include the claim as a contingent liability in the December Economic and Fiscal Update being prepared now.

'The Kiwifruit Claim believes we have a good chance of success.

'We allege that the government was negligent when it let a specific shipment of anthers from a Psa-ravaged part of China into New Zealand, and that this negligence is what caused the losses to kiwifruit growers during the subsequent outbreak across the country.

'The government denies that direct connection. It also denies that its decision to let in the anthers from an infected part of China was negligent and even denies it owes a duty of care to growers in protecting our country from pests and diseases anyway.”

Neil Trebilco, president of NZ Kiwifruit Growers Inc says New Zealand has a total of 2500 growers and, in the 2009/2010 season, post-harvest operator Seeka – an early signatory to the claim – would have accounted for around 25 per cent of the total crop.

'NZKGI always believed the legal action would take a very long time and has advised growers to seek legal advice before signing up,” says Neil.

'But in the end it was a decision for growers to make whether or not to be involved. We know Psa has cost growers a lot and have always recognised that.”

Neil says the impact of Psa has taught the industry and the government a big lesson. 'We all need to do better,” he says.

NZKGI is pleased to see increased measures put in place to tighten border security, including x-ray of luggage, more detector dogs and increased surveillance for cruise ship passengers.

Matthew says those taking the action think the government does have a legal duty of care to growers.

'As well as its obvious moral and political duty to all New Zealanders to take the utmost care when protecting our country's agriculture and unique native flora and fauna from foreign pests, it should be accountable through the courts when it carries out its critical biosecurity role.”

The High Court set October 9 as the final date for growers to join the claim, after confirming the claim meets all of the requirements to proceed as a class action and approved the litigation funder and the funding arrangements.