Information on the High Court litigation.
Background to case
A group of kiwifruit growers and post-harvest operators are suing the Crown for what they allege is negligence in allowing the bacterial kiwifruit vine disease Psa-V into the country.
The Ministry for Primary Industries (MPI) does not accept the allegations and is defending the litigation. A statement of defence was filed in the High Court on 6 March 2015.
- Read the statement of defence [PDF, 252 KB]
- Read the amended statement of defence, 29 August 2016 [PDF, 299 KB]
The Crown commenced its defence in the High Court on Monday 4 September 2017.
The Court confirmed the timetable for the exchange of evidence prior to the hearing, which started on 7 August 2017.
- 3 March 2017 – Plaintiffs to file and serve evidence.
- 1 May 2017 – Defendant to file and serve evidence.
- 16 June 2017 – Plaintiffs' reply evidence to be filed and served.
- 14 July 2017 – Contingent provision for a second round of reply evidence by the defendant, should such evidence be justified.
The plaintiffs filed a Reply to the Amended Statement of Defence on 7 October 2016.
Download the reply to the amended statement of defence [PDF, 281 KB]
11 October 2017
The ruling of Justice Mallon on the discovery of details about the Crown’s liability insurance cover relating to the claim.
- Minute of Mallon J dated 11 October 2017 [PDF, 1.3 MB]
9 June 2017
The High Court issued a minute on 9 June 2017 on a number of outstanding procedural and evidence matters, including timetabling, use of AVL for overseas witnesses, confidentiality orders and subpoenas.
- Minute of Mallon J dated 9 June 2017 [PDF, 75 KB]
27 October 2016 and 11 November 2016
The High Court issued a minute on a number of procedural matters heard in a case management conference on 26 October 2016. One matter addressed in the minute related to a "no loss" defence that was included in the amended statement of defence. The plaintiffs were concerned this brought the issue of quantum of loss alleged by the plaintiffs into the Stage One hearing when it should be left to Stage Two. The Court proposed a provisional solution which was to remove questions (c) and (d) of the agreed questions for determination at Stage One. Those questions related to whether Strathboss and Seeka (as a post harvest operator) suffered "some loss" as a result of a breach of duty of care.
Other matters addressed in the Court's minute related to discovery and the plaintiffs' application to amend the identity of the represented grower claimants.
- Minute of Dobson J dated 27 October 2016 [PDF, 707 KB]
Following the filing of memoranda by the parties on the 2 loss questions, the Court issued a further minute dated 11 November 2016 which directed that these 2 questions be removed. The Court also added a new question on causation: "Did any breach of the duty of care cause Strathboss’ kiwifruit vines to become infected by Psa-V?".
- Minute of Dobson J dated 11 November 2016 [PDF, 202 KB]
8 August 2016
The High Court released its decisions on a number of procedural matters heard in a case management conference on 5 August 2016. The Court considered submissions from both MPI and the claimants on a number of issues including the representative class, changes to the represented claimants, Seeka’s loss, particulars and discovery.
- Read the Justice Dobson’s minute, dated 8 August 2016 [PDF, 895 KB]
29 June 2016
The Court has issued a minute on whether the plaintiffs could claim legal professional privilege over the written responses they provided in response to questionnaires from the plaintiffs’ solicitors. Those questionnaires were intended to provide details of the circumstances of claimants who had joined, or who intended to join, the claim. The Court ruled in favour of the Crown and found that the responses should be discovered, subject to certain claims of privilege as are set out in the minute.
- Read Justice Dobson’s minute, dated 29 June 2016 [PDF, 360 KB]
8 June 2016
The plaintiffs filed an amended statement of claim on 8 June 2016.
- Read the plaintiffs’ amended statement of claim [PDF, 493 KB]
23 May 2016
After agreement between the parties, the High Court has confirmed the issues and questions that will be covered at the Stage 1 hearing.
Question 1: Did MPI owe a duty to Strathboss and/or Seeka and/or members of the class represented by Strathboss to exercise reasonable skill and care in any one or more of the respects identified in paragraphs 122, 123, 124 and 128 of the statement of claim in its actions or omissions prior to the incursion of Psa-V into New Zealand, to avoid:
physical damage to property, and/or
economic loss resulting from damage to property, and/or
economic loss which did not result from damage to the property.
Question 2: Did Psa-V enter New Zealand as pleaded in paragraphs 110 to 121 of the statement of claim, and if so:
did MPI breach the duty of care by acts or omissions in the manner identified in paras 125 and 129 of the statement of claim, and if so
did Strathboss suffer some loss as a result of that breach of the duty of care and/or did Seeka, in its capacity as a post-harvest operator, suffer some loss as a result?
A date for the 12-week Stage 1 hearing is to be set down after 1 June 2017.
18 February 2016
The High Court has released its decisions on a number of procedural matters heard in a Case Management Conference on 3 February 2016. The Court considered submissions from both MPI and the Kiwifruit Claim claimants on issues including the scope and timing of the future hearing, participants in the hearing, and the time period allowed for discovery of information.
The Court has determined that the proceedings will be held in stages. The trial for Stage 1 will be held after 1 June 2017 (on a date to be confirmed) and has been set down for a 12 week fixture. Stage 1 will determine issues regarding whether or not MPI owed a duty of care to the kiwifruit industry. Crown Law, on behalf of MPI, sought orders from the High Court for the plaintiffs to provide particulars of their claim, including providing grower participation documents. This was granted. In accordance with High Court instructions, MPI is to complete a tailored discovery of specified documents by 8 April 2016.
Read the full reserved judgment of Justice Dobson [PDF, 882 KB]
9 October 2015
The High Court has ruled in favour of the Crown and confirmed that the Court-ordered costs from the June hearing on procedural issues should go to the winner of the ultimate substantive hearing. The claimants had argued that because they had been successful in their applications to take a class action and use a litigation funder, they should be entitled to costs. However, the Court has decided that the defendant (MPI) should not have to bear the costs for responding to procedural steps required because of the unusual way in which the plaintiffs have chosen to proceed in the Claim.
Costs judgment [PDF, 106 KB]
7 October 2015
High Court reissues a minute concerning the content of press releases promoting the Kiwifruit Claim. The minute upholds a complaint by Crown Law regarding a media release issued by the plaintiffs.
Summary of defence case
The Act sets out requirements which MPI undertakes in the interests of the country as a whole but where no individual or group can especially claim damages if they suffer loss.
The Ministry acted appropriately in its treatment of Psa-V as a biosecurity threat and acted in accordance with its international obligations and with scientific knowledge available at the time.
MPI did not "let" Psa into the country by allowing pollen imports to New Zealand. Various studies are inconclusive as to exactly how the bacterium entered New Zealand.
There are other reasons MPI is not liable for the claim. MPI argues that there is a statutory immunity from civil proceedings in regard to actions taken under the Biosecurity Act, and that applies to this proceeding. Any liability on the Crown for losses as a result of a biosecurity incursion is covered by a statutory compensation scheme. In the case of Psa-V, a specific assistance scheme was offered after the outbreak in 2010, through which the Government made more than $25 million available to compensate growers. This was matched by a payment by industry, and the fund is administered by an industry-led organisation, Kiwifruit Vine Health.
Crown appeal of High Court decision
The High Court's decision on the kiwifruit litigation was publicly released on 29 June 2018.
The Crown filed a notice of appeal on 24 July 2018.
The plaintiffs have 10 working days to file a cross-appeal (by 7 August 2018). The Court of Appeal will allocate a hearing date, which is likely to be some time in the first 6 months of 2019.
Find out more
- High Court judgment on plaintiffs' applications to bring a representative action and use a litigation funder – Ministry of Justice website
- Plaintiffs' statement of claim and summary of statement of claim – the Kiwifruit Claim website
- Plaintiffs' amended statement of claim 8 June 2016 [PDF, 493 KB]
Information about how the kiwifruit industry has recovered from the Psa outbreak is on page 52 of MPI's Situation and Outlook for the Primary Industries 2015.
Who to contact
If you have questions about this legal action, email firstname.lastname@example.org
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