The Kiwifruit Claim News

For media inquiries, please contact Bronwynne Howse 0274 583 198


Media Statement

Thursday 27 September 2017

PSA is Still a Ticking Time Bomb

PSA is an ongoing threat to the viability of the kiwifruit industry, and could flare up again as the disease evolves and becomes immune to current pest management practices, said Kiwifruit Claim Chairman John Cameron.

"What many don't realise, is that this thing could well decimated us again. We still have PSA on our vines. Once PSA arrived here, no one was ever going to be able to completely get rid of it."

The PSA outbreak decimated the kiwifruit industry in 2010 when it came to New Zealand – causing significant losses and devastating the lives of many kiwifruit growers.

Te Puke orchard owner, Bob Burt says Psa is like a ticking time bomb, and that in addition to the significant costs of pest management, growers are experiencing much lower production levels in their crops.

"PSA has not and never will be eradicated. Resistance to primary control chemicals is growing and I believe the likelihood of further Psa outbreaks is high."

"I constantly live with the fear that Psa will come back and devastate the orchard again, it is a frightening disease. As growers, we do everything possible to ensure that our vines are in the best possible health so that they can resist PSA, but because of the characteristics of PSA-V, it could very easily genetically mutate and what we are currently using as pest management practices won't be effective at all.

He says "this deadly disease has the potential to destroy, once again. While over the last few years, symptoms have (at great cost) largely remained under control during mild weather conditions, PSA continues to cause significant losses for many growers.

"The country may never fully know what the real impact of PSA has been or will be in the future."

"In 2010, when it first hit, many growers were completely wiped out – faced with no crops and plummeting values on their orchards, they lost their businesses and were forced to sell at heavily discounted prices, others survived but suffered loss of income for many years and took on huge debts to replant.

"Now, seven years later those growers that have survived still deal with Psa in their orchards each season. They not only have significant costs in protecting their orchards against the disease, but fruit harvest is often reduced due to PSA affected fruit."

"This year alone, on our orchard we have produced 5,000 less green kiwifruit trays per hectare - around 40% less fruit, simply because PSA disease is on the vines. When you combine this with the ongoing expenses of managing the disease – it makes you wonder how much its really costing our country.

"There's a lot of commentary around how the industry has fully recovered from the effects of PSA – but how can we ever fully recover when PSA is still here and is a constant threat to our livelihoods?"

"Kiwifruit, like other primary industries, has its challenges but overcoming PSA is proving to be a much bigger challenge than anyone ever anticipated. This was a known pest and it should never have been allowed into New Zealand.

The Kiwifruit Claim represents 212 kiwifruit growers who are holding the Government and MPI to account for the significant losses suffered by growers from the PSA incursion. The High Court trial is currently being held in Wellington. MPI denies all the claims, but the Kiwifruit Claimants say the negligence is obvious."

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Media Statement

Thursday 17 August 2017

How PSA infected pollen spread in New Zealand

The High Court in Wellington has heard evidence from pollen importers, Kiwi Pollen, who imported the shipment of anthers and plant material that is the subject of the trial seeking to hold the Government to account for the losses incurred during the PSA incursion.

The Kiwifruit Claim is very appreciative of Kiwi Pollen giving evidence on what happened to the shipment from Shaanxi Province in China once it was given biosecurity clearance to enter New Zealand, Kiwifruit Claim spokesman John Cameron said today.

"Kiwi Pollen's evidence establishes the multiple ways in which the infected shipment of plant material could have spread PSA - the very nature of pollen means it is very easily spread on the pollen extraction machines, bees, the wind, on orchard equipment, and vehicles," he said.

"The fact is, MPI gave biosecurity approval for the shipment to enter the country, in breach of its own regulations.

"MPI's own internal procedures restricted the importation of plant material, except in tightly controlled circumstances plant material was required to be quarantined for 6 months and inspected."

"Once in New Zealand, the shipment of anthers and other plant material was immediately transported to Kiwi Pollen's pollen milling facility in Te Puke," said Mr Cameron.

"Kiwi Pollen's Kairanga orchard, and its neighbouring orchard, Olympos were the first reported orchards to be infected with PSA in 2010."

"The Court heard in evidence today that Kiwi Pollen co-owner Jill Hamlyn was surprised to open the shipment and find black supermarket bags full of anthers, and not finely milled pollen. However, despite the shipment containing prohibited plant material, MPI had not given Kiwi Pollen any instructions on how to handle the shipment."

Mr Cameron added "When the anthers and plant material arrived at Kiwi Pollen, they were put into the freezer and were later put through a cyclone machine to mechanically extract the pollen from the dried anthers."

"The leftover anther and milling waste was disposed of. It may have gone into the general waste."

"There were no standard industry practices at the time regulating the pollen extraction and hygiene processes, which meant that there were multiple opportunities for the cross contamination of pollen harvested from different orchards, or different countries.

"The anthers from the Shaanxi shipment were processed into pollen using the same equipment that was used to process New Zealand pollen for commercial use," said Mr Cameron.

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Media Statement

Saturday 5 August 2017

KIWIFRUIT CLAIM URGES CAUTION OVER MUD IMPORT

Kiwifruit claim chairman, John Cameron said today that it's just not worth the risk to any of our primary industries for MPI to approve an import of $95,000 of mud from South Korea, which may-be contaminated with Foot and Mouth disease, for the Rotorua Mud Festival.

"Our primary industries are worth billions to our economy every year.

"Any outbreak of any diseases could cost people their livelihoods, their farms and jobs and would be devastating to the entire New Zealand economy. Has MPI learnt nothing from the PSA outbreak in New Zealand seven years ago?" he said.

"Like PSA, foot and mouth is a known disease. Given that South Korea has recently had an outbreak of foot and mouth, MPI needs to be 100% sure that this mud is disease free – if there is any risk at all of that mud being contaminated with foot and mouth, then the import needs to be stopped.

He adds "MPI has sole responsibility for protecting our borders, and the primary industry sector relies heavily on it carrying out that function to the highest standard."

"What happened to the Kiwifruit Industry in October 2010 was entirely preventable - MPI should never have allowed kiwifruit pollen into New Zealand. The PSA outbreak would not have happened if MPI had followed its protocols under the Biosecurity Act," said Mr Cameron.

"MPI never properly assessed the risks around PSA entering New Zealand from pollen and failed to carry out its duties to check that the import matched the issued import permit. Growers' lives and livelihoods were ripped apart by PSA, and for many the impact is ongoing.

"We don't want to ever see this happen to any of our primary industries again."

Mr Cameron added "With PSA, there were growers who were wiped out, and faced with no crops and plummeting values of their orchards, lost their businesses, and were forced to sell at heavily discounted prices. Those that survived often suffered a complete loss of income, taking on huge additional debts to replant. Many growers are now only just beginning to get back to pre-PSA production levels after seven years."

"Given that MPI knows about the foot and mouth outbreak in South Korea, our primary industries need to be re-assured that at the very least, MPI has conducted a full risk assessment, and followed its protocols under the Biosecurity Act over the proposed importation of mud, and be totally accountable for the import. If there is any doubt – don't take the risk," he said.

The High Court trial to hold the Government and MPI to account for the significant losses suffered by growers from the PSA incursion, begins in Wellington on Monday. MPI denies all the claims, but the Kiwifruit Claimants say the negligence is obvious.

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Media Statement

Sunday 23 July 2017

IT'S NOT ALL GOLD FOR SOME KIWIFRUIT GROWERS

Despite what people might believe, some kiwifruit growers are a long way from recovering from the 2010 Psa-V outbreak which devastated the kiwifruit industry in New Zealand, Te Puke kiwifruit grower Alistair Reese said today.

"It really concerns me that a lot of the commentary about the kiwifruit industry is that Sun Gold ("G3") has been the ‘saviour' post PSA, and that the industry is now doing very well because of the new varieties.

"There's no doubt that the higher value kiwifruit gold variety has done well, but I think it's misleading to say that the whole industry has recovered – like myself, there are many kiwifruit growers who are still a long way from recovery seven years after Psa-V hit."

"PSA hit us hard. In September 2010, just prior to it ravaging our orchard, we were producing 200,000 trays of kiwifruit - this year we've harvested just 49,000 trays."

"We had 16.75ha of the Gold Hort16A variety and the whole lot was decimated. We had to cut everything out - the sound of chainsaws still haunts me today.

"Seven years on, my family is only just starting to see progress. We had an option to buy and plant the new G3 variety - we were asked to take a punt on converting our orchard to a variety that, at the time, no one knew if it would be resistant to PSA or not," he said.

"There was a period when G3 was showing severe die-back of PSA disease. I was in the middle of negotiating with a company to assist us to plant G3 on our entire orchard, but they lost confidence in the variety so pulled out at the last minute.

Mr Reese adds "We were left with nothing at that point, we had a property that was virtually worthless and had absolutely no income. Our only option was to sell half our license entitlement at considerably less than what it is now worth. After a year we were able to plant 8.5ha of G3 – we have not yet been in a position to plant the rest, it still remains bare land.

"Six years after we cut out the Psa infected vines, in 2016, we had our first crop and we harvested 20,000 trays - 10% of what we'd harvested before Psa-V destroyed our orchard in 2010."

It has taken us seven years to produce a crop that is ready to harvest, and in the meantime, we have had no income and have taken on more debt to try and make progress. Despite what people might think, we are a long way from fully recovering. For many of us, the impact and the costs of PSA are still ongoing. The presence of the disease continues to present challenges for growers technically and emotionally."

Alistair Reese is one of the 212 claimants who have joined the Kiwifruit Claim which seeks to hold the Government and the Ministry of Primary Industries to account for the significant losses suffered by growers.

Kiwifruit Claim Chairman, John Cameron said "The PSA outbreak devastated the kiwifruit industry, and the Kiwifruit Claimants are adamant that MPI should never have allowed kiwifruit pollen into New Zealand. MPI should not have issued the permit for the importation of the pollen and it should have not allowed the infected material into NZ when what arrived at the border and did not match the import permit. Put simply, the PSA outbreak in October 2010 would never have happened if MPI had followed its own protocols under the Biosecurity Act."

The trial begins on August 7 in the High Court in Wellington.

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Bronwynne Howse
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Media Statement

Sunday 25 June 2017

KIWIFRUIT CLAIM AGAINST THE GOVERNMENT HEADS TO HIGH COURT

It's good news that those Zespri suppliers who survived the 2010 Psa-v outbreak are benefiting from Zespri's record profit of $35.8 million over the last year, The Kiwifruit Claim said today.

However, The Kiwifruit Claim said it was "cold comfort" for those whose livelihoods had been completely destroyed in 2010 by what The Kiwifruit Claim alleges was negligence from Biosecurity New Zealand, now part of the Ministry for Primary Industries (MPI).

Even for those Zespri suppliers whose businesses survived 2010 and the $885 million of losses as a result of Psa-v, today's announcement does not make up for the government's alleged failings.

"If your house is burgled because your locksmith is negligent, it makes no difference that you manage to get back on your feet a few years later," spokesman Matthew Hooton said. "You still deserve justice for what you and your family went through in the meantime."

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Media Statement

Wednesday 25 May 2016

ZESPRI PROFIT GOOD FOR SOME BUT NOT ALL

Seven years after the devastating PSA-V outbreak which decimated the kiwifruit industry in New Zealand, 212 kiwifruit claimants will finally get their day in the High Court in August.

The PSA outbreak devastated the kiwifruit industry, and the Kiwifruit Claim seeks to hold the Government and the Ministry of Primary Industries ("MPI") to account for the significant losses suffered by growers.

Kiwifruit Claim Chairman, John Cameron, says that growers' lives and livelihoods were ripped apart by PSA, and for many the impact is ongoing.

"There were growers who were wiped out, and faced with no crops and plummeting values of their orchards, lost their businesses, and were forced to sell at heavily discounted prices. Those that survived often suffered a complete loss of income, taking on huge debts to replant. Many growers are now only just beginning to get back to pre-PSA production levels after 7 years," says Mr Cameron.

"The Kiwifruit Claimants are adamant that MPI should never have allowed kiwifruit pollen into New Zealand. Put simply, the PSA outbreak in October 2010 would never have happened if MPI had followed its own protocols under the Biosecurity Act.

"By 2004 MPI had identified that PSA was a biosecurity risk to the industry and banned the importation of kiwifruit plant material, except in tightly controlled situations. However, MPI failed to properly consider at the same time whether kiwifruit pollen could carry PSA and did not also prohibit the importation of pollen. Instead, they decided to consider the specific risks that kiwifruit pollen posed if a request for an import permit was received in the future," Mr Cameron

explains.

"When an application was made to import pollen in 2007, instead of undertaking a Risk Assessment in accordance with its own procedures, MPI took shortcuts – it made a decision to allow imports of pollen based on a brief informal review and discussions, and without consulting industry.

"By taking shortcuts, MPI failed to identify and consider the fact that commercial pollen is always contaminated with plant material, and failed to identify the risk of Psa being introduced with infected pollen. The Kiwifruit Claimants say MPI was wrong to allow imports of pollen – the risk of transmission of Psa was too high," says Mr Cameron.

"Then in 2008, despite MPI officials receiving notification about the outbreak of a virulent strain of PSA in Italy, MPI never reviewed its assessment, and still failed to take any steps to ban the importation of kiwifruit pollen – it issued a permit to import pollen in 2009 from China.

He adds "That shipment was in fact 4.5kg of pollen, anthers and other plant material from Shaanxi Province in China.

"MPI's internal procedures require nursery stock to be quarantined and inspected. MPI either failed to realise that the Shaanxi shipment was not pure pollen, or did not inspect it at all," Mr Cameron explains.

"The shipment was approved and immediately transported to Te Puke. It was later processed into pollen by a commercial operator, and between 3-4kg of plant material was somehow disposed of. Once PSA was in the country, there was no way it could be contained.

"The Claimants have DNA scientific evidence that the strain of PSA which led to the outbreak in New Zealand matches almost identically Psa from Shaanxi Province," says Mr Cameron.

MPI denies all the claims, but the Kiwifruit Claimants say the negligence is obvious.

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Bronwynne Howse
0274 583 198


Media Statement

Sunday 21 February 2016

KIWIFRUIT CLAIM TO BE HEARD IN 2017

The $375 million plus Kiwifruit Claim against the government will be heard after 1 June 2017, the High Court at Wellington has ordered.

The date is later than that sought by The Kiwifruit Claim, with the plaintiffs wanting to get the trial out of the way well before the 2017 general election campaign. The Crown Law Office sought the later date for a trial that is expected to take three months.

The chairman of The Kiwifruit Claim, John Cameron, said its lawyers planned to present evidence to the court which it is alleged shows officials negligently approved the importation of pollen, later discovered as Psa-v infected, against the government's own policies and procedures, as well as the date and time it arrived in New Zealand.

This information has led Auckland University legal expert Professor Bill Hodge to say The The Kiwifruit Claim has a "smoking gun" of evidence against the government. Professor Hodge suggested that if the claim has "chapter and verse of the specific entry" then, in his view, it has a very strong prima facie case.

Over the three months of the trial, the Claim plans to call evidence from the kiwifruit growers and their families whose livelihoods were devastated by Psa-v, plus many other witnesses and experts. The Court will also hear evidence from current and former officials from the Ministry for Primary Industries.

The court's order was made after a hearing earlier this month, determining the 2017 trial will be to confirm whether a duty of care is owed by the Ministry for Primary Industries (MPI) to kiwifruit growers.

The Kiwifruit Claim was launched in September 2014, with legal documents filed in November of that year. Losses for the 212 plaintiffs as a result of the 2009 introduction of Psa-v into New Zealand have been estimated at $376 million.

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Bronwynne Howse
0274 583 198


Media Statement

Friday 27 November 2015

KIWIFRUIT CLAIM CONCERNED ABOUT INCREASING BIOSECURITY RISKS

With climate change increasing the risk of foreign sub-tropical pests to the horticulture industry, it is more important than ever that the government gets serious about its responsibilities to safeguard New Zealand's biosecurity, Kiwifruit Claim chairman John Cameron said today.

A new report yet to be released by the Ministry for Primary Industries (MPI) predicts climate change will have a serious effect on the prevalence of exotic pests, with consequences for horticulture (including kiwifruit), animals and even our native plants like Kauri, Pohutukawa and Titoki.

Like the Queensland fruit fly outbreak in Auckland's Grey Lynn in February this year, other Australian pests and diseases could gain a foot-hold in New Zealand if temperatures warm sufficiently. This would wreak havoc on kiwifruit crops, grapes, tomatoes, kumara, maize, wheat and many other common crops which are a large part of New Zealand's export market.

News of the report has spurred calls for increased protection at the border. The February fruit fly outbreak in Auckland's Grey Lynn may not have been caused by the same type of negligence that the Claim says caused the Psa outbreak, but it is another clear demonstration of biosecurity failures in New Zealand and the need for officials to be held accountable if and when they are negligent.

"Let's just hope we can contain the increasing biosecurity risks posed by climate change. If there are future outbreaks, we hope they don't have the same devastating impact on New Zealand as the 2010 Psa outbreak, which the government's independent advisors said may have cost our country $885 million," Mr Cameron said.

The class action plaintiffs are Strathboss Kiwifruit Ltd for growers and Seeka Kiwifruit Industries Ltd for post-harvest operators. The Claim has 212 plaintiffs claiming $376 million in compensation from the government. They allege negligence by biosecurity officials allowed Psa into New Zealand and that that led to the devastation of the kiwifruit industry. The government denies the claim and says it should not owe any duty to take reasonable care on biosecurity matters. The Kiwifruit Claim was launched on 29 September 2014 and filed in the High Court at Wellington on 28 November 2014. The claim's legal team includes Alan Galbraith QC, Matthew Dunning QC and LeeSalmonLong.

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Bronwynne Howse
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Media Statement

Thursday 8 October 2015

KIWIFRUIT CLAIM TO SEEK THIRD OF A BILLION IN DAMAGES FOR PSA-V - BUT OTHER GROWERS RISK MISSING FRIDAY'S DEADLINE TO SIGN UP

The Kiwifruit Claim is likely to seek damages from the Crown of over $334 million but there are still growers and others who may have losses of another $400 million who risk missing Friday's final High Court-imposed deadline to take part in the class action.

As of last night, growers representing around 45% of the gold industry and 15% of the green industry at the time Psa-v struck have signed up to the claim, with an estimated $334 million in losses.

A spokesman for The Kiwifruit Claim, Matthew Hooton, said that was around four times the minimum level of estimated damages the litigation funder, LPF, had required before going unconditional on the claim but still suggested some growers with combined losses of hundreds million dollars were still to make up their minds or complete the paperwork.

"According to the government's own Sapere report, losses from Psa-v in just the first 15 years after the initial crisis have been estimated to be a minimum of $740 million and as much as $885 million," Mr Hooton said.

"Those losses are more than thirty times the $25 million the government boasts on the MPI website that it paid to compensate growers for the outbreak.

"We allege that the government was negligent when it let in a specific shipment of anthers from a Psa-ravaged part of China and we further allege that that negligence led directly to the losses claimed.

"For its part, the government denies that direct connection, denies that its decision to let in the anthers from an infected part of China was negligent and denies it owes a duty of care to growers anyway.

"We think the government has a moral and political duty to all New Zealanders to take the utmost care when protecting our country's vital industries and unique native flora and fauna from foreign pests and diseases. We also allege officials have a parallel legal duty and should be accountable through the courts when they carry out their critical biosecurity role."

Mr Hooton said that while the $334 million in losses may sound a lot, the number still suggests many growers have not yet taken advantage of trying to recoup their losses at LPF's risk. He said some growers may have been misled by initial criticism of the claim by some industry participants. Since then, however:

  • the High Court in Wellington has confirmed the claim meets all of the requirements to proceed as a class action and approved the litigation funder and the funding arrangements,
  • Professor Bill Hodge of the University of Auckland Law School has said the claim may have a 'smoking gun' in its evidence in the science around the importation of anthers from China and the alleged negligence of Biosecurity NZ in letting them in,
  • the industry's Single Point of Entry marketing system is as strong as ever and is untouched by the Trans-Pacific Partnership (TPP),
  • R&D funding remains fully in place, and
  • kiwifruit was one of the biggest winners from the TPP and continues to be at the forefront of the government's trade liberalisation efforts.

"There are no second chances," Mr Hooton said. "Growers who aren't signed up by 5pm tomorrow can't be part of the claim or share in any settlement or award of damages that results."

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Bronwynne Howse
0274 583 198


Media Statement

Tuesday 6 October 2015

KIWIFRUIT CLAIM URGES ZESPRI TO BACK GROWERS AS SIGN-UP DEADLINE LOOMS

Following the landmark Trans-Pacific Partnership (TPP) signed this morning, only days before the High Court's 9 October deadline for growers to sign up to the claim against the government for its alleged negligence behind the devastating introduction of Psa-v disease into New Zealand, The Kiwifruit Claim committee says it is more important than ever that Zespri advises its members to seriously consider joining the action to seek compensation. The government's own Sapere report has estimated the losses caused by Psa-v to be at least $885 million.

"Zespri and New Zealand Kiwifruit Growers Incorporated (NZKGI) were initially cautious about The Kiwifruit Claim when it was launched in September 2014," a spokesman for the Kiwifruit Claim, Matthew Hooton, said today.

"However, the High Court in Wellington has since confirmed the claim has a sufficiently robust foundation for it to proceed as a class action, and has approved the funder, LPF Litigation Funding Limited, and the funding documents all growers must sign to be part of the action.

"Meanwhile, legal expert Professor Bill Hodge has said that The Kiwifruit Claim may have a 'smoking gun' in our evidence, in the science around the importation of anthers from China and the alleged negligence of Biosecurity NZ in letting them in. For its part, the government maintains it does not owe a duty of care when undertaking biosecurity activity at the border, and denies any breach of duty."

Mr Hooton said Zespri and NZKGI had also suggested the industry's relationship with the government could be put at risk were kiwifruit growers to seek compensation from the government through the courts.

"However, a year later, the Single-Point of Entry (SPE) system remains strong, the government is hosting a cocktail party at parliament later this month to celebrate the kiwifruit industry, and kiwifruit is arguably being the biggest winner from Tim Groser's landmark TPP.

"The Kiwifruit Claim and its supporters understand the importance of Zespri's relationship with the government given the SPE, but now that 42% of gold growers have registered with the claim, as well as post-harvest operator, Seeka, and all Zespri's initial concerns have been allayed, we would have thought it would be encouraging its growers to try to recoup some of the hundreds of millions of dollars they have lost to Psa-v because of what we allege was negligence by the government," Mr Hooton said.

"At the very least, we would think Zespri would agree it's important the question of the duty of care government officials owe when carrying out their biosecurity functions is resolved by the courts, especially as regional trade grows following the successful TPP negotiations, and consequently get behind the claim.

"There are no second chances for growers here, and we implore Zespri to communicate that reality to its growers."

Growers and post-harvest operators have until 5pm Friday 9 October to sign up to The Kiwifruit Claim to recover their losses as a result of the devastating impact of Psa-v on the kiwifruit industry.

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Bronwynne Howse
0274 583 198


Media Statement

Tuesday 6 October 2015

KIWIFRUIT CLAIM URGES ZESPRI TO BACK GROWERS AS SIGN-UP DEADLINE LOOMS

Following the landmark Trans-Pacific Partnership (TPP) signed this morning, only days before the High Court's 9 October deadline for growers to sign up to the claim against the government for its alleged negligence behind the devastating introduction of Psa-v disease into New Zealand, The Kiwifruit Claim committee says it is more important than ever that Zespri advises its members to seriously consider joining the action to seek compensation. The government's own Sapere report has estimated the losses caused by Psa-v to be at least $885 million.

"Zespri and New Zealand Kiwifruit Growers Incorporated (NZKGI) were initially cautious about The Kiwifruit Claim when it was launched in September 2014," a spokesman for the Kiwifruit Claim, Matthew Hooton, said today.

"However, the High Court in Wellington has since confirmed the claim has a sufficiently robust foundation for it to proceed as a class action, and has approved the funder, LPF Litigation Funding Limited, and the funding documents all growers must sign to be part of the action.

"Meanwhile, legal expert Professor Bill Hodge has said that The Kiwifruit Claim may have a 'smoking gun' in our evidence, in the science around the importation of anthers from China and the alleged negligence of Biosecurity NZ in letting them in. For its part, the government maintains it does not owe a duty of care when undertaking biosecurity activity at the border, and denies any breach of duty."

Mr Hooton said Zespri and NZKGI had also suggested the industry's relationship with the government could be put at risk were kiwifruit growers to seek compensation from the government through the courts.

"However, a year later, the Single-Point of Entry (SPE) system remains strong, the government is hosting a cocktail party at parliament later this month to celebrate the kiwifruit industry, and kiwifruit is arguably being the biggest winner from Tim Groser's landmark TPP.

"The Kiwifruit Claim and its supporters understand the importance of Zespri's relationship with the government given the SPE, but now that 42% of gold growers have registered with the claim, as well as post-harvest operator, Seeka, and all Zespri's initial concerns have been allayed, we would have thought it would be encouraging its growers to try to recoup some of the hundreds of millions of dollars they have lost to Psa-v because of what we allege was negligence by the government," Mr Hooton said.

"At the very least, we would think Zespri would agree it's important the question of the duty of care government officials owe when carrying out their biosecurity functions is resolved by the courts, especially as regional trade grows following the successful TPP negotiations, and consequently get behind the claim.

"There are no second chances for growers here, and we implore Zespri to communicate that reality to its growers."

Growers and post-harvest operators have until 5pm Friday 9 October to sign up to The Kiwifruit Claim to recover their losses as a result of the devastating impact of Psa-v on the kiwifruit industry.

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Bronwynne Howse
0274 583 198


The National Business Review Article

Friday 25 September 2015

The NBR features an article in which Auckland University Law professor Bill Hodge says the Kiwifruit Claim has a fighting chance (Paid Content).

Professor Hodge talks of evidence "pointing to a specific instance that could have been prevented."

Read the article on the National Business Review's website.


Media Statement

Friday 11 September 2015

GOVERNMENT'S $25M BOAST INSULTS KIWIFRUIT GROWERS

The government's boast in parliament yesterday that it has provided $25 million in compensation for the 2010 Psa-v outbreak is an insult to kiwifruit growers and others who lost at least $885 million as a result of the preventable incursion, The Kiwifruit Claim said today.

This week marks one month to go before the High Court-imposed deadline of 9 October for kiwifruit growers and post-harvest operators to join The Kiwifruit Claim's class action against the government to recover damages caused by the outbreak.

Yesterday in Parliament, Bay of Plenty MP Todd Muller asked Primary Industries Minister Nathan Guy a patsy question about the state of the industry, prompting Mr Guy to claim credit for its recent recovery.

"If Mr Guy wants to claim credit for the recovery, it would be nice if he would also admit - as we believe we are able to prove - that the negligence of his biosecurity officials in allowing infected anthers to be imported into New Zealand from China in June 2009 caused the Psa-v crisis in the first place," Matthew Hooton, a spokesman for the Kiwifruit Claim said today. "This happened at a time of heightened concern about Psa-v as a result of the Italian crisis, when officials should have been exercising extra care.

"Earlier this week University of Auckland law professor Bill Hodge commented that he believes the claim is able to show the direct causal nexus between that negligence and growers' losses and that may be the smoking gun that will lead to a successful outcome.

"This is not new information and was clearly outlined on television as far back as 2012 by Benedict Collins at https://www.youtube.com/watch?v=T8JSzSsGM_8. It would be good if Mr Guy took five minutes out of his day to become properly informed on the issue by viewing Mr Collins' investigative report."

Mr Hooton said kiwifruit growers, post-harvest operators and Zespri had done a good job recovering from the 2010 crisis which destroyed the nation's gold (Hort16A) kiwifruit crop, requiring it to be replaced with another variety (G3), but says that does not mean they do not deserve proper compensation for the horrendous losses they experienced in the meantime as a result of the Crown's negligence.

"Boasting of a $25 million compensation package is an insult and just because all this was now five years ago is no reason the Crown should not be held responsible and pay compensation if the courts accept our evidence of negligence."

Growers and post-harvest operators affected by the outbreak can sign up to The Kiwifruit Claim at www.thekiwifruitclaim.org. They must pay a one-off payment of $500, $1000 or $1500 depending on orchard size. Regardless of outcome, growers will not be required to pay anything more than their one-off initial payment. Growers and post-harvest operators are strongly recommended to read the statement of claim and all relevant documents and to seek their own independent legal advice before signing up to the claim. All growers must sign up to the claim before 9 October to be eligible for any compensation.

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found throughout this website.

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Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Wednesday 9 September 2015

ONE MONTH LEFT TO SIGN UP TO THE KIWIFRUIT CLAIM

With a month to go for growers to join The Kiwifruit Claim for compensation for government negligence in allowing Psa-v into New Zealand, a top legal expert says information disclosed in court papers may be the clincher for the case in favour of growers.

After being given approval recently to proceed by the High Court, and with 30% of gold growers and over 10% of green growers signed up, the Kiwifruit Claim has erected billboards in Tauranga and Te Puke along with national radio and print advertising to let growers and post-harvest operators know they can join the claim to recover damages from the Psa-V outbreak before the 9 October deadline.

This week legal expert Professor Bill Hodge said: "These guys might have the smoking gun we were looking for. The science around the importation of the anthers from China and the alleged negligence of Biosecurity NZ in letting them in may very well be that causal nexus the Claim needed to be a real financial threat to the government.

"To the extent that the plaintiffs were saying 'We got injured by Psa-V, but we don't know where it came from, we don't know how long it has been here, we don't know how it got in, and you should have stopped it, that's a pretty weak and open-ended case. If they have chapter and verse of the specific entry, then they have, in my respectful view, a very strong prima facie case."

"New Zealand and the New Zealand judiciary are very aware of the importance of environmental issues, and they are more open to entertaining claims like The Kiwifruit Claim. The government will fight this one all the way, but they look like they're already on the back foot. It's a very interesting test case which I hope my students will be studying over the next few years."

His comments come a week after a report signifying the importance of effective biosecurity in maintaining New Zealand's agricultural and horticultural industries. Dr Eckehard Brockerhoff, principal scientist at Scion forest research institute, co-authored a review in the international peer-reviewed journal Science, concluding that a coordinated approach to biosecurity was required because of the severe consequences of failures.

All New Zealanders have an interest in our country's biosecurity practices, The Kiwifruit Claim's spokesman Matthew Hooton said.

"At least $885 million in losses were suffered by kiwifruit growers and post-harvest operators because of biosecurity failures leading to the introduction of the Psa-v disease. We now have one of New Zealand's legal scholars saying there is a causal relationship between the government's inaction and growers' losses. While these were failures by our domestic authorities, they underline the risks faced by a small trading nation in a globalised economy if sufficient care is not exercised at the border. The Kiwifruit Claim seeks compensation for growers affected by Psa-v, but it is equally important to send a message to MPI that future avoidable breaches must be prevented."

Any other growers or post-harvest operators who wish to join the action to recover losses as a result of Psa-v have until 9 October to register with The Kiwifruit Claim, Mr Hooton said.

"There are no second chances here. Growers and post-harvest operators won't get this opportunity for compensation again, so they must sign up before 9 October to get any kind of financial reparation from the government and the biosecurity failures that led us here."

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found throughout this website.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Thursday 20 August 2015

INFORMATION CAMPAIGN TO PROMOTE 9 OCTOBER 2015 DEADLINE

The Kiwifruit Claim will launch a five-week information campaign next month to inform kiwifruit growers of the 9 October deadline to sign up to its efforts to seek compensation for the Crown's negligence in allowing Psa-v into New Zealand.

The information campaign will involve direct mail, billboards in prime kiwifruit country, plaintiffs' meeting in Te Puke, Opotiki and Northland, and the claim's website at www.TheKiwifruitClaim.org.

Last month, the High Court at Wellington ordered that the claim is to proceed, approving the terms of the funding, and setting Friday 9 October as the absolute final deadline for growers to sign up.

A spokesman for The Kiwifruit Claim, Matthew Hooton, said it was totally up to growers whether or not to become part of the claim.

"So far, 30% of gold growers and over 10% of green growers have joined The Kiwifruit Claim. They're all claiming loss as a result of Psa-v. Types of loss for growers to recover include loss of income, drop in orchard value, increased spraying costs, new variety licences, higher bank fees, and costs of re-grafting. It's not limited to this, but these are good examples for growers to consider when thinking about signing up to the Claim," he said.

Mr Hooton said it was important growers left plenty of time to properly consider the matter.

"By close-of-business on 9 October, you need to have obtained the sign-up documents from www.TheKiwifruitClaim.org, read them carefully, taken independent advice from your own lawyer, and got the signed documents back to us."

Mr Hooton stressed that if growers did decide to sign up, their personal liability was limited to the initial one-off fee.

"The way this is structured is that all personal liability is limited to their initial one-off fee of $500 to $1500. All legal fees are being met by 100% kiwi-owned LPF Group Limited, that will initially post $250,000 in security to cover any award of costs, and more as the case progresses to the satisfaction of the judge."

Kiwifruit growers and New Zealand lost at least $885 million as a result of the Psa crisis according to the government's own Sapere report. The Kiwifruit Claim claims significant losses were caused to growers and post-harvest operators by Biosecurity NZ's negligence when it allowed importation of pollen carrying infected material, and it is confident with this evidence.

"While things are looking up for the industry now, we believe it is important Biosecurity NZ (now part of MPI) is held to account to stop something like this happening again to any other primary industry," Mr Hooton said.

"Kiwifruit growers, like any other New Zealander, deserve full and final compensation when the Crown's negligence cost them money, even if it was way back in 2010."

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found throughout this website.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Friday 10 July 2015

KIWIFRUIT CLAIM WINS FIRST ROUND

The High Court at Wellington has ruled in favour of The Kiwifruit Claim and against the Crown on all substantial points, in a judgment released on 8 July.

Kiwifruit growers and post-harvest operators who were negatively affected by Psa have until Friday 9 October 2015 to sign up to The Kiwifruit Claim, the court has ruled.

The court said growers and post-harvest operators should be allowed to bring the proceedings as a representative or class action, which had been opposed by the Crown Law Office (CLO). The court said there was no objection to the litigation funder, LPF Litigation Funding Limited, a 100% kiwi-owned company, and approved the terms of the funding agreement, which had been signed by an initial 72 growers and post-harvest operators. An initial $250,000 security for costs is to be lodged by LPF, increasing as the litigation progresses.

Most importantly for growers and post-harvest operators still to make a decision about joining the claim, the court set Friday 9 October 2015 as the deadline for others to join the litigation.

The chairman of The Kiwifruit Claim, John Cameron, said the result was expected. "We believe we have a strong case and we're getting our day in court to see this through," Mr Cameron said.

The Kiwifruit Claim spokesperson, Matthew Hooton, said, as of today, 72 growers and one post-harvest operator had registered and paid their one-off fee completing the formal paperwork to sign up to the claim.

The plaintiffs are represented by a committee consisting of Mr Cameron (Chairman), Bob Burt and Grant Eynon. It is expected additional plaintiffs will join the claim now it has been given the go ahead by the High Court.

"It's entirely up to growers and post-harvest operators to decide whether or not to join the claim and they should leave plenty of time before Friday 9 October to read through all the documents and get their own independent legal advice," Mr Hooton said.

"In a nutshell, the claim alleges that Biosecurity NZ was negligent in allowing Psa to be introduced into New Zealand, costing New Zealand at least $885 million, according to Biosecurity NZ's own independent study, and the plaintiffs believe it should be held accountable and pay damages for all foreseeable losses.

"All kiwifruit growers and post-harvest operators can join the claim for a one-off fee of $500, $1,000 or $1,500 depending on the size of their orchard, and post-harvest operators for a one-off fee of $10,000. It's totally up to them whether or not to join the claim but only growers and post-harvest operators that sign up to the action before the court's Friday 9 October deadline can benefit from any settlement or award of damages."

The combined losses of those who have already signed up is estimated to be over $280 million, Mr Hooton said.

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found throughout this website.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Friday 30 January 2015

KIWIFRUIT CLAIM STATEMENT OF CLAIM NOW AVAILABLE ON WEBSITE

The Kiwifruit Claim has posted its statement of claim for its class-action litigation on its website, together with explanatory material approved by the High Court at Wellington.

The class action, launched on 29 September and filed in the High Court at Wellington on 28 November, is about "official accountability and just compensation for the destruction of so many kiwifruit growers' livelihoods" says its chairman, John Cameron. Only growers and post-harvest operators that sign up to the action can benefit from any settlement or award of damages.

The claim alleges government agencies through their employees owe a duty of care to the plaintiffs and that Biosecurity NZ, now part of the Ministry for Primary Industries, breached this duty of care when it negligently allowed kiwifruit-vine-killing-disease Psa to be introduced into New Zealand, costing the country at least $885 million according to Biosecurity NZ's own independent study.

The statement of claim outlines how Psa came to be introduced into New Zealand and how Biosecurity NZ was responsible, allegations which are denied by the defendant.

The class action is being supported by litigation funder, LPF Litigation Funding Limited, a 100% kiwi-owned company, chaired by former Court of Appeal and Supreme Court Judge Bill Wilson QC. LPF declared the claim's funding agreement unconditional on 19 November 2014 and will therefore fund all legal costs including security for any adverse costs award in exchange a percentage of any settlement or award of damages. The claim's legal team includes Alan Galbraith QC, Matthew Dunning QC and Parker & Associates.

Plaintiffs are represented by a committee consisting of Mr Cameron, Bob Burt and Grant Eynon. Representative plaintiffs are Strathboss Kiwifruit Ltd for growers and Seeka Kiwifruit Industries Ltd for post-harvest operators.

All kiwifruit growers are invited to become plaintiffs for a one-off fee of $500, $1000 or $1500 depending on the size of their orchard. Post-harvest operators have been invited to join the class action for a one-off fee of $10,000.

The claim's media spokesperson, Matthew Hooton, said, as of 5.00 pm yesterday, 29% of gold- kiwifruit growers by area had registered their interest in the claim, of which 18% had paid their one-off fee and completed the formal paperwork to sign up to the claim. Nine percent of green- kiwifruit growers by area had also signed up or registered their interest.

The combined losses of those who have already signed up are approximately $250 million. Applications filed with the statement of claim have asked the High Court to approve the representative action and litigation funding arrangements and amongst other things to set a deadline for other growers and post-harvest operators to join the claim.

Mr Hooton said the next step in the process is a first call of the proceedings on 23 February 2015. He said the defendant has been ordered to file a notice of opposition and/or a statement of defence or an application to strike out the claim together with an application for extension of time by 6 March 2015.

On behalf of the plaintiffs' committee, Mr Cameron thanked the Crown Law Office and the High Court for facilitating the posting of the statement of claim and explanatory statement as requested by many kiwifruit growers and post-harvest operators.

He said the government had responded professionally to the claim from the outset. For example, in September Prime Minister John Key acknowledged growers' rights to explore the matter in the courts and government ministers indicating that the litigation would be treated entirely separately from other industry issues. Primary Industries Minister Nathan Guy confirmed publicly in October that, "as long as the overwhelming majority of kiwifruit growers want to retain the single seller model, the government won't be making any changes". In November, Economic Development Minister Steven Joyce celebrated the science-led recovery of the kiwifruit industry at a Zespri/Plant & Food Research function. Meanwhile, kiwifruit is the big winner from the New Zealand-South Korea Free Trade Agreement being successfully negotiated by Trade Minister Tim Groser and was high on the agenda of Mr Guy's recent business delegation to India.

Mr Hooton said the government had also made clear privately that it would not be linking the litigation to other industry issues. "Based on the public and private advice we have received from ministers, kiwifruit growers and post-harvest operators are able to join the claim safe in the knowledge it will have no impact on issues like the single-point-of-entry marketing system, government support for industry R&D or trade negotiations and other market access issues," he said.

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found throughout this website. Growers and post-harvest operators are strongly recommended to read the statement of claim together with the explanatory material approved by the High Court at Wellington and all other relevant documents, and to seek their own independent legal advice before signing up to the claim.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Friday 28 November 2014

KIWIFRUIT CLAIM FILED IN HIGH COURT IN WELLINGTON

The Kiwifruit Claim's statement of claim has been filed in the High Court in Wellington this afternoon.

The claim alleges that Biosecurity NZ was negligent in allowing Psa to be introduced into New Zealand. That cost New Zealand at least $885 million, according to Biosecurity NZ's own independent study.

The chairman of The Kiwifruit Claim, John Cameron, said it was about "official accountability and just redress for the destruction of so many kiwifruit growers' livelihoods".

The Kiwifruit Claim was launched on Monday 29 September and is a class action alleging negligence by the then Biosecurity NZ in allowing Psa into New Zealand. All kiwifruit growers have been invited 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 have been invited to 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's media spokeperson, Matthew Hooton, said that as of 5.00 pm yesterday, 18% of gold-kiwifruit growers by volume had paid their one-off fee and completed the formal paperwork to sign up to the claim. An additional 9% of gold growers by volume have expressed interest. Eight percent of green-kiwifruit growers by volume had also signed up, and a further 7% of growers by volume who had signed up were yet to be confirmed as gold or green growers.

The combined losses of those who have already signed up is estimated to be nearly $250 million.

The Kiwifruit Claim's legal team includes Alan Galbraith QC, Matthew Dunning QC and Parker & Associates. The litigation is being supported by litigation funder, LPF Litigation Funding Limited, a 100% kiwi-owned company, chaired by former Court of Appeal and Supreme Court Judge Bill Wilson QC. Plaintiffs will be represented by a committee consisting of John Cameron (Chairman), Bob Burt and Grant Eynon.

Mr Hooton said LPF had declared the claim's funding agreement unconditional on 19 November 2014. It will fund all legal costs including security for any adverse costs award in exchange a percentage of any settlement or award of damages.

Strathboss Kiwifruit Ltd has agreed to be the representative plaintiff for growers and Seeka Kiwifruit Industries Ltd to be the representative plaintiff for post-harvest operators. Applications filed with the statement of claim ask the High Court to set a deadline for other growers and post-harvest operators to join the claim. The plaintiffs have also applied to the court for permission to release their statement of claim publicly.

Mr Hooton said the government had responded professionally to the claim with Prime Minister John Key acknowledging growers' rights to explore the matter in the courts and government ministers indicating that the litigation would be treated entirely separately from other industry issues.

For example, Mr Hooton said Primary Industries Minister Nathan Guy had confirmed again publicly last month that, "as long as the overwhelming majority of kiwifruit growers want to retain the single seller model, the government won't be making any changes".

For his part, Economic Development Minister Steven Joyce celebrated the science-led recovery of the kiwifruit industry at a Zespri/Plant & Food Research function earlier this week.

Meanwhile, kiwifruit is the big winner from the New Zealand-South Korea Free Trade Agreement successfully negotiated by Trade Minister Tim Groser and was high on the agenda of Mr Guy's recent business delegation to India.

"The government has made clear to us that it will not be linking the litigation to other industry issues," Mr Hooton said. "Based on the advice we have received from ministers, kiwifruit growers and post-harvest operators are able to join the claim confident it will have no impact on issues like the single-point-of-entry marketing system, government support for industry R&D or trade negotiations and other market access issues."

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found on The Kiwifruit Claim Questions and Answers page.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Thursday 23 October 2014

KIWIFRUIT CLAIM RESPONDS TO SCAREMONGERING CAMPAIGN

Thirty percent of gold kiwifruit growers by volume are now pledged to participate in The Kiwifruit Claim, its chairman, John Cameron, said today.

Over 15% of gold growers have already completed the sign-up process and paid their one-off capped contributions of $500, $1000 or $1500 depending on the size of their orchard.

Green growers were not as badly affected by Psa so signup among them is lower, at 7% by volume so far.

In addition, post-harvest operator Seeka has signed up and paid to become a plaintiff.

"The last three weeks have seen an extraordinary scaremongering campaign by one or two Zespri directors and some within New Zealand Kiwifruit Growers' Incorporated (NZKGI) against those growers and post-harvest operators known to be considering being part of this claim," Mr Cameron said.

"At its worst, growers' families have been targeted. It's been alleged that, if the claim goes ahead, the government will strip the industry of its regulatory framework, stop supporting its research and development programmes and refuse to properly represent the industry in international trade negotiations. Government ministers have told us such suggestions are 'off the planet'.

"It's also been alleged, wrongly, that our litigation funder represents foreign interests and does not genuinely plan to support the case.

"We are not interested in a tit-for-tat with anyone. We emphasise it's not compulsory for growers or post-harvest operators to be part of The Kiwifruit Claim: everyone should make up their own mind, with the benefit of their own independent legal advice and taking into account any obligations they have under the Companies Act 1993 or the Trustee Act 1956."

Mr Cameron said the unfortunate atmosphere had led to a large number of growers and some post-harvest operators wanting to take more time to consider the matter. Others have questions about some clauses of the Deed of Participation between plaintiffs and the litigation funder.

"It would be a real shame if some growers and post-harvest operators decided not to take advantage of being part of this claim because of inaccurate information, so the plaintiffs' committee has decided to extend the planned deadline of this week for growers to sign up. We've also asked the litigation funder to look at some of the clauses that have been the subject of scaremongering, and that work is in progress. While the committee is confident they do not present any risk to growers or post-harvest operators, LPF says they will look at some of the wording to see if they can be made clearer still."

Mr Cameron said this meant the Statement of Claim would not be filed with the High Court in Wellington this week and was more likely to be filed in November.

Growers and post-harvest operators would have until a date to be determined by the High Court to sign up to the claim once it is filed. The Claim will seek directions that growers and post- harvest operators be given an additional six months to opt-in.

"The legal process will take many months and years and another couple of weeks before filing will not make any difference to the long-term timelines," Mr Cameron said.

The Kiwifruit Claim website was launched on Monday 29 September as part of a class action alleging negligence by the then Biosecurity NZ in allowing Psa into New Zealand. All kiwifruit growers are invited 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 conventional negligence principles and the Biosecurity Act, and alleges that a shipment of material Biosecurity NZ allowed into New Zealand in June 2009 was the source of the Psa incursion.

The Kiwifruit Claim's legal team includes Alan Galbraith QC, Matthew Dunning QC and Parker & Associates. The litigation is being supported by litigation funder, LPF Group, a 100% kiwi- owned company, chaired by former Court of Appeal and Supreme Court Judge Bill Wilson QC.

Further information on The Kiwifruit Claim and a forum where growers can lodge their questions about the claim can be found on this website.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Wednesday 8 October 2014

CORRECTION TO INACCURATE INFORMATION FROM NZKGI

The Kiwifruit Claim has today corrected inaccurate information provided to growers and the media by the kiwifruit growers' organisation, New Zealand Kiwifruit Growers Incorporated (NZKGI).

On Monday, NZKGI distributed 14 reasons it says it believes The Kiwifruit Claim is too risky.

The chairman of The Kiwifruit Claim, John Cameron, said: "We are surprised by the level of inaccuracy in NZKGI's document and assume it was not signed off by NZKGI's legal advisor prior to release to growers and the media."

Mr Cameron released a response to the 14 points which has been signed off as accurate by The Kiwifruit Claim's legal advisors, Matthew Dunning QC and Dan Parker of Parker & Associates.

The response is as follows:

NZKGI CLAIM A:
There is not a good chance of success (based on our current legal advice).

The Kiwifruit Claim's response:
Our legal advisors' professional assessment is that the facts are about as good as one could have for founding the arguments, the claim is meritorious, is supported by principle and should be heard by the courts. The Sapere Report identifies obvious deficiencies in the way in which MAF failed to administer its functions and obligations. In addition, and very significantly, there is evidence to identify the shipment that negligently allowed Psa-V to enter NZ.

NZKGI CLAIM B:
There are risks to the Single Point of Entry (SPE) and our partnership with Government.

The Kiwifruit Claim's response:
There is no legal link between The Kiwifruit Claim and the statutes and regulations that govern the structure of the industry. Further, as a matter of policy, we believe that it is inconceivable that the Government would make a link between grower-led litigation and de-regulating the SPE or any offshore trading access.

NZKGI CLAIM 1:
There is no guarantee the case will be commenced – LPF has the right to make this decision by 28 November or at a later time by agreement.

The Kiwifruit Claim's response:
The case will be going ahead. The Grower Committee has instructed its legal team to file the Statement of Claim with the High Court in Wellington by no later than Friday 17 October 2014.

NZKGI CLAIM 2:
The growers will be the named plaintiffs in the court proceedings, not LPF (the company supporting the claim) and LPF has discretion as to what costs it will pay.

The Kiwifruit Claim's response:
The growers are the parties who have suffered the loss as a result of the release of Psa-V into New Zealand. It is appropriate that the growers are the named plaintiffs rather than LPF, which is funding the plaintiffs' litigation. The costs that LPF will fund are set out in the funding agreement and will be agreed with the Grower Committee. LPF cannot and will not be seeking any further contributions from the growers at all and all costs will be covered by LPF.

NZKGI CLAIM 3:
Growers cannot withdraw from the claim.

The Kiwifruit Claim's response:
Any grower can opt out at any stage should they choose to.

NZKGI CLAIM 4:
LPF can withdraw from the claim.

The Kiwifruit Claim's response:
That is correct. LPF does retain discretion to withdraw from the claim just as the growers have. LPF considers there is a strong case and intends to support the owners through to a successful resolution unless significant factors arise that change LPF's assessment.

NZKGI CLAIM 5:
Growers could then be left to run the claim and met the costs of running the claim.

The Kiwifruit Claim's response:
In the hypothetical situation that LPF withdraws, LPF will not be able to claim any success fee. In this situation, the growers have several options. If they discontinue as a result of LPF's withdrawal, LPF will meet any adverse costs award as a result of the withdrawal. Otherwise, growers can continue the claim, either funding themselves or with support of another litigation funder.

NZKGI CLAIM 6:
The Government in addition may seek additional security from growers requiring payment of grower funds into court in excess of the joining fee.

The Kiwifruit Claim's response:
LPF has confirmed it will post any security for costs that could be awarded, without even being required to do so by the Court. They want the growers to have the added security of knowing these costs are there to be drawn upon should costs be awarded against the plaintiffs.

NZKGI CLAIM 7:
Growers could be then left to pay the Government's costs if the claim is unsuccessful – this could be millions of dollars.

The Kiwifruit Claim's response:
LPF has confirmed it will cover any adverse costs award and provide any security for costs that could be required by the Court. The suggestion that there may be millions of dollars of costs awarded is not realistic given the rules as to costs in the High Court and that security for costs will be posted during the conduct of the claim.

NZKGI CLAIM 8:
Growers, it seems, will need the consent of LPF to sell their orchard(s) (where the orchard(s) are what their Psa claim is based on) – the claim could take many years.

The Kiwifruit Claim's response:
This is completely untrue. Growers do not need the consent of LPF to sell their orchards.

NZKGI CLAIM 9:
Growers will not have a say in how the case is run and who is joined to the case as defendants – if you disagree with how the case is being run, you can't withdraw.

The Kiwifruit Claim's response:
This is completely untrue. Under the litigation funding agreement, the legal team is instructed by the plaintiff growers. This includes decisions around the conduct of the case and who is joined as defendants. It is them (through the plaintiff committee) who provide instructions on the conduct of the litigation. The agreement notes the involvement of LPF in any settlement or discontinuance of the claim, and in funding expert or other costs. Additionally, it is incorrect that growers cannot withdraw from the claim. They can withdraw at any time.

NZKGI CLAIM 10:
Any dispute growers have with LPF are to be dealt with by an independent expert appointed by LPF – there are no appeals from the decision of the independent expert.

The Kiwifruit Claim's response:
The dispute resolution provision enables determination by an independent expert of any disputes under the funding agreement. This enables prompt, independent and cost effective resolution of any dispute.

NZKGI CLAIM 11:
The figure of $885 million is not how much the claim will be – the amount of claim will be based on the loss suffered by the growers who join the claim.

The Kiwifruit Claim's response:
The claim will be based on the actual losses suffered by those who participate in it, including: loss of income; loss of capital gain; losses as a result of increased banking mortgage rates given the higher risk; increased and ongoing costs of maintaining Psa incursions; general damages where appropriate; and legal and expert costs. All appropriately claimed losses will be included in this claim and, depending on the numbers who elect to participate, the figure could be well over the $885 million suggested in the Sapere Report.

NZKGI CLAIM 12:
If the claim is successful growers will get what is left after all legal costs and the 20% to 25% success fee has been deducted – the bigger the claim, the bigger LPF's success fee.

The Kiwifruit Claim's response:
That is true. The bigger the settlement or award of damages, the more money will be paid in compensation to growers and the more money will be made by LPF. The interests of growers and LPF are therefore aligned.

There have also been claims made that the litigation funder, LPF, is a foreign company. This is completely untrue. LPF is 100% New Zealand owned.

The Kiwifruit Claim says it is also disappointed that NZKGI declined its offer last week to brief its grower forum on the claim.

Downloads:

Inquiries:

Bronwynne Howse
0274 583 198


Media Statement

Wednesday 3 October 2014

The Kiwifruit Claim responds to inaccurate information

The Kiwifruit Claim has today corrected inaccurate information being promulgated to kiwifruit growers and post-harvest operators. The correct position is:

  • The case has been thoroughly reviewed over 24 months and the professional assessment is that it is highly meritorious.
  • Growers and post-harvest operators with estimated losses above the litigation funder's threshold of $200 million have now signed up to The Kiwifruit Claim. This means that, subject to final legal checks on the documentation, the case will be going ahead.
  • The final draft of the Statement of Claim, which has been under development for several months pending sign-up, will be completed by Friday 17 October. It will be made available to all registered plaintiffs and, subject to court rules, to any other interested parties entitled to receive a copy.
  • The litigation funders have advised that they will support the claim and that no further funds can be or will be sought from plaintiffs.
  • There will be transparency around the funding arrangements and the conduct of LPF. The funding arrangements for the claim are non-controversial, in line with existing precedent and require the consent of the High Court, and LPF will be subject to the supervision of the High Court.
  • It is incorrect, contrary to advice given to some growers, that this case relies on specific provisions of the Biosecurity Act 1993 to proceed. The case is not based on statute law but on the common law, specifically the tort of negligence. In carrying out their duties under the Biosecurity Act 1993, the Crown, by its officials and agents, owed a duty of care to New Zealand kiwifruit growers, which they did not meet. This negligence allowed Psa into New Zealand and the Crown is liable for damages that have flowed from it.
  • There were obvious deficiencies in the way in which MAF failed to administer its functions and obligations, as identified in the Sapere Report. This created the circumstances in which imports of material were allowed and the attendant risk of incursion. In addition, we have gone further since that report and also positively identified the pathway, including with DNA testing, for the incursion of Psa-V into New Zealand from the Shaanxi province in China, and MAF's responsibility for that.
  • There is no legal nor we believe any political link between the case and the statutes and regulations that govern the structure of the industry. To the contrary, we note that Prime Minister John Key has said on many occasions that his government thinks the current structure works and that it will not be changed without the consent of growers. On Monday, Mr Key said publicly that growers were entitled to pursue this litigation.
  • It is not true that The Kiwifruit Claim will take the industry's focus away from growth and direct it to a 'divisive, drawn out, and hugely expensive legal battle". Once signed up to the claim for capped contributions of $500, $1000 or $1500, the class action will occur in the background with growers able to focus on the future of their businesses and not on the past. Everyone involved in The Kiwifruit Claim feels a tremendous professional and personal responsibility to do whatever they can for growers to secure them a successful outcome and fair compensation for the losses they have suffered as a result of negligence by the Crown.
  • The Kiwifruit Claim's legal advisors include Alan Galbraith QC, Matthew Dunning QC and Parker & Associates.
  • Downloads:

    Inquiries:

    Bronwynne Howse
    0274 583 198


    Media Statement

    Wednesday 1 October 2014

    FORMER NZKGI CHAIRMAN JOINS KIWIFRUIT CLAIM COMMITTEE

    All kiwifruit growers and post-harvest operators who have been adversely affected by Psa have an obligation to their families and shareholders to seriously consider signing up to The Kiwifruit Claim against the former Biosecurity NZ, prominent industry figure Grant Eynon said today.

    Mr Eynon was confirmed today as the fifth member of the grower committee launching the claim.

    He is a former chairman of grower representative group, New Zealand Kiwifruit Growers Incorporated (NZKGI), and is currently deputy chairman of major post-harvest operator EastPack.

    "Since litigation of this nature was first considered by NZKGI, Zespri and others more than two years ago, new DNA evidence has identified that a shipment of material MAF allowed into New Zealand in June 2009 is the source of the Psa incursion," Mr Eynon said today.

    "Over the same period, the Supreme Court has also added to the clear authority that the Crown can be liable for breaching a duty of care when officials carry out statutory and regulatory roles, for example in Spencer on Byron.

    "These and other developments mean our legal team, including Alan Galbraith QC, Matthew Dunning QC and Parker & Associates, is now strongly of the view the class action can succeed.

    "In addition, our litigation funder, LPF Group Ltd, which is chaired by former Supreme Court judge Bill Wilson QC, has a policy of funding only those cases it believes to be meritorious and with a high chance of success. They will make a loss were the case not to succeed."

    In contrast, Mr Eynon said growers and post-harvest operators had nothing to lose from participating in the case, beyond their initial contributions of between $500 and $10,000.

    "Once growers have paid initial contributions, they cannot be asked to pay any more for the proceedings. In the unlikely event the claim were ultimately unsuccessful and the Crown were awarded costs, these costs would be met by LPF," Mr Eynon said.

    "As a result of this arrangement, there is no financial risk to growers or post-harvest operators beyond the initial payments – but only growers and post-harvest operators who become part of the class action can benefit from any settlement or award of damages.

    "All growers and post-harvest operators who have been adversely affected by Psa have an obligation to their families and shareholders to seriously consider being part of this claim."

    The Chairman of The Kiwifruit Claim, John Cameron, welcomed Mr Eynon to the committee.

    "Very few people have as much experience in the kiwifruit industry as Grant – as a grower, a post-harvest director and as an industry leader – and he will further strengthen our committee," Mr Cameron said.

    The other foundation growers of the committee are Te Puke grower Bob Burt, Aongatete Managing Director Allan Dawson and Te Puke accountant Murray Gibson.

    END

    Downloads:

    Inquiries:

    Bronwynne Howse
    0274 583 198


    Media Statement

    Monday 29 September 2014

    Kiwifruit claim to hold officials accountable for 2010 Psa outbreak

    Kiwifruit growers have today joined forces to hold Biosecurity NZ accountable in the courts for its negligence in allowing 2010's Psa outbreak that devastated New Zealand's kiwifruit industry and exports.

    Foundation claimants representing well in excess of 10% of the kiwifruit industry have today announced they will be filing "The Kiwifruit Claim" class action at the High Court in Wellington. The claim seeks compensation for the effects of the disease that cost the country at least $885 million and climbing, according to an independent report commissioned by the Ministry for Primary Industries (MPI).

    The foundation growers are represented by a committee consisting of prominent Te Puke grower Bob Burt, dairy farmer and kiwifruit and avocado grower John Cameron (chairman), Aongatete Managing Director Allan Dawson and Te Puke accountant Murray Gibson. The claim's legal team includes Alan Galbraith QC, Matthew Dunning QC and Parker & Associates.

    All kiwifruit growers and post-harvest operators have been invited to join the class action, which is being supported by litigation funders, LPF Group Ltd. A website with more information has been launched and advertising in newspapers will begin later this week. A first round of grower meetings will begin next week. Growers and post-harvest operators have until 5pm Friday 24 October to sign up to the claim.

    "All New Zealanders have an interest in the success of The Kiwifruit Claim because everyone has an interest in government officials being found to owe a duty of care when carrying out their official roles," the chairman of The Kiwifruit Claim, John Cameron, said today.

    "In particular, all New Zealanders have an interest in government officials properly protecting our borders from pests and diseases that could devastate not just our agriculture and horticulture industries, but the native flora and fauna that we all cherish.

    "There is no doubt in our minds that Biosecurity NZ was negligent in how it was protecting New Zealand from Psa and other risks from as far back as 2004.

    "Negligence by Biosecurity NZ is a key finding of an independent report into the outbreak by international consultants Sapere, commissioned by the Ministry of Primary Industries (MPI)."

    Mr Cameron said the growers initiating The Kiwifruit Claim were grateful to the current government for addressing many of the issues identified by Sapere in its report when establishing the new integrated Ministry for Primary Industries.

    He said the growers had earlier notified the caretaker Minister of Primary Industries, the caretaker Attorney-General, local MPs, the Solicitor-General, Zespri, New Zealand Kiwifruit Growers Incorporated (KGI) and Kiwifruit Vine Health (KVH) of their claim.

    "We hope to work constructively with the Attorney-General and Solicitor-General to find a way to manage the matter in a timely and non-confrontational way," Mr Camerson said.

    END

    Downloads:

    Inquiries:

    Bronwynne Howse
    0274 583 198

    The Kiwifruit Claim | info@thekiwifruitclaim.org | PO Box 130 Te Puke 3153