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The statement of claim commencing the Kiwifruit Claim was filed in the High Court at Wellington on 28 November 2014.

Strathboss Kiwifruit Limited is the first plaintiff and represents a class of 41 growers of gold and/or green kiwifruit who have suffered losses as a result of the Psa-V outbreak in New Zealand, and who have consented to be represented in the claim. It is proposed that Strathboss will also represent growers of gold and/or green kiwifruit who have suffered losses as a result of the Psa-V outbreak in New Zealand and who later consent to opt in to join the claim.

Seeka Kiwifruit Industries Limited is the second plaintiff. It is a kiwifruit post-harvest operator and a grower which has suffered losses as a result of the Psa-V outbreak in New Zealand. It is proposed that Seeka will also represent kiwifruit post-harvest operators who have suffered losses as a result of the Psa-V outbreak in New Zealand and who later consent to opt in to join the claim.

The defendant named in the claim is the Attorney-General, sued on behalf of officers, agents and/or employees of the Crown, being officers, agents and/or employees of the Ministry for Primary Industries (MPI), formerly MAF.

To view/download a copy of the statement of claim, please click here.

The claim is in negligence, and alleges that:

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• The Crown is vicariously liable for the acts and omissions of employees, servants and agents of MAF.
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• The employees, servants and agents of MAF owed kiwifruit growers and post-harvest operators a duty to exercise reasonable care and skill in carrying out their biosecurity functions. The specific duty allegations are set out at paragraphs 122-124 and 128 of the claim.
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• The employees, servants and agents of MAF were negligent in carrying out their biosecurity functions and therefore breached their duty to kiwifruit growers and post-harvest operators. The breach allegations are set out at paragraphs 125 and 129 of the claim and include, in particular, allegations that the employees, servants and agents of MAF failed to exercise reasonable care and skill (and were therefore negligent) as follows:
  • Negligently allowing the import of pollen into New Zealand without putting in place adequate import restrictions or requirements, carrying out a risk analysis, or consulting with the industry or relevant agencies;
  • Negligently failing to respond to the Psa-V outbreak in Italy from 2008, including failing to undertake a pest risk analysis of Psa-V and continuing to allow pollen imports; and
  • Giving biosecurity clearance to a consignment of anthers imported from China under a pollen import permit in June 2009.
• The breaches allowed Psa-V to enter New Zealand, and caused the outbreak of Psa-V (which was first discovered from October 2010) and which spread quickly, causing millions of dollars of loss to kiwifruit growers and post-harvest operators.

The plaintiffs filed a number of additional procedural documents with the statement of claim, as follows:

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• Notice of Proceeding;
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• Interlocutory Application for leave to bring a representative action and for approval of the litigation funder and litigation funding agreement;
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• Preliminary memorandum of counsel in support of the interlocutory application;
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• Affidavits from representatives of the plaintiffs, Strathboss and Seeka;
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• An affidavit from WM Wilson QC on behalf of the litigation funder, LPF Litigation Funding Limited; and
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• Draft orders.

The Crown was served with the statement of claim, initial disclosure documents, and the additional documents listed above on 28 November 2014.

The Crown denies allegations of negligence of any kind, including alleged loss caused by any purported breach of a duty of care, contained in the statement of claim. The Crown is defending this claim and reserves its position in relation to the alleged representative nature of the claim.

At this stage the Crown has not agreed to the representative action. It is considering its position on this, approval of the litigation funder and other matters. It is due to file relevant papers indicating its position on 6 March.

Timetabling orders have been made by consent whereby the defendant is to file the following by Friday 6 March 2015:

• Notice of opposition, if any, to the remainder of the plaintiffs’ interlocutory application dated 28 November 2014;
• The defendant’s statement of defence to the claim, or an application to strike out the claim together with an application for extension of time within which a statement of defence is to be filed.

The next step in the legal proceeding is a case management conference scheduled for 23 February 2015 at 10am. It is anticipated that at the first case management conference or otherwise as agreed, a timetable for the next procedural steps will be made, including in relation to the directions sought by the plaintiffs in their interlocutory application. The directions sought by the plaintiffs are as follows:

1. That the first and second plaintiffs may bring a representative action;
2. That growers and post-harvest operators who have not yet opted in to the claim be given the opportunity to opt in, including directions as to public notification to advise potential class members of how to opt in to join the claim;
3. That a deadline be set by the Court for growers and post-harvest operators to opt in by. The deadline sought is 6 months from the date representative orders are made or within such extended period as may be allowed by the Court or agreed with the defendant; and
4. That LPF Litigation Funding Limited be approved as litigation funder for the proceeding, and that the litigation funding agreement be approved by the Court.

If you are interested in joining the claim or would like further information, including copies of the funding agreement and other documents, please click here. You are able to register to receive an information pack here which includes copies of the documents you would need to sign and return in order to join the claim.

You can join the claim by completing and signing the participation notice and paying the relevant fee (if you are a grower, the fee is between $500 and $1,500 depending on the size of your orchard, if you are a post-harvest operator, the fee is $10,000).

All growers and post-harvest operators who are considering joining the claim are urged to take their own independent legal advice about the funding documents prior to signing them.

The claim is litigation funded (subject to approval by the Court of the litigation funder and litigation funding agreement). This means that, once you have paid your initial fee, the litigation funder pays all additional costs ("project costs"), including any security for costs. You are able to withdraw from the claim at any time. If the litigation funder withdraws, it will have to pay any adverse costs award that may result from that withdrawal. If the claim is successful, the litigation funder is reimbursed the project costs and paid a service fee (which is a percentage of the total sum awarded) and the balance is then divided among the class members in accordance with their various losses.

The litigation funder, LPF Litigation Funding Limited is a fully New Zealand owned company. Its parent company, LPF Group Limited, has been involved with large scale litigation funding in New Zealand since 2009.

The legal team running the Kiwifruit Claim is Alan Galbraith QC, Matthew Dunning QC, and Parker & Associates.

If you would like any further information about the claim, please contact the Kiwifruit Claim Committee through the contact us page by clicking here.

This website will be updated periodically as the claim progresses to keep claim members and potential claim members updated. If you would like to be notified when updates are posted, please register for updates by clicking here.