Kiwifruit claim litigation updates

Background

In November 2014, a group of kiwifruit growers and a post-harvest operator (Seeka Ltd) brought a class action, against the Crown. By the time the case came to be heard in the High Court in 2017, there were approximately 210 growers involved in the claim, represented by Strathboss Kiwifruit Limited (the first plaintiff), and Seeka (the second plaintiff in its own right as a post-harvest operator).

In February 2021, the Crown and kiwifruit sector plaintiffs reached an out-of-court settlement. The plaintiffs agreed to accept a Crown offer of NZD$40 million, which included a significant contribution from the Crown’s insurers of NZD$15 million. The plaintiffs had brought a claim for NZD$450 million plus interest.

MPI’s media release on the settlement

The claim

The first cause of action alleged MPI owed the plaintiffs a duty to exercise reasonable care and skill when undertaking their functions and responsibilities in relation to biosecurity in New Zealand including their functions under the Biosecurity Act 1993 or otherwise. In particular, this related to MPI’s import risk assessment and standards processes.

The second cause of action related to a specific consignment that a company, Kiwi Pollen Ltd, brought into the country in June 2009. That consignment contained either kiwifruit pollen which the plaintiffs said introduced Psa into New Zealand. It was alleged that MPI breached a duty of care it owed to the plaintiffs by giving biosecurity clearance to this consignment.

The litigation revolved around events that took place between 2006 and the November 2010 Psa-V incursion when MAF was responsible for biosecurity.

High Court

Stage one was heard in the High Court from August to October 2017. The High Court’s decision was released on 27 June 2018.

In summary, the High Court found:

A legal duty of care was owed to Strathboss and those claimant growers that had property rights in vines affected by the Psa outbreak. But no duty was owed to Seeka as a post-harvest operator.
The duty owed to Strathboss and the growers was breached at the pre-import stage but not at clearance of the Kiwi Pollen consignment at the border.
The Crown was not protected by a statutory immunity in the Biosecurity Act 1993 and could be vicariously liable for negligent acts by employees.

It was more likely than not the Kiwi Pollen consignment caused the Psa outbreak.

The full High Court decision

Summary of the High Court decision [PDF, 200 KB]

Court of Appeal

The Crown appealed the High Court decision and the respondents filed cross-appeals.

Notice of appeal [PDF, 2.1 MB]

MPI’s media release on the appeal

The hearing in the Court of Appeal took place in March 2019. The Court released its decision on 9 April 2020. The Court of Appeal allowed the Crown’s appeal and dismissed the respondents’ cross-appeals.

The Court of Appeal found it was not fair, just or reasonable to impose a legal duty of care on the Crown. The Court of Appeal also found the Crown can rely on the statutory immunity provision in the Biosecurity Act.

Court of Appeal decision

Supreme Court

Strathboss and Seeka filed an appeal against the decision to the Supreme Court. The Supreme Court hearing was set down for 15 to 19 February 2021. That hearing was vacated following an out-of-court settlement between the Crown and kiwifruit sector plaintiffs.