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Kiwifruit growers take Goverment to court over Psa 'negligence'

Monday 7th August 2017

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A group of kiwifruit growers has taken the government to court, in a landmark case where it claims negligence by the Ministry for Primary Industries allowed the Psa virus into New Zealand in 2009, devastating the industry.

In Wellington's High Court today, the group of 212 growers, led by Strathboss Kiwifruit and Seeka, claimed that the Ministry of Agriculture and Forestry (MAF) - which became part of MPI when that ministry was formed in 2012 - was negligent under the Biosecurity Act, which made it responsible for controlling the importation of "risk goods".

In opening submissions today, the kiwifruit grower group's lawyer, Davey Salmon, said MAF had known for many years that Psa was a significant pest and would cause economic harm to kiwifruit. 

"They should not have allowed imports of kiwifruit pollen without carrying out an analysis of the risks, including the risk of introducing Psa," Salmon said. "The conditions imposed for pollen imports were wholly inadequate. On any view, there was a failure to exercise reasonable care."

The bacteria infected 80 percent of kiwifruit orchards nationwide and is estimated to have cost the industry up to $930 million in lost exports. When Seeka joined the class action in 2014, it estimated the Psa bacteria had cost it more than $45 million, and prompted it to slash its workforce by 40 percent to mitigate the impact of the outbreak. The country's kiwifruit marketing body, Zespri International, has not joined the action, and has urged others against it.

The grower group is calling hostile witnesses from Kiwi Pollen New Zealand, who imported kiwifruit anthers from China which it says was the source of the Psa outbreak. It says MAF was negligent in allowing Kiwi Pollen to import pollen, as its risk analysis was insufficient and the conditions "wholly inadequate to the risk" of Psa.

The government's lawyers aren't set to give their side until mid-September after the kiwifruit growers have concluded. However, in the amended statement of defence published online by MPI, its lawyer Jack Hodder QC argues that the ministry acted appropriately, and it's inconclusive exactly how Psa entered New Zealand.

MPI's actions were "reasonable on the basis of the scientific knowledge at all relevant times", Hodder said, and there was insufficient scientific evidence that Psa could be transmitted through pollen until experimentation in 2013 and 2014. 

The agency also says it has statutory immunity from civil proceedings taken under the Biosecurity Act, and any liability it has for losses is covered by a statutory compensation scheme, through which the government offered $25 million after the 2010 outbreak.

The grower group says in 2009, Kiwi Pollen imported two shipments from China; the first of 4.5 kilograms of kiwifruit anthers, the pollen-bearing part of a male flower's stamen, from an orchard outside Xi'an in Shaanxi Province, China. It says DNA evidence shows the strain of Psa found in New Zealand is nearly identical to a strain isolated in Shaanxi in 2010, and an element of the main chromosome in the New Zealand strain has only been found in one other strain in the world - the Shaanxi strain. 

"The plaintiffs say they can now show that the site of those cross-referenced markers is only 40 kilometres from where Jill Hamlyn [of Kiwi Pollen] sourced this shipment," Salmon said. 

The case is set down for about three months.


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