Duel of appeals in kiwifruit disease

Kiwifruit growers claiming $450 million in damages from the Crown following the arrival of the Psa disease have filed a crossappeal to the Crown’s appeal.

In June the High Court found the Ministry for Primary Industries had been negligent and breached its duty of care in allowing Psa to enter the country.

Last month the Crown went to the Court of Appeal, seeking to clarify the scope for government regulators to be sued in negligence.

Yesterday’s cross-appeal by the Kiwifruit Claim group is chiefly on two grounds: that packer Seeka was owed a duty of care, contrary to the High Court finding; and that MPI was negligent in failing to inspect a shipment of banned kiwifruit plant material, infected with Psa, when it arrived from China.

The High Court heard that Seeka was forced to make 64 staff redundant at a cost of $2.1m, saw its share price plummet and lost $1.8m on sales that fell through.

‘‘The cross-appeal we’ve filed today challenges the decision that the Government did not owe a duty of care to Seeka as a postharvest operator,’’ Kiwifruit Claim chairman John Cameron said in a statement yesterday.

‘‘Seeka suffered massive financial losses during the Psa outbreak, and if we are successful liability will escalate considerably. It will also confirm that MPI was negligent when they failed to inspect the shipment of banned kiwifruit plant material, infected with Psa, when it arrived from China.

‘‘MPI told the court that inspection was required under the Biosecurity Act and under their own regulations, and admitted that they failed to inspect the package.’’

In 2015 a class action was taken by 212 growers who represent 32 per cent of the total 2009-10 gold kiwifruit crop and 13 per cent of the green crop.

The action has been run by litigation funder LPF Group, which is chaired by former Supreme Court judge Bill Wilson.

Cameron said growers were ‘‘gutted’’ with the Government’s move to appeal.

‘‘We are confident in the High Court’s decision, and believe the Government is taking a massive risk in appealing the judge’s clear findings.’’

Some of the kiwifruit growers involved had died since the claim was filed.

So far the case has cost the Crown at least $3m in legal fees. Kiwifruit Claim has not revealed how much it has spent, but it is believed to be a similar amount.

‘‘We believe the Government is taking a massive risk in appealing the judge’s clear findings.’’ Kiwifruit Claim chairman John Cameron