Court of Appeal finds in favour Government in kiwifruit Psa claim

The Court of Appeal has allowed the Crown's appeal over the Psa3 outbreak in 2010. Photo / Supplied

The Crown has been given leave to appeal a High Court decision that found against it over the outbreak of the disease Psa that devastated Bay of Plenty orchards and 2010 and 2011.

In June 2018, the High Court partially upheld a claim brought by Strathboss Kiwifruit Ltd, representing 212 orchardists, and Te Puke-based company Seeka, against the Ministry for Primary Industries (MPI) for failing to prevent the devastating disease from entering the country.

The kiwifruit growers - who are funded by litigation specialists LPF Group - said they would appeal today's decision and that they would take the matter to the Supreme Court.

Psa3 devasted kiwifruit orchards in the Bay of Plenty region in 2010.

The disease could not be eradicated and it took several years for the industry to re-establish.

It was said to have been introduced to New Zealand by kiwifruit pollen imported from China for commercial artificial pollination.

Strathboss and Seeka alleged that the Crown was liable to kiwifruit growers and post-harvest operators for granting an import permit in 2007 and renewing that permit in 2009 without doing a risk assessment, and for not inspecting the consignment when it arrived.

The High Court found the Crown liable to Strathboss for granting the import permit but cleared it of liability for failing to inspect the pollen, and of liability to Seeka, a post-harvest operator.

But the Court of Appeal today said the Crown has a "statutory immunity precluding liability for the alleged negligent acts or omissions". The kiwifruit claimants said today they would take the matter to the Supreme Court.

"The Court of Appeal held that MPI was negligent in allowing a high-risk shipment of pollen anthers infected with PSA from China into New Zealand," Kiwifruit Claim chairman John Cameron said.

"But they found the Government does not owe a duty of care to ordinary New Zealanders and can't be held liable for its actions, simply because it's the Government." He said the Court of Appeal has interpreted the Crown Proceedings Act to mean the Government cannot be hold to account for any wrongdoing. "We believe this interpretation is wrong," Cameron said.

"While our legal team need to analyse this latest decision, this is far from over," he said.