The Court of Appeal has allowed the Crown's appeal against 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 a class of 212 kiwifruit orchardists, and Te Puke-based post-harvest operator 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, a virulent strain of a plant disease that destroys kiwifruit plants, swept through kiwifruit orchards in the Bay of Plenty region in 2010.
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The disease could not be eradicated and it took several years for the industry to re-establish itself.
Psa3 was said to have been introduced to New Zealand by a consignment of kiwifruit pollen imported into New Zealand from China for the new use of commercial artificial pollination of kiwifruit orchards.
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 undertaking a risk assessment, and for failing to inspect the consignment when arrived in New Zealand.
The High Court found the Crown liable to Strathboss in relation to the grant of the import permit but cleared the Crown of liability for failure to inspect the pollen, and of liability to Seeka, the post-harvest operator.
"The Court of Appeal has allowed the Crown's appeal on the basis that the Crown has a statutory immunity precluding liability for the alleged negligent acts or omissions," today's decision said.
The kiwifruit claimants said in a statement that they were "aggrieved" and that 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 in a statement.
"The decision by the Court of Appeal relied upon an interpretation of the Crown Proceedings Act that effectively means the Government can't be held to account for any wrongdoing," he said in a statement.
"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.