Strathboss Kiwifruit Ltd v Attorney-General
[2018] NZHC 1559
•27 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2014-485-11493 [2018] NZHC 1559
BETWEEN STRATHBOSS KIWIFRUIT LIMITED
First Plaintiff
SEEKA LIMITED Second Plaintiff
AND
THE ATTORNEY-GENERAL Defendant
Hearing: 7 August 2017 – 30 October 2017. Further memoranda and other
submissions received on various dates and lastly on 18 June 2018.
Counsel:
D M Salmon, M Heard, J P Cundy and S Y M Chew for Plaintiffs J E Hodder QC, S V McKechnie, J C Catran and P H Higbee for Defendant
Judgment:
27 June 2018
JUDGMENT OF MALLON J
STRATHBOSS KIWIFRUIT LIMITED v THE ATTORNEY-GENERAL [2018] NZHC 1559 [27 June 2018]
JUDGMENT PARTS
Part 1: Overview and summary ...............................................................................3
Part 2: Factual and regulatory background .........................................................16
Part 3: Duty .............................................................................................................72
Part 4: Breach – first cause of action ...................................................................173
Part 5: Breach – second cause of action ...............................................................308
Part 6: Causation ..................................................................................................352
Part 7: Crown immunity ......................................................................................456
Schedule of experts.................................................................................................494
Part 1: Overview and summary
Table of contents
Overview .......................................................................................................................................... 3
Questions for determination at this stage ...................................................................................... 6
Question 1..................................................................................................................................... 6
My decision .................................................................................................................................. 7
Question 2..................................................................................................................................... 7
My decision .................................................................................................................................. 8
Parts to this judgment ..................................................................................................................... 8
Summary of reasons ........................................................................................................................ 9
Part 3: Duty................................................................................................................................... 9
Part 4: Breach – first cause of action ......................................................................................... 12
Part 5: Breach – second cause of action..................................................................................... 13
Part 6: Causation........................................................................................................................ 14Part 7: Crown immunity ............................................................................................................. 15
Overview
[1] In early November 2010 the bacteria known as Psa was identified as present in two neighbouring kiwifruit orchards in Te Puke, New Zealand.1 Although there had been outbreaks of Psa affecting kiwifruit orchards in other parts of the world, this was the first time it had been identified in New Zealand. It was a virulent strain of the bacteria and its presence threatened the survival of the New Zealand kiwifruit industry.
[2] The initial strategy was containment with the ultimate goal of eradication. Orchardists with vines showing the symptoms cut out the area of infection and other measures, such as restrictions of access, cleaning machinery, and wearing protective footwear, were implemented. Despite these measures the bacteria spread to other orchards in the Te Puke region and beyond. The Hort16A variety of kiwifruit (at that time the predominant form of the “gold” variety being grown by orchardists) was
particularly susceptible.
1 The particular strain of Psa which caused the incursion has various names, the main ones being
Psa-V or Psa3. I have used Psa3.
[3] It was a time of great uncertainty and stress for all those caught up in the outbreak. Orchardists were facing economic ruin. There was uncertainty for some about whether cutting out the vines, on which their hard work had been invested, was the appropriate thing to do. Personnel from the Ministry of Agriculture and Forestry (MAF) (as it then was), industry leaders and scientists in other organisations worked long hours responding to the incursion, assisting orchardists in various ways, testing samples from orchards, researching possible ways to combat or contain the disease, trying to determine how the incursion had happened and looking for ways to help the industry to recover from it.2
[4] At an early stage suspicion fell on Kiwi Pollen, a business involved in artificial pollination of orchards using milled pollen. That suspicion arose because Kiwi Pollen’s milling operation was near the two orchards that were the first identified to have Psa symptoms and those two orchards had just finished being artificially pollinated with pollen and equipment supplied by Kiwi Pollen. It was a time of great stress for the Kiwi Pollen principals. MAF posted security guards at their gate for their safety.
[5] Industry participants, including orchardists, were unaware at this time that Kiwi Pollen had been granted a permit from MAF to import pollen from China. Pursuant to that permit, a consignment of kiwifruit anthers (the part of the plant that contains pollen) had received clearance at the border from a MAF inspector on 30 June
2009 and was shipped to Kiwi Pollen’s premises in Te Puke that day. In the investigations which followed the incursion, suspicion fell on this shipment as the cause of the outbreak.
[6] Following the incursion the industry and Government agreed upon a funding package to compensate losses suffered by those affected. The compensation arrangements looked to assist with costs involved in cutting out and spraying vines, and to provide some compensation for lost production. However the arrangements
were limited and came to an end before some orchardists could access them. Later,
2 MAF is now the Ministry of Primary Industries (MPI). I have referred to MAF throughout for simplicity and because it was MAF, rather than MPI, when the principal events at issue occurred.
the industry recovered spectacularly well, but not necessarily in a way that compensated all those who had suffered loss in the interim.
[7] Horticulture is an inherently risky activity. It must contend with the vagaries of the environment whether that be adverse weather events or pests and diseases that arrive of their own accord or through no fault of anyone in particular. Biosecurity is complex and is not and cannot be infallible. The issue in this case is whether, if it can be shown that MAF was negligent in granting permission to Kiwi Pollen to import pollen or in granting clearance to the shipment of anthers, the loss suffered by orchardists or others should be borne by them, or whether the loss is more appropriately borne by the Crown as the party, through its servants, responsible for causing the loss.
[8] This proceeding has been brought by two claimants (the first and second plaintiffs). The first plaintiff (Strathboss) represents a class of orchardist owner operators as well as orchard lessors and lessees who suffered losses from Psa incursion. The second plaintiff (Seeka) is a post-harvest operator whose business depends on the supply of kiwifruit from orchardists. They contend that MAF owed them a duty to take reasonable care when granting Kiwi Pollen a permit to import kiwifruit pollen from China and when giving border clearance to the consignment imported pursuant to that permit. The plaintiffs say this case involves a straightforward application of well-established principles. They say it was MAF’s responsibility to protect New Zealand’s borders. They were aware for many years that Psa was a significant pest for kiwifruit that would cause economic harm to the industry participants. The plaintiffs say they were vulnerable and entirely reliant on MAF to carry out its functions competently. They say MAF failed to take reasonable care, this led to the Psa incursion and they suffered loss as a result.
[9] The Crown, represented by the Attorney-General, contends no duty of care was owed to the claimants.3 He says that biosecurity functions are not of a nature where
the Crown should be held responsible for the consequences of biosecurity incursions
3 Because the Crown is represented by the Attorney-General, for ease of expression the judgment refers to submissions he made. Of course the submissions were made by counsel on his behalf and for and on behalf of the Crown.
when mistakes are made. He says MAF’s duty is to the public as a whole and not to individual members or groups within that. He says the task is too complex, with competing policy considerations at play, and the potential consequences of a biosecurity breach are too great and too widely experienced to require compensation under negligence law principles. He also says that if the Court was to find a duty of care owed in this situation there is a whole raft of other Crown responsibilities that may cause significant losses and which may fall under a similar duty of care. He also says that the plaintiffs have not established MAF personnel failed to take care in discharging their responsibilities in this case and nor have they proven the incursion was caused by the anthers consignment. He says that even if the plaintiffs have succeeded in establishing all of these elements, then the Crown is totally immune by reason of a combination of specific and general statutory immunities.
Questions for determination at this stage
[10] The claim was divided into two stages. The hearing before me was stage one. The questions for determination at stage one relate to:
(a) Whether MAF owed a duty of care to the plaintiffs (the duty question);
(b) Whether MAF breached that duty of care (the negligence question); and
(c) Whether the anthers consignment caused the Psa incursion (a causation question).
[11] These matters fall under the two specific questions that were set for my determination at this stage.
Question 1
[12] The first question was as follows:
Did MAF [MPI] owe a duty to:
(a) Strathboss [the first plaintiff]; and/or
(b) Seeka [the second plaintiff]; and/or
(c) Members of the class represented by Strathboss
to exercise reasonable skill and care in any one or more of the respects identified in paras 122, 123, 124 and 128 of the statement of claim in its actions or omissions prior to the incursion of Psa-V into New Zealand to avoid:
(a) physical damage to the property; and/or
(b) economic loss resulting from damage to property; and/or
(c) economic loss which did not result from damage to the property.
My decision
[13] I have found that MAF owed a duty of care to Strathboss to take reasonable skill and care in its actions or omissions prior to the New Zealand Psa incursion to avoid physical damage to property. It also owed a duty to take care to avoid loss consequential on that damage to property. The extent of consequential loss that is properly recoverable remains to be determined.
[14] I have found that MAF did not owe a duty of care to Seeka, in its capacity as a post-harvest operator, to take reasonable skill and care in its actions or omissions prior to the New Zealand Psa incursion to avoid economic loss to it.
[15] I have found that MAF owed a duty of care to some members of the Strathboss class to take reasonable skill and care in its actions or omissions prior to the New Zealand Psa incursion to avoid physical damage to property. It also owed a duty to take care to avoid loss consequential on that damage to property. The extent of consequential loss that is properly recoverable remains to be determined. The members of the Strathboss class who have sufficient property rights to be within the class to whom the duty is owed is yet to be determined but does include those who were both owners and operators of orchards whose vines suffered damage.
Question 2
[16] The second question was as follows:
(a) Did Psa3 [Psa-V] enter New Zealand as pleaded in paras 110 to 121 of the statement of claim; and if so
(b) did MAF [MPI] breach the duty of care by acts or omissions in the manner identified in paras 125 and 129 of the statement of claim; and if so
(c) did any breach of the duty of care cause Strathboss’s kiwifruit vines to become infected by Psa3 [Psa-V]?
My decision
[17] I have found that Psa entered New Zealand through the anthers consignment imported pursuant to the permit granted to Kiwi Pollen by MAF.
[18] I have also found that MAF breached its duty of care by acts or omissions at the pre-border stage when granting import permits to Kiwi Pollen. I have found the plaintiffs have not established that reasonable care by MAF at the clearance stage would have stopped the anthers consignment from reaching its destination at Kiwi Pollen.
[19] It was accepted by the Crown that Strathboss had proven that its vines were infected as a result of the Psa incursion first identified in 2010.
Parts to this judgment
[20] This judgment starts by setting out some factual and regulatory background (Part 2: Factual and regulatory background). It then discusses whether a duty of care is owed by MAF to the claimants (Part 3: Duty). It then discusses whether MAF breached that duty of care. This is in two parts. First, it concerns MAF personnel acts or omissions at the pre-border stage which led to the import permit being granted and its actions or omissions in responding to a similar and earlier Psa outbreak in Italy (Part 4: Breach – first cause of action). The second part of this aspect concerns whether MAF breached a duty of care at the border stage when clearing the consignment of anthers (Part 5: Breach – second cause of action). It then discusses whether the Psa incursion came from the consignment of anthers (Part 6: Causation). Lastly, it discusses whether the Crown has an immunity to the claim (Part 7: Crown immunity). There is also an appendix providing details of the expert witnesses.
Summary of reasons
Part 3: Duty
[21] Whether a duty of care is owed by MAF personnel to take care in carrying out their biosecurity functions relating to the importation and border clearance of risk goods has not been decided by the New Zealand courts before. However the Supreme Court has determined the methodology to be applied in new situations (as this case is) to decide this question. This methodology involves: an internal inquiry into whether the loss was reasonably foreseeable by the defendant and whether there is a sufficient connection (“proximity”) between the parties to warrant a duty; and an external inquiry into policy considerations in order to decide if a duty would be fair, just and reasonable for society and the law generally.
[22] This case involves a claim for economic loss, partly arising from and consequential to property damage and partly not, allegedly caused by the actions or omissions of a public body tasked with complex biosecurity statutory functions. In applying the methodology in this case there are established principles that are relevant. First, the principles that apply to whether a duty of care is owed by a private person apply equally to a body performing public functions. There are no special rules unless the statute under which the public body has acted excludes a duty of care. Secondly, although there are no special rules because this case concerns biosecurity, the nature of the public body’s functions are relevant to whether a duty of care arises. Thirdly, where a claim is for economic loss unrelated to property damage, that is a factor that can point against a duty of care. Fourthly, where a claim is for a failure to act (an omission) rather than a positive act, special rules apply before a duty can be owed.
[23] I have concluded the features in this case support a duty of care to those who have “property rights” in the vines or the crops where the vines were infected with Psa3 or treated as though they there were infected. In summary those features are:
(a) They have suffered physical damage (to their vines and crops) from harm directly caused to their property.
(b)The harm suffered was from a risk (a harmful kiwifruit pathogen) over which they had no control and for which they had to rely on MAF for protection.
(c) MAF had responsibility for controlling that risk and had powers to control the entry of the risk goods into New Zealand (both pre-border and at the border) as well as powers for responding to the risk from a harmful plant pathogen once its presence in New Zealand is known.
(d)The particular risk in this case, Psa in kiwifruit plant material, was known to MAF.
(e) It was obvious that if kiwifruit plant material was allowed to be imported without a proper assessment of the conditions on which it could be imported and, if that plant material was intended to be applied to kiwifruit orchards, the vines and crops on those orchards were at risk of harm.
(f) It was also obvious that if pollen was not free of plant material or other contaminants and was to be used commercially to artificially pollinate kiwifruit orchards, the vines and crops of those orchards were at risk of harm.
[24] Proximity is therefore established and a duty of care should be found to exist unless it would not be in the public interest to recognise the duty.
[25] The countervailing policy factors in this case are not sufficient to negate the duty because:
(a) Concerns about indeterminate and disproportionate liability if a duty of care is recognised in this case make assumptions about the consequences that will follow. The elements of negligence involve inquiries that work together and serve to restrict its application to proper cases and within proper limits.
(b)If a duty of care is imposed, the costs will ultimately be borne by the New Zealand public, through taxes which will pay for insurance if and to the extent it is available or more directly if it is not. There is, however, a societal benefit if members of the New Zealand public, who have suffered loss from the negligence of a government body, receive compensation for that loss.
(c) The protection of New Zealand’s border is in the national interest. New Zealand government bodies and industries have an interest in working together to find an efficient and effective means to protect the border and to allocate the costs of that protection and the responses to biosecurity breaches when they happen.
(d)The existing accountability mechanisms that help to ensure careful and proper biosecurity decisions are made leave unfilled gaps. They did not protect the plaintiffs.
(e) A duty of care is not likely to create overly risk averse behaviour by public servants with biosecurity responsibilities because of the range of other interests that are involved.
[26] In all the circumstances it is just, fair and reasonable that MAF has a duty of care to those within the class represented by Strathboss who have suffered loss to their property. The wrong to them should be remedied.
[27] I have reached a different view in relation to Seeka’s claim as a post-harvest operator. It has suffered loss because of its business relationships with growers. That is relational economic loss. It is different in kind to property damage and more removed from the immediate consequences of the alleged negligence in this case. This means that the connection between Seeka and MAF is less close. Seeka’s losses are not of a kind that are sufficiently distinct from others who suffered economic losses in some way because orchard production was affected by Psa. There are also issues about whether it is more appropriate that Seeka, rather than the government and ultimately the New Zealand public, bear losses arising from adverse events in kiwifruit
production whatever their cause. Therefore I have not been persuaded that it is just, fair and reasonable for MAF to owe a duty of care to Seeka as a post-harvest operator.
[28] I have left for determination at stage two of this case who in the Strathboss class falls within the group to whom the duty is owed. Those within the Strathboss class will have to show they had property rights in the vines and crops or that their interest in the vines and crops is sufficiently direct or closely associated with those rights that they should be treated as though they have suffered loss to their property. The duty of care applies to the consequential financial losses from that property damage for those that are in that class but will be subject to the limits of causation, remoteness, mitigation and betterment.
Part 4: Breach – first cause of action
[29] The plaintiffs have established MAF personnel breached a duty of care to them in some of the ways alleged. The breaches fall into three categories.
[30] First, the problems arose from a review of pests and diseases associated with pollen (called the PHEL Review). The scope of this review was not clearly set or clarified as between the principal author and the MAF scientist who was supervising the principal author. This meant that relevant literature about the association of bacteria with pollen was omitted. It also overstated the conclusion that could be drawn about pollen and bacteria generally from the one reference on which it was based. That reference concerned a subset of bacteria that is transmitted differently to bacteria generally. The review was misleading about the association of bacteria and pollen given it was based only on a particular mechanism of pollen transmitted pests, it was not clear that the review was concerned only with pollen used as a germplasm and it assumed that pollen would be “pure” and free of extraneous material.
[31] Secondly, this review was provided to the MAF plant imports team to assist in deciding on Kiwi Pollen’s permit application. When that happened, the conclusion in the review in relation to Actinidia (kiwifruit) was inaccurately conveyed and provided without it being noticed that the use to which the pollen would be put was different to that on which the review was premised.
[32] Thirdly, normally for a new type of import of risk goods, as Kiwi Pollen’s pollen import request was, a formal risk analysis sign off by MAF personnel would be required. That would involve consultation on the application or otherwise making sufficient enquiries about the pollen milling process. That did not occur.
[33] These errors were not on matters requiring difficult questions of scientific judgment or competing policy considerations on which reasonable experts or advisers could differ. They were largely in the nature of process errors – that is, not following usual procedures, not being clear about the scope of a document to be relied on for determining whether risk goods should be permitted, and not adequately checking the context in which the document was to be relied upon.
[34] Other matters relied on by the plaintiffs did not amount to negligence or were not shown to have been of consequence.
Part 5: Breach – second cause of action
[35] The plaintiffs’ second cause of action alleges that a MAF inspector at the border was negligent in clearing the anthers consignment imported pursuant to a MAF import permit. The plaintiffs say that if inspection was carried out then it was negligently done because it failed to discover that the consignment contained anthers and not the permitted pollen. Further, they say that if inspection was not carried out then this was negligent in and of itself because inspection was required by the legal and regulatory framework under which the inspector acted.
[36] First, on the evidence, I found it was more likely than not that inspection did not actually take place before the consignment was cleared. Secondly, I found there was no breach of duty in failing to visually inspect the contents of the consignment because this was not required by the Biosecurity Act nor the import permit. I found the discrepancies in the documentation accompanying the consignment should have led to the issuance of a non-compliance report. However I considered the plaintiffs had failed to show, on balance, that this would have led to the consignment being inspected, destroyed or returned rather than being cleared and dispatched to its destination in Te Puke.
Part 6: Causation
[37] In my view MAF’s approach on this aspect of the case was looking for proof that the anthers consignment caused the incursion to the level of scientific certainty. Proof to that level is rarely possible when dealing with the reconstruction of past events. This is all the more so when the cause of the outbreak was caused by a pathogen about which not an enormous amount was known before the global pandemic. Proof to absolute or scientific certainty is not required in a civil case. On the contrary, the approach to be taken in a case like the present is to gather together all the properly established strands of circumstantial evidence and then to stand back and ask the ultimate question of whether the plaintiffs’ explanation is more likely than not to be true.
[38] In this case, the plaintiffs properly established the following evidence:
(a) any Psa3 contained in the anthers consignment when it left Shaanxi was likely to have survived the shipping to Kiwi Pollen and the cycloning process;
(b)there were a number of possible pathways for any Psa3 contained in the anthers consignment to be conveyed to the two orchards at which the first Psa symptoms were discovered;
(c) those two orchards were likely the epicentre or ground-zero of the New Zealand Psa3 outbreak based on the epidemiology of Psa3, the fact those orchards were the first to report symptoms, the advanced nature of the symptoms at those two orchards and the analysis of the spread;
(d)the timing of symptom expression in Te Puke is consistent with each of the possible pathways based on the expert evidence;
(e) based on the genetic evidence, considered in the context of other relevant information, it is probable that the origin of the New Zealand incursion is China and it is also quite possible and plausible on the
genetic evidence that it came from Shaanxi, the province from where the anthers consignment came;
(f) a second shipment of pollen imported by Kiwi Pollen from China around a year later also tested positive for Psa;
(g)there is no other known source for the incursion. Other conceivably possible pathways are unlikely and there is no evidence to suggest they in fact happened.
[39] Taken together, the strands of circumstantial evidence go beyond conjecture or coincidence and mutually support the overall inference that it is more likely than not that the anthers consignment contained Psa3 and that this ultimately caused the outbreak of the disease in New Zealand.
Part 7: Crown immunity
[40] The defendant submitted that the Crown had a complete defence to the claim because all the relevant MAF personnel have the benefit of an immunity under s 163 of the Biosecurity Act. This in turn meant that the Crown was not liable because of s 6 of the Crown Proceedings Act 1950 (CPA). The plaintiffs said that negligence was not covered by the s 163 immunity and that, even if it were, the Crown would be liable when s 6 of the CPA was read consistently with s 27 of the New Zealand Bill of Rights Act 1990.
[41] I found that s 163 of the Biosecurity Act did not apply to MAF personnel’s acts or omissions leading to the granting of the import permits to Kiwi Pollen (the first cause of action). This meant the Crown does have liability for the acts or omissions of MAF personnel under the first cause of action. I found that s 163 did apply to the MAF inspector who cleared the consignment (the second cause of action). However, because this cause of action was not established, the Crown did not have liability for his actions regardless of the correct interpretation of s 6 of the CPA.
Part 2: Factual and regulatory background
Table of contents
Introduction ................................................................................................................................... 17
The kiwifruit industry in New Zealand ....................................................................................... 17
Industry size................................................................................................................................ 17
Participants ................................................................................................................................. 17
Orchard production returns ......................................................................................................... 20
Varieties ...................................................................................................................................... 21Growing kiwifruit ....................................................................................................................... 22
Pollination ...................................................................................................................................... 23
The pollination process ............................................................................................................... 23
Bees ............................................................................................................................................ 24
Artificial pollination ................................................................................................................... 24
Milling of pollen ......................................................................................................................... 25Kiwi Pollen ................................................................................................................................. 26
Psa ................................................................................................................................................... 28
What is Psa?................................................................................................................................ 28
Survival and spread .................................................................................................................... 29
Symptoms ................................................................................................................................... 30
The Italian outbreak...................................................................................................................... 32
Psa outbreak in New Zealand ....................................................................................................... 34
MAF’s initial response................................................................................................................ 34
Industry’s response ..................................................................................................................... 36
Compensation ................................................................................................................................ 37
Initial phase ................................................................................................................................ 37
Funding Agreement .................................................................................................................... 38National Management Plan......................................................................................................... 40
Grower experience of compensation scheme ............................................................................. 40
Impact of Psa ................................................................................................................................. 42
At an individual level.................................................................................................................. 42
At an industry level..................................................................................................................... 45
Biosecurity in New Zealand .......................................................................................................... 48
Importance to New Zealand........................................................................................................ 48
The SPS Agreement .................................................................................................................... 49
Biosecurity Act ........................................................................................................................... 53
Funding for biosecurity............................................................................................................... 62
MAF................................................................................................................................................ 64
Importing risk goods................................................................................................................... 65
Importing kiwifruit plant material and fruit ................................................................................ 66
Permits issued to Kiwi Pollen ..................................................................................................... 68
Changes following Psa incursion .................................................................................................. 70
Present position on pollen imports.............................................................................................. 70
MAF procedures ......................................................................................................................... 70
Industry view on claim .................................................................................................................. 70
Litigation funder............................................................................................................................ 71
Introduction
[42] This part of the judgment provides an overview of factual matters which provide some background context for the matters discussed in the other parts of the judgment. It also includes an overview of the legal and regulatory framework under which biosecurity in New Zealand is managed.
The kiwifruit industry in New Zealand
Industry size
[43] The kiwifruit industry has been a significant industry in New Zealand for around 40 years. New Zealand is the third largest kiwifruit producer in the world after China and Italy. China’s kiwifruit production is consumed by their domestic market. It has very little export presence. Italian growers operate a low cost model and, with a large market at their doorstep, volume tends to be the key driver of value.4 New Zealand, which has significant distance to its markets, in comparison occupies the premium position of the market. The vast majority of New Zealand grown kiwifruit is exported. In 2015 kiwifruit was New Zealand’s second largest horticultural export after wine, earning export receipts of $1.2 billion. Export receipts in 2009 were approximately $1.072 billion.
Participants
[44] At present there are around 2500 growers operating on around 3200 registered orchards in New Zealand. It is a highly concentrated industry in that by 2015 total production was squeezed onto 11,000 hectares of orchards (0.041 per cent of New Zealand land), predominantly in the Bay of Plenty and concentrated in Te Puke. The average size of an orchard is a little under four hectares, although some orchards are small lifestyle blocks and some are much larger commercial operations. The orchards are owned by individuals or through companies, trusts, partnerships and Maori land trusts. Some orchards are owner operated. Others are operated under lease. The
average age of a kiwifruit grower in New Zealand is around 58 years old.
4 Growers tend to be multi-generational landowners with land that is debt-free and, outside of
Latina, Italians tended also to be multi-crop growers.
[45] New Zealand has a “single desk” export arrangement for kiwifruit through Zespri International Ltd (Zespri). Zespri’s shares are owned by past and present kiwifruit growers. All owners are eligible to buy shares. Lessees of kiwifruit orchards are also eligible to buy shares after a year. There is no limit to the number of shares owners and lessees are eligible to buy but they must find a willing seller to buy shares from. There is no requirement to sell shares when leaving the industry but ex-owners and lessees cannot purchase new shares. Nor can they vote at a Zespri Annual General Meeting. Voting is restricted to shareholders who are currently producing kiwifruit and their voting power is a combination of voter’s shares and production.
[46] Zespri is governed by regulations.5 Kiwifruit New Zealand (KNZ) is the regulator under the regulations. Under the “single desk” arrangement Zespri has an almost complete monopoly on the marketing of kiwifruit outside of New Zealand and Australia. The exception is collaborative marketing mechanisms authorised by KNZ which account for around 2 per cent of sales each year. Zespri also grows kiwifruit in five countries. This includes Italy. Zespri accounts for 30 per cent of global kiwifruit sales. It has sales and marketing capacity in 53 countries.
[47] Zespri is a MAF approved organisation (MPO) for inspecting and clearing its kiwifruit for export. In this capacity it is authorised to undertake certification services on behalf of MAF, which are called Phytosanitary Certificates (discussed further elsewhere in this judgment). These certificates provide importing countries with an official assurance that the product meets that country’s requirements. They are issued in accordance with international standards.
[48] In 1993 kiwifruit growers established New Zealand Kiwifruit Growers Inc (NZKGI). This was at the time of a significant downturn in the industry. NZKGI advocates for growers, undertakes a range of grower representation and education and is a watchdog over Zespri. It was previously funded by Zespri but is now funded through a grower levy. It has monthly meetings which Zespri attends. Grower representatives are appointed to the NZKGI forum. There is also an executive
committee.
5 The Kiwifruit Export Regulations 1999.
[49] Another key group in the industry are the registered suppliers. A supply entity is a group of growers supplying to a post-harvest operator (PHO). The supplier entities are separate from the PHOs. It is the registered suppliers who sign the supply agreement with Zespri. Finalising the supply agreement is typically achieved at the Industry Advisory Council (IAC), an industry grouping made up of five representatives from each of NZKGI, registered suppliers and Zespri. The former Chief Executive Officer of Zespri, Lain Jager, described these layers coming together at the IAC as creating “a highly nuanced, balanced, sophisticated, complex and extremely participative industry”.
[50] The PHOs are another key group in the industry. PHOs contract with the supplier entities.6 They provide kiwifruit grading, packing and coolstore services before the fruit is sent to the docks for shipment to overseas markets by Zespri. Some PHOs arrange for the picking of fruit on orchards (which is typically done by gangs of contractors) and for the transport of the fruit to the packhouse. They may also provide other orchard management services to growers.
[51] The PHO sector is highly competitive. There are six major PHOs which account for about 85 per cent of the market share. In 2010, before Psa was found in New Zealand, EastPack Ltd (EastPack) and Seeka Ltd (Seeka) made up approximately 40 per cent of the PHO market. Satara Co-operative Ltd accounted for
10 per cent. Satara has since amalgamated with EastPack. EastPack is currently the largest PHO. It has around 26 per cent of the market. It has around 250 permanent staff members and seven packhouses (including the largest packhouse in the world which is located in Te Puke). Most PHOs have some form of direct grower- ownership. Seeka, which is a publicly listed company, is the exception to this.
[52] Some PHOs lease orchards. Three year leases are the most common. Long term leases, up to 20 years, have also been used. EastPack has a small leasing portfolio
6 Anthony Hawken of EastPack, the largest PHO, refers to “grower entities” which he says can be one and the same as Mr Jager’s description of “supplier entities”. He also refers to supply entities which manage the logistics of getting packed fruit to the dock. I have referred to supplier entities only for simplicity and because, where there is a distinction, it does not have any particular relevance for present purposes.
compared with some other PHOs. Its leasing portfolio is smaller than its management portfolio.
[53] After the Psa outbreak Kiwifruit Vine Health (KVH) was established. There was Zespri representation on KVH when it was first established. KVH is now funded by a levy on growers.
Orchard production returns
[54] Production is impacted by a number of factors. Weather is one factor: in any given year, weather, frosts, badly timed hail and other environmental factors may influence production. Orchard management is another factor: for example, pollination, plant nutrition, bud break and canopy management can influence production.
[55] The export price depends on factors such as fruit market conditions generally (that is, the production of apples, bananas and summer fruits in any season), kiwifruit industry supply factors, global economic conditions, any impediments to market access and the strength of the New Zealand dollar relative to sales market currencies.
[56] Zespri allocates each orchard a unique Kiwifruit Property Identification Number (KPIN). This enables Zespri to track the source of the fruit and to return payments to the appropriate grower. Generally Zespri makes payments to the supply entities that growers are contracted to. These payments are comprised of fruit, service and incentive payments. From Zespri’s perspective, a grower’s fruit and service payment depends on the class of fruit, taste, the pest status of the fruit, when the fruit is picked and supplied to Zespri and fruit loss. The supply entities distribute the payments to their growers in accordance with their supply agreements.
[57] The basic unit of calculation is a “tray”. For example, “this hectare of green kiwifruit is returning 9,000 trays”. PHO costs are also calculated per tray. Grower returns can be measured by the “Orchard Gate Return” (OGR). This is the total amount of money that flows to the growers prior to the payment of on-orchard costs (that is, Zespri’s fruit and service payments less off-orchard costs such as post-harvest costs).
Varieties
[58] There are different species of kiwifruit and, within that, multiple cultivars. The green varieties are typically the deliciosa species. The gold and red varieties are typically the chinesis species. Baby kiwifruit, typically the size of large grapes and sold in a punnet, are the arguta species.7
[59] At the time of the Psa outbreak in 2010 there were two predominant varieties of Kiwifruit being grown commercially: Hayward (green) and Hort16A (gold). The Hayward was the most common variety.
[60] Plant & Food have a breeding programme for the development of new cultivars.8 Breeding a successful new cultivar involves about a ten year long process which is then followed by a pre-commercial block trial. If that is successful the cultivar may then be commercialised. New cultivars are subject to Plant Variety Rights (PVRs).
[61] The Hayward has been grown for a long time and is not subject to a PVR. Anyone can choose to grow it. Hort16A was subject to a PVR held by Zespri. The PVR provided Zespri with the exclusive right to produce the variety for sale. It also allowed Zespri to license others to do so.9 The PVR for Hort16A in New Zealand was due to expire on 18 November 2018. At that time, all grower rights under licences, would also terminate. At this time it would become a public variety meaning that, like Hayward, there would be no constraint on planting it.
[62] Hort16A turned out to be particularly susceptible to the strain of Psa responsible for the incursion that is the subject of this litigation.10 As a result, Zespri decided to roll out early one of the new cultivars, Gold3 (G3) also known as SunGold,
which it had been growing in pre-commercial trials.11 In 2012 Zespri offered licences
7 The arguta species has only recently being commercialised in New Zealand.
8 As I understand it, this is part of a Zespri breeding programme which is carried out with the assistance of Crown funding.
9 Hort16A demanded a premium price as a new and attractive eating fruit. It also had a better yield than green kiwifruit. It therefore obtained a higher return per hectare.
10 As set out in Zespri’s 2011/2012 annual report, around 800 hectares of Psa-infected Hort16A
canopy would have been cut out by the end of the 2012 harvest.
11 In the 2011/12 season there was a small amount of (G3) being grown in pre-commercial trials and sold as part of the gold pool.
to enable growers to switch to the G3 variety. The G3 variety has been successful and, as at 2017, 39 per cent of New Zealand orchards are gold kiwifruit.
Growing kiwifruit
[63] Kiwifruit vines have four key parts: the trunk, the leader, the cane and the shoot. The vines are grown on a support structure. The diagram illustrates this:
[64] The New Zealand kiwifruit growing season is as follows:
(a) The season begins in winter following the previous year’s harvest in autumn. Kiwifruit vines are dormant during winter and this allows the growers to carry out management such as winter pruning, bud-break spraying, soil testing, base fertiliser dressing, scale control and nitrogen fertilisation.
(b)Springtime begins with vine growth and shoots begin appearing on the canes along with bud-burst, flowering and pollination. Growers carry
out male and girdling-root pruning, thinning and various types of spraying.
(c) As summer starts, vines undergo significant growth and orchardists undertake regular pruning to direct growth and manage the canopy. Fertiliser side dressing, irrigation and pest monitoring and control are important during this season. The fruit grows quickly during summer and crop estimations can be undertaken. Growers will selectively thin kiwifruit to optimise the size and taste of the fruit.
(d) Finally, as the weather cools in autumn, harvest time approaches.
Growers will test their fruit for ripeness through maturity monitoring and area selection. This is important for ensuring that the fruit meets certain criteria for quality and grade. The season ends with the careful picking, transport and packing of the fruit. During this period trunk girdling and root pruning occurs, cicada and PVH sprays are applied and steps are taken to minimise the coming frost risk in winter.
Pollination
The pollination process12
[65] Kiwifruit have both male and female vines. Kiwifruit are produced by female vines. Each female flower bud is capable of producing fruit but will not do so unless pollinated by pollen from a male vine’s flower. The layout or distribution of male vines in a New Zealand orchard varies but typically occupies around 10 per cent of the canopy area.13
[66] The pollen of the male flower is contained in “anthers”. Anthers can be seen in the image below.
12 This section comes from the plaintiffs’ helpful discussion in opening submissions about which there was no dispute.
13 In other countries, such as Korea and Japan, orchards are 100 per cent female and growers undertake artificial pollination to produce fruit.
[67] Anthers open and release their pollen when climatic conditions (moisture levels and heat) are suitable for pollination. Pollen is transferred from the male flower to the female flower by wind, bees and other insects, and birds. The pollen adheres to the sticky stigma of female flowers, which attract pollinators by producing anthers and pseudo-pollen. The base of a pollinated female flower is what develops into a kiwifruit.
Bees
[68] The timing of flower production in commercial orchards can be controlled to an extent. In New Zealand a product is typically sprayed onto vines to stimulate bud production (or “bud break”). Control enables predictable flowering and fruiting. After bud break, orchardists typically have beehives delivered to their orchards to assist pollination. The bees remain in the orchard while the vines are in flower.
Artificial pollination
[69] Some orchardists use artificial pollination. This involves spraying pollen which has been extracted from male flowers on or near female vines. Artificial pollination can be applied wet or dry. Wet pollination involves mixing kiwifruit pollen
with water then spraying the female flowers individually. It is labour intensive. Dry pollination involves blowing pollen into the air around the kiwifruit vines. It is less labour intensive and therefore cheaper.
[70] Artificial pollination is a relatively widespread practise in the kiwifruit industry. Kiwifruit need to meet a certain range of seeds in the fruit to qualify as export grade. The number of seeds is caused by the number of successful instances of fertilisation from pollination. Artificial pollination can assist the natural pollination of female vines carried through bees. Moreover, the Court heard evidence that both Japan and Korea depend heavily on pollen imports due to the practise there of only growing female fruit-bearing vines. There is, therefore, a market for pollen and pollination services. New Zealand industries are involved in this market. Seeka, for example, is involved in pollen production and supplies pollen to its growers.
[71] Following the Psa3 incursion, most pollen collected from New Zealand kiwifruit vines carries viable Psa3. The exception is the South Island, which is Psa3- free at present. The total production of pollen from the South Island is not sufficient to sustain internal New Zealand demand, let alone export demand.
Milling of pollen14
[72] Pollen is extracted from male flowers via a milling process. That process is:
(a) Flowers are hand-picked from male vines.15
(b)The flowers are put through a series of rotating mills that cut them, exposing the anthers. The flower parts drop into a rotating mesh drum that rips the anthers from their stalks. The anthers and similar sized flower and plant parts fall through the mesh and into a tray, while the
balance of the flower parts fall out the end of the mill.
14 This section also comes from the plaintiffs’ helpful summary provided in opening submissions and confirmed by the evidence.
15 Another method of collecting flowers is by vacuum.
(c) The flower parts that did not fall through the mesh are put through further mills, to extract more anthers. Again, anthers and similarly sized flower and plant parts fall through the mesh and into a tray.
(d)Any flower parts that have not fallen through to a tray are then discarded.
(e) The trays of anthers and other small flower and plant parts are placed into drying cabinets for 18 to 20 hours.
(f) Pollen is extracted from the dried anthers by putting them through a cyclone machine. Pollen is deposited in a jar that is attached to the cyclone. The anthers are typically disposed of.
(g)Milled pollen is not 100 per cent pure. It inevitably includes small pieces of other flower and plant material, as well as dust and dirt which is a similar size to the pollen.
Kiwi Pollen
[73] Kiwi Pollen is owned by Ms Hamlyn and Mr Crawshaw who are married. Ms Hamlyn is the managing director and oversees its activities. Kiwi Pollen has been operating since about the early 1990s. It specialises in kiwifruit pollination. It services both certified organic and conventional kiwifruit growers.
[74] It offers kiwifruit pollen, dry and wet pollination systems and PollenAid technology.16 Prior to the Psa outbreak Kiwi Pollen carried out dry pollination via a four-wheel drive motorbike which had three blowers mounted onto the front. These blowers could be rotated by the driver of the vehicle. The other way dry pollination could be carried out involved a person on a motorbike holding a single blower and
moving it around.
16 This is a buffer solution that maintains the pollen in a viable state.
[75] Part of Kiwi Pollen’s business involved milling pollen. For its milling business, male flowers were sowed from New Zealand orchards, which Ms Hamlyn and Mr Crawshaw (or entities associated with them) owned or leased.
[76] Kiwi Pollen leased a building at Main Road, Te Puke (the Main Road premises). This building is more than seven km away from Kairanga orchard which is owned and operated by Mr Crawshaw. The building was leased from Tony Moore, who was a kiwifruit orchardist. The building was adjacent to his orchard. Initially Kiwi Pollen carried out milling at this building. After that, the milling took place at various locations around Te Puke. The last of these temporary locations was an old kiwifruit pack house at No 3 Road, which was owned by Bob Burt.
[77] In February 2009 Kiwi Pollen purchased a building at Te Matai Road, Te Puke (the Te Matai Road shed). It is on the corner of Te Matai Road and Mark Road. It was very close to Ms Hamlyn and Mr Crawshaw’s home and their kiwifruit orchard at
36 Mark Road, Te Puke (Kairanga). It is also close to 37 Mark Road, Te Puke (Olympos), the orchard immediately across the road from Kairanga, which was owned by Russell West and operated by his brother, Peter West. Olympos was the first orchard to report symptoms that tested positive for Psa.
[78] The milling operations were moved to the Te Matai Road shed when it was purchased. The mill was commissioned around August 2009 and the first milling season commenced after that. Kiwi Pollen milled at this location each year after that.
[79] Kiwi Pollen sold the milled pollen to both domestic and international customers. This part of the business was carried out in the pollen room at the Main Road premises (the pollen room) until 2011 at which time this part of the business also moved to Te Matai Road shed. It involved storing, managing, testing and distributing the pollen.
[80] The pollen business was busiest from around September to April each year. Artificial pollination of female vines would take place in October and male flowers were ready for harvest and milling during November. February to April was when pollen was exported to overseas customers.
[81] During the milling season, the mill would operate through the night. The pollen would be delivered frozen to the pollen room at Main Road (when this building was leased). The next day it would be counted, weighed, inspected, tested, labelled and stored in a freezer before being dispatched to customers. Ms Hamlyn carried out some of this work. Kiwi Pollen also employed a pollen manager to carry it out. The manager was Jan Mitchell from around 1995 until about March 2009. It was then Amanda Lyons from August 2009 until the shift to Te Matai Road in 2011.
[82] Kiwi Pollen also began to import pollen. Imports needed MAF approval (discussed further below). Kiwi Pollen obtained a number of permits but these were not always used. During the period at issue in this proceeding it imported pollen from Chile and China. There were two consignments from China. The first consignment arrived in New Zealand on 24 June 2009 and was received by Kiwi Pollen shortly after it was cleared at the border on 30 June 2009 (the June 2009 anthers consignment). The second consignment from China arrived in New Zealand on 6 June 2010 and was received by Kiwi Pollen shortly after it was cleared at the border on 16 June 2010. The unviable pollen from this second consignment tested positive for Psa. It is the June 2009 anthers consignment which the plaintiffs say led to the Psa3 outbreak in New Zealand.
Psa
What is Psa?
[83] Psa is a bacterium that causes damage to kiwifruit vines. The scientific name of Psa is Pseudomonas syringae pv. Actinidiae. The species is pseudomonas syringae which can affect about 300 different plant species. The species is grouped into about
50 pathovars (being a group of strains which cause the same symptoms and affect the same plant species), of which Pseudomonas syringae pv. Actinidiae is one. Actinidiae
refers to kiwifruit.17 Within a pathovar there can be several strains (or biovars) of Psa.
17 There are other pseudomonas pathovars that affect kiwifruit.
[84] The present scientific understanding, based on genetic analysis, is that Psa falls into the following biovars or groups:18
(a) Psa1 (also referred to as Psa-J): a group of strains isolated in Japan in the 1980s and 1990s and Italian strains from 1992.
(b) Psa2 (also referred to as Psa-K): Korean strains isolated in 1997 and
1998.
(c) Psa3 (also referred to as Psa-V): a group of strains isolated from Italy, New Zealand, Chile and China. It has also been found in other parts of Europe and in Japan and Korea.
(d)Psa4 (also referred to as Psa-LV or Pfm): a strain isolated in New Zealand and Australia which is genetically quite distinct from the other three types.
(e) Psa5 and Psa6:19 strains isolated from Japan.
[85] The Psa3 strain can be separated into further groups: pandemic and divergent. China has both groups. The New Zealand, European and Chilean Psa3 strains fall into the pandemic group. The pandemic group of Psa3 is a virulent strain. Psa4 is of low virulence and is now regarded as being a different pathovar to Psa3.20
Survival and spread
[86] Psa is a bacteria associated with kiwifruit. It is a simple organism that will survive if there is sufficient moisture, nutrients and warmth. It can reproduce clonally,
18 JR Chapman, RK Taylor, BS Weir, MK Romberg, JL Vanneste, et al “Phylogenetic relationships among global populations of Pseudomonas syringae pv. Actinidiae” (2012) 102 Phytopathology
1034-1044 [Chapman et al (2012)] compared the DNA sequences of multiple loci (MLST, a method of analysis that looks at parts of the genome rather than the whole genome) from strains of Psa from various countries. Their phylogenetic analysis indicated that Psa could be sorted into four different groups (Psa1, Psa2, Psa3 and Psa4).
19 Subsequent to Chapman et al (2012), Sawada et al (2014) and Sawada et al (2016) have since identified isolates of Psa that fall into two further MLST types named Psa5 and Psa6.
20 This strain is now considered to be sufficiently different from Psa3 that it is no longer regarded as a different biovar of the same pathovar as Psa3, but rather is regarded as a different pathovar and
hence the change to Pfm or Psa-LV (P.syringae pv. actinidifolioum) terminology.
meaning that a single bacterial cell can rapidly multiply from one cell to more than
2 million cells in seven hours.21
[87] The Psa3 bacteria can survive on the outside of the plant (“epiphytically”) before infecting it. It infects the interior of the plant through natural openings in the plant surface or through wounds such as those caused by pruning, wind or rain damage to leaves, and insect damage. Psa3 will also infect plants through flowers when they are open for pollination.
[88] Psa3 bacteria can spread between vines in any number of ways: by wind and rain, pruning equipment, insects (including those that bite into kiwifruit vines, such as cicadas and leaf hoppers), birds, bees, and other pollinators. It can also live in soil, prunings and leaf litter for a period and be carried from orchard to orchard on the soles of shoes and tyres of vehicles. From there the opportunity arises to infect vines where the necessary physical proximity occurs (be it from contact with the vine or transfer by wind, rain, or other external means).
[89] Psa3 bacteria adheres to pollen grains. It is inactive below 0 °C and can survive at sub-zero temperatures without nutrients and moisture. That is why pollen that has been frozen for years can still test positive for Psa3.
[90] Psa3 bacteria multiplies in favourable conditions. When it is mixed with an application solution and applied to a flower, it will have conditions in which it can multiply. The application of artificial pollen has been confirmed as a means of spread of Psa3. Recent Psa3 outbreaks in Japan and Korea are regarded as having originated from New Zealand pollen imports.22
Symptoms
[91] A plant’s response to a bacterial invasion is expressed through symptoms. The same symptoms can be caused by different pathogens and this makes diagnosis on the
21 KVH, N. 667, “Survival of Psa” (October 2011) referred to by Giorgio Balestra (an expert witness in this case).
22 For example: Gyoung Hee Kim et al “Outbreak and Spread of Bacterial Canker of Kiwifruit caused by Pseudomonas syringae pv. Actinidiae Biovar 3 in Korea” (2016) 32(6) Plant Pathology
Journal 545.
basis of symptoms alone inaccurate. The first visible symptoms of Psa are often leaf spots (angular leaf spots with chlorotic halos). This is the plant recognising the infection and responding by killing the cells around the point of infection. The plant kills the cells to contain the infection because Psa needs live tissues to survive.
[92] Secondary symptoms are caused when Psa has invaded the internal tissues of the plant. Secondary symptoms may be:
(a) Cane dieback: this is caused when the bacteria blocks the xylem vessels and prevents the cane from obtaining water and nutrients. The cane therefore wilts and dies.
(b)Cankers: lesions on a twig that are caused by the bacteria multiplying in the internal systems of the plant, leading to the collapse and death of the plant cells in that vascular system.
(c) White exudate (a viscous fluid which oozes from lenticles, cankers and wounds on infected vines and trunks): this is caused when the bacteria, after a phase of rapid multiplication, forces its way to the surface following the path of least resistance.23
(d)Red exudate: compounds produced by the plant in reaction to the infection.
[93] Critically to fruit production, Psa3 causes browning and wilting of buds and flowers, collapse of fruit, and the death of plants. The progress of the disease within a plant will depend upon climatic conditions, the extent of infection, any control methods applied, and the variety of kiwifruit infected. Psa4 (also known as Pfm and Psa-LV) causes leaf spotting but the damage is limited and it does not cause
widespread economic loss.
23 This is almost exclusively bacteria and it constitutes an important source of inoculum.
The Italian outbreak
[94] Zespri’s Italian production is run through a business unit called Zespri Global Supply (ZGS). The intention of ZGS is to enable Zespri to supply its northern hemisphere markets as close to 12 months of the year as possible. Both gold and green varieties are produced for ZGS. In 2008 to 2009 ZGS had around 800 hectares of orchards in Italy.
[95] In the middle of 2008 Shane Max, Zespri’s global production manager, had observed some unhealthy vines in Italian orchards. There was no particular alarm at this time. The vines were removed. Psa had been reported in Italy in 1992 and it had not been especially problematic.
[96] In the Italian 2009 spring Zespri symptoms were rapidly spreading. Hayward orchards had leaf spots and Hort16A had cankers and exudate. Mr Limmer, the then general manager of ZGS, first became aware of kiwifruit vine dieback in Italy (later confirmed to be Psa and also in Italy called Bacteriosi and Batteriosi) in February
2009. The practice in 2009 continued to be to cut off the infected vine, past the visible infection. Around 11 per cent of the Italian Hort16A had to be removed that season.
[97] Spring 2009 was followed by a hot Italian summer. During the summer Mr Max observed that the cankers and exudate had stopped developing and the vines seemed to be recovering. Zespri also understood that where Psa had been a problem in other countries the growers had gotten on top of it. For example, Zespri’s Asian growers had been dealing with bacterial disease, successfully, for some time. At this point Zespri was optimistic that the height of the infection Italy might have passed.
[98] However, by early 2010 Zespri was aware that orchards in Emilia Romagna were affected. By spring in early 2010 the disease was having devastating effects for
some Italian growers.24 Zespri concluded that Psa was not merely weather-spread and
24 Some Italian growers considered that the Hort16A, which Zespri had introduced to Italy, was the cause of the devastating effects. Zespri had to front up to meetings with angry growers about this. One Italian grower family commenced a case against Zespri in the Latina Court alleging New Zealand had introduced Psa knowingly. The case did not proceed. The anger dissipated once it was understood that the problem was new and quite different from anything the industry had seen before.
that it was likely it was being borne on plant material. There were also rumours of linkages with nursery plants going from Italy and into France. By mid-2010 orchards in France were affected.
[99] Throughout this period Zespri was trying to find a solution to the Italian incursion. Around $300,000 research funding was allocated. Zespri contacted Plant
& Food Research (Plant & Food) and arranged for a scientist, Dr Vanneste, to visit Italy in late March 2009. He spent about a week in Latina with Mike Manning (also from Plant & Food) and Mr Max. They travelled to orchards where they observed the symptoms. The research for Zespri identified that the disease had also been present in Korea, Japan and China but had not been identified in New Zealand. Initially the research had not identified the variable susceptibility of kiwifruit varieties to Psa, nor the different virulence of the strains.
[100] However, by mid-2010 it was confirmed that the Italian Psa was a new strain. It was also around this time that Zespri became more concerned about its implications for New Zealand. Despite this concern, Mr Limmer said there was never a sense of impending disaster from him or that of his colleagues. In Italy there were challenges in addressing the problem. One of those challenges was that there was no centralised kiwifruit organisation and the post-harvest sector was fragmented and uncoordinated. This was not the case in New Zealand. Also, Italy had just had two consecutive extremely cold and wet winters which had been followed by cool, wet springs. Zespri’s view was that the New Zealand environment was unlikely to be conducive to Psa.
[101] Dr Vanneste had continued to be involved in assisting Zespri on the Italian incursion. One piece of work was on the survivability of Psa on fruit. In an email to Zespri on 28 September 2010 he noted that fruit inoculated with Psa and held at 0 ºC was not enough to kill the Psa. It seemed that the cold killed the other bacteria which had colonised the fruit surface but left the place free for Psa to colonise and, when conditions became favourable, to multiply. In late September to October 2010 Zespri was communicating with MAF, raising concerns about fruit imports. MAF was approached about banning imports of Italian kiwifruit into New Zealand. MAF
considered the risk was not sufficient to warrant that measure. The kiwifruit importers, however, decided they would not import the fruit.
[102] Throughout this time Zespri was informing New Zealand growers about the incursion in Italy via its “Kiwi Flyer” newsletters issued in June 2009, 29 October
2009, 30 April 2010, 25 August 2010 and 28 October 2010. These flyers reflect
Zespri’s views based on their observations of the Italian experience. For example:
(a) The 7 April 2010 Kiwi Flyer noted that Zespri had no cause for concerns for the New Zealand industry at this stage.
(b)The 25 August 2010 Kiwi Flyer advised growers that Psa had been reported in most major kiwifruit growing countries as a result of unusually wet and cold winter/spring conditions. It advised growers that the severity of outbreaks was variable and this was most likely due to the severity of environmental conditions. It said that it was not a disease the New Zealand orchards would want. It described the symptoms.
(c) The 28 October 2010 Kiwi Flyer advised growers that the disease should not be underestimated because of its devastating impact and that Zespri was working closely with MAF to minimise the risk of Psa reaching New Zealand.
[103] When Psa was first reported in New Zealand, Zespri was quick to have personnel on the ground and in coordinating an industry response with Government (discussed further below).
Psa outbreak in New Zealand
MAF’s initial response
[104] The initial report of Psa came around midday on Friday 5 November 2010. Dr Kerry Everett, a scientist at Plant & Food, had tested samples which had been taken from Olympos. Plant & Food contacted Robert Taylor, a senior scientist at MAF’s
Plant Health and Environment Laboratory (PHEL). PHEL contacted MAF’s Biosecurity Group manager to say that the kiwifruit industry believed something indicative of Psa symptoms had been received and samples were being sent to PHEL. MAF’s response managers were put on standby. David Yard was to be the lead Response Manager. Later that afternoon, the Biosecurity Group were told it was highly likely it was Psa and MAF put in place a response team and structure.
[105] Test results of the samples from Olympos were confirmed on 6 November
2010. MAF declared a Restricted Place at Olympos on that date on the basis that Psa was believed or suspected on reasonable grounds to be present (RP1).
[106] The MAF response team met over the weekend and were ready to go on Monday morning, 8 November 2010. Heather Pearson, Rob Taylor and a third person from MAF went to Te Puke in an investigative role. That day MAF declared a Restricted Place on Kairanga orchard on the basis that Psa was believed or suspected on reasonable grounds to be present (RP2).
[107] One of the early problems in responding to the outbreak was the available tests for Psa. At the time they could not distinguish between different Psa biovars. As it was later determined, when the tests to do this had been developed by Plant & Food in 2011, Psa4 had been quite widely present in New Zealand kiwifruit orchards for some time. This meant that the spread of Psa3 was not as wide as had been thought originally.
[108] The same problem occurred with pollen testing. As part of the MAF investigation large amounts of New Zealand commercial pollen was taken for testing. The test could not distinguish between different biovars of Psa, nor determine whether the Psa was alive or dead. Initial testing using the available test gave positive Psa results for 94 per cent of the pollen but without making these distinctions. When the test to distinguish between biovars was developed, the samples were retested and found to contain Psa4.
[109] Kiwi Pollen’s imported Chilean pollen was also taken for testing. On 14
November 2010 it tested positive for Psa. This, together with the close proximity
between Kiwi Pollen’s milling premises and RP1 and RP2, and that both of those orchards had recently been pollinated with Kiwi Pollen, gave rise to the early suspicion which fell upon Kiwi Pollen’s product. When the test was available to distinguish between the biovars, it transpired that the Chilean pollen tested negative for Psa3.
Industry’s response
[110] Mr Jager first learned about Psa in New Zealand via a telephone call at about
5 pm on Friday 5 November 2010 from Plant & Food. On Saturday morning,
6 November 2010, Barry O’Neil (MAF’s then Deputy Director-General responsible for biosecurity) telephoned Mr Jager about this. They discussed the government and industry working together to respond.
[111] On Sunday 7 November 2010 at 5 pm an IAC took place. Approximately
50 people attended or telephoned into the meeting. Mr Jager describes it as a crisis management situation. The industry wanted to work with MAF but considered it could act more quickly and go further than the government. After this initial meeting, the IAC was meeting every couple of days to update the industry leaders.
[112] That day Mr Jager also sent a letter to growers telling them Psa might be in New Zealand. The letter stressed the importance of implementing best practice orchard hygiene across the industry to reduce spread, and tracing the development of the disease. Mr Jager sent a follow up letter on 10 November 2010 to growers, telling them that MAF had confirmed Psa. Zespri held grower meetings on 9 and
11 November 2010 and further meetings between 15 and 25 November 2010. Hundreds of growers attended these meetings.
[113] Mr Jager said that Zespri began with an eradication mind set. Even after MAF advised that the bacteria was everywhere and eradication was impossible, Zespri did not accept that. It thought it could be eradicated and therefore speed was overwhelmingly important. This was against the background of a concern that the Italian response had not been quick and aggressive enough. This was discussed at an IAC meeting on 14 November 2010.
Compensation
Initial phase
[114] There was significant confusion in the grower community in Te Puke immediately after Psa was confirmed to be in the region. While industry leaders and government officials moved to put together a plan, some growers were told to “sit tight and wait for [industry or government] to tell [them] what to do”. Others, such as Mr Crawshaw, had already begun cutting out affected blocks on Kairanga orchard. Mr Crawshaw said that this was self-initiated.
[115] It was decided quickly that there should be an industry response led outside of Zespri. Zespri is a marketing and sales company first and foremost and it still had a crop to sell. The proposed structure of a new body, KVH, was discussed at an IAC meeting on 16 November 2010. At that meeting IAC formally resolved to contribute
$25 million to the response.
[116] The minutes record the following resolutions:
1. To adopt the aggressive containment strategy for Psa as set out in the attached papers and presentation, recognising that such plan will continue to evolve as further information regarding Psa becomes available; and
2. To adopt the financial assistance package for growers who are required to act under the strategy as set out in the attached papers and presentation …
3. To incorporate an incorporated society with the object of managing the implementation of the aggressive containment strategy and developing and managing a long-term National Pest Management Strategy for Psa; and
4. To work collaboratively with such body and other industry parties in an effort to manage Psa for the benefit of New Zealand Kiwifruit growers, suppliers and other stakeholders in the New Zealand Kiwifruit industry.
[117] On 17 November 2010 Mr Jager, along with other industry leaders, met with the Minister of Agriculture, David Carter, and other key ministers. The then Prime Minister, Rt Hon John Key, also joined the meeting. Co-funding for KVH, $25 million from industry and $25 million from the Government, was agreed. Mr Jager says that this co-funding model reflected the industry culture of self-determination. The industry thought it could apply more resources to respond than MAF could do by itself.
[118] On 18 November 2010, just over a week after incursion had been confirmed, Zespri announced the joint funded government-industry response. It attached a paper outlining a strategy for managing Psa that essentially involved cutting out affected plant material. It proposed that compensation would be paid for cut outs on a per hectare basis. On 6 December 2010 KVH formally came into existence.
Funding Agreement
[119] A funding agreement was entered into between MAF, Zespri and KVH on
18 February 2011. This formalised the terms on which agreed funding from MAF and the industry would be administered. Prior to this, Mr Yard explained that MAF did not pay any compensation to growers as a result of powers exercised during the incursion response.25 He said that the growers might have been entitled to it if they suffered loss from their property being designated a restricted place.
[120] The funding was made available to growers who adopted the “aggressive management plan” and who signed a contract with KVH. It summarised the financial package as follows:
•KVH will pay a lump sum for the grower’s 2011 crop on the vine based on an independent crop estimate and the subsequent cut back of vines in accordance with the amended strategy;
•In addition, KVH will pay for regeneration costs in accordance with the original package:
oFor vines cut back to the stump: $65k per ha for GREEN (to be spread over three years) and $50k per ha for GOLD (to be spread over two years);
oFor vines cut back to the leader: $25k per ha for GREEN (to be spread over one year) and $25k per ha for GOLD (to be spread over one year);
•KVH will coordinate, manage and pay for monitoring and removal and destruction of affected plant material;
•The financial support package will apply to orchards that have already been cut out in accordance with the management strategy at the time of the cut back.
25 That is, no compensation was paid under s 162A of the Biosecurity Act 1993 prior to KVH
takeover of response activities.
[121] The standard form agreement entered into with growers detailed the KVH strategy and the general process that was to be followed for the orchard management plan and the financial assistance package. Once signed, KVH would organise to have the affected area cut out, including the buffer zones, in accordance with the agreed management plan. Payments would then commence and KVH would continue to monitor the orchard. Vine regeneration payments would stop if the land was converted to another use. Finally, any sale of the orchard would be effective only if the buyer agreed to grant the same rights to KVH and that all financial support remained with the original owner.
[1357] This means that MAF personnel do not have personal liability for their acts or omissions provided they acted “in good faith in pursuance or intended pursuance of the functions or powers of the [Ministry] or of the chief executive”. The actions or omissions of MAF personnel under the first cause of action were in pursuance of the
functions or powers of the chief executive (or his delegate) to issue import permits.
683 While the parties did not provide submissions on the issue of whether subsequent amendments to an Act may be an aid to interpreting the purpose of Parliament in relation to the provision in force at the time, I note the decision in Databank Systems Ltd v Commissioner of Inland Revenue [1990]
3 NZLR 385 (PC) at 393-394; Postal Workers Union of Aotearoa Inc v New Zealand Post Ltd [2013] 1 NZLR 66 at [22] per Randerson J; and the discussion of JF Burrows and RI Carter in Statute Law in New Zealand (5th ed, online looseleaf ed, LexisNexis) at [20(c)(iii)]. While it is generally established that statutory amendments subsequent to the period at issue may not be taken into account in interpreting the relevant statutory provision they can form an aid to interpreting the purpose of the provision in force at the time in the exceptional situation that Parliament expressed that the amended provision should have retrospective effect or that it is enacted to resolve an ambiguity. In this case Parliament has expressed its desire to reverse the position of the majority and give effect to McGrath J’s view in Couch (No 2) in respect of the ambiguity of s
6 of the CPA at the relevant time. This is indicated by the Explanatory Note to the amending Bill, Parliamentary history materials and the overall effect of the amendment on the operation of s 6.
There is no suggestion of bad faith. The delegate who issued the permits also has immunity under s 86 because they are covered by the State Sector Act.
[1358] The protection MAF personnel have under s 86 of the State Sector Act does not protect the Crown from vicarious liability under the first cause of action. That is now plain from the amendments to s 6 of the CPA following Couch (No 2). This means the Crown has vicarious liability for the negligent acts or omissions of the MAF personnel established under the first cause of action.
The Biosecurity Act
[1359] The next question is whether the Crown is vicariously liable for the actions of personnel who have the protection of s 163 of the Biosecurity Act.
[1360] As a preliminary point I note that it is unclear if Mr Hodges, the inspector whose conduct is at issue under the second cause of action, is an employee under the State Sector Act. It does, however, appear that he may have been (and may still be). He is described in his brief of evidence as working for MAF as a Quarantine Inspector. He remains employed at MAF (now MPI) but in a different capacity. Additionally, the plaintiffs raised with the Crown prior to trial whether it was necessary for individual employees of MAF to be named in the claim. The Crown’s response was that current and former staff of MAF/MPI have immunity under statute for actions taken in good faith pursuant to their employment. The Crown indicated it would seek to strike out any claims in which individuals were joined as parties.
[1361] If Mr Hodges was an employee under the State Sector Act he does not need to rely on s 163. So, somewhat oddly, if the defendant’s submission about the CPA is correct, that Act may confer on the Crown protection from vicarious liability for the actions of Mr Hodges through a provision on which Mr Hodges does not need to rely.
[1362] As a second preliminary point I note that I have concluded that the plaintiffs have not established liability under the second cause of action. This means it is not necessary for me to decide whether s 163 protects the Crown from vicarious
liability.684 It is tempting to leave the matter there not least because the provisions of the CPA are extremely confusing and difficult to reconcile with s 27(3) of the NZBORA. A new Act to replace the CPA was recommended by the Law Commission but not acted upon. Nevertheless I consider I should at least set out the arguments and the difficulties and my view on them in case my judgment is not the end of the matter.
[1363] The question is whether s 6, properly interpreted in light of Couch (No 2) and s 27(3) of the NZBORA, excludes the Crown’s vicarious liability because personnel acting on its behalf are protected from liability under s 163 of the Act. In considering that point, I note the views in Couch (No 2) that:
(a) the CPA was intended to provide for Crown liability for the torts committed by its servants or agents in the same way as any other person of full age and capacity;
(b) section 27(3) of the NZBORA has a similar purpose; and
(c) the CPA should be given an interpretation consistent with s 27(3) of the
NZBORA.
[1364] The majority interpretation of s 6 of the CPA and s 86 of the State Sector Act in Couch (No 2) reconciled these provisions by reading down s 86. This meant there was no Act that protected the servant of the Crown in that case and no difficulty in finding the Crown had liability under s 6(1). McGrath and Wilson JJ had to grapple with how to interpret s 6 in light of s 27 of the NZBORA because they considered that full effect had to be given to s 86.
[1365] The same issue arises here. If an inspector has protection from s 163 of the Biosecurity Act, why does that confer protection on the Crown from vicarious liability for the inspector’s actions when s 27 of the NZBORA provides that “every person has the right to bring civil proceedings against … the Crown … and to have those
proceedings heard … in the same way as civil proceedings between individuals.”
684 I note there may have been an issue about whether, in the circumstances of this case, the duty of care in relation to the clearance of the goods was owed by MAF or its personnel at head office in the imports team, rather than Mr Hodges. This issue was not discussed.
[1366] Therefore, had it been necessary to determine the issue in this case, it seems to me it would be appropriate to rely on the minority interpretation of s 6(1)(a) and s 6(4), as that interpretation had to take into account s 27 whereas the majority reasoning did not. In other words, s 6 should be interpreted consistently with s 27 of the NZBORA. On this view, McGrath J explained:
(a) Section 6(1)(a) excludes Crown liability only when the defence could be relied on by a MAF servant or agent as a private person (that is, not because of their position as a public servant). A MAF servant or agent would not have a defence under s 163 of the Biosecurity Act if they were private persons; and
(b)Section 6(4) is of limited effect. It is intended to do no more than treat proceedings against the Crown as though they were against the responsible government department or officer. Just as MAF or the responsible officer of the Crown cannot escape tortious liability by relying on their employee’s immunity, neither can the Crown.
[1367] There are two principal counter arguments to this view. The first is that, as the defendant submits, Parliament added ss 6(4A) and 6(4B) to clarify that the Crown was vicariously liable despite s 86 of the State Sector Act.685 When it did so, it otherwise left s 6(4) intact.686 It can be argued that Parliament intended only to ensure that s 86 did not preclude Crown vicarious liability, but otherwise intended the Crown to have the benefit of any statutory protection conferred on its officers or employees.
[1368] This is a strong argument. It may, however, be reading too much into the amendment to s 6 introducing s 6(4A). It assumes a comprehensive consideration of the circumstances in which the Crown should have vicarious liability, rather than amendments aimed simply at restoring what had been intended by s 86. Moreover, it
does not grapple with whether it is consistent with s 27 of the NZBORA to permit the
685 Section 6(4B) is irrelevant in this proceeding.
686 In its December 2015 review of the CPA, the Law Commission noted that s 6(4A) does not apply to other immunities given elsewhere in the statute book to Crown employees: Law Commission
The Crown in Court at [3.10].
Crown the benefit of s 163 of the Act, when that Act on its terms does not apply to the
Crown.
[1369] The second argument is that McGrath J’s interpretation of s 6 was necessary because of the sweeping immunity that would be conferred on the Crown through “the side wind” of s 86. That is, s 86 was of general application, intended only to remove personal liability for public servants acting in good faith. It was not intended, by a side wind, to affect the Crown’s vicarious liability under the CPA for the acts and omissions of public servants. That would have deprived the CPA of much of its effect as it applied to Crown liability for the torts of its servants. That same rationale does not apply to specific statutory protections conferred on particular persons acting under particular Acts.
[1370] Again this is a strong argument. However it can also be said that Parliament enacted s 163 of the Biosecurity Act against the backdrop of s 27 of the NZBORA. When it did so it specifically conferred an immunity on the Crown for civil liability in some circumstances (s 164) but not in others (s 163).
[1371] On balance, had it been necessary to decide this issue I would have favoured McGrath J’s interpretation of ss 6(1) and 6(4). What that means for s 6(1) is relatively straightforward. The Crown could not rely on s 163 because, if this were a claim between persons, the Crown’s servant or agent would not have the benefit of s 163. What it means for s 6(4) is less clear.
[1372] Section 6(4) was not discussed in any detail in Couch (No 2). The Crown’s argument in that case was based on s 6(1). The discussion by the Judges on s 6(4) was raised more as a point about whether it did or did not support their respective views on s 6(1). It is therefore not entirely clear to me how McGrath J considered s 6(4) would operate in a case like the present. One feature of s 6(4) is that it concerns an enactment that negatives or limits the liability of “any government department or officer of the Crown” whereas s 6(1) refers to “servant or agents”.687 The starting point must be that the different wording between these provisions must have been
intentional.
687 These were also matters on which I sought further submissions.
[1373] The defendant submits that because “officer” in s 6(4) is defined as including “servant of the Sovereign”, it applies to all servants of the Crown. In other words, there is no difference as to whom ss 6(1) and 6(4) apply, other than that s 6(1) applies to agents who may not be servants. That submission does not, however, address why s 6(1) refers to servants whereas s 6(4) refers to officers. Section 2(1) defines “officers” as including a servant of the Crown whereas “servant” is defined as meaning any servant. These definitions apply unless the context requires otherwise. In my view s 6(4) must have been intended to refer to something different from all servants, given the reference to servants in s 6(1). Section 6(1) applies to all servants including officers (as s 6(3) confirms). Section 6(4) refers to officers in a narrower sense.
[1374] The plaintiffs submit the answer to what s 6(4) means, and what is implicit in McGrath J’s note on s 6(4), is s 14. In other words, the point of s 6(4) is to cover the different ways in which the Crown can be sued. The plaintiffs submit the appropriate officer in s 6(4) is the person who it is appropriate to sue under s 14. As proceedings could not be brought against an inspector in this case (or the other persons named in s 163) under s 14, s 6(4) does not protect the Crown. That does appear to explain McGrath J’s view on s 6(4), although the section is worded very difficultly. On balance, that is the view I would have taken had this required determination.
[1375] For completeness, it does not seem to me that s 6(3) assists the defendant’s position. It is a provision that ensures the Crown can have vicarious liability for its officers. Further, I consider s 29 supports McGrath J’s interpretation of s 6(1). It confirms that in civil proceedings (including torts) the Crown obtains the benefit of statutory provisions that would be available to a defendant if the proceeding was between persons. As the defendant noted it means, for example, the Crown has the benefit of the statutory defences of truth (s 8) and honest opinion (s 9) under the Defamation Act 1992. In other words, s 6(1) provides that the Crown has vicarious liability in the same way as applies between private persons and s 29 confirms the Crown may rely on statutory defences available to private persons.
The Crown’s direct liability
[1376] The submissions for the parties also addressed whether the Crown has direct liability for MAF’s systemic or collective negligence. As I apprehend it, this was very much a back-up submission for the plaintiffs. The submissions were somewhat light and the subject is a difficult one. The suggestion that there might be direct liability against the Crown was raised in Couch (No 2) but not addressed. Had it been necessary to decide this issue it is likely I would have needed further submissions on the point. In these circumstances I consider it appropriate not to venture any views on the matter.
Schedule of experts
[1377] The plaintiffs and the defendant called a number of expert witnesses to give evidence on diverse specialist areas including genetics, bacteriology, plant biology, evolutionary biology, epidemiology, statistics and economics. This evidence was primarily relevant to “Part 6: Causation” of this judgment. There were also a number of witnesses with specialist expertise who gave evidence because of their involvement in the facts relevant to each cause of action (e.g. Dr Gerard Clover).
[1378] The schedule below sets out, in alphabetical order, the qualifications and experience of witnesses who gave expert evidence in these proceedings:
Name Qualification Experience H-index/Citation688 Georgio
Balestra
Masters in Biological Sciences from University of Tuscia, Italy (1990). Plant Pathologist and Phyto- bacteriologist who has been focussing on scientific research into kiwifruit bacterial diseases worldwide since the mid-1980s.
Associate Professor in the Department of Agriculture and Forestry Sciences at the University of Tuscia. Involved with this university since 1984.
Post-2010: 17 (WOS) and 14 (GS).
Pre-2010 citation count: 77 (WOS) and 192 (GS).
Post-2010 citation count: 728 (WOS) and 825 (GS).
Samuel
Beckett
PhD in Veterinary Science from Massey University. Research focus on analytical epidemiology and risk analysis particularly within veterinary context.
Involved in biosecurity sphere in Australia and United States. He worked for Biosecurity Australia and the US Department of Agriculture Centre for Epidemiology and Animal Health.
Post-2010 H-index:
2 (WOS).
Pre-2010 citation count: 66 (WOS).
Post-2010 citation count: 24 (WOS).
David
Bryant
PhD in Mathematics from the PhD thesis on theory and methodology of the evolutionary analysis of genetic data.
688 Professor Newcomb provided details of the publications of each of the experts. This set out the H index of each author. This is an author-level metric that attempts to measure both the productivity and citation impact of the publications of a scientist, based on the scientist’s most cited papers and the number of citations they received in other publications. A good H index will be greater than the number of years the researcher has been practising as a scientist. Professor Newcomb also set out the citation count of each author. This is the citation count of each article calculated using data from Web of Science (“WOS”) and Google Scholar (“GS”) for each author.
Name Qualification Experience H-index/Citation688 University of
Canterbury.
20 years post-doctoral experience working on mathematical, statistical and computational aspects of evolutionary biology.
Current Professor of Mathematics at the University of
Otago.
Fraser
Colegrave
Honours degree in Economics from the University of Auckland (1996). Managing Director of Insight Economics Ltd, an economic consultancy based in Auckland. Prior to this, a founding director of another consultancy for 12 years (Covec Ltd).
20 years commercial experience as an economic consultant. Gave expert evidence on the importance of border protection to New Zealand and specific importance to kiwifruit industry. Provided cost benefit analysis on incursion prevention and incursion response.
Produced dynamic maps showing spread of Psa3 in Bay of Plenty region based on data from Rob Taylor and KVH.
James
Curran
PhD in Statistics from the University of Auckland. Professor of Statistics at the University of Auckland with particular expertise in the field of statistical analysis and interpretation of forensic trace evidence and forensic genetics. Has held tenured academic positions since
1999. Current President of the New Zealand Forensic
Society.
Forensic human genetics is more concerned with DNA evidence for the purposes of criminal investigation and litigation rather than phylogenetics or evolutionary genetics in a plant pathogenic context. However, he has particular experience in statistical analysis for the purpose of assessing the weight of evidence.
The data used by Professor Curran was partly put together by Dr Mik Black (a colleague from the University of Otago).
Kerry
Everett
PhD in Plant Virology from Massey University (1994). An applied plant pathologist specialising in mycology, bacteriology and virology with 35 years of scientific research experience. Currently a Senior Scientist at Plant
& Food Research.
Her research expertise is in plant pathology and sustainable crop productions systems for a range of fruit crops such as avocado, kiwifruit, pip fruit and citrus. She has specialist experience in pathogen detection and identification, pathogen ecology, epidemiology, biological control and pre- and post-harvest technologies for pathogen management and market access.
Edward
Holmes
PhD in Zoology from University of Cambridge (1990). Professor of Biology and Medicine, University of Sydney, Australia. Post-2010 H index:
98 (WOS) and 77 (GS).
Name Qualification Experience H-index/Citation688 30 years of scientific research experience in the fields of evolutionary biology, microbiology and virology, with a specific expertise in phylogenetics (the science of determining the evolutionary relationships between organisms, including bacteria).
Distinguished scientist (having published 486 peer-reviewed papers published in some of the world’s leading scientific journals, which have been cited more than 45,000 times), he is the author of two
books on aspects of evolutionary biology, one of which is a textbook
on phylogenetics, he has served on
many editorial boards including
Molecular Biology & Evolution, which is arguably the highest impact journal on evolutionary biology
Citation count pre-
2010: 16,823 (WOS) and 18,041 (GS).
Post-2010 citation count: 23,537 (WOS) and 26,140 (GS).
Angelo
Mazzaglia
PhD in Plant Pathology from University of Tuscia, Italy (1999). Researcher at the Department for Agriculture and Forestry Sciences at the University of Tuscia.
Has developed research speciality in kiwifruit diseases since 2008 (following Italian outbreak of Psa). His general expertise is in plant pathogenic fungi, bacterial communities associated with extreme environments and bacterial plant pathogens.
Post-2010 H index:
9 (WOS).
Pre-2010 citation count: 51 (WOS).
Post-2010 citation count: 247 (WOS).
Honour
McCann
PhD in Plant Pathology from University of Toronto (2013). PhD thesis on evolution of host specificity and virulence of Psa.
Post-doctoral researcher at Massey
University.
Leads an international collaborative research programme to identify the origins of the latest global
pandemic of Psa3 and the evolutionary history of Psa.
H index: 4 (post-
2010) (WOS).
Citation count: 51 (pre-2010) and 175 (post-2010)
(WOS).
Richard
Newcomb
PhD in Biochemistry and Molecular Biology from Australian National University (1996). Chief Scientist at Plant & Food Research and Professor of
Evolutionary Genetics at the University of Auckland.
Over 20 years experience in scientific research across a range of scientific fields including genetics, molecular biology and evolution.
Name Qualification Experience H-index/Citation688 Provided general background evidence on the scientific method. Françoise
Petter
Master of Engineering in Agronomy (Plant
Protection) from École Nationale Supérieure d’Agronomie de Nancy (1984)
Current Assistant Director of the European Plant Protection Organisation (since 2003). In charge of coordinating and implementing Diagnostic and Pest Risk Analysis Programmes and assistance to the Director- General on general matters. Chair of EPPO panels on Phytosanitary Measures, Pest Risk Analysis and Diagnostics Panel (including the panel on Bacteriology).
More than 20 years experience in pest risk analysis, government biosecurity policy and international relations regarding pest management and other relevant areas.
Prior to her role at the EPPO, Ms Petter worked at the French Ministry of Agriculture (1986-2002) in both operational and policy roles.
Russell
Poulter
PhD in Genetics from Leicester University. Associate Professor in the Department of Biochemistry at the University of Otago. Has held tenured academic position since
1972.
Research focusses on microbial genetics, the inheritance of particular genes or sets of genes in bacteria and fungi and comparative genetics. Major focus on the genetic analysis of Psa since mid-
2011.
Post-2010 H index:
2 (WOS).
Citation count: 0 pre-2010) and 37 (post-2010) (WOS).
Gretchen
Stanton
Master of Science in Agricultural Economics from the University
of Arizona
(1977).
Retired agricultural economist with over 30 years’ experience working for the World Trade Organisation and its precursor with most of this focussing on international trade rules relating to animal and plant health.
Chair of the negotiations on what became the WTO SPS Agreement (1989-1995). Head of the Agriculture Division at the WTO from 1995-2016. Responsible for all aspects of WTO work related to the implementation of the SPS Agreement.
Joel
Vanneste
PhD in Plant Pathology from the University of Paris. Also holds the equivalent of a Master of Advanced Studies in Phytopathology from the University of Paris.
Over 25 years’ experience in the field and particularly on Psa and the bacterial causal agent of fire blight.
Currently a Senior Scientist at Plant
& Food Research and had been there since 2003 in a variety of
Post-2010 H-index:
11 (WOS) and 19 (GS).
Pre-2010 citation count: 104 (WOS) and 993 (GS);
Post-2010 citation count: 391 (WOS) and 1592 (GS).
Name Qualification Experience H-index/Citation688 scientist, group leader and research roles.
[1379] While indicators such as H-indices and citation counts may provide some helpful background in considering the expertise of witnesses, in my view it would be wrong to prefer one expert over another based simply on these scores. For example, while the Card et al (2007) paper’s citation count increased significantly following the outbreak of disease in New Zealand (and overseas) and the subsequent focus on the pollen pathway, MAF’s reliance on this paper for the purposes of setting import requirements is criticised and constitutes a major issue under the first cause of action brought by the plaintiffs in this proceeding.689 It understandably has a high citation count given its relevance following the Psa outbreak in New Zealand from late-2010 onwards. Moreover, many of the witnesses, such as Dr Beckett, undertake work in private practice and these scores do not necessarily reflect the nature of their work.
[1380] I consider that all the experts were properly qualified. I found their evidence helpful. I assessed their evidence in light of its scope, its basis and its logical strength,
and in the context of all the evidence before me.
689 Card et al (2007) has a pre-2010 citation count of 3 (WOS) and 8 (GS); post-2010 citation count of 30 (WOS) and 36 (GS).
9
0
1