Zespri Group Limited v Baker PVR Limited - [2025] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-000191

[2025] NZHC 496

UNDER Parts 7 and 19 of the High Court Rules 2016 and the inherent jurisdiction of the Court

IN THE MATTER OF

An application for an order by ZESPRI GROUP LIMITED that certain information held by BAKER PVR LIMITED and RUSSELL ARTHUR BAKER be disclosed to it under the jurisdiction of the Court

BETWEEN

ZESPRI GROUP LIMITED

Applicant

AND

BAKER PVR LIMITED

First Respondent

RUSSELL ARTHUR BAKER

Second Respondent

Hearing: 4 February 2025

Appearances:

G F Arthur KC, L C Sizer and Z P Sinclair for Applicant C Elliott KC and J Calvert for Respondents

Judgment:

14 March 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 14 March 2025 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ……………………………………

ZESPRI GROUP LTD v BAKER PVR LTD [2025] NZHC 496 [14 March 2025]

Introduction

[1] The applicant, Zespri Group Ltd (Zespri), is a “single desk”1 exporter of kiwifruit from New Zealand (other than to Australia) under the Kiwifruit Industry Restructuring Act 1999 and Kiwifruit Export Regulations 1999.

[2]The respondents operate a small kiwifruit breeding programme in Te Puke.2

[3] Zespri seeks urgent Norwich Pharmacal orders (NPOs) requiring the respondents to disclose the identity and details of third parties said to be infringing Zespri’s plant variety rights (PVR) in its golden kiwifruit variety Zesy002 (known as Gold3 or G3). It also seeks information and documents from the respondents relevant to the supplies from the respondents to the third parties.

[4] This Court’s equitable jurisdiction, as recognised in Norwich Pharmacal Co v Customs and Excise Commissioners,3 allows a prospective claimant to obtain information to seek redress for an arguable wrong. Zespri says that a kiwifruit variety bred by the respondents and called “E2” is in fact G3 or indistinct from it. Zespri seeks information in relation to E2 to aid potential legal proceedings in both New Zealand and other jurisdictions.

[5] In May 2021, the first respondent, Baker PVR Ltd, applied for a PVR grant for E2. That application is still pending.

[6] In opposing the orders sought, the respondents deny involvement in any wrongdoing. They say they are exercising legitimate breeding rights under the Plant Variety Rights Act 1987 (the PVR Act 1987).4 They also challenge the jurisdiction of the Court to make the orders sough

1 Also known as Single Point of Entry.
2 In a joint memorandum dated 21 February 2025 (i.e. subsequent to the hearing), the parties advise that Mr Russell Baker, the first respondent, passed away on 12 February 2025. In that joint memorandum, the parties acknowledge that under r 4.49 of the High Court Rules 2016 a proceeding does not come to an end by reason of the death of a party. However, in light of Mr Baker’s passing, the parties respectfully propose that if the Court is minded to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 496
Decision Date: 14 March 2025

CaseChat Overview and Summary

In the case of Zespri Group Limited v Baker PVR Limited, the High Court of New Zealand was asked to grant Norwich Pharmacal Orders (NPOs) to Zespri, a kiwifruit exporter, against Baker PVR Limited and Russell Arthur Baker, who operate a kiwifruit breeding program. Zespri sought information to aid its potential legal proceedings against third parties allegedly infringing its plant variety rights (PVR) for its golden kiwifruit variety Zesy002, also known as Gold3 (G3). The respondents denied any wrongdoing and challenged the Court's jurisdiction to make the orders sought. The Court had to decide whether it had jurisdiction to make the NPOs, whether the conditions for making the orders were met, and whether the terms of the orders sought were appropriate.

The Court found that it had jurisdiction to make the NPOs, as the orders were sought against New Zealand defendants for information held in New Zealand. The Court also found that the orders were not an abuse of process, as they did not interfere with the ongoing PVR application process and were of an interim nature. The Court held that there was an arguable case of infringement, as Zespri had provided uncontradicted DNA evidence suggesting that the respondents' variety E2 was likely to be G3. The Court found that the respondents were mixed up in the alleged wrongdoing, as they had propagated and exported the plant material. The Court concluded that making the orders was an appropriate and proportionate response, considering the public interest in allowing Zespri to vindicate its legal rights and the significant risk of irreparable harm if Zespri could not promptly protect its position.

However, the Court found that the orders sought in paragraphs (iv) and (v) were cast too widely and arguably strayed beyond the confines of the Norwich Pharmacal jurisdiction. The Court directed Zespri to re-frame paragraphs (iv) and (v) to focus on the scope of the jurisdiction and the disclosure of necessary information. The Court granted the application for NPOs, directing Zespri to file amended draft orders for its approval. The Court also reserved leave for Zespri to apply in relation to Mr Baker if an order of a personal representative or executor of his estate proved to be necessary. As to costs, the Court held that Zespri was entitled to costs on a 2B basis plus disbursements if agreement could not be reached.

Orders