24 Aug 2018

Nurseries and orchards could get compo for fruit tree seizures

5:13 pm on 24 August 2018

A High Court judge has thrown open the door for compensation to be paid to nurseries and orchards in a biosecurity case that could be worth $1.5 billion.

Apples on trees in an orchard

Apples on trees in an orchard Photo: 123RF

At issue were 48,000 seedlings for apples, cherries, apricots and other fruit, which were ordered to be destroyed or contained by the Ministry for Primary Industries (MPI).

The ministry said their biosecurity could not be guaranteed because of inadequate or contradictory information from an American facility that was supposed to certify their safety from plant disease or pests.

But growers argued destroying the seedlings would choke off development of new varieties of fruit and containment rules would be onerous and expensive.

They added MPI had used incorrect legal criteria for making their decisions.

So they went to court and Justice Cooke supported many of their arguments in a complex judgement just issued.

He ruled MPI had relied on section 116 of the Biosecurity Act under which these trees were declared unauthorised goods.

Under this clause, compensation would not be payable.

The growers argued section 116 should apply to smuggled or illegal goods, not proper products imported legally and then banned retrospectively.

The judge agreed, throwing out section 116 and directing MPI to consider two other clauses to support their action, both of which allow compensation.

Affected plants seized by MPI

Affected plants seized by MPI Photo: http://www.mpi.govt.nz/

He directed the two sides to meet to take the matter forward and and gave them till next Thursday to reach agreement.

A lawyer for the plaintiffs, Andy Glennie, is happy.

"The ball is very much in MPI's court, the judge has indicated he expects a level of cooperation between ministry and industry.

"The plaintiffs are now proceeding, have indicated a willingness to engage constructively with MPI in order to find a way forward that works for everybody."

In the meantime, the plants have been saved from destruction, but have been ordered to be sprayed and kept behind netting.

The figure of $1.5 billion in losses was given in court but not supported by any details.

The cost of MPI's action was put at $1.5 billion in losses, but no supporting evidence for this sum has yet been supplied.

It is understood the figure refers to future estimated losses as well as past proven losses, and is thought likely to be whittled down substantially, depending on what emerges between now and Thursday.

Meanwhile MPI said it was still concerned at the biosecurity risk associated with the plant material involved in this case.

It said its decisions and actions were based on protecting New Zealand and its horticultural industry.

It noted the Judge found the diligence and care demonstrated in its decision-making could not be faulted.

It said it would carefully consider the judgement and the next steps.