The head of The Kiwifruit Claim in New Zealand has fought back against industry criticism relating to the class action lawsuit, saying the case is transparent and growers face no financial risks by joining.

The group is claiming up to NZ$885 million (US$694 million) in damages as a result of negligence by the former Biosecurity NZ, now part of the Ministry for Primary Industries (MPI), for not preventing the entry of the vine disease Psa into the country.

Kiwifruit Claim chairman John Cameron told www.freshfruitportal.com that contrary to common misconceptions, the legal case was in fact against the duty of care which fell under common law, and was not based on statute law.

"That's the misgiving that's being handled in the press at the moment. It is a sign of negligence by Biosecurity NZ in allowing it to come in. But the actual claim is against common law," Cameron said. 

Cameron also strongly emphasized the claim was 'in no way an anti-Zespri thing', but rather was a grower incentive that had come from ground roots.

Last week the New Zealand Kiwifruit Growers Inc (NZKGI) and Zespri's chairman Peter McBride both issued statements criticizing the law suit.

The NZKGI raised concerns the claim could threaten a positive relationship with the government, but Cameron said that ultimately there needed to be accountability for allowing such a devastating disease into the country.

"We all have accountability for whatever we're doing in the rural industry – milking cows, producing fruit, et cetera – so we're all accountable in that direction," he said.

"I guess the primary reason why the claim is being mounted is around the accountability of Biosecurity NZ. We can congratulate the Prime Minister John Key for allowing this process to go through the court and thereby ensuring that there is accountability."

'Nothing to lose'

Peter McBride condemned the claim citing a lack of transparency - a point Cameron said was 'a difficult one to swallow'.

"I accept that Peter's got his own view, but bear in mind this only got released on Monday [Sept. 28], so a lot of people have still got to learn a lot about it," he said.

"Hopefully the transparency issue will be resolved and it will be proven that there is no hidden agenda amongst it other than the common law."

Some in the kiwifruit industry also raised questions over potential financial risks for growers, but Cameron said the only payment required was the entry cost into the claim of NZ$500 (US$390), NZ$1000, or NZ$1500 based on the producers' hectarage.

"The sum will then be supported by a company called LPF, which is a litigation funding company and will grab a percentage of any positive outcome of the claim," he said.

"That is the only expense that any grower will have - it will be first and final and there will be no other payments that they will be required to pay.

"They will also be covered by LPF if there is a loss in relation to that claim, so there is basically nothing for the growers to lose."

He added the most important aspect that would come out of the whole matter would be Biosecurity NZ being held accountable for its actions, which would result in better duty of care in the future for all primary industries.

"That mustn't get lost in this whole complexity of the case. At the end of the day Biosecurity NZ will be stronger because of it, knowing that someone is prepared to take them to task on it," Cameron said.

Heart ache still there

Since the 2010 Psa outbreak in New Zealand, the kiwifruit industry has faced heavy costs in fighting the disease, with some having fared far worse than others.

"There are some people that never made it – some people that lost everything. Some people have had the gracious benefit of having a little bit of equity, some have been supported by the banks which in general have been pretty good," he said.

"Obviously the heart aches are still there. The situation is not as bad now, but it still cost growers a lot of money because of the mistake of Psa being entered into the country."

Although the situation has been ongoing for a number of years, Cameron said the class action had only been launched now so as not to clout any issues leading up to September's general election, and to give the new government the maximum time to resolve the issue during its political term.

Growers representing around 20% of gold kiwifruit production have already signed up to the claim, along with 15% green kiwifruit growers.

An open meeting is due to be held this Wednesday in the town of Te Puke with the group's legal team so growers can bring up any concerns in person.

"The meeting is for everyone - for people that have signed or not signed. It's a chance for them to sit down and hear it from the horse's mouth, rather than just hearing it in the media," Cameron said.

'Good case for us to win'

Cameron also explained many growers were likely feeling reluctant to sign up to the claim as a 2012 independent legal review of the Psa outbreak - the Sapere report - asserted any case brought to court would be weak. However, he said this was misguided given new evidence had now come to light.

"This is new information that's come out and it's a different approach to what they were looking at," Cameron said, adding that the litigation funder LPF was currently chaired by former Court of Appeal and Supreme Court judge Bill Wilson.

"His personal view is that there's just no chance that there won't be a good case for us to win. He is adamant," he said.

"At the end fo the day, the reason why they're prepared to back the claim is on the basis of the information that they've got - they believe there's a good strong case."

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