Questions & Answers
What will the Claim cost me?
Unless you are a post-harvest operator, each plaintiff is required to make a one-off total contribution to the claim based on the size of their orchard as at 1 October 2010. The contribution required is:
$500 if your orchard (whether owned or leased) is less than 5 hectares;
$1,000 if your orchard (whether owned or leased) is between 5 and 10 hectares; and
$1,500 if your orchard (whether owned or leased) is larger than 10 hectares.
All amounts are inclusive of GST, if any.
Each post-harvest operator is required to make a one-off total contribution of $10,000 to join this claim.
These contributions will be applied to the payment of the legal fees, expert costs and other costs relating to the legal proceedings ("project costs"). All project costs over and above the total amount of the one-off total contributions made by the plaintiffs will be advanced by LPF. You will only repay LPF for the balance of the project costs if the claim is successful, and then only from the amount recovered from the Crown so once you have paid your one-off total contribution, you cannot be asked to pay any more for the proceedings.
LPF will be entitled to reimbursement of the project costs that it advances and to a success fee to be paid out of the proceeds in the event that a successful settlement or judgment is obtained. LPF has agreed to a success fee structure that sees them fairly sharing in the success of the claim. The success fee is 20% of the award should the proceeds of the claim be under $500m and within 2 years and 25% if under $500m and later than 2 years will be paid to the funder. The percentage share falls to 10% and 12.5% respectively if the successful conclusion is beyond $500m. If there is not a successful conclusion, LPF is not entitled to a fee.
Here is an example based on a settlement or award of damages of $800 million:
Will I ever have to pay anything further if any legal proceedings are not successful?
No. LPF will pay any adverse costs awarded against the plaintiffs in the proceedings.
What is the Kiwifruit Claim about?
We are lodging a class action against the Crown in relation to losses resulting from the entry of the Psa disease into New Zealand. It is alleged that the Crown owed a duty of care to both kiwifruit growers and post-harvest operators, and that the Crown breached that duty of care in negligently clearing a shipment containing the Psa pathogen for entry into New Zealand.
The investigations to date, including that of the Sapere Research Group, show major shortcomings by the Ministry for Primary Industries ("MPI") in relation to the introduction of Psa into New Zealand, including with the relevant import requirements and border processes in place prior to the entry of Psa into New Zealand.
Legal advice is that there is a strong legal basis upon which a claim against the Crown may be lodged for its role in allowing Psa to be introduced into New Zealand. Legal professional privilege is not waived over any of the plaintiff's legal advice received.
We know the introduction of the Psa disease has had a devastating effect on kiwifruit growers and the industry. There are a significant number of instances where growers have lost their entire orchards (of both green and gold varieties) â€“ and in some cases, growers were forced to undergo mortgagee sales, such was the extent of the devastation. It has taken over 4 years to assemble the evidence about what happened when Psa came into New Zealand, and this includes extensive DNA evidence analysis. It has also taken time to assess the legal position in light of this evidence, and to obtain funding for the growers.
The Crown, acting through MPI, is responsible for border security in New Zealand. This is an extremely important role for the public good of New Zealand, as approximately 70% of the New Zealand economy is dependent on primary industries. As MPI has now admitted publicly, it has had many failings in doing this job. However, MPI has not made any suggestions that it will compensate kiwifruit growers or post-harvest operators for their losses.
It is hoped that this action will not only result in the Crown making fair and proper financial compensation for the losses suffered by kiwifruit growers and post-harvest operators from the outbreak of Psa disease; but also put the onus on the Crown to take considerably more ownership of its role in relation to protecting New Zealand's borders, so that similar biosecurity catastrophes may be avoided in the future.
How does this claim affect Zespri or KGI?
This is neither a politically motivated action nor does it involve Zespri or KGI.
This action is proposed by growers (including orchard leaseholders) from across the kiwifruit industry, for growers. It is proposed to provide a pathway for growers (including orchard leaseholders) to seek commercial redress for the commercial losses that they have had to incur â€“ which, if acting individually, would have been difficult to achieve.
This action will also be relevant for post-harvest operators. Post-harvest operators have suffered commercial loss through lower volumes with the reduced orchard production. They have lost margin through lower pricing as they competed to secure crop.
This is an action that you are invited to join in your own accord, alongside other growers and post-harvest operators.
Who is running the litigation?
A Psa Claim Committee has been established to represent the plaintiffs in all matters relating to the claim. The Committee will have the full authority to make all decisions relating to the claim, including investigating the bringing of the Psa Claim on behalf of kiwifruit growers and post-harvest operators. The members of the Psa Claims Committee are all involved in the kiwifruit industry and will represent the plaintiffs' interests.
The Committee has engaged a legal team to conduct the case. The team consists of Alan Galbraith QC and Davey Salmon of LeeSalmonLong, for more information about them, see the "About Us" page.
What happens now?
The Kiwifruit Claim has announced it will file class action in the High Court in Wellington in November. We have already received a significant amount of interest, with over 30% of gold growers registering their interest, and 15% of gold growers having completed the sign up process. We will continue to provide updates on the progress of the claim.
How do I become a plaintiff?
To become a plaintiff, you must have been either:
a kiwifruit grower as at 1 October 2010 that was subsequently affected by Psa; or
a post-harvest operator as at 1 October 2010.
If you are one of the two types of persons described above, then you may request the legal document package by registering your interest in The Kiwifruit claim. To become a plaintiff, you must complete and sign the Participation Notice (which forms part of that legal document package) and make a financial contribution to the claim in accordance with the instructions on that form.
Do I need to become a plaintiff to be entitled to a payment from the claim?
Yes. Only plaintiffs to the proceedings will be entitled to their share of any settlement proceeds or judgment award arising from the claim.
How much is my claim?
Your claim will be for the total estimated amount of losses that you have suffered as a result of the introduction of the Psa disease. If you are a kiwifruit grower, each legal entity that owned an orchard on 1 October 2010 will need to register as a plaintiff separately, and will have a separate legal claim. The losses that you will be able to claim will need to be assessed and will include:
Lost productions following the spread of Psa in your orchard;
Costs incurred by you in removing infected vines and materials;
Additional expenses incurred to try and combat Psa;
Costs of replanting and re-establishing your orchard; and
If you have sold your orchard since 1 October 2010, any capital loss that you suffered as a result of Psa.
What if I have sold my orchard since 1 October 2010?
This is not a problem. So long as you owned a kiwifruit orchard that was subsequently affected by Psa on 1 October 2010, or if you were a leaseholder of a kiwifruit orchard that was subsequently affected by Psa, you will be entitled to join in this class action.
What do I get if the claim is successful?
We expect any successful outcome of the claim to be delivered through a final judgment of the Court or through a settlement reached with the Crown. From the proceeds of the claim, the funding advanced by LPF in relation to the claim will first be deducted and repaid together with LPF's success fee with the rest being available for distribution to each plaintiff.
Unless the Court issues directions as to the allocation of each plaintiff’s entitlement, the Claim Committee is responsible for working out each plaintiff’s entitlement from the proceeds. The Claim Committee will have regard to any factors that it may consider reasonably appropriate (including the best interests of the plaintiffs taken as a whole), and will appoint advisers to calculate any plaintiff’s share of the settlement sum or any damages awarded after deducting LPF’s entitlement. Then, the Committee will seek the Court’s endorsement of the allocation methodology adopted by the Committee and all allocations as being fair and reasonable. Once the Court’s endorsement has been obtained, the Committee will pay each plaintiff into its bank account.
How long will any legal proceedings take?
The time taken by litigation depends largely upon the position and tactics that may be adopted by the Crown. However, we expect that it could take between two and four years for this claim to be finally decided.
Will my personal details be kept private?
Your personal information will only be used for the purpose of the legal proceedings as required by the Court, or by law.
Will I have to devote time and resources to the legal proceedings?
Initially we will only require you to provide the information contained in the Participation Notice (including the name of the legal entity that owns your orchard and your Kiwifruit Property Identification Number).
We may request further information about your individual claim at a later date. This request will be made in writing.
Where can I get more information about the claim?