Waimea Nurseries Ltd v Director-General for Primary Industries

JurisdictionNew Zealand
CourtHigh Court
JudgeCooke J
Judgment Date23 August 2018
Neutral Citation[2018] NZHC 2183
Docket NumberCIV-2018-485-577
Date23 August 2018

Under the Judicial Review Procedure Act 2016

In the Matter of an application for review

Waimea Nurseries Limited
Director-General for Primary Industries
First Respondent
Laura Williamson, Inspector
Second Respondent
Veronica Herrera, Chief Technical Officer
Third Respondent

Under the Judicial Review Procedure Act 2016

In the Matter of an application for review

Johnny Appleseed Holdings Limited
First Plaintiff
McGrath Nurseries Limited
Second Plaintiff
New Zealand Fruit Tree Company Limited
Third Plaintiff
Pattullo's Nureries Limited
Fourth Applicant
Zee Sweet Limited
Fifth Plaintiff
The Director-General of the Ministry for Primary Industries
First Defendant
Certain Inspectors of the Ministry for Primary Industries
Second Defendants
A Chief Technical Officer of the Ministry for Primary Industries
Third Defendant

[2018] NZHC 2183







Judicial Review — Application under the Judicial Review Procedure Act 2016 (“JRPA”) for judicial review of decisions by the respondent which deemed goods that had received biosecurity clearance under s27 Biosecurity Act 1993 (“BA”) (requirements for clearances) were now “unauthorised goods” and the decision to seize and destroy the goods under s116 BA (Power to seize and dispose of unauthorised goods) — goods related to apple trees — majority of the seized trees had been propagated from the original trees given biosecurity clearance — whether the trees were “unauthorised goods


G D Pearson, J K Scragg and E M Greig for applicants in Waimea Nurseries Ltd

A M Glenie and A Poole for plaintiffs in Johnny Appleseed Holdings Ltd

J Catran and N Fong for respondents/defendants


Table of Contents

Applicants' key arguments


Approach to interpretation


Are the trees unauthorised goods?


Following receipt by that inspector


False, incomplete, or misleading information concerning the goods


Are all the trees unauthorised goods?




Alternative powers


Sections 121 and 122


Section 114


A different biosecurity response





The applicants for judicial review in these two proceedings are entities involved in the commercial production of fruit in New Zealand. 1 They are fruit producers or orchardists who supply fruit trees to producers. The development of new varieties is an important part of the commercial development of the industry. There are two main categories of new varieties in issue in this case, being apple varieties (referred to as malus), and stone fruit varieties (referred to as prunus).


The development of new varieties usually requires the importation of new plant material from overseas suppliers. Such importation involves significant biosecurity issues. The regime for managing those issues is established under the Biosecurity Act 1993 (the Act). Section 22 empowers the making of import health standards (IHS). These set out the requirements that any goods which are classified as “risk goods” must meet before they can be imported into New Zealand and obtain biosecurity clearance. Such plant material is classified as risk goods. 2


This regime involves a restriction on international trade, and the implementation of IHS is subject to international law. The WTO Agreement on the Application of the Sanitary and Phytosanitary Measures (the SPS Agreement) involves an international agreement on the measures that may be so applied by states. Under the SPS Agreement, New Zealand sets its own “appropriate level of protection” (ALOP), which identifies the level of risk that New Zealand is prepared to accept. New Zealand has comparably high standards of biosecurity because of the importance of biosecurity to our national economy. The development of IHS can involve a very extensive exercise, where a number of factors are taken into account, and the appropriate level of risk is assessed. 3 The applicable IHS in the present case is IHS155.02.06: Importation of Nursery Stock. 4


The applicants require the importation of material containing a new variety, which can then be grafted onto root stock in New Zealand, with the fruit trees grown,

and the produce then made commercially available. This usually takes the form of short lengths of branch with buds attached (stem stock). The relevant stem stock is imported under the regime in accordance with the IHS. The Ministry for Primary Industries (the Ministry) is empowered to issue import permits under s 24D(2). They are issued to allow importation that conforms with the relevant IHS. The stem stock is grown at facilities based overseas that are accredited by the Ministry in accordance with the IHS and a permit so issued. The facilities are referred to as clean plant facilities. There is an agreement between the Ministry and each clean plant facility. A “mother plant” stays at the clean plant facility for a period of two to three years where the stem stock is grown and tested

Once they have completed the growth and testing stage phytosanitary certificates are issued to allow transportation to New Zealand. The certificates are issued by government organisations. The International Plant Protection Convention identifies official functions and powers to inspect and certify exports and imports. The Ministry is New Zealand's representative, and in the United States the relevant representative is the United States Department of Agriculture (USDA). After the goods are certified by the USDA they are then transported to New Zealand. When they arrive in New Zealand they are placed in another quarantine facility known as a Post-Entry Quarantine Facility (PEQ). At this facility, the stem stock is grafted onto root stock, and further nursery stock is created and tested under the supervision of a biosecurity officer over a period of at least one year. After this process, the young trees are granted biosecurity clearance under ss 26 and 27, and they leave the PEQ. These trees are then used as the initial stock to create trees in commercial quantities.


Since 2012, consignments of malus and prunus cultivars were tested at a Ministry accredited facility called the Clean Plant Centre Northwest, which is based at Washington State University in Washington State (the Clean Plant Centre). In March 2018, MPI conducted an audit of the Clean Plant Centre to assess it for the purposes of re-accreditation. It had previously been audited for the period to 30 May 2012. The 2018 audit identified a series of significant deficiencies in the operation of the Clean Plant Centre. Many testing records were missing, and in some cases test results had records suggesting that the material had failed the relevant tests. The audit identified 10 critical non-compliances. As a consequence, the Clean Plant Centre's accreditation was immediately withdrawn. The USDA then themselves conducted an audit of the Clean Plant Centre, and concluded that there had been a “systemic breakdown in record-keeping and adherence to New Zealand's requirements for maintaining approval as an off-shore plant quarantine facility”.


Two significant decisions were then made by the Ministry that underpin the challenges advanced by the applicants in this case. First, on 27 July 2018, a Chief Technical Officer, Mr Peter Thomson, determined that the relevant trees that had been subject to biosecurity clearances granted under s 26 for all material imported after 1 June 2012 were no longer reliable, and as a consequence the goods that had received biosecurity clearance were now “unauthorised goods” within the meaning under the Act. Mr Thomson considered whether or not equivalent measures could be applied so the goods could be given biosecurity clearance under s 27(1)(d)(iii) of the Act, and he determined that they could not be.


Following Mr Thomson's decision, decisions were made to seize the relevant goods under s 116 of the Act. Dr Veronica Herrera, who is also a Chief Technical Officer, then considered the exercise of power under s 116 in relation to all trees so seized. She was responsible for deciding which directions should be made in relation to the seized trees under the terms of s 116(2). After considering a number of alternatives, she decided upon the option that effectively required the containment or destruction of all the trees. This captures all trees that have been imported into New Zealand through the Clean Plant Centre since 1 June 2012, and trees propagated from such trees.


The directions made in s 116 notice require action by 22 August 2018. That date was chosen because the prunus varieties break dormancy and begin growth in late August to early September, and the malus do so from September to October. Accordingly, action was required before that time. Whilst this decision was made in a single decision paper, it effects many different producers and nurseries in different circumstances. Each of those producers and nurseries received a separate notice in relation to the actions required by them. A total of 47,827 trees are subject to the decisions under s 116. The applicants for judicial review own 45,821 of these trees.

Applicants' key arguments

The relevant notices of seizure, and directions for destruction were given under s 116 of the Act. It provides:

116 Power to seize and dispose of unauthorised goods

  • (1) Any inspector lawfully exercising a power under any of sections 19(2), 30A, 31, 34(5), 109, 111, 113, 114, or 120 may seize—

    • (a) any unauthorised goods:

    • (b) any goods where an inspector has reasonable grounds to suspect—

      • (i) those goods are in contact with, or have been in contact with, unauthorised goods; and

      • (ii) pests or unwanted organisms...

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