The High Court in Auckland, New Zealand, has rescheduled the six-week hearing of Turners & Growers case against Zespri from November this year to May 2011.
It follows a successful bid by Zespri to split the case in the High Court, with judge Justice Douglas White ruling that the practical advantage of taking this action significantly outweighed T&G's concerns about delays.
The High Court therefore ruled earlier this month that it would instead hold an initial hearing from 20-23 July 2010 to determine whether current kiwifruit export regulations are unlawful, and if the High Court actually has the jurisdiction to determine whether Zespri has been acting in a breach of regulations 9 (non-discrimination) and 11 (non-diversification) of the Kiwifruit Export Regulations 1999.
T&G has brought about proceedings against Zespri based on a number of claims, including:
– Regulations 3 and 4 of The Kiwifruit Export Regulations 1999 – giving Zespri a monopoly over exports of kiwifruit with the exception of Australia – is unlawful, because it is inconsistent with the Commerce Act 1986 and the New Zealand Bill of Rights Act 1990.
– Zespri has abused its dominant position for the purpose of protecting its monopoly after the deregulation of the kiwifruit industry by seekingto tie growers, suppliers and post-harvest operators into exclusivity contracts, by attempting to take control of the supply of kiwifruit for export to Australia, and by attempting to take control of new kiwifruit cultivars.
– Zespri has unlawfully discriminated among suppliers of kiwifruit by paying more for kiwifruit supplied by growers who are prepared to sign exclusivity agreements with Zespri, in an improper attempt to preserve Zespri's monopoly.
– Zespri has unlawfully carried on businesses and activities prohibited by the Kiwifruit Export Regulations 1999, without obtaining the approvalof shareholders and suppliers.
Deregulation of the single-desk export system currently operated by the New Zealand kiwifruit industry has longbeen the stated aim of T&G.
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