New Zealand Pork Industry Board v Director-General of the Ministry of Agriculture and Forestry [2012] NZHC 1544 (2 July 2012)

Last Updated: 16 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-719 [2012] NZHC 1544

IN THE MATTER OF an application for judicial review under the

Judicature Amendment Act 1972 and Part

30 of the High Court Rules

BETWEEN THE NEW ZEALAND PORK INDUSTRY BOARD

Applicant

AND THE DIRECTOR-GENERAL OF THE MINISTRY OF AGRICULTURE AND FORESTRY

First Respondent

AND THE CHIEF TECHNICAL OFFICER AND BIOSECURITY NEW ZEALAND Second Respondents

Hearing: 28 June 2012

Counsel: D J Goddard QC with J B Kaye for Applicant

C R Gwyn with K M Muller for Respondents

Judgment: 2 July 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 2nd of July 2012.

DECISION ON APPLICATION FOR CONTINUATION OF INTERIM RELIEF BY WILLIAMS J

Solicitors:

Jonathan Kaye Law, Wellington for the Applicant

Crown Law, Wellington for the Respondents

THE NEW ZEALAND PORK INDUSTRY BOARD V THE DIRECTOR-GENERAL OF THE MINISTRY OF AGRICULTURE AND FORESTRY HC WN CIV-2011-485-719 [2 July 2012]

[1] At the conclusion of the hearing in this matter, I indicated that the application for continued interim relief pending appeal would be granted. I now briefly set out my reasons.

[2] The starting point must be that there is a genuine debate among credible experts as to the level of risk of porcine reproductive and respiratory syndrome (PRRS) incursion into New Zealand. That is a debate that I cannot, indeed must not, resolve. Nor is it relevant to the substantive appeal. But it is a matter about which I must be aware in addressing this application for ongoing relief.

[3] Of course the Director-General has resolved the debate for the purposes of the Biosecurity Act. He has come to the conclusion that the risk of PRRS incursion is low and he has come to this view on the basis of advice from scientists from within and outside his Ministry. But the fact that there is a genuine debate means that it is still at least objectively arguable that the scientists the Director-General relies on have got their science wrong and that the New Zealand Pork Industry Board’s (NZPIB) scientists are right when they say that the risk of PRRS incursion in New Zealand under the new Import Health Standards (IHSs) is much higher than the Director-General thinks.

[4] It follows that whether I apply the standard test for interim relief under s 8 of the Judicature Amendment Act 1972 or the somewhat narrower test the Crown argued should be applied to an appellant seeking interim orders pending appeal, the answer must be the same.

[5] The scenario that PRRS infected meat might enter New Zealand and infect a herd before the current appeal is heard is espoused by credible scientists on one side of this debate. The Crown reflects the views of its scientists when it says that even if New Zealand pigs do become infected with PRRS, the virus can be eradicated. There is evidence of eradication following incursion elsewhere in the world.

[6] That may be so, but the cost of eradication to the country and the industry could well be significant indeed.

[7] Once it is accepted that PRRS infection of New Zealand pigs is at least an arguable scenario, it must follow that:

(a) A prohibition on the importation of raw pig meat is reasonably necessary at least until the Court of Appeal hearing at which point that Court can reach its own view on the question;

(b) Failure to provide such protection could – and I stress could – do serious harm to the appellant or even render its appeal nugatory;

(c) The Director-General’s interest in introducing the IHSs is by comparison less sharp or immediately pressing. He does not have the same interest in the fruits of his judgment on judicial review that would a private litigant.

[8] I do not therefore need to engage in the debate over whether s 8 of the Judicature Amendment Act has any application once a decision on the substantive application has been made in the High Court. There are cases suggesting that s 8 can still apply on appeal, and other cases suggesting that it cannot. In this case it does not matter.

[9] The Crown expressed understandable concern at the risk that NZPIB is just gaming the system – seeking to drag the appeal process out in order to extend trade protection for pig meat producers under the cover of an unmeritorious appeal. The Crown suggested that, until recently, NZPIB was not pursuing its appeal with any real vigour. The Crown stressed that the country’s international trade obligations under the multilateral Sanitary & Phyto-sanitary Measures (SPS) Agreement. The Crown said there was a need to avoid the Government being seen to be complicit in New Zealand producers throwing up trade barriers. Such perceptions could well have wider implications for New Zealand’s trading interests.

[10] These are important considerations indeed. They can be met by ensuring that the appellant pursues its appeal with real vigour. I would stress also to the Court of Appeal (without, I hope, want of respect), that the issues raised in this appeal are of

the greatest moment to New Zealand’s biosecurity and trade interests. In short, the appeal deserves as much priority in terms of an early fixture as that Court can reasonably provide to it.

[11] Meanwhile, if the Crown does become concerned at the appellant’s

application to its work in pursuing the appeal, further directions can be sought.

[12] The parties have conferred over the terms of the order. They are agreed on the following:

The Ministry for Primary Industries (formerly the Ministry of Agriculture and Forestry), and any inspector acting on its behalf, is restrained from granting biosecurity clearances under ss 26-28 of the Biosecurity Act 1993 for any consumer-ready cuts of raw port product that may now be imported as a result of the Director-General’s decision to issue the following new import health standards:

Import Health Standard for Pig Meat and Pig Meat Products for Human

Consumption from the European Union, MEAPORIC.EU dated 18 March

2011 (with the exception of products from Sweden and Finland).

Import Health Standard for Pig Meat and Pig Meat Products for Human

Consumption from the Sonora State of Mexico, MEAPORIC.MEX dated

18 March 2011.

Import Health Standard for Pig Meat and Pig Meat Products for Human Consumption from Canada and/or the United States of America, MEAPORIC.NAM dated 18 March 2011.

This order remains in force until the first day of the hearing by the Court of

Appeal of the appeal of the New Zealand Pork Industry Board filed on

21 May 2012 or further order of this Court.

[13] There will be an order in those terms. Leave is reserved to apply for further directions as necessary. Costs are reserved.

Williams J