M.A.F. to press for costs from potato cyst nematode challenge

Press, 24 June 1983, Page 8

M.A.F. to press for costs from potato cyst nematode challenge

HUGH STRINGLEMAN

The Ministry of Agriculture and Fisheries has said it will seek the recovery of Crown legal expenses and witnesses’ costs from three Canterbury farmers who lost a High Court challenge last year over potato cyst nematode. If the M.A.F. is successful in getting costs awarded to it, the farmers could face a bill of more than ?14,000, after having paid about $lO,OOO for their own legal expenses. The Ministry successfully defended itself last year in the High Court against actions brought by Mr Murray Baxter and Mr Stuart Baxter, of Sheffield, and Mr Peter Stafford, of West Melton.

The three seed potato growers sought to show that the M.A.F. did not have adequate evidence on which to declare or quarantine their land in 1975 under the Potato Cyst Nematode (P.C.N.) Regulations, 1974. One expert witness in the case, Dr Harvey Smith, who until earlier this year was

the director of the Crop Research Division of the D.5.1.R., has said that “the three farmers have had an extremely raw deal.” “In all my agricultural experience I have never before seen such extreme action taken by an authority on such inadequate evidence,” said Dr Smith.

The farmers sought, before the period allowed for appeal against the High Court decision elapsed, to get the Ministry to indicate whether it would apply for costs against them, but were unable to get a clear indication.

The prospect of being hit with a bill larger than the one they had already paid weighed heavily in their assessment of whether to go to appeal. Not until after the period allowed for appeal had passed did the lawyers for the farmers receive a letter from the Crown Solicitor

saying that the M.A.F. intended to apply to Mr Juslice Savage for costs against the plaintiffs. “It is a public caning for being naughty boys,” Mr Stafford said this week.

The Ministry’s conduct of the scheduling of the Baxter and Stafford farms under the P.C.N. regulations and its subsequent defence of its actions have angered not only the farmers who brought the High Court action but a large number of others who have followed the eight-year wrangle.

A motion asking the M.A.F. to lift the scheduling will go to the Dominion Agriculture Section conference of Federated Farmers.

It has been apparent that the M.A.F. had to stand by the 1975 diagnoses of P.C.N. on the Baxter and Stafford properties, but the measuures allowed by the regulations and the Ministry's uncompromising approach in

dealing with questioners of its authority and procedures have antagonised many farmers.

In his judgment, Mr Justice Savage said: “On the expert evidence given, it was established that P.C.N. was found on the land and the Director-General was justified in relying on the judgment of Miss Nicol, who had, after all, seen a great many such cysts in the previous few months which had come from the Marshland area.

“But in my view, as a practical matter, to obtain and retain the confidence of growers, particularly those whose lands are affected, it would be desirable that there should be an opinion expressed by more than one person before land is made subject to a declaration under the regulations. “Just how this should be accomplished is an administrative policy question, but I would have thought that, where a P.C.N. cyst is found on a property for the first time, the person who made the diagnosis should, before dissection, refer it to one or more competent persons.

“The Director-General would then be in the position of relying on the opinion of more than one professionally competent person. “It would be desirable also to retain, where possible, at least one cyst for future examination by the owner of the land and his experts if he so wishes.” The procedures outlined by the Judge as being reasonable to inspire confidence in growers were not followed in the Baxter and Stafford declarations.

“I do not find it surprising that the plaintiffs have challenged these declarations once they realised the basis on which they were made," said Mr Justice Savage. However, he rejected the submission by the plaintiffs

that for P.C.N. to be said to be present it had to be said to be demonstrable beyond reasonable dispute by informed persons. He said that was too high a standard of proof. He accepted instead the standard of proof put forward by the Crown — the civil rather than a higher standard sought.

The civil standard of proof rests on the balance of probability. When applying that standard, the Judge said, “regard must be had to the serious consequences that follow, both to the owner of the land and public generally, on P.C.N. being found on a person’s property.” In effect, he found it was probable that P.C.N. was found on the properties and that there was only a remote chance that the cysts could be anything other than P.C.N. This decision has not satisfied the plaintiffs, who remain incensed that their livelihoods could be upset by what they see as a transparently thin diagnostic procedure. Among the points which are still strongly disputed are:

1. That the finding of only three cysts on each farm proved that P.C.N. had infested the crops of Baxter and Stafford in 1975. 2. That P.C.N. was the only spherical cyst that could have been found.

3. That repeated soil tests of the same paddocks in subsequent years which were negative for P.C.N. did not prove that the pest was never present.

4. That Miss Gillian Nicol, employed by the M.A.F. in 1975, was qualified to make the diagnosis of P.C.N.

5. That 15 years quarantine on the growing of potatoes is essential to combat a very serious disease which poses a significant

threat to the New Zealand potato industry. The M.A.F. has contended that anaylsis of soil samples in 1975 produced three P.C.N. cysts from the Baxter farm and the same number from the Stafford farm. After identification on the basis of shape by Miss Nicol, the cysts were destroyed. In evidence to the High Court, Dr Smith and another expert witness for the plaintiffs, Dr A. S. Bedi, a potato breeder and geneticist, said that it was unscientific to schedule hundreds of acres for 15 years on the uncorroborated identification of one, two, or even three cysts.

Dr Smith said there was a vast different between the approach by the M.A.F. as to the “finding" of P.C.N. on the plaintiffs’ properties and the approach of a scientist in research work.

Dr Smith’s opinion on what would have constituted a reasonable identification by competent authorities was later adopted by Mr Justice Savage in his warning to the M.A.F. about growers’ confidence.

Dr Smith still contends that it was very likely that there was never an infestation of P.C.N. in seed potato-growing districts of the Malvern County, because, despite repeated testing of the Baxter and Stafford properties and all other properties in the region growing potatoes, the pest has not been found again. If isolated cysts were present out on the plains, it was likely that they had been transferred somehow from the heavy P.C.N. infestations (which are not in dispute) around the Marshlland area near Christchurch. The M.A.F.’s case also rests on its assertion that a spherical cyst must be that of the P.C.N. and it was therefore sufficient to rely

upon shape alone in identifying the pinhead-sized cyst. The plaintiffs argued, with expert evidence to back them up, that there is at least one other nematode with a spherical cyst that is probably present in New Zealand — Yarrow nematode. Although the yarrow nematode has not been looked for and has not been found, yarrow is widespread throughout the country. It is also generally accepted that P.C.N. has been present for decades in New Zealand but it was only “discovered” in 1972. -

Moreover, there are several species of lemonshaped cyst, including the white clover nematode, and distortions of these could be confused with P.C.N.

Further examination procedures, at higher magnifications and involving dissection, could have been

used to more positively identify P.C.N. among the confusion of similar cysts. These were not used by the M.A.F. in analysing the original Baxter and Stafford samples, even though these were the first suspected positive samples from seed potato-growing properties in Canterbury. They have also turned out to be the only reported sightings of P.C.N. in all seed-growing districts of New Zealand.

After a delay of several years, during which Murray Baxter and Peter Stafford tried to continue seed potato farming under the considerable disabilities imposed by the scheduling of their properties, they were successful in their demands for retesting of the declared paddocks. In summary, exhaustive retesting failed to find any P.C.N.

The M.A.F., and experts it called for its defence in the High Court, maintained that the chances of finding P.C.N. a second time were very low, even if it were there. This was because P.C.N. could be in a “lens” no bigger than a man’s fist in, say, an area of one acre. The plaintiffs maintain that subsequent cultivation of the suspect paddocks would have broken up the lens and more widely distributed the P.C.N., raising the

likelihood of finding further cysts. The scheduling provisions have prevented independent soil testing. Dr Smith said he would be willing to do further testing, analysis and categorisation of nematode cysts, but the M.A.F. has been most unco-operative in providing material with which to start work.

The plaintiffs also presented evidence from a world authority on nematodes, Professor F. G. W. Jones, of Rothamstead Research Station in Britain,

that if two cysts had been found on one acre there would be an 85 per cent chance of finding some more upon retesting, if they were there.

The M.A.F. also rested heavily on the qualifications and abilities of Miss Gillian Nicol, the technician who made the diagnoses.

Several M.A.F. officers said that they were completely satisfied with Miss Nicol’s training and the procedures she followed. The plaintiffs said that she had only seven days formal

training in P.C.N. nematology, after her university degree course, before the period in which she identified the cysts from the Baxter and. Stafford farms.

The potato cyst nematode has been described in M.A.F. publications as the “most serious threat to potatoes in New Zealand” and the size of the threat has been used to justify the strict controls imposed where the pest is found, including the 15-year quarantine period for the Baxter and Stafford proper-

ties. However, even the size of the potential threat is disputed by the plaintiffs and their expert support. P.C.N. is present in most potato-growing countries of the world and it is controlled by a combination of long rotations, nematocides and the breeding of resistant varieties of potatoes.

The M.A.F. has little evidence of loss of production associated with P.C.N., particularly in seed growing areas where long rotations are established practice. “New Zealand has developed measures which are an over-reaction to the pest and its importance,” said Dr Smith. “The real threat or danger from P.C.N. is not nearly as great as the M.A.F. has portrayed it. Indeed, there might not have been any significant loss of production from the pest. “This has been a most upsetting case,” he said. Murray and Stuart Baxter and Peter Stafford sought more than $300,000 in damages from the M.A.F. in the High Court action. The father-and-son Baxter partnership claimed around $149,000 in compensation for various reasons and Mr Stafford claimed about $157,000. They argued that compensation for loss of production and for destroyed stock would be a feature of any outbreak of an exotic livestock disease. Mr Baxter has main-

tained that the M.A.F. agreed that the claims for compensation were conservative and suggested that thev should be met.

Instead, the finding of the pest on their properties could cost them upwards of $25,000 in legal expenses seeking to challenge the M.A.F.’s procedure. “I guess I knew that three little cockies from Canterbury would not have a show against the power and prestige of the M.A.F.,” said Mr Baxter. “But we went to court for every potato grower in New Zealand.

realise that it has been there for some time and that it has been confused with P.C.N., they will look back in horror at the evidence presented as scientific in the case of Baxter and Stafford versus the M.A.F.,” he said. the M.A.F. has been asked what changes in its P.C.N. diagnostic procedure have been implemented following the court case. The Christchurch regional field officer, Mr N. A. Illingworth, said a second qualified opinion is now sought on the finding of a positive P.C.N. sample. He said this second opinion was not necessarily independent because of the lack of suitably qualified people outside the M.A.F. and D.S.I.R. He said this had been standard practice since the mid 19705, after the period when the Baxter and Stafford declarations were made.

“Never again will growers be scheduled, if P.C.N. or any other pest is found, without the grower having the right to see that his independent experts verify the finding.

“When, sometime in the 1980 s, yarrow nematode or some other spherical nematode cyst is found in potato fields, and when scientists