Court told of nashi issue

Press, 9 May 1985, Page 20

Court told of nashi issue

PA Wellington The Apple and Pear Board had claimed that two companies intended to sell Asian pears which had not been bought from the board, Mr Justice Eichelbaum said. In an oral judgment in the High Court at Wellington, he dismissed an application by three defendant companies for a court order dismissing an action in which the board sought declaratory and injunctive relief to restrain them from alleged breaches and anticinnfpd hrparhp'? nf nffpnrp

provisions in the Apple and Pear Marketing Act. Earlier, the Court was told by the defendants’ counsel, Mr Robert Burnard, that the issue of whether nashi (or Asian pear) were fruit which the board had a duty to acquire, had arisen in comparatively recent years. “It has been precipitated by the fact that commercial quantities of the fruit are only now coming on stream,” he said. “Growers who have made the investment and nlanted

nashi, and those considering doing so, are now becoming vitally concerned in the way their fruit will be marketed.” In his judgment, his Honour said the board sought an injunction against the defendants restraining them from selling or exporting their pears otherwise than in accordance with the act. The board claimed that Turners and Growers Exports, Ltd, the second defendant, and Turners and Growers, Ltd, the third defendant, both of Auckland,

had given notice of their intention of selling Asian pears which had not been bought from the board. Further, that on a specified occasion on March 12, 1984, in breach of the provisions of section 42 of the act, C. H. Slater, Ltd, of Hastings, the first defendant, sold a quantity of Asian pears other than to the board, such pears not having been bought from the board.

“The plaintiff, I should interpolate, said nashi is the Japanese word for pear,” his Honour said. “And that nashi is simply another name for the Asian pear, the recognised variety of the species botanically known as pyrus or, in ordinary language, pear. Turners and Growers would wish to see the Asian pear marketed other than by the board.”

His Honour said Turners and Growers had had long exchanges on the subject with the board, which for its part had made it clear that it wished to see Asian pears marketed the same way as other varieties, and that it considered the position to be covered by the act. Turners and Growers, on the other hand, maintained that the act did not extend to nashi.

“For some time now both parties have recognised that the issue will have to be

settled in the courts,” his Honour said.

“They have, however, differed as to how this should be achieved. The defendants would prefer to be prosecuted for breach of the act, and, indeed, informed the plaintiff of their intention to sell trays of nashi on March 12, 1984, intending thereby to provoke or facilitate a prosecution.” His Honour said the board initially invited Turners and Growers to join in proceedings for a declaratory judgment, but in having issued the present proceedings, the defendants had responded with a motion to strike out.

He cited a principle that the High Court had a reserve power to enforce a statute by injunction or declaration even though the party responsible for enforcement had not exceeded the possibilities of restraining breaches by the exercise of the remedies provided by the act.

Conventionally in an application to strike out an action on the basis that it did not disclose a cause of action, the defendant had to take a matter to the point of demonstrating that the case of the plaintiff was so clearly untenable that it could not possibly succeed, he said.

“I am quite unable to say that the argument submitted on behalf of the defendants brings me to that state of mind here,” he said.