Marsh v Baxter appeal imminent

Kojonup organic farmer Steve Marsh and wife Sue have been embroiled in a long-running legal challenge against their neighbour Mike Baxter, for alleged financial damages caused from losing their organic certification four years ago.

About 70 per cent of Mr Marsh’s organic farm was decertified when Genetically Modified (GM) canola swathes were found in his organic wheat crop in late 2010.

The Marshes attempted to sue Mr Baxter for $85,000 compensation and to win a permanent injunction that would prevent him growing GM canola - but Justice Ken Martin comprehensively rejected the claims.

A two-week trial was held in February last year in the WA Supreme Court with a judgement handed down on May 28.

Justice Martin’s 150-page judgment awarded in Mr Baxter’s favour, rejecting assertions GM canola was unsafe while dismissing both the Marshes' causes of action in common law negligence and private nuisance.

“For private nuisance, his Honour assessed that it had not been shown that there had been any unreasonable interference by Mr Baxter in the Marshes' use and enjoyment of Eagle Rest,” the summary said.

“Mr Baxter was not to be held responsible as a broad acre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing) which was entirely orthodox in its implementation.”

The judgement was also highly critical of processes used by Mr Marsh’s organic certifier, the National Association for Sustainable Agriculture Australia, and its zero tolerance for GM crops.

An appeal against the main judgement in the case has been scheduled for hearing on March 23 and 24.

It’s understood the plaintiff and defendant will be allocated one day each during the two-day program to submit their arguments before a three-judge panel.

The panel is likely to engage in robust interaction with barristers representing both sides, questioning details and merits, of their appeal submissions.

Another hearing set for March 25 will appeal against the cost orders made by Justice Martin in September last year which awarded costs totalling $804,000 in Mr Baxter’s favour.

The decision said: “The plaintiffs do pay the defendant's costs of the action, including reserved costs, to be taxed if not agreed”.

Justice Martin’s order also lifted limits on the scale normally used by the Court to determine applicable costs, given the complexity of the legal case.

Mr Marsh’s representative, Slater & Gordon Commercial Litigation Lawyer, Mark Walter, and Mr Baxter's lawyer, Bradley Bayley Legal partner, Brian Bradley, have both declined to comment to media, with the appeals underway.

The Safe Food Foundation (SFF) has been involved in ongoing fundraising efforts to support Mr Marsh.

During the trial last February, the SFF posted on its website that $750,000 had been raised to pay for disbursements, namely: barristers, travel, accommodation, expert witnesses, court costs, couriers, photocopying etcetera.

This week, SFF director Scott Kinnear declined to comment on what the current amount was, when contacted by Fairfax Media.

But he said the importance of the case and subsequent fundraising efforts for Mr Marsh had not diminished.

The appeal result could also help inform the WA Liberal/National government’s plans to try and repeal the GM Crops Free Areas Act.

The Barnett government signed an exemption to the Act which allowed GM canola to be grown commercially for the first time in 2010.

However, proponents of GM technology say they fear a change of government could see eventual decisions subject to future political machinations – in particular if Labor and the Greens formed another alliance, to control the upper house.

Liberal Agriculture Minister Ken Baston has described the Act as “a piece of legislation purely designed for prohibition”.

A spokesperson said the Minister was now putting in place the process to bring about a repeal of the Act - but no legislation was currently before Parliament.

Consultations have been held with relevant marketers about the proposed repeal, but at this stage the Minister does not intend to conduct a review or a workshop, the spokesperson said.

WA Liberal Agricultural Region MLC said there was enough support in the current parliament to repeal the Act.

Mr Chown said the volume of GM canola hectares planted in WA had grown “exponentially” per year since 2010 demonstrating its efficacy and expanding grower support.

He said retaining the Act was pointless, given that resulting evidence, and should be repealed sooner rather than later, to remove the potential for another government to stop GM canola cultivation “overnight”.

“That would be a tragedy for graingrowers,” he said.

Introduced in 2003, the Act gives powers to the Agriculture Minister to designate areas of the State where GM crops can't be cultivated, or specific GM crops.

It also provides powers to destroy GM crops and imposes $200,000 penalty for recklessly or knowingly growing GM crops in restricted areas.