A landmark legal battle between Kojonup neighbours over genetically modified crops which could shape the future of farming in Australia is back on.
Lawyers acting for organic grower Steve Marsh lodged an 11th-hour appeal against last month's Supreme Court ruling which dismissed his damages claim against neighbour Mike Baxter.
Mr Marsh sought damages of about $80,000 against Mr Baxter in a court battle that started in 2010 and is estimated to have cost more than $1 million in legal fees.
Anti-GM groups backing Mr Marsh have already flagged taking the case to the High Court if the latest action in the WA Court of Appeal fails.
Slater & Gordon filed the appeal yesterday just hours before the 21-day window from when Justice Ken Martin handed down his decision closed.
"After a lot of consideration, my wife Sue and I have decided to exercise our right to appeal," Mr Marsh said in a statement.
It could take until next year for the Court of Appeal, comprising three Supreme Court judges, to hear the case.
Slater & Gordon lawyer Mark Walter said the grounds for the appeal would be filed in due course. The appeal came on the same day lawyers acting for Mr Baxter filed a submission on costs orders against Mr Marsh.
Both men have raised the fear of losing their farms as a result of the legal battle, which centres on claims Mr Marsh lost his organic certification after GM canola from Mr Baxter's property blew over the fence.
Justice Martin rejected the damages claim in a sweeping judgment which gave a green light to GM canola growing.
He said no evidence was presented showing any risk to people, animals or property from contact with GM canola; he questioned aspects of Mr Marsh's testimony; and found a privately operated certification body should not have removed his farm's organic status.
No new evidence can be introduced as part the appeal in a case that attracted worldwide attention.
The Safe Food Foundation, which has raised $700,000 towards Mr Marsh's legal costs, welcomed the appeal.
SFF director Scott Kinnear said it would continue fund raising "through the appeal process and beyond if required".
"Win or lose, the Safe Food Foundation believes farmer protection legislation is the appropriate way to sort out these market access issues rather than common law that is expensive, risky and comes at a great individual personal cost," Mr Kinnear said yesterday.
The Pastoralists and Graziers Association, which has backed Mr Baxter, said it respected Mr Marsh's right to appeal. "We are interested in the grounds . . . and look forward to those being made public," PGA grains president John Snooke said.