Farmer loses landmark GM case
Farmer Steve Marsh loses landmark GM case. Picture: Danella Bevis.

Organic farmer Steve Marsh has lost a landmark Supreme Court damages case against a neighbour who grew genetically modified canola.

The case, which pitted Mr Marsh against Kojonup neighbour Mike Baxter, attracted worldwide attention and today’s judgment is expected to have major ramifications for farming in Australia.

Justice Ken Martin dismissed Mr Marsh's claims. A decision on costs was reserved.

Mr Marsh claimed he lost certified organic status on his farm because Mr Baxter failed in his duty of care to prevent contamination from his GM crop. He sought damages of $85,000 and an indefinite ban on Mr Baxter planting and harvesting GM crops.

In his judgment summary, Justice Martin dismissed both causes of action against Mr Baxter - common law negligence involving the breach of a duty to ensure there was no escape of GM material, and the tort of private nuisance.

Evidence at trial was that Roundup Ready (RR) canola swathes were harmless to animals, people and land unless the canola seed germinated in the soil and cross-fertilised.

“There was no evidence at the trial of any genetic transference risks posed by the RR canola swathes blown into Eagle Rest at the end of 2010,” Justice Martin said.

He noted that in 2011, eight GM canola plants were found and removed on the property and there were no others in subsequent years.

Justice Martin said there was no evidence of “any reasonable interference” by Mr Baxter, who had used well-accepted harvest methodology.

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

Justice Martin said Mr Baxter was also not responsible for the reaction to remove Mr Marsh's organic certification.

Legal teams for both men were reviewing the judgment.

Outside court, Mr Baxter said justice had been done and hoped the case provided some certainty for other GM farmers.

“It's been three years of going through this and finally we've got the right result,” he said.

Mr Marsh said it was too early to say whether he would appeal the decision and said he still had to read more thoroughly through the 150-page judgment.

Speaking before the decision was handed down, Safe Food Foundation director Scott Kinnear flagged the possibility of an appeal if the decision went against Mr Marsh.

The foundation has raised about $700,000 to help fund the Marsh case and is prepared for a prolonged battle in the courts.

The two men at the centre of the case grew up together and farmed side-by-side for almost half a century before facing off in the high-profile court case.

In the past, both men have spoken about the toll the case has taken on their lives and on their families and friends.

GM technology remains a polarising issue around the world and Mr Marsh and Mr Baxter have both attracted plenty of support.

The backers on both sides have set out to portray their farmer as the underdog.

Mr Baxter was supported by the Pastoralists and Graziers Association, which campaigned strongly for the introduction of GM canola in WA.

Mr Marsh had the support of high-profile law firm Slater & Gordon, which conducted Mr Marsh's trial as a "public interest case", and the Safe Food Foundation.

The West Australian

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