Trial dates set for GM row

Kate PollardThe West Australian

A trial for two neighbours embroiled in Australia's first genetically modified canola contamination case has been set for February 10 in the WA Supreme Court.

Justice Kenneth Martin has allocated three weeks for the trial if mediation in December fails.

The case will test common law rights of competing land use and compensation after organic grower Stephen Marsh alleged in December 2010 that GM canola from neighbour Mick Baxter's farm contaminated his land and caused the loss of his organic status.

It wasn't until April 2012 that Mr Marsh's lawyers, Slater and Gordon, lodged a writ in the WA Supreme Court seeking damages and a permanent injunction to protect against future contamination.

Slater and Gordon practice group leader Mark Walter said the case would apply the principles of negligence and nuisance to a new set of facts not dealt with before by the court.

"This is no different to a crop overspray case where a technology has emerged and the court has to consider the respective rights of the joining farmers, where one has allegedly suffered loss as a result of the conduct of the other," he said.

While spraying crops with registered and authorised products is legal, the court system has found harm can be caused to neighbours resulting in economic loss. The use of GM canola is also legal.

But Mr Walter said if the GM canola did spread from the Baxter property to the Marsh property, it had caused harm and loss.

"The significance of this case is because it's a new technology, as far as we can tell in this country, the court hasn't considered whether those losses be compensated," he said.

The amount of compensation sought will be ongoing, Mr Walter said, until the Marsh farm was "back to where it ought to have been. Until then, it's still suffering losses."

Mr Walter also believes up to 20 expert witnesses for both sides could be called for the trial and said court action could be avoided if more appropriate buffer zones or a compensation scheme were in place.

Lobby groups like the Pastoralists and Graziers Association, along with Monsanto, believe the problem lies with organic bodies that have in place zero-tolerance standards which they say are unrealistic and impossible.

Brian Bayly, from Bradley Bayly Legal representing Mr Baxter, said his client was pleased a date had been set so the issue could be resolved.

Mr Bayly said the court had only recently been asked to set a trial date. "To get a trial in February 2014 is relatively quick and the court has done that to try and have the matter resolved before the next crop planting season," he said.

But court documents filed earlier, during a failed attempt to prevent Mr Baxter from planting GM canola again, showed Justice Martin criticising Slater and Gordon for pursuing the action "at a rather leisurely pace".

If a trial goes ahead, it's likely to cost more than $100,000.

Mr Marsh's legal fees are covered by Slater and Gordon which is acting in a pro bono capacity with the Safe Food Foundation contributing to disbursement costs such as expert witness fees.

Mr Bayly wouldn't disclose how the Baxter case was being funded but said, generally, litigation was stressful for clients and Mr Baxter was holding up well.

Since the WA Government gave growers approval for GM canola in 2010, the planting area has almost tripled to 209,000ha. This year, Monsanto said WA growers purchased a record 416 tonnes of Roundup Ready seed with a 38 per cent growth in sales compared to 22 per cent nationally.

The company attributes the growth to high-performing varieties that combat weeds and have higher yields and oil content, the reopening of the China market, lower premiums for non-GM canola and increased confidence in the technology.

Roundup ready canola plantings in WA *

·2010 - 73,000ha

·2011 - 91,000ha

·2012 - 116,000ha

·2013 - 209,000ha

Get the latest news from in your inbox.

Sign up for our emails