Organic farmer loses GM appeal

Brad ThompsonThe West Australian
Kojonup organic grower Steve Marsh, failed in his appeal.
Camera IconKojonup organic grower Steve Marsh, failed in his appeal. Credit: Danella Bevis/Countryman

Organic farmer Steve Marsh has suffered a major defeat in a landmark legal battle over the growing of genetically modified canola in WA.

Mr Marsh and his supporters were devastated today when the Supreme Court upheld an earlier ruling dismissing his $85,000 damages claim against GM canola-growing neighbour Mike Baxter.

In a split decision, the three appeal court judges rejected claims that Mr Marsh lost organic certification on most of his farm near Kojonup in 2010 because it was contaminated with GM canola which blew over the fence from Mr Baxter's property.

Mr Marsh sued his childhood friend in a case that has attracted worldwide attention and which has implications for the State Government's plans to repeal laws allowing it to prevent the growing of GM crops approved by Commonwealth authorities.

Former WA governor Malcolm McCusker, who represented Mr Marsh, told the appeal court in March that the case had nothing to do with the safety of growing GM crops and was about whether different systems of agriculture could co-exist.

Justice's Ken Martin's original conclusion in a judgment handed down last year that GM canola did not pose an environmental or food safety risk was not contested.

Today's appeal court ruling came as a huge blow for Mr Marsh and his wife Susan who faced the loss of their farm and had an $804,000 order to pay Mr Baxter's legal costs hanging over their heads.

Earlier this year, the appeal judges imposed a stay on the costs order. They also forced Monsanto, which collects royalties from the sale of GM canola, to reveal its financial contribution to Mr Baxter's legal costs.

Mr Marsh has also received considerable financial support with the Safe Food Foundation claiming to have raised at least $750,000 toward his legal costs and high-profile legal firm Slater and Gordon acting pro bono.

The appeal court granted leave for lawyers acting for Mr Marsh to file submissions on the lifting of the stay order on costs.

Speaking outside the court, Mr Marsh said he would consider the judgment with his legal team before deciding whether to try to continue fighting case in the High Court.

Surrounded by a group of about 20 supporters, Mr Marsh said he was bracing for the loss of his farm if the costs order went against him.

Safe Food Foundation director Scott Kinnear said the group would try to raise more funds to save the Marsh farm and possibly pursue the case in the High Court.

Mr Baxter said it was always sad to see someone faced with losing a farm, but criticised Mr Marsh's decision to take a hardline approach in the courts.

"This should never have been in court," he said. "It should have been sorted out with a chat over the fence and a few beers."

Justices Graeme Murphy and David Newnes published a judgment rejecting Mr Marsh's appeal.

In a dissenting judgment, Justice Carmel McClure upheld the ground for appeal.

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