GM harvest method on trial

A trial that could have implications for the use of genetically modified crops in WA has been told that a farmer whose GM canola allegedly contaminated a neighbouring property was negligent.

On the first day of a landmark Supreme Court case, lawyers for Kojonup farmer Steve Marsh claimed Michael Baxter had failed in his duty of care to ensure his GM crop did not affect their client's property.

Mr Marsh's farm lost most of its certified organic status in 2010 after the alleged contamination and he is suing Mr Baxter in a move that has gained worldwide attention.

Mr Marsh is seeking about $85,000 in damages and a ban that indefinitely prevents Mr Baxter from planting and harvesting GM crops.

According to Richard Niall, the lawyer representing Mr Marsh, his client warned Mr Baxter in 2008 and 2010 about the risks and consequences of GM crops contaminating his farm.

Mr Niall said the warnings showed Mr Baxter must have understood his duty of care to Mr Marsh and, by extension, his liability in the event of GM contamination.

A key aspect of the case will hinge on whether the method used by Mr Baxter to harvest his GM canola was negligent.

Mr Baxter employed a harvesting technique known as "swathing", which involves piling crops into so-called wind rows to dry them out.

The technique differs from "direct heading", when crops are collected by a header and put straight into a grain bin.

Mr Niall said the difference was crucial because swathing materially increased the risk that GM canola seeds would be blown on to Mr Marsh's property.

He said direct heading would have been a "reasonable precaution" to avoid this, but Mr Baxter failed to take it.

Defence counsel Patricia Cahill argued Mr Baxter should not be liable for the loss of Mr Marsh's organic certification.

Ms Cahill said that under national standards and those of Mr Marsh's organic certifier, the National Association for Sustainable Agriculture Australia, his farm should not have been decertified.

She agreed with Justice Kenneth Martin that the standards had been "misapplied", suggesting NASAA had acted outside its powers, and claimed Mr Baxter did not have a case to answer.