Court Lawyers NSW

Part 2: Sowing the Seeds – WA Organic Farmer Appeals Landmark Decision (Part 1)

West Australian organic farmer, Steve Marsh, has appealed a landmark decision by the WA Supreme Court that ruled against him on 28 May 2014 in relation to a dispute between Marsh and his former friend and neighbor, Michael Baxter.

Mr Marsh had sued fellow farmer, Baxter, alleging that Baxter contaminated his farm with genetically modified canola that drifted onto his land from Baxter’s property. Marsh claimed that, as a result, he lost organic certification on more than half his oats, rye and sheep farming property.

After a three-week hearing earlier this year, Supreme Court Justice Kenneth Martin reserved his decision, and finally delivered his findings on 28 May 2014 in favour of Mr Baxter.

The Court concluded that although Mr Marsh and his wife brought an action in common law negligence (involving the breach of a duty to ensure there was no escape of GM material) as well as a private nuisance tort claim, they claimed only financial loss and could not prove that the canola swathes were harmful to animals, people or the land.

“They did not claim to have suffered any physical damage or injury to themselves, to their animals or to their land at Eagle Rest,” he said.

Justice Martin said that Mr Marsh failed to show that there had been “any reasonable interference” by Mr Baxter, who he said 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.

“Nor could Mr Baxter be held responsible, in law, for the reactions to the incursion of the Marshes’ organic certification body, NCO, which in the circumstances presented to be an unjustifiable reaction to what occurred.”

Mr Marsh, represented pro bono by his law firm, is fighting back.

At the eleventh hour, Marsh has decided to appeal the decision to the Court of Appeal.

In a written statement, Mark Walter, lawyer for Mr Marsh, noted that the “details of the grounds for appeal will be filed with the Court in due course.”

Stay tuned for further developments on the feuding farmers and the basis of the appeal.


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