Court reserves judgement on GM appeal

25 Mar, 2015 05:45 AM
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Supreme Court of Western Australia.
There is clearly some controversy in some quarters about the appropriateness of genetic engineering
Supreme Court of Western Australia.

PRO and anti-GM lobbies were put on hold when the Western Australian Supreme Court reserved its decision on an appeal against a ruling in favour of a GM grower.

Kojonup farmers Michael Baxter and Steve Marsh are involved in a protracted legal dispute the result of which will have ramifications for the GM (genetically modified) industry throughout the world.

In court on Tuesday for the second day of the appeal, counsel for Mr Baxter argued his client effectively had no case to answer because of a lack of evidence that his canola crop contaminated Mr Marsh's organic wheat crop.

At one point, arguing against an assertion by Mr Marsh's counsel, former WA governor Malcolm McCusker, it was pointed out to the court that Mr Baxter had told Mr Marsh he was intending to grow GM canola and that Mr Marsh indicated he would then have to extend a buffer zone away from the crop.

Importantly, it was asserted that Mr Marsh did not tell Mr Baxter any contamination of his organic wheat crop would result in him becoming de-certified as an organic grower.

The bulk of the second day dealt with the meaning of wording in safety accreditation standards and ambiguities in the wordings.

Surprisingly, no evidence arose from Mr McCusker pointing to errors in fact by the original trial judge, a point Justice Carmel McClure twice reminded Mr McCusker of yesterday.

Attention was given to Mr Baxter's methodologies of swathing and the categories of loss suffered by Mr Marsh, including his contract as an organic grower and the de-certification of his land for growing organic crops.

Both counsels, almost painfully, reiterated to the three judges statements of fact in food safety standards and to references by the original trial judge.

The matter of GM contamination and implied fault became a matter of conjecture and interpretation by both counsels, with Justice McClure clearly frustrated at times.

She told the court the appeal had wide ramifications and was clearly conscious of the impact of a ruling.

"There is clearly some controversy in some quarters about the appropriateness of genetic engineering and the submission (from Mr Baxter's counsel) is hard to separate the value judgements (continued therein)," Justice McClure said.

"You're making value judgements on what all the fuss is about with genetically modified organisms."

At one stage she questioned Mr Baxter's counsel as to whether there was a suggestion of co-mingling from other sources that caused the contamination rather than the GM canola itself, to which counsel responded: "Yes".

Justice McClure gave no indication on how long it would be before a judgement on the appeal was made but she directed parties to be ready on Wednesday for the appeal hearing on costs.

Mr Marsh had originally sought $85,000 in damages and a permanent injunction against Mr Baxter.

Mr Marsh is now appealing the awarding of $803,989 costs against him from the first hearing.

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FarmWeekly
Ken Wilson

Ken Wilson

is Farm Weekly's machinery writer

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