JUSTICE Ken Martin’s decision to award Mike Baxter victory over his organic neighbour Steve Marsh has disproven the pro-organic lobby’s key fundraising mantra of a David and Goliath battle against genetically modified (GM) crops.
Last week, the Western Australian Supreme Court comprehensively rejected Mr Marsh’s claims for $85,000 in alleged damages from the loss of his organic certification and application for a permanent injunction to stop his neighbour growing or swathing GM canola.
Mr Marsh has declined to comment on the court’s landmark decision, while his lawyers have made a brief statement saying they’ll review the judgment in detail before deciding whether to appeal within the 21 day limit.
Speaking to Fairfax Agricultural Media exclusively about the three and a half year ordeal, Bradley Bayley Legal partner Brian Bradley said the general public was led to believe Mr Marsh was the David and his client Mr Baxter was the Goliath.
But the opposite proved true when the decision was ultimately handed down in the unprecedented legal battle which pitted farmer against farmer for the first time anywhere in the world, over GMs.
Mr Bradley said Mr Baxter also viewed himself as having been “demonised” during the lengthy and emotional conflict, in the court of public opinion.
“Michael Baxter was the David - he was the one under attack - but he wasn’t firing back and was unable to (fire back) really because a case was running,” he said.
“He had to sit back and virtually suffer in silence while this campaign against him was being run.
“Fortunately he had great support in the Kojonup community, from the vast majority of the farming community there and a lot of moral support from other quarters.”
Leading up to the two week trial in February, Mr Bradley said there was an enormous amount of publicity surrounding the case especially on the Safe Food Foundation’s website, at public rallies organised by Marsh supporters and through public statements from Mr Marsh’s lawyers Slater & Gordon.
But whilst all that was going on, Mr Baxter was advised to not make any public comment or keep it to a bare minimum because a legal case was before the courts.
“That was the stance and Mike Baxter took that advice so he had to sit back and endure this orchestrated campaign that seemed to be coming largely from the Safe Food Foundation,” Mr Bradley said.
“You only have to look at their website that they were raising money to fund Mr Marsh’s case.
“They raised something like $700,000 and they’re still trying to raise another $50,000 to meet the balance of his costs.”
In the end, Mr Bradley said the judge’s decision provided great relief to Mr Baxter who was exonerated and proven right, despite the “great propaganda campaign that was being conducted”.
“I’m sure Mike Baxter had doubts about his own position, until that judgment was handed down,” he said.
Mr Bradley started representing Mr Baxter after he received correspondence from Mr Marsh’s first lawyer Richard Huston in early 2011 which alleged GM canola had “contaminated” the organic Eagle Rest farm and foreshadowing a claim in legal damages.
“It was a lengthy prolix letter but I don’t know if the damages were quantified,” Mr Bradley said.
“We sent back a brief response saying any claim would be denied.”
The case then stood still for almost another year before Slater & Gordon issued a writ to Mr Baxter.
Mr Huston gave a radio interview in early 2011 on ABC rural radio where he repeatedly used the word “contamination” and described the presence of GM swaths found on his client’s organic farm as being “substantial” and “immediate”.
He warned of the potential spread of the canola seeds which he compared to the tiny coloured confectionary hundreds-and-thousands which are sprinkled on top of cakes or ice-cream.
“The extent of the contamination was absolutely massive,” Mr Huston said.
He also claimed Mr Marsh could be decertified for up to 20 years, the estimated life of a canola seed, costing potentially millions of dollars due to losing his organic certification.
Sources close to the case have said they felt it was originally an attempted “shake-down” to see whether Mr Baxter would cave into pressure and accept an out of court settlement.
They believe the Baxters were targeted as a potential “weak-link” by anti-GM campaigners who opposed the WA government’s decision to relax regulations that allowed commercial production of GM canola in 2010.
But with help from the backing of the WA Pastoralists and Graziers Association, the Baxters stood up and took on the fight, believing they’d done nothing wrong.
That stance was seen as critical to avoiding a potentially irreversible legal precedent against GMs which may have also sparked further regulation around the crop’s commercial production in Australia.
In the end, the summary of the judgment said just eight GM canola plants were found to have grown up as self-sown volunteer plants on Eagle Rest in 2011; a far cry from the Orwellian scene painted by Mr Huston on ABC radio.
“They were identified and pulled out,” the judgment said.
“No more volunteer RR canola plants grew on Eagle Rest in subsequent years.”
The judgment said 70 per cent of Mr Marsh’s farm was decertified by his organic certifier the National Association for Sustainable Agriculture Australia (NASAA) from December 29, 2010.
“The Marshes were denied the right, as organic operators in the period between December 2011 and October 2013, to apply the 'NASAA Certified Organic' label to their organically grown crops or produce from decertified paddocks,” it said.
The decertification was sparked by NASAA’s zero tolerance to GM material.
But the judgment said there was no evidence at the trial of any genetic transference risks posed by the RR canola swathes blown into Eagle Rest at the end of 2010.
Regardless of the facts, high profile chefs and popular figures like surfer Mick Fanning added celebrity punch to a substantial and unashamed public fundraising campaign backing the Marsh cause, alleging the organic farmer was set to go broke and lose millions.
That crusade claimed Mr Marsh was the victim, the little man, fighting against the multinational giant Monsanto, the patent holder for GM canola, while standing up for consumers’ rights to eat safe food.
Mr Marsh was publically portrayed as the giant slayer David with backing from the Safe Food Foundation and anti-GM politicians and green groups, to boost fundraising efforts.
However, Mr Bradley said Monsanto wasn’t a party to the case and had no role in the running of the defence.
Ironically it was the large, publicly listed law firm Slater & Gordon Lawyers who acted pro-bono for the organic farmer, seizing on the potentially lucrative opportunity of future farmer on farmer legal claims.
Another intriguing aspect of the David & Goliath proposition was Slater & Gordon’s Richard Niall who acted as Mr Marsh’s legal counsel during the February trial.
The well groomed, articulate lawyer was a big player in the controversial 2011 High Court case that challenged the legality of the Labor government’s plans, under then Prime Minister Julia Gillard, to send asylum seekers off-shore to Malaysia.
The law was used wisely on that well-celebrated occasion to establish the government’s policy proposal was illegal which sparked a legal victory that helped protect the rights of vulnerable refugees.
But in contrast, the human face of Mr Baxter and his three teenage boys and wife Zanthe, and the reality of being the true legal targets, was virtually forgotten.
Zanthe declined to comment to Fairfax Agricultural Media following last week’s decision but Mr Baxter said the trial was a contributing factor to their marriage ending.
The Baxters have also spoken about the trial’s emotional impacts on their three boys in particular with their youngest Codey asking if they’d lose the family farm over the trial.
They also discovered they were going to be sued by their life-long neighbour and distant relative by marriage through media reports, which crashed the serenity of their Christmas celebrations and haunted their family holidays in 2010/11.
They then had to endure ongoing media reports and stories underpinned by calls to donate money to the Steve Marsh Benefit Fund which made little or no mention of the true legal battle.
Mr Bradley declined to comment on how Slater & Gordon handled the legal challenge but described them as “a big legal machine with enormous resources”.
He said Slater & Gordon were renowned for running class actions where “they’ve been very successful over the years”.
“Mr Marsh had very, very high powered legal representation in this case but the fact that he lost the case has nothing to do with the way that his case was presented,” he said.
“He lost the case because the facts, and the truth and the evidence came out and on these facts and evidence, he could not win.”
Mr Bradley said in comparison, his was a small to medium sized legal firm that “flies under the radar and deliberately keeps a low profile”.
They don’t advertise but gain a lot of work by referrals from senior barristers and high powered members of the legal community and from other law firms, he said.
Mr Bradley is a softly spoken lawyer with a passion for horse racing and hails from a farming background.
He said he has limited experience with handling agricultural clients but if he had any specialty legal area it was in aviation and air crashes.
Mr Bradley said he observed Mr Baxter’s character up close during the past three and a half years, handling the extreme and constant pressures placed on him and his family by the trial, and believed he was “a person of great integrity”.
“I’ve got to know Michael Baxter very well over the past three years and he’s a typical Australian farmer who’s as honest as they day is long,” he said.
“He’s an intelligent, well balanced, fair minded man and I’ve found him to be a person of great integrity.”
Mr Bradley was critical of the pro-Marsh supporters who stood in the streets on the opening day of the trial “conducting a political rally on the door steps of the court when a trial’s about to start”.
“You just wonder; what did they hope to achieve?” he said.
“Did they think it was going to influence the court?
“To me it just seems grossly improper to have people demonstrating when a trial is about to commence in a country that’s renowned for the integrity of its courts and its judges.
“Australia’s very lucky to have such a fine reputation for the integrity in the administration of justice, particularly by the courts.”
And after last week’s judgment was handed down, about 30 protesters carrying placards supporting Mr Marsh vented displeasure at the decision, shouting various slogans including, “corruption, greed and shame on you”.
Mr Bradley said he found that behaviour and the words emanating form the chanting protesters “deplorable”.
“As we were leaving the court house, Michael Baxter asked me if it would be all-right if he spoke to the media and answered a few questions and made a few brief statements, so I said yes,” he said.
“There was a throng of media there poking microphones, asking questions of Michael and he was answering them.
“But then this big swarm of pro-Marsh supporters came and surrounded us at our backs and were yelling ‘shame and corruption’.
“It got to the point where the noise was so loud Michael could not hear what the reporters were asking him and they could not hear him, so I just said ‘we may as well go, let’s get put of here’.”
Mr Bradley said the pro-Marsh supporters “downed out” Mr Baxter’s words despite the fact he had hardly spoken to the media since the ordeal started.
He said some of the protesters used language that was not only insulting to Mr Baxter, but was also insulting to the courts and the judicial process.
“There was only a few who were uttering those comments to be fair but that’s disgraceful conduct,” he said.
Mr Bradley said he read a letter to the editor in The West Australian the day after the judge’s decision was handed down and was dismayed it still said Mr Marsh’s crop was “contaminated” by GM canola.
But he said that was “exactly what the judge found did not happen”.
“There was no contamination of the crop, the sheep or the land,” he said.
Mr Bradley said he believed many people in the organic lobby had “almost a religious fervour about organics”.
“It’s like a religious belief that’s not founded on any logic or any science,” he said.
“And what happened in this case, the NASAA officials, when they were assessing what happened here, they did not apply science.
“They did not apply a fair and objective reading of the NASAA standards.
“They seemed to have applied a philosophical, religious belief to the presence of GM canola on Eagle Rest, in reaching their decision to decertify the farm.
“(But) The NASAA standards are not law – they don’t form part of the law – they do form part of the contract between the organic grower and NASAA, the certifying organisation.
“What the NASAA people seem to believe is that they can reach, through the standards, an agreement with an organic grower that not only binds the organic grower to comply with those standards, but also binds the neighbour over the fence that has nothing to do with organic farming.
“But contracts don’t work like that; a contract does not bind a third party, someone who’s not a party to the contract.
“The point is; there’s no need for NASAA to change its standards because what the judge has said here is that Mr Marsh should not have been decertified.
“It follows that if the same thing happens again, NASAA should not decertify the organic farmer because there was no evidence that the GM canola got into the grain that Mr Marsh harvested, or into the sheep that were on the land and so on.
“The organic produce produced by Mr Marsh was as organic as it’s ever been.”
Some analysts have claimed Mr Marsh should have sued his organic certifier and not Mr Baxter.
But Mr Bradley said “that was for him and his legal advisers to consider at the time and they obviously chose not to go that way”.
However, he said NASAA’s decertification decision was “wrong” because they “misread their own standards and misapplied them”.
“They decertified Mr Marsh when they should not have decertified him, but Mr Marsh did not seem to do anything to oppose NASAA in the decertification decision or to make submissions to NASAA so say, ‘look, I should not be decertified’,” he said.
“You would expect somebody to do that, a farmer to do that and say, ‘Why are you decertifying me or should you be decertifying me?’
“That question doesn’t seem to have been raised between Mr Marsh and NASAA.
“It looked like they treated it as a foregone conclusion from the moment the swaths were observed on Eagle Rest.”
Mr Bradley said any person who was “reasonably intelligent, objective and fair minded” could now read the judge’s full 150 page statement and follow how each of the key legal points were addressed.
He said those people may be potentially swayed in their views about GMs or learn more about the technology and property rights laws.
But he said “the people whose minds are closed and choose to rely on pseudo science and unscientific studies for a belief that GM food is harmful they’ll never be convinced by this judgment – or anything else”.
Some people will never change their minds “because they won’t convert from their religion”, he said.
But Mr Bradley said the judge’s decision was also instructive for organic farmers and showed they can live with a GM farmer alongside them.
As long as their certifying body applies the organic standards correctly, they will have nothing to worry about, he said.
“GM canola can not impart its genetic material into oats, wheat, barley or any organic crop – it’s physically and scientifically impossible,” he said.
“It is clear from this case that Michael Baxter complied with all of the guidelines for growing RR canola.
“He had more than the correct buffer zones, he followed to the letter, his agreement with Monsanto, so the lesson for farmers growing RR canola, is comply with the Monsanto guidelines and you won’t get into trouble.
“And also the lesson from the case, the judge has found on evidence that GM canola is harmless, it’s not harmful to plants, to animals to humans or the land.”
Mr Bradley said there was one final point about the case that had to be stressed.
He said if the safety of GMs and GM foods were so critical to the Marsh case, why didn’t Slater & Gordon call up an expert scientific witness, to testify at the trial, and support that claim.
He said in contrast, the defence team called on Dr Patrick Rudelsheim from Belgium to testify that GMs were in fact safe and the court accepted that testimony.
“If the stuff the SFF say on their website about GMs is true you’d have expected an expert scientific witness would have been called but one wasn’t and you’d really have to ask why,” he said.