Kojonup GM case appeal filed

06 Oct, 2015 02:41 PM
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Stephen Marsh
Stephen Marsh

UPDATED: THE High Court of Australia has confirmed an application for special leave to appeal has been lodged by Stephen Marsh's lawyers Slater and Gordon.

Slater and Gordon say the application was lodged last Thursday, within the 28-day appeal period.

Farm Weekly believes Mr Marsh's neighbour Michael Baxter was not notified of the application until Tuesday morning.

Slater and Gordon commercial litigation lawyer Mark Walter said: "An application for special leave to appeal has been filed with the High Court of Australia regarding the case of Marsh v Baxter. Further details of the appeal will be part of the court process. We will not be making any further comment."

A ruling on September 3 upheld last year's decision of Justice Ken Martin which rejected their $85,000 compensation claim over losing their organic status when GM canola swathes landed on the WA organic sheep and grain farm in late 2010.

The Appeal Court's majority 2-1 decision rejected the appeal against Justice Martin's comprehensive 150-page judgement which had roundly dismissed the Marshes' causes of action in common law negligence and private nuisance.

"It was obviously a two-one decision so they weren't all against us," Mr Marsh told media outside the court after last month's ruling.

About 70 per cent of Mr Marsh's farm was decertified by the National Association of Sustainable Agriculture Australia (NASAA) which has a zero tolerance for GMs.

Despite the original ruling which attacked the zero-tolerance to GM and the appeal court decision - NASAA has stated it won't budge on its zero tolerance for GM plants.

Farming and industry groups have also criticised NASAA's hard-line stance on GMs while urging greater coexistence and tolerance between conventional and organic farmers.

Earlier this week prior to hearing of the application , Mr Baxter told Farm Weekly that he or his lawyers had not been served with any relevant documents.

"I hope that's the end of it," he said.

After the Appeal Court ruling, Queensland agribusiness layer Trent Thorne said if the Marsh camp wished to appeal the decision, the matter wasn't automatically sent to a hearing, with the first step being to seek special leave from the High Court.

He said that special leave could be based on whether there was something novel in law with the case that made it sufficiently important for the High Court to consider the matter.

The Marshes had also appealed Justice Martin's judgement which awarded costs of about $804,000 in Mr Baxter's favour.

Safe Food Foundation director Scott Kinnear said the foundation would continue to support Mr Marsh with fundraising and was pleased he had made the decision to move on with the High Court bid.

"Fundraising is our support and that's a big job as this litigation has been ridiculously expensive and we still don't have a result," he said.

"It is very disappointing that we've gone to the second highest court in Australia and there's two judgements... they're equal and opposite to each other in many ways.

"There's been more than $2m in lawyers' money spent and there's two completely opposite interpretations of the law and how it should be applied.

"That's why it's important that the High Court see fit to hear this appeal."

In an earlier version of this story, it said that the appeal application was not filed before the 28-day deadline. Slater and Gordon say the appeal application was lodged within the deadline, on Thursday, October 1.

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READER COMMENTS

Mug
7/10/2015 6:31:23 AM, on Stock Journal

What a mess trying to sort out a situation that should not have happened in the first place. If some industry leaders / politicians had got together early on this would have been resolved at low cost. Now there are no winners-----except to the legal profession.
Mischa Popoff
7/10/2015 7:52:48 AM, on Farm Weekly

There is no such thing as contamination of an organic crop by GMOs in Australia, same as in America, Canada and India. Sure, the Europeans yammer on about GMO contamination all the time, but they're no longer able to feed themselves any more, and are forced to import vast amounts of GMO product from Australia, America, Canada and India. Go figure. Right?
THE FARMER
7/10/2015 1:15:42 PM, on Farm Weekly

How many times do they need to lose before they learn?
Fran Murrell
7/10/2015 2:24:21 PM, on Farm Weekly

It is ridiculous that GM has been allowed to contaminate an organic farm with absolutely no consequences. There is strong market rejection of GM crops and increasing evidence of their harm. The judgement, as it now stands, removes the right of all non-GM farmers, whether conventional, organic or bio-dynamic, to safely provide for their customers. It is urgent that the appeal is held. GM companies must be held accountable for their technology.
Bob Phelps
7/10/2015 2:47:49 PM, on Farm Weekly

Yes, Mug. Federal Ag Dept. notes: "When drafting the Gene Technology Act 2000, the legislature considered liability issues associated with GMOs & chose not to implement a specific liability regime for damage caused by GMOs. ... where the activities of one farmer affect a neighbour, recourse is to existing statute and common law." All non-GM growers need a Farmer Protection Fund, created & topped up with a $1/kg levy on all GM seed sales, so automatic payouts are made for economic loss and harm from GM contamination. All farmers would have protection & the GM industry would pay. Fair's fair.
boris
7/10/2015 4:12:28 PM, on Farm Weekly

Na, you got it wrong Mug. Baxter won and convincingly! It's just people like you are unable to accept that, when they claim no-one won. And fancy believing a politician can solve this when it was politicians that rightfully approved gm canola but it's determined anti-gm, anti-farming groups that want it banned. The Supreme Court solved the problem, as the high court will in favour of Baxter again, in my opinion. If you read the verdicts you might progress your limited understanding of the issue...just maybe.
Mug
8/10/2015 5:43:27 AM, on Stock Journal

Boris let me explain. With the current situation you are able to let escaping pollen from your crop fertilise my crop and thus spoil my sale. Not only that, but you can also sue me because my crop now contains genes owned by you. It is quite ridiculous. Currently if by my careless action my poorly bred rams impregnate your stud ewes you can sue me.---and rightly so. Now do you understand ? On another level I am not prepared to capitulate to big brother telling me what I can do-----AND pay him for the privilege. All the above has nothing to do with health. Separate issue.
John Newton
8/10/2015 6:06:03 AM, on The Land

Good luck Steve.
Lazza
8/10/2015 6:41:01 AM, on The Land

Mug, your GM growing neighbour cannot and will not sue you if a gene from his crop enters your seed via cross pollination. Where did you get this ludicrous idea from? Now if you were to spray roundup on strip of your conventional canola next to you neighbours GM and collect the seed from your survivors and use it to plant a crop, that would be stealing and you would be prosecuted. Its that simple. follow the law and you will be ok.
lazza
8/10/2015 7:29:16 AM, on The Land

Phelpsie, the Aussie Archbishop of Anti-GM, says "the GM industry would pay". There is no "GM industry", just a diverse grains industry made up of farmers attempting to use all legal cropping technologies and new developments available to produce food and make a living.
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