Marsh seeks High Court appeal on GM case result

15 Oct, 2015 01:00 AM
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Kojonup grower Stephen Marsh is seeking to appeal a September 3 rejection of his case in the High Court.
Kojonup grower Stephen Marsh is seeking to appeal a September 3 rejection of his case in the High Court.

IT could take more than six months for Kojonup grower Stephen Marsh's appeal to be heard by the High Court, but there is still no guarantee his case will reach this point.

The organic farmer has applied for special leave to appeal a ruling handed down on September 3, but the High Court judges decide whether to hear the appeal based on arguments by Mr Marsh's lawyers Slater and Gordon.

The decision made by the High Court, either in preliminary hearing stages or the official hearing, is binding.

This will end the case that has been in court since genetically modified (GM) canola crops blew over the fence from Mr Marsh's neighbour Michael Baxter's property in 2010 causing him to lose organic certification of more than 70 per cent of his land.

A ruling on September 3 upheld last year's decision of Justice Ken Martin which rejected Mr Marshes $85,000 compensation claim over losing the organic status.

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 GM.

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.

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 $2 million 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."

Mr Kinnear said there needed to be an outcome from Mr Marshes case which created a framework for GM growers and organic and non-GM growers to exist with rights to protect their interests.

"Steve is doing this because it's not only his own farm, but he has a strong appreciation for the broader interests of organic and non-GM growers and the need to establish a precedent," he said.

"Steve has a big heart and is looking at the public interest of this case and is taking a big risk.

"If the High Court uphold Justice McClure's decision (in favour of Mr Marsh in the September 3 ruling) then this will mean GM farmers owe a duty of care with this technology.

"It will mean if there are steps they can take to minimise contamination, then they will be held accountable for that.

"In the absence of any specific legislation, which is what should've taken place... this is the best outcome we can hope for."

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READER COMMENTS

boris
15/10/2015 7:16:12 AM, on Farm Weekly

The solution is for the organic certifying bodies to NOT de-certify an organic grower for an accidental incursion of a safe product. Simple and no framework needed!
fed up
8/12/2015 2:36:10 PM, on Farm Weekly

I think GM products should be clearly marked & identified to enable consumers make appropriate decision as I, for one, am opposed to eating GM. I think it's appalling decision makers don't consider what the consumer wants - this should have gone to referendum as it's getting Australian's are losing what few rights we have left. My deep sympathy is with the Marsh family whom I have great admiration for attempting to make a stand against disgusting bureaucracy & I wish them every success.

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