LEGAL teams in the Marsh v Baxter case are remaining tight-lipped about the grounds of an upcoming appeal hearing.
In late May, the Supreme Court of Western Australia comprehensively awarded in favour of Kojonup farmer Michael Baxter in the landmark property rights case, after organic farmer Steve Marsh unsuccessfully sued his neighbour Mr Baxter for $85,000 in alleged damages.
Organic certification of 70 per cent of the Marshes' 478-hectare property was suspended in late 2010 due to the presence of genetically modified (GM) canola swathes.
Mr Marsh had also applied for a permanent injunction to stop Mr Baxter from planting GM canola crops within 1 kilometre of his farm or future swathing.
However, Justice Kenneth James Martin ruled overwhelmingly in favour of Mr Baxter, dismissing both the Marshes' causes of action in common law negligence and private nuisance.
“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,” the summary said.
However, Mr Marsh and his wife Sue announced in June they would appeal Justice Martin’s decision.
Court tight-lipped on grounds for appeal
It’s understood the appellant’s case – or the grounds of appeal – was lodged on Friday, July 25, but has not been made publicly accessible.
Last week, Fairfax Agricultural Media’s application to the Court of Appeal Office of the Supreme Court of Western Australia to have the appeal documents released was rejected.
Mr Marsh’s legal representatives, Slater & Gordon Lawyers, and Mr Baxter’s lawyer, Bradley Bayley Legal partner Brian Bradley, both declined to release the documents or comment on details of the appeal.
In a statement to Fairfax Agricultural Media, Slater & Gordon commercial litigation lawyer Mark Walter confirmed the grounds of appeal documents had been lodged in the Court of Appeal, Supreme Court of Western Australia, regarding the case of Marsh v Baxter.
He said further details of the appeal would be part of the court process and, “we will not be making any further comment before the hearing”.
Slater & Gordon also said Mr Marsh would not be making any further comment before the hearing, but was unaware whether Safe Food Foundation director Scott Kinnear would be speaking publicly.
Mr Kinnear has been a leading advocate for the Marshes' cause, highlighting fears of GM safety, and helped to raise about $750,000 to assist with his legal costs, while Slater & Gordon has acted pro bono.
Last week, Mr Kinnear told ABC radio Mr Marsh was appealing the judge’s decision because his lawyers had advised that he had good grounds for appeal and “it’s as simple as that”.
“Let’s remember that in Australia cases are overturned on appeal regularly and that’s the way our justice system has been designed,” he said.
“And a single-judge decision – which is the first decision that was handed down – is always open to interpretation differently by an appeal’s panel of three judges.”
Mr Kinnear said the grounds for appeal were based on either errors in law or errors in fact “but I’m not at liberty to go into the specifics of that”.
“To take the decision to appeal is something that’s not taken lightly - it adds additional expense and if Steve loses the appeal the costs order against him will increase by a significant amount,” he said.
“Steve is quite a unique and exceptional man standing up for the organic industry and he’s also a very principled man and he believes very strongly in his right to farm the way that he wants to farm.
“I think we should remember that the restraint, if he had of been successful on Mr Baxter, would have been very moderate; it would of really been very mild indeed in terms of taking reasonable steps to try and stop GM coming onto Steve’s farm.”
Industry body rallies behind Baxter
The Western Australian Pastoralists and Graziers Association grains committee has supported Mr Baxter, and his right to plant a safe legal crop, during the ongoing court ordeal which has also impacted heavily on the Kojonup farmer’s family and friends.
Speaking to ABC radio last week, PGA Western Graingrowers Committee chairman John Snooke said once the grounds of appeal were received, Mr Baxter and his legal team had 45 days to respond.
But Mr Snooke said no new evidence would be heard in the appeal process, which would see the full bench of the Court of Appeal review transcripts from the recent court case.
“Our understanding is no new evidence can be presented,” he said.
Mr Snooke said “one thing we do know” is that the grounds of appeal had nothing to do with the safety of GM crops.
He said both sides of the case had agreed that GM crops were safe, “so that is an important point for the canola growers of WA and Australia”.
But Mr Snooke said: “We’re mystified that Steve Marsh would appeal”.
“We say that because he did not appeal the original decertification of his organic status, yet today, after a long drawn-out court case, he’s appealing the judge’s decision, so we’re as curious as anyone on the grounds of appeal,” he said.
Mr Snooke said he had no concerns about the decision being overturned because the original verdict was “very thorough”.
“I’m not going to predetermine any outcome of an appeal (but) what I would say is Steve Marsh has a right to an appeal and we respect that,” he said.
Mr Snooke said the PGA viewed the organic standards underpinning the case as “the remedy” and when you read the verdict “that’s where the remedy of this situation lies”.
“The organic association only has to interpret its own standards correctly and it should not decertify growers for unintended or accidental incursions of anything,” he said.
Mr Snooke said his indication was the appeal process would all be concluded “reasonably quickly” given the case had being going on for a number of years.
“For everyone’s benefit it’s time this case was resolved and we can just get on with the business of growing GM or non-GM canola on our farms,” he said.