High Court ends Marshes' GM legal bid

Mr Marsh applied for leave to appeal to the court last year after his case seeking damages from genetically modified (GM) canola grower and neighbour Mike Baxter was dismissed by the WA Court of Appeals.

On Friday, the court declined to hear the case and awarded costs to Mr Baxter, which is believed to be in the realm of millions of dollars.

Mr Marsh's case has been going since 2010 following the withdrawal of his organic certification after GM canola was found on his property.

No further legal options are available to him.

Outside court, Mr Marsh said he was disappointed with the outcome and would attempt to pick up the pieces of his farming business at home.

"The costs are huge obviously, we will try and do the best we can," he said.

"We're very disappointed.

"The cost of this and what has gone on that hasn't been seen, it's going to be extremely difficult.

"I will try and hang onto our farm, it's our business.

"I want to thank all those people who supported us because we wouldn't have been able to do what we've done."

Mr Marsh said if he had his time over again, he would not change his decision to legally pursue Mr Baxter.

"You've got to stand up for what you believe in," he said.

Meanwhile Mr Baxter, who was supported at the hearing by members of the Pastoralists and Graziers Association (PGA), said the right outcome was reached backing the previous court's decisions on the matter.

"I am most relieved, I want to thank Bryan Bradley and the associates, they've done a fantastic job," he said.

"It's been six years now, which could've been avoided and didn't need to get this far.

"We could've had a chat over the fence and be done with it."

Mr Baxter said it was business as usual for him on the property and he was looking forward to continuing life without the looming threat of court proceedings.

The battle between Mr Marsh and Mr Baxter began when about 70 per cent of Mr Marsh's organic farm was decertified when GM canola swathes were found in his organic wheat crop in late 2010.

The Marshes attempted to sue Mr Baxter for $85,000 compensation and to win a permanent injunction that would prevent him growing GM canola.

A two week trial was held in February 2013 in the WA Supreme Court with Justice Kenneth Martin ruling in Mr Baxter's favour, rejecting assertions GM canola was unsafe while dismissing both the Marshes' causes of action in common law negligence and private nuisance.

An appeal against the main judgement was scheduled for a hearing in March 2015, as was an appeal against an order for Mr Marsh to cover $804,000 of Mr Baxter's legal fees.

This was put on hold as the WA Supreme Court sought to determine if Mr Baxter's defence was supported by the PGA and Monsanto, which was later revealed to be the case.

The appeal was heard in September 2015 where Mr Marsh lost his case to a two-one majority judgement.

In October, the Marsh camp sought special leave to appeal the ruling in front of the High Court.

The High Court's decision not to grant an appeal hearing is binding.

PGA Western Graingrowers interim chairman Gary McGill said the right outcome had been reached and backed the group's decision to support Mr Baxter.

"This action taken by the supporters of Mr Marsh was all about trying to halt and curtail the advancement of this technology in WA which is vital to WA grain growers' profitability and success," he said.

"We saw that as equally as important as defending Mr Baxter.

"What's important for us as farmers is that now all new possible benefits on offer through this pathway are available."

Monsanto Australia's managing director Daniel Kruithoff said it was unfortunate that the neighbours and friends had ended up in court.

"The High Court's decision is a chance to move beyond this unfortunate legal dispute," he said.

"The decision reaffirms a farmer's right to choose how they grow their crops and that organic, conventional and GM crops can be successfully grown side-by-side in Australia.

"Local farmers have always relied upon innovation and co-operation to improve their competitiveness and sustainability and we should continue to encourage this."

He said Australia had 20 years of history in growing GM crops, with this technology being used worldwide and growers needed support to continue to compete at the same level as their international counterparts.

Mr Marsh was supported by many anti-GM groups both locally and around the country, most notably the Safe Food Foundation.

The advocacy group was behind a fundraising campaign for Mr Marsh and director Scott Kinnear said he and supporters were "deeply disappointed".

He said there were stiff odds based on the High Court's successful appeal numbers.

"It is frustrating the excellent decision by Justice McClure in the appeals court did not sway the decision in Mr Marsh's favour," Mr Kinnear said.

"The consequences for Steve and his capacity to farm without GM coming onto his farm is virtually nil.

"His neighbours can swathe the canola again if they want to.

"The organic industry as a whole now has to look at the consequence of how they enforce their standards."

Mr Kinnear said fundraising had been continuing with some money remaining in reserve, and he hoped the foundation could cover Mr Marsh's legal bills.

However, as the outcome of costs for the Supreme Court process remained to be decided, it was unlikely the group could cover these.

Gene Ethics director Bob Phelps said the outcome was a tragedy for Mr Marsh and organic growers.

"Steve Marsh deserved a High Court review and we are extremely disappointed by this rejection of his application for leave," Mr Phelps said.

"Carmel McClure, chief judge of the WA Court of Appeal, strongly backed Marsh's case for $85,000 compensation but two other judges disagreed with her so Marsh lost.

"Her incisive judgement offered good prospects for Marsh's appeal to succeed in the High Court, had it been heard.

"Our government (has) failed us again.

"When drafting the Gene Technology Act 2001, they said courts and the common law would settle claims of damage from GM contamination. "They haven't."

p Growers pressure Baston for GM Crops Free Areas Act repeal action. See page 8.