(16.02.2016) GM Contamination Case: Farmer refused Leave to Appeal

Steve Marsh operated an organically certified farm. The farm lost its certification after it was contaminated with genetically modified canola seeds which blew onto it from a neighbouring property. Mr Marsh’s legal battle against his neighbour, Michael Baxter, has now finally come to an end after the High Court of Australia refused his application for leave to appeal against a decision of the Western Australian Supreme Court.

Decision of Supreme Court & Appeals

high-court-of-australia-300x170Before the Supreme Court, Mr Marsh argued that Mr Baxter had been negligent in the way in which he had conducted his farming operations, namely by growing and “swathing” his genetically modified canola crop.

He argued that “swathing” (a process by which a crop is cut and placed in rows), as opposed to taking seeds directly using a header, created a foreseeable risk of harm. He claimed $85,000.00 because, he alleged, Mr Baxter’s negligence had caused contamination to his farm and ultimately the loss of his organic certification.

The Court dismissed Mr Marsh’s claim. In his written Judgment, His Honour Justice Martin, stated that “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 in its implementation.”

The Court of Appeal, by a 2:1 majority, dismissed Mr Marsh’s appeal against Justice Martin’s decision. The High Court, consisting of their Honours French CJ and Kiefel & Gordon JJ, were similarly not prepared to grant special leave for Mr Marsh to appeal.

Monsanto & SFF and Comments by Baxter & Marsh

Over the course of the parties’ legal battle it was revealed that Monsanto, an agricultural biotechnical company responsible for the production of strains of genetically modified conola, had heavily contributed to Mr Baxter’s legal costs.

In response, Mr Marsh had received funding from the “Safe Food Foundation & Institute”, a not-for-profit organisation, advocating against what it alleged were potentially unsafe agricultural technologies, such as genetically modified food.

It was reported by the ABC that Mr Baxter told the press, following the High Court’s decision, “like I said last time I came out of the court, it could have been avoided, [myself and Marsh] could have had a chat over the fence and this should have never got this far”.

Mr Marsh, who described the case as “extraordinary”, was reported by the ABC as saying “we lost our income, practically half our growing income for three years, but it appears that we can’t claim compensation for that, it’s extraordinary. Organic farming is growing. Our case may be the first, but I don’t believe it will be the last”.

Effect of Decision

The main contention between the parties was whether the farming practices adopted by Mr Baxter created a foreseeable risk of harm. As noted by Mr Marsh’s legal team before the High Court, Mr Baxter was twice placed on notice of the risk of contamination from certain harvesting techniques, including swathing.

It should also be noted that the High Court did not, it would seem, dismiss Mr Marsh’s application because it lacked sufficient prospects of success, but rather because the application “did not provide a suitable vehicle for the determination of the question of principle which [Mr Marsh sought] to raise”.

Mr Marsh may well be correct then that his case may be the first, but not the last.

The effect of the decision therefore appears to be that, for the time being, farmers who adopt conventional farming practices, such as swathing, cannot be held liable for such practices. However, should a farmer be put on notice of the risks of certain farming technique/s, and the potential for damage to be caused as a consequence of the technique/s, they should seek legal advice about the effect (if any) of such a notice on their farming operations.

Do you require legal advice about this, or a related, issue? Contact our office for an appointment today on (07) 4616 9600, or via our contact page.