Defendant Baxter wins GM canola "contamination" case in Western Australia.

News from No Till Bill and Colin Bettles on Twitter is that the defendant Baxter won the case bought by Steve Marsh in the Supreme Court of Western Australia.

A decision in the controversial Western Australian Supreme Court case between neighbouring Kojonup farmers Michael Baxter (grower of GM-canola) and Steve Marsh (organic grower who had been decertified), was handed down by Justice Kenneth James Martin at 2pm Perth time

Summary Press release from the court here (pdf)

Longer Court documents on decision here (pdf)

Court papers here @ Recent Judgments:

ABC News item here

Further updates will appear at this GMO Pundit post.

From the decision:

Kenneth Martin J To that first question, it must be recorded at an early point in these reasons that there was no evidence at all adduced at this trial of any physical dangers, toxicity or risks of harm to persons, animals or property, by reason of contact with GM canola (or RR canola specifically) from  Sevenoaks.To that issue, Professor Van Acker had been asked by the plaintiffs' solicitors, on 19 October 2012: 

Is the existence and extent of any risks to human health or the environment from GM crops presently a matter of debate amongst relevantly qualified scientists? (ts 478 - 479)

 Professor Van Acker disclosed under cross-examination that he did not answer that question in his reports - see:

Yes, I do recall that question and, again, I didn't answer that question in my report.

 Were you asked by Slater & Gordon not to answer it?---I think I said that I wouldn't answer that (ts 479).

Then there are these sardonic gems:

Kenneth Martin J 336. Sixth, there is, on the current state of the law, a real conceptual problem for a common law negligence action seeking the recovery of purely financial loss, even for a foreseeable financial harm, in the ordinary  course. In Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 [6] Gleeson CJ (referring to Perre v Apand Pty Ltd [4] - [5]) explained the problem this way:

One of the reasons for the rejection of a general rule that one person owes to another a duty of care not to cause reasonably foreseeable financial harm is that the practical consequence of such a rule would be to impose an intolerable burden upon business and private activity. Furthermore, such a rule would interfere with freedoms, controls and limitations established by common law and statute in various contexts. Unscientific as may be the distinction between 'pure economic loss', 'parasitic economic loss' and 'damaged property', the care which the law requires people to show for the person or property of others is not matched by a corresponding requirement to have regard to their financial interests. The distinction is not based on science or logic; it is pragmatic, none the worse for that.

Kenneth Martin J 339 Seventh and correlatively, par 35(ii) as framed, looks to elevate the duty of reasonable care applied to Mr Baxter (by the word 'ensure') to the avoidance for the plaintiffs of economic losses, up to a level akin to that of an underwriter. This, I would assess, is unprecedented, as regards an economic claim.

Unseen hands at work: 

Kenneth Martin J 404 Moving to 2010, by exhibit 5(a), par 52 Mr Marsh relates how he hand delivered a notice document to Mr Baxter, at about 1 October 2010. The notice document set out a number of financial losses Mr Marsh foreshadowed he may suffer, should Eagle Rest become 'contaminated' by GMOs. Of course at that time Mr Baxter's GM canola crop was already growing in two paddocks of Sevenoaks and would soon be ready for harvesting.
405 Mr Marsh says that at this time he also gave Mr Baxter a copy of parts of the NASAA standards, in particular s 3.2 concerning the prohibitions against GM material. There is no real disagreement of substance about this.
406 There appears little disagreement that the notice document was handed by Mr Marsh to Mr Baxter. Mr Baxter's evidence was it was given to him by Mr Marsh on the Glenorchy South Road, not faxed. That is my finding.
407 The document is at TB Vol 1, pages 246 to 252. It carries a heading Notice of Intention to Take Legal Action and is dated 29 September 2010 (see [96] - [100] above).
408 The notice is a longish document, the last two pages of which contain photocopies of what can be, uncontroversially, identified as part of the NASAA Standards dealing with GMOs, containing the general principles, recommendations and the NASAA Standards 3.2.1 through 3.2.12.
409 As mentioned, by early October 2010 when the document was delivered, there was, of course, a well-developed canola crop observable as growing in two of Mr Baxter's eastern paddocks. Mr Baxter's evidence was that at about this time his canola crops were flowering (ts 823 - 824).
410 The content of the Notice presents as rather clumsy. Clearly, the Notice was not drafted by Mr Marsh. It was obviously given to him by someone to fill out the blanks at various places and deliver. The content of the pro forma document presents as being drafted in cumbersome fashion by someone holding a modicum of legal training - small, as I would assess it (see the further copy of the document at TB Vol 1, pages 253 to 257.)
411 Some statements within the Notice present as being extravagant or legally misconceived. For instance, par 7 refers to an asserted legal principle for Australia referred to as 'strict liability'. This looks to be an intended reference to the old rule in Rylands v Fletcher (as regards liability for the escape of a dangerous thing from land, even where there has been no fault or negligence giving rise to or causing the escape). That old rule was abolished for Australia by the High Court some 16 years earlier before this Notice was given: see Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520.
412 The content of this Notice (bearing in mind Mr Baxter at the time had a flowering canola crops visible in the ground at Sevenoaks almost ready for harvest) renders only the most fleeting and aggregated of references to the harvest methodology for canola of swathing - see par 5, referring globally to 'directly or indirectly involved in the seeding, transportation, swathing, harvesting or storage of GMOs and/or GM canola'.
413 The Notice also provides some gratuitous legal advice about a suggested need to obtain public risk insurance (see cl 3 and 11).
414 Schedule A (TB Vol 1, page 250) sets out (by 10 dot points) costs, damages or economic losses that would be claimed (cl 12). These also present as being of an exorbitant character in their overall assembly. 
415 Mr Baxter's evidence was that he looked at the document but did not otherwise give it closer scrutiny. Clearly, he was not intimidated.
416 The delivery of this rather curiously worded document on 1 October 2010 I would attribute to the influences of others, rather than to the decision of Mr Marsh alone. 
417 From their content and overall construction, I take the same view towards a series of 2010 newspaper advertisements Mr Marsh caused to be placed in the local district newspapers, during October and November 2010. See, for instance, notice in the classifieds of the Kojonup News page 14 (TB Vol 1, page 273), threatening court action and seeking compensation, if farmland (Eagle Rest) 'becomes contaminated with GMOs resulting in any forfeiture of GM-free accreditation or organic certification'.
418 In the same newspaper issue, a Mr Grantley Phillip Marinoni of Kojonup also appears to have placed a similarly drafted notice.
419 Clearly, the content of these notices were prepared by someone with a some modest amount of legal training, as their concluding references to foreseeability of loss and damages, would seem to convey. Again, there would appear to be some unseen hands at work here.

Mr Baxter has success with GM canola (evidence under oath): 

Kenneth Martin J  460 Mr Baxter said, at par 59(6), that the presence of some late germinating wimmera ryegrass also played a part in his decision to swathe the RR canola grown on his Two Dams and Range paddocks in 2010. Using swathing would enable the ryegrass to be cut before (weed) seeds set, addressing that problem in part.
461 Mr Baxter said that RR canola had produced superior yields, in comparison with conventional canola (particularly by reference to the HRWR [Herbicide Resistant Wimmera Rygraaa] problem being addressed) by the application of glyphosate.
462 At par 76 Mr Baxter said that in paddocks where HRWR was not a problem, RR canola would yield 5 to 10% higher than Triazine Tolerant (TT) canola and in paddocks where there was a ryegrass problem that RR canola would yield about 30% higher. RR canola would also produce a superior yield to Invertix Tolerant (IT) canola.
463 In a supplementary witness statement (exhibit 26B), Mr Baxter addressed the 2013  growing season. He said that paddocks planted with RR canola that year yielded .98 tonnes canola per hectare more compared with paddocks in which he had grown IT canola that year.

Bad judgement by Officers of the Organic Certification Agency:

Kenneth Martin J 735 The NASAA standards may have supported a suspension of Eagle Rest's certification for a short time, whilst the GM canola seed and any subsequent volunteer plant germination scenario was monitored. A suspension might have led to the Eagle Rest wheat crop (in paddock 11) being denied organic certification whilst it was tested for the presence of GM material. Organic certification for the Eagle Rest paddock 12 rye and spelt crops was problematic in any event.
736 By reference to exhibit 10 there appear to have only ever been three canola swathes detected in paddock 11, and then not in the wheat crop itself. By the end of 2011 there were only eight GM canola volunteers detected on Eagle Rest (which were duly pulled out).
737 There is therefore a very strong body of evidence in this trial to suggest that there was no legitimate contractual basis for NCO to decertify, for nearly three years, paddocks 7 to 13 of Eagle Rest, as regards a use for pasture or for crops.
738 Any possibility of volunteer GM canola plants growing in 2012 or 2013 could have been monitored by NCO and addressed either by pulling them out before they set seed, or cleaning of the harvested grain (be it oats, wheat, spelt or rye).
739 That is no criticism of the NASAA standards. Rather, it is my concern as to their misapplication by NCO officials who appear to have been overawed by the December 2010 incident and applied zero tolerance rather than the terms of the NASAA standards as written. The Marshes would be better served directing their concerns in that contractual quarter as regards the economic loss sustained.

Colin Bettles gives the after-trial (29/05/2014) commentary:

Baxter win a 'step forward': PGA

THE WA Supreme Court’s decision to award Kojonup GM canola farmer Michael Baxter victory over his organic farming neighbour Steve Marsh won’t end the ongoing anti-GM campaign by green and pro-organic groups.
But having the case “definitively thrown out of Court is a big step forward” says Pastoralists and Graziers’ Association (PGA) of WA’s Western Graingrowers committee chairman John Snooke.
Mr Snooke said he wanted to reassure the general public that there was no issue with the safety of GM canola or other crops grown globally, which was a central theme to the long-running legal challenge.
“There’s no problem here – that’s what we want to reiterate at the PGA,” he said.
“All facets of agriculture can coexist.
“What’s been the central question here, and the case in point from a legal point of view, is how the organic association interpreted their rules.
“They changed their interpretation all the time when it suited them and then they whipped up a political and media storm when the opportunity presented and it all failed.
“Now it’s time to get on with coexistence as it stands and we’ll all prosper together.”...

See later post: Organic farming-- tolerance of real pollution but not GMOs