Marsh to face $800,000 costs for GM test case

19 Sep, 2014 10:15 PM
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Steve Marsh (left) and Michael Baxter.
The plaintiffs do pay the defendant's costs of the action, including reserved costs
Steve Marsh (left) and Michael Baxter.

ORGANIC farmer Steve Marsh and his wife Sue could be forced to pay almost $804,000 in costs after suffering defeat in a landmark property rights case earlier this year.

In late May, the Western Australian Supreme Court comprehensively rejected the Marshes’ attempts to sue their genetically modified (GM) canola farming neighbour Michael Baxter.

The Marshes had claimed $85,000 in alleged damages after GM canola swathes were detected on their organic farm in late 2010, sparking organic decertification on about 70 per cent of the 478-hectare Kojonup farm.

But Justice Ken Martin’s 150-page judgement rejected assertions GM canola was unsafe in dismissing both the Marshes' causes of action in common law negligence and private nuisance.

In June, the Marshes' legal representative Slater & Gordon Commercial Litigation lawyer, Mark Walter, issued a statement saying a notice of appeal had been filed in the Court of Appeal.

“Details of the grounds for appeal will be filed with the Court in due course,” he said at the time.

On Friday afternoon, Justice Martin handed down a 26-page document outlining an order that awarded costs totalling $804,000 in the defendant’s favour.

The decision said: “The plaintiffs do pay the defendant's costs of the action, including reserved costs, to be taxed if not agreed”.

Justice Martin’s order also lifted limits on the scale normally used by the Court to determine applicable costs, given the complexity of the legal case.

The final cost determination will now be made by the Court’s registrar, while the plaintiff’s appeal may not be heard for several months.

Mr Baxter's lawyer, Bradley Bayly Legal partner Brian Bradley, declined to comment when contacted by Fairfax Agricultural Media. He has also advised Mr Baxter against making any further media comment until after the appeal process is concluded.

“There’s nothing more to say other than I’m surprised there’s been an appeal in this matter,” Mr Bradley said in June.

The order posted on the WA Supreme Court’s website also criticised an application made within the plaintiff’s cost submission, seeking to disclose information regarding arrangements surrounding Mr Baxter’s liability for any costs claimed in the court action.

The application from Mr Walter sought to reveal any arrangements between Mr Baxter and his lawyers, crop insurance company, the Pastoralists and Graziers Association of WA and Monsanto.

The application also sought to have the defendant's application for costs and for special costs orders stayed, pending the determination of the defendant's liability for any costs.

The order detailed correspondence from Coulson Legal, the engaged costs consultant solicitors acting on behalf of the plaintiffs, to Bradley Bayly Legal in early July seeking information regarding any cost liability arrangements.

“These communications were responded to by Mr Baxter's solicitors on 8 July 2014, advising: ‘My client is under no obligation to provide discovery of documents relating only to costs to your client’,” the order said.

An annexure to Mr Walter's affidavit contained additional material backing his move to disclose the cost arrangements, including (PGA) Western Grain Growers newsletters from February and July 2011 and printouts or extracts of various media articles, including an ABC news report from June this year.

“Based on the media reports, I verily believe that I have reasonable grounds to query whether or not the Defendant has any liability for the costs that the defendant is seeking from the Plaintiffs,” Mr Walter was quoted as saying in his affidavit.

Copies of Mr Baxter’s 2012 and 2013 financial statements were also used in the application to try and support Mr Walter’s argument.

But Justice Martin said “upon my evaluation of the materials assembled under Mr Walter's two affidavits, there has not here been shown by such evidence any reasonable basis or reasonable grounds sufficient to query whether Mr Baxter has been relieved from his usual liability to personally pay his solicitors for the costs incurred in respect of his defence of the plaintiffs' action”.

“Self-serving correspondence passing as between the engaged solicitors in that respect, does not assist,” he said.

“Nor does a hotch-potch collation of unsourced hearsay statements assembled from a trawl of diverse media sources provide to me any reliable evidentiary basis to suspect that Mr Baxter did not ultimately bear the primary personal costs exposure to his trial solicitors - to meet his party and party defence costs, in respect of his defence of the present action.

“Likewise, Mr Walter's assembly of two financial years' financial statements for M O Baxter & Co is wholly equivocal and unhelpful.

“To allow the plaintiffs' application for disclosure by Mr Baxter in respect of any agreements from the PGA, Monsanto or Mr Baxter's crop insurer would, on my assessment, very much amount to the sanctioning of an impermissible fishing expedition.”

Mr Marsh’s campaign which questioned the safety of GM crops was supported by the Safe Food Foundation (SFF) and raised $750,000 through public donations.

Slater & Gordon Layers and the SFF were contacted for comment but did not respond before deadline.

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Colin Bettles

Colin Bettles

is the national political writer for Fairfax Agricultural Media
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READER COMMENTS

Beef man
20/09/2014 12:30:36 AM

So marsh ends up with a crippling debt baxter gets a quid but went through hell couldn't this have been settled over a couple of beers.If marsh had kept his trap shut it would have been a storm in a tea cup.A wasted couple of years for two families how sad.
Robert Wager
20/09/2014 12:34:48 AM

When one finds oneself in a hole, stop digging.
Payup
20/09/2014 3:29:18 PM

Where is Scott Kinnear with his hundreds of thousands of dollars raised from conned anti GM sycophants? Will poor gullible Marsh get any of that?
jamie
20/09/2014 5:41:50 PM

Im glad this case is finally over for the sake of both parties. When I see this case I don't take sides I simply see a legislative system that has failed. Hopefully this case encourages the laws to be reworked into something that best suits a farming system.
serfs and turf
21/09/2014 12:35:13 PM

Liberals & Nationals, we blame you. This is a tragedy whichever way you look at it and it could have been so easily avoided if you'd done your job properly with duty of care to the people not servile to corporations.
Josephine
21/09/2014 7:48:05 PM

In my opinion this matter should be judged in a court of ethics. We are dealing with contamination of the blueprint of our planet's food producing capacity. Again, what is legal is neither wise or just.
boris
22/09/2014 9:37:30 AM

Josephine the case was judged on ethics. Read the verdict and you will find how unethical the organic certifier was. It is interesting how the anti-gm crowd take the high moral ground in the public domain yet the evidence tabled in the court suggests the movement is just a rabble of misfits who threw their own rule book out the window when it suited. You got found out and your solution is to keep digging which funnily enough is now helping mainstream agriculture. Thanks heaps, we will never forgot your help...I promise!
James
22/09/2014 10:59:52 AM

Only one to blame here is Marsh, he decided to go to court (no doubt at the urging of Scott Kinnear) over 13 Canola plants. No surprise that the Anti-GM mob don't want to accept the decision and are bleating about trying to impose more red tape on a safe legal crop.
Bob Phelps
24/09/2014 11:45:30 AM

The GM industry should pay for any damage it does to the livelihoods of farmers and others in supply chains. Transferring its liability for contamination onto GM growers in its contracts leaves GM and GM-free growers vulnerable. A Farmers Protection Fund, levying 50 cents/kg (or maybe $1) on all GM seed sales, would raise enough for GM-free farmers to be automatically compensated for any economic loss, without going to court. A repeat of the painful Marsh vs Baxter case could be avoided. The PGA says just 1/4 of WA's 4,300 grain growers farm GM so their interests should not be put first.
Jeffito
24/09/2014 9:58:54 PM

Bob Phelps is talking rubbish as usual. His so called "damage" is totally invented by the orgnanic industry. I could set up an industry and invent a reason why my livelihood was damaged because the neighbours' trees cast a shadow for 25 minutes a day on my daffodils. I would get nowhere if I litigated on this. When you are carrying out legal farming and your neighbour joins up with people that manufacture their own crazy rules, the judgement handed down in WA is just, ethical and sensible. The canola is looking fantastic in the Kojonup area today without his silly "fund".
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Why do they forget the small producers they are the backbone of the industry. What. Did this
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Good these guys will be able to help the farmers they are treating like second class peasants.
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Lets' hope Troy Grant doesn't Delforce's website or it will be yet another NSW