A landmark GM contamination case has for now swung in favour of an organic farmer facing a massive legal costs bill, while his adversary must reveal if he was backed by Monsanto or an industry group.
Steve Marsh’s bid last year to sue Kojonup neighbour and former boyhood friend Michael Baxter in the Supreme Court of Western Australia was unsuccessful.
Mr Marsh sought $85,000 in damages, claiming he lost organic certification for more than half of his farm because Mr Baxter’s GM canola had blown onto his land.
Instead, Mr Marsh was ordered to pay a court costs bill of about $804,000.
But on Wednesday, the full bench of the Court of Appeal unanimously allowed Mr Marsh’s challenge to the costs order.
The judges also ordered Mr Baxter to provide information about his trial costs, specifically any financial arrangements between him and Monsanto and the Pastoralists and Graziers Association.
That was because Mr Baxter might enjoy a windfall from the award of costs if Monsanto or the PGA had helped him pay his legal bills for the trial.
Under the indemnity principle, Mr Marsh should only have to pay Mr Baxter costs that came out of his own pocket.
‘Those documents will be provided,’ Mr Baxter’s lawyer Brian Bradley told reporters outside court.
‘But I can tell you there was no funding by the PGA, no payments whatsoever.’
Asked whether Monsanto had provided financial support, Mr Bradley said: ‘I can’t tell you that because that’s confidential, but all will be disclosed in the document filed with the court.’
Mr Baxter told reporters he was not disappointed with the decision.
‘We’re feeling great – we don’t have any problems,’ he said.
‘We respect the decision of the court and we’d only be disappointed if we thought it was wrong.
‘It’s just a formality that we have to go through now. The lawyers and everybody will go through the paperwork and produce all the documents that they need to produce.’
He said the case had been stressful to start with, but over time, he had become used to it.
‘It’s going to be some time before it is all over.’
Earlier this week, Mr Marsh also appealed last year’s decision to dismiss his compensation case, arguing Mr Baxter’s harvesting method was not responsible.
The court heard he used the swathing method, which allowed loose Roundup-ready canola to lie on the ground and then blow onto Mr Marsh’s farm.
Mr Marsh’s lead lawyer Malcolm McCusker, the former governor of WA, said a reasonable person would have foreseen the contamination risk that the method posed, and his client had warned Mr Baxter of that risk years earlier.
But Mr Baxter’s lawyer Patricia Cahill argued he had not been negligent, saying any duty to prevent financial harm to Mr Marsh needed ‘to be constrained by common sense and practicality’.
Mr Marsh, who said he was relieved with Wednesday’s outcome, no longer seeks damages.