A West Australian farmer knew there was a risk his genetically modified canola could blow onto the neighbouring farm and threaten its organic status, a landmark appeal has heard.
Organic farmer Steve Marsh last year had his $85,000 damages claim against former boyhood friend Michael Baxter thrown out, but is now appealing the judgment in the WA Supreme Court in the face of a near $804,000 legal bill.
Mr Marsh lost organic certification for more than half of his Kojonup farm after Mr Baxter used a method of harvesting known as swathing, which allowed loose Roundup-ready canola to lie on the ground and then blow onto the property.
On Monday, Mr Marsh's lawyer Malcolm McCusker, the former governor of WA, said a reasonable person would have foreseen the contamination risk that the method posed, and Mr Marsh had warned Mr Baxter of that risk years earlier.
"The respondents were put on notice that this could be a major problem for the organic farm," Mr McCusker said.
"He was told of that risk."
The court heard Mr Marsh was not concerned about genetic transfer because he did not grow canola, but feared that GM "volunteer" seedlings that could spring up would mix in with his grain crops.
There was also possibility for even wider dispersal, Mr McCusker said, if Mr Marsh's sheep ate the GM canola and spread the seeds around through their manure.
The high-profile lawyer said it was the first time Mr Baxter had used the swathing method, having previously direct harvested, which involved rolling up the canola into bundles.
That method didn't guarantee the canola would be completely contained to Mr Baxter's property, Mr McCusker said, but it could have limited its spread and was a more responsible practise.
Even if Mr Baxter was just trying out swathing, it was questionable that he did it on the two paddocks adjacent to Mr Marsh's farm.
"The question is, what care should be taken when you're swathing next to an organic neighbour?"
But Mr Baxter's lawyer Patricia Cahill said any duty to prevent financial harm to Mr Marsh needed "to be constrained by common sense and practicality".
She said there was no suggestion during the trial that the swathing had been anything other than an ordinary practice, noting Mr McCusker had acknowledged the virtue of using it to deal with weeds.
"Mr Baxter engaged in a legitimate activity," Ms Cahill said.
Mr Marsh hopes to have the judgment set aside and no longer seeks damages.
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