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We're joined once again by Ryan White, who is an Associate in the Corporate Team at HopgoodGanim; Ryan thanks for joining BRR Media again.

It's a pleasure thanks for having me back.

Now Ryan last time we spoke, we spoke about an organic farmer who was attempting to stop his neighbour from planting genetically modified seeds, and was taking the action to court.  Now we've just seen that he's lost this action in court, can you give us a brief recap on some of the issues?

So the background of this case centres around two farmers on neighbouring properties; Michael Baxter operates a farm that uses genetically modified herbicide resistant strain of canola seeds, and his neighbour, Steve Marsh, farms organically, and he'd received organic certification from the National Association for Sustainable Agriculture Australia.  Marsh lost his organic certification after the herbicide tolerant GM canola seeds from Baxter's property made their way on to his farm.  So as a result of that Marsh claimed financial compensation for the loss of earnings, and he also sought an indefinite injunction, which was initially to stop Baxter from growing GM canola at all, although this was later reduced to simply stopping or seeking to stop Baxter from swathing canola within certain neighbouring properties. 

So Ryan what did the court actually say?

The court has dismissed both claims, so both the claim for damages and the claim for an injunction.  His Honour Justice Martin ruled that Baxter's decision to harvest by swathing was not unreasonable interference with Marsh's property and that Baxter was not to be held responsible as a broad acre farmer for merely growing a lawful GM crop and choosing to adopt an orthodox and fairly well accepted method of harvesting.  Justice Martin also found that Baxter could not be held responsible for the actions of the NASAA inciting to de-certify Marsh' property.  His Honour also noted that in the particular circumstances of this case, there was no evidence of any risk of genetic transference from the GM canola, and he also noted that Marsh has never grown canola in the particular paddocks that were in question.  Interestingly the court also looked very closely at the NASAA's certification practices and the decision to de-certify Marsh's property, and ultimately they found that the standards were misapplied, so the NASAA incorrectly took a zero tolerance approach, rather than the terms of their actual standards.

Well it's certainly an interesting area and certainly likely to raise the levels of emotion amongst different types of farmers, what do you think the decision means for industry, both I guess organic farmers and non-organic farmers?

It certainly is an emotional subject and I doubt that this case is going to do – do much to take that emotion out of the subject.  In terms of legal principles, it's confirmed that although farmers have a general duty of care to their neighbours, there's no additional duty on the part of GM farmers to avoid the risk of financial loss from GM canola contaminating organic crops.  But the court's found that a farmer growing a lawful crop, whether that's a genetically modified or otherwise, and adopting a lawful harvest methodology does not amount to an unreasonable interference with neighbouring properties, can't be considered negligent and of itself will not breach the general duty of care that farmers owe each other.  Given the court's comments it also seems likely that this decision will result in a fairly close examination of the NASAA's certification practices, and potentially some reconsidering of the circumstances in which organic certification should be withdrawn.

Could we see an appeal?

It's always difficult to say, obviously both sides will be looking very closely at the reasons for judgement, and if they feel that there are some points of law or some points of fact that merit an appeal, we could well see one.

Well it certainly was an interesting decision and Ryan thanks so much for sharing your insights.

That's a pleasure, thanks.

That was Ryan White, who is an Associate in the Corporate Team at HopgoodGanim.  Listeners if you have any questions for Ryan you can send them through either using the panel on your screen or otherwise via email to law@brrmedia.com.