Marsh v Baxter

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSH -v- BAXTER [2014] WASC 187

CORAM: KENNETH MARTIN J

HEARD: 10-20, 27 & 28 FEBRUARY 2014

DELIVERED : 28 MAY 2014

FILE NO/S: CIV 1561 of 2012

BETWEEN: STEPHEN WILLIAM MARSH
First Plaintiff
SUSAN GENEVIEVE MARSH
Second Plaintiff
AND
MICHAEL OWEN BAXTER
Defendant

Catchwords:

Negligence - Duty of care - Pure economic loss - No physical injury to persons or property - Scope of liability - Causation of damage - Civil Liability Act 2002 (WA), s 5B, s 5C

Nuisance - Private - Unreasonable interference with use or enjoyment of interest in land - Nature of interference - Whether Civil Liability Act 2002 (WA) applies to cause of action in nuisance - Farmer grows and swathes genetically modified canola - Swathes blown to neighbour's land - Neighbour holds contract with organic certifying body - Certifying body decertifies neighbour's land

Legislation:

Civil Liability Act 2002 (WA)

Result:

Action dismissed

Category: A

Representation:

Counsel:

First Plaintiff                :     Mr R M Niall SC, Ms L M Nichols & Ms C M Pierce
Second Plaintiff            :     Mr R M Niall SC, Ms L M Nichols & Ms C M Pierce
Defendant:     Ms P E Cahill SC & Ms F Vernon

Solicitors:

First Plaintiff                :     Slater & Gordon
Second Plaintiff            :     Slater & Gordon
Defendant:     Bradley Bayly Legal

Case(s) referred to in judgment(s):

Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213; (2013) 45 WAR 379
Barclay v Penberthy [2012] HCA 40; (2012) 246 CLR 258
Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 601
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' [1976] HCA 65; (1976) 136 CLR 529
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Deasy Pty Ltd v Montrest Pty Ltd (Unreported, Queensland Court of Appeal, BC96055947, 22 November 1996)
Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562
Dovvuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Drexel London v Gove (Blackman) [2009] WASCA 181
Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403
Hughes v Lord Advocate [1963] All ER 705; [1963] AC 837
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mount Isa Mines Ltd v Pusey (1970) 124 CLR 383
Oldham v Lawson (No 1) [1976] VR 654, 657
Perre v Apand [1999] HCA 36; (1999) 198 CLR 180
Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330
Sedleigh-Denfield v O'Callaghan[1940] All ER 349; [1940] AC 880
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317
Toll Transport Pty Ltd v National Union of Workers [2012] VSC 316
Vaughan v Shire of Benalla [1891] VLR 129
Weller v Foot & Mouth Disease Research Institute [1966] 1 QB 569
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

TABLE OF CONTENTS

Introduction
What the case is about
Trial materials

Uncontroversial evidence
Documentary evidence at the trial
Other documents sourced from witnesses

Trial evidence from witnesses

Plaintiffs' witnesses at trial
Defendant's witnesses at trial

Factual narrative
More background to Canola and weeds
January 2010: it becomes lawful to grow GM canola in Western Australia
Scientific evidence at trial concerning the properties of genetically modified (GM) canola
Scientific evidence as to the modes of possible GM trait transference concerning RR canola
NASAA's contractual relationship with Mr and Mrs Marsh
The NASAA standards: Eagle Rest's suspension and decertification: December 2010
Australian organic products
The regime for the labelling of produce domestically sold as 'organic', or 'certified organic' in Australia

Order 1.02 - object
Order 1.03 - declaration of prescribed goods
Order 1.04(2)
Order 1.05 - prohibition of export …

NASAA standards text and meanings
NASAA Standards
The Marshes' causes of action against Mr Baxter
Relief sought: Perpetual injunction for private nuisance
Early strategic evaluations: relative strengths

(a) Nuisance

(b) Causes of the 2010 swathe incursion

Observations on the law - Perre v Apand [1999] HCA 36; (1999) 198 CLR 180
ASOC causes of action of the plaintiffs

Negligence

The ASOC private nuisance cause of action

Private nuisance: some case law
Mr Baxter's response to the Marshes private nuisance cause of action
Private nuisance: is it open to look at what happened under the contract between the Marshes and NASAA?
Trial evidence of principal witnesses: Mr Marsh, Mr Baxter and Mr Robinson

(a) Stephen Marsh (first-named plaintiff)

(b) Michael Baxter: the defendant

Mr Baxter's cross-examination
Mr Christopher Robinson
Interpretation of key NASAA standards concerning GMOs

Recommendation 3.2
NASAA Standard 3.2.1
NASAA Standard 3.2.3
NASAA Standard 3.2.5
NASAA Standard 3.2.7
NASAA Standard 3.2.8
NASAA Standard 3.2.9
NASAA Standard 3.2.10
NASAA Standard 3.2.11
NASAA Standard 3.2.12

Concluding observations NASAA Standard 3.2.9
Remaining non-expert trial witnesses

Ms Stephanie Goldfinch
Andrew Christian Bishop
Diane Gore
Janet Denham
Sachan Ayachit
Ms Janine Morton and Mr Jonathan Morton
Frederick Davies
Digby Stretch

Plaintiff's expert witnesses at trial

Peter McInerney, Agronomist and consultant
Professor Rene Van Acker
Dr Christopher Preston
Professor Stephen Powles

Summarising nine underlying cornerstone conclusions in this trial
Private nuisance: harvesting by swathing
Swathing and the private nuisance cause of action: Key underlying facts events
Nuisance and NASAA/NCO
Common law negligence action also fails
Conclusion: Injunction

Conclusion

KENNETH MARTIN J:

Introduction

This is a conflicting land use dispute between rural neighbours at Kojonup, Western Australia, some 256 kilometres to the south-east of Perth. The feature of a dispute between (farming) neighbours immediately calls to mind Lord Atkin's now famous dictum in Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer's question, Who is my neighbour? receives a restricted reply. (580)
This litigation advances a claim for wholly financial injury which is asserted by one of the neighbours who farms organically, against the other farmer - who lawfully worked his land to plant, then harvest a genetically modified vegetable seed crop, in 2010.

What the case is about

The plaintiffs, Mr and Mrs Marsh, claim from the defendant (Mr Baxter) damages and a permanent injunction against his future swathing of genetically modified (GM) canola on his land. This is on the basis of two asserted tortious causes of action, in either common law negligence or private nuisance, arising out of events occurring in 2010.
The Marshes conduct their organic farming operation as a partnership from a rural property bordering Kojonup in the south-west of Western Australia. The Kojonup property, known as Eagle Rest, is legally owned by Mr Marsh.
Eagle Rest has been farmed for years in the Marsh family and Mr Marsh is a career farmer.
Mr Baxter's larger farm, Sevenoaks, borders Eagle Rest - lying to the west. It operates as an orthodox, but advanced, cropping business.
Around 2002, the Marshes began taking steps towards becoming recognised as a fully organic farming operation at Eagle Rest. Essentially, they proposed to grow wholly organic produce, namely cereal crops - oats, spelt, rye and small amount of wheat, or to raise sheep for the purpose of sale as organic meat (dorper lambs). In practical terms, to sell their Eagle Rest produce under the label of 'organic' the Marshes required the endorsement of an Australian organic status conferral body – that body being, in turn, required to be accredited by the Commonwealth, under Australia's export protection regime.
The need for the conferral of organic status certification for their produce led the Marshes into enter a private contract with the National Association of Sustainable Agriculture (Australia) Ltd (NASAA). NASAA is an Australian corporation limited by guarantee, usually referred to by that acronym (and not to be confused with the far better known American entity NASA - the National Aeronautics and Space Administration Agency, to which there is no connection). To assist the overall comprehension of a trial with many acronyms used, I have included that table at the commencement of these reasons - just after the table of contents.
By 11 January 2006, Mr and Mrs Marsh had obtained organic certification from NASAA for 476 of their 477 hectares of Eagle Rest. (I will provide more details about NASAA, and its wholly owned subsidiary corporation NCO, in due course.)
Immediately to the western boundary of Eagle Rest is a 20.9 m road reserve. This is for the contiguous Glenorchy South and the Qualeup North Roads. To the western side of the road reserve is the 900 ha farming property Sevenoaks, which is owned by Mr Baxter.
Michael Baxter's family have farmed in the Kojonup area for generations. Hence, the Marsh and Baxter families have been farming neighbours at Kojonup for some years.
Like the Marshes, Mr Baxter, as a career farmer, works his land at Sevenoaks as a business to earn his living.
Since a picture tells more than a thousand words, I will incorporate, at this early point, an aerial photograph which was tendered at the trial (exhibit 6) which shows the two neighbouring Kojonup rural properties, Eagle Rest and Sevenoaks. The locations are divided by the roughly diagonal north-west to south-east running road reserve. Another property, also owned by Mr Baxter (Baxter's Block) can be seen lying to the east of Eagle Rest.

In 2010, the Eagle Rest property had been internally subdivided for operational purposes by the Marshes. It operated as a working farm of 13 different paddocks. Paddocks 9, 10, 12 and 13 at the west of Eagle Rest, are seen to be situated directly adjacent to the road reserve.
Sevenoaks, to the west of the road reserve, may also be seen as being internally subdivided by Mr Baxter for farming purposes into some distinctly named paddocks. The paddocks Range, Mailbox, Silo, Road and Two Dams paddocks lie adjacent to (ie, west of) the road reserve.
Mr Baxter conducts a broadacre mixed farming operation from both properties at Kojonup. This involves his sowing of cereal crops, vegetable seed crops (canola) and the running of some sheep.
Unlike the Marshes, Mr Baxter has never sought to grow organic produce, or to qualify Sevenoaks or Baxter's Block as an externally certified organic farming operation.
Mr Baxter had both planted and harvested more conventional canola crops across the various paddocks of Sevenoaks and Baxter's Block (on an annual rotational basis) for about 10 years, prior to the 2010 growing season. But it is his decisions in 2010, first to plant and then to harvest by swathing two of his eastern paddocks (Range and Two Dams) with the new variety of genetically modified (GM) canola (referred to alternatively as GM canola, Roundup Ready canola, or RR canola) which underpins the present litigation by the Marshes.
The controversy directs attention at Mr Baxter's key decisions in late April of the 2010 growing season to plant RR canola in his Two Dams and Range paddocks at Sevenoaks and then, in October 2010, his choice of a particular harvesting methodology (swathing) to gather his canola crop to collect that crop's matured canola seeds.
In 2010, Mr Baxter had decided to harvest by using the swathing methodology for the first time for any canola which he had grown at Sevenoaks.
Swathing is a well-recognised, indeed the preferred, agricultural harvesting technique used by canola growers. It involves, first, cutting the not yet fully matured canola plants at close to their base. The cut is made at a time before the canola seeds are fully ripened within the seed pods attached to each canola plant. There can be many seed pods on a canola plant – with small canola seeds to be found within each pod.
Once cut, the canola plants are pushed together into standing windrows in the paddock. There, the cut canola plants with their attached seed pods will stand to ripen in the paddock - exposed to the natural elements (wind, sun, atmosphere) for about two to three weeks.
The last phase of a canola harvest using the swathing methodology sees the windrows of now much more dried-out canola plants and their attached pods, processed again by another agricultural machine (header) to harvest up the ripened canola seeds from each cut plant.
There are multiple agricultural advantages that support the swathing of a canola crop as the most commonly used and most efficient seed harvest method. This is both from a greater canola seed yield perspective, but also the earlier point of cutting, mitigating against potential crop losses from the elements in the paddock from a risk management perspective: see exhibit 14C, a joint expert conferral memorandum of the plaintiffs' expert, Mr Peter McInerney and the defendant's expert Professor Stephen Powles - answering (jointly) questions 2 and 3 concerning the agricultural advantages of swathing.
The swathing process stands in some degree of agricultural contrast to the alternative option of simply direct harvesting (heading) the fully matured canola seed pods from a ripened canola plant. Necessarily, a canola harvest by direct heading takes place at a later development stage in the maturity of a ripened canola plant. This will be roughly two to three weeks later than the first cut to a canola plant under a swathing operation.
Around November 2010, Mr Baxter harvested his RR canola crops which were then maturing in two of his eastern boundary paddocks (Range and Two Dams) by using the swathing technique.
RR canola also delivers the advantage to a grower of being able to spray an emergent canola crop with the herbicide (Glyphosate) more commonly known as Roundup, to kill off any weeds then growing with the canola.
Ordinarily, exposure to Glyphosate would be fatal to an emergent conventional canola crop. However, a deliberately engineered characteristic of RR canola is that this canola plant carries the (inbred) immunity to this herbicide - an inbred immunity characteristic which noxious weeds found growing in a canola crop, such as Wimmera rye grass, do not.
Because of this deliberately engineered trait delivering immunity to Glyphosate, RR canola growers who are experiencing seasonal weed problems within their emergent crops may, prior to the harvest, derive an advantage by being able to better address late recognised weed problems in the emerged crop, using Glyphosate.
Swathing as a harvest process for canola also carries recognised advantages as regards longer-term weed control in a paddock. A canola crop's plants and any proximate weeds are cut earlier and stacked together. Hence, the potential for weed seed spread, out of more fully matured weeds, is reduced.
Mr Baxter, is an experienced Kojonup farmer. But in taking his business decisions in 2010, first to plant RR canola that season, then to harvest his emerged RR canola crop by swathing, he did not act unilaterally. He received supporting advice for both decisions from a local Kojonup agronomist, Mr Chris Robinson. The present case is not a situation of Mr Baxter unilaterally deciding in 2010 to grow, and then swathe, his RR canola crop on a whim. His decisions were agriculturally based and externally supported by professional advice he received.
But these were also business decisions in 2010 by Mr Baxter knowing the Marshes' adjacent Eagle Rest property to the east had been operated for some years by then as an organic farming operation. Mr Baxter knew that Mr Marsh had expressed to him in November 2008 some general concerns about GM canola possibly reaching Eagle Rest in future if it became lawful to grow a GM canola crop (as it did in 2010) and thereby causing Mr Marsh and his wife financial harm from their projected loss of their organic certification (ie, from NASAA).
Mr Baxter's growing of a RR canola crop on Sevenoaks in 2010 was lawful farming conduct on his part. This was in the wider context of some permissive legislative and executive events occurring in Western Australia during January 2010 which I will say more about in due course. None of the matters stated to this point present as controversial in the trial, in my assessment.

Trial materials

Uncontroversial evidence

There was a large measure of agreement between the Marshes and Mr Baxter upon many of the core underlying facts which are relevant to issues in this trial.
What are essentially uncontroversial, or agreed, facts emerge from three main sources.
First, a considerable level of factual admission arises from the face of the parties' respective pleadings. The present action was instigated by writ, on 3 April 2012. At that time Mr Marsh was the sole plaintiff. Mrs Susan Marsh was uncontroversially added as a co-plaintiff under amendments made, by my leave, on 4 February 2014 - shortly before the trial commenced.
The most contemporary versions of the pleadings, by reference to which this trial ran, were:
(a)the amended statement of claim (ASOC) of Mr and Mrs Marsh for 4 February 2014;
(b)Mr Baxter's further re-amended defence (FREAD), amended pursuant to my leave on 10 February 2014; and
(c)a brief response by the plaintiffs' amended reply of 28 January 2014.
A second repository of agreed facts is found in a consolidated statement of facts, submitted as being agreed between the parties (with also a few facts highlighted as not agreed) and tendered at trial by the plaintiffs as exhibit 1.
Exhibit 2 is a short supplementary statement of further agreed facts. It explains that $85,000 is the agreed figure for the net loss or sustained by the farming partnership of Mr and Mrs Marsh, arising by reason of the absence of NASAA certification (more correctly NCO certification, as I later explain) for approximately 70% of the area of the Eagle Rest farm - assuming that liability at this trial is ultimately established against Mr Baxter. That agreed sum has been derived as losses claimed across three successive financial years up to 30 June 2013, by the Marsh farming partnership.
The last major repository of agreed facts arises out of the parties' exchanged responsive chronologies of events, generating, in the end, one consolidated document. This document is, at most points, sourced by reference to the documents found in the trial bundle, or to witness statements. The ultimately agreed chronology of facts between the parties became exhibit 41 at the trial.
The next section of these reasons attempts to organise, consolidate and synthesise the various repositories of agreed facts towards a basic narrative, for what is essentially a commencing platform of relatively uncontroversial facts. At points I have, for coherency, augmented this narrative section with some further facts I have drawn out of a few uncontroversial documents tendered as part of the trial evidence.
I will also record that there was also a high measure of agreement at the trial between the six expert witnesses called in aggregate for both sides. The plaintiff called two experts - Mr Peter McInerney an agriculture consultant from Wagga Wagga, New South Wales and Professor Rene Van Acker, an academic specialising in agricultural science and weed control - who gave evidence by video-link from Canada.
Prior to the trial the parties, as is customary, had exchanged their respective expert reports for the trial. A conferral process between the rival experts generated a number of mutually agreed memoranda. These were ultimately tendered by the plaintiffs. They became exhibits at the trial, along with the various expert reports.

Joint memoranda as to common positions about various issues, as reached between Mr McInerney with three of the defendant's experts, Dr Patrick Rüdelsheim, Dr Christopher Preston and Professor Stephen Powles, became respectively exhibits 14A, 14B and 14C.
Professor Van Acker's conferral memoranda with Professor Powles, Dr Rüdelsheim and Professor Preston became, respectively, exhibits 17A, 17B and 17C.
Beyond this commencing edifice of largely uncontroversial facts between the parties, there are obviously some more contentious factual issues requiring my determination. I shall, in the main, render these required determinations in the running – during my analysis of either a particular witness's evidence, or in considering more important trial documents.

Documentary evidence at the trial

The parties between themselves prepared a nine-volume lever arch trial bundle. The content of the nine volumes of material is rendered explicable, by the trial bundle index, initially identifying 179 trial documents, across 3,009 pages of material. The status of documents in the trial bundle was essentially an evolving work in progress during the trial.
By the end of the trial, however, the status of all trial bundle ie, TB) documents (which in aggregate are exhibit 4) had been fully resolved between the parties. The version of the trial bundle index, as finally agreed between the parties, was tendered as exhibit 3.
A handful of documents found in volume 2 of the trial bundle, namely documents 27 through 31 (essentially, fact sheets or farm notes, as issued by the Department of Farming and Agriculture Western Australia (DFAWA)) were admitted into evidence on the limited basis that the material was admitted, albeit not for the truth of its content. That was by reason of hearsay objections raised on the part of the defendant. That same status was also afforded to documents 40 to 45, as regards all newspaper advertisements (but for document 45) placed by Mr Marsh in newspapers in the Kojonup or surrounding districts, over a period between 25 October and 22 November 2010. There was no dispute over such material having been published in the local rural newspapers. The truth of some content was, however, clearly in issue from Mr Baxter's perspective.
TB document 45 is a Farm Note issued by the DFAWA. The note issued in May 2011, a time well and truly after the late November/early December 2010 airborne incursion of GM canola swathes into Eagle Rest (described by the Marshes in their pleadings and submissions in tendentious fashion as a 'contamination'). Again the objection was on the basis of hearsay. Hence this material was admitted and received as evidence, otherwise than for the truth of its content.
For convenience, throughout the course of the reasons I have usually just referred to the trial bundle (TB), then a volume number (of nine) followed by page number, in addressing a trial bundle document. By illustration, TB Vol 1, pages 216 - 218 is a reference to document 27 in trial bundle volume 1 formally tendered in evidence at this trial as exhibit 4.1.27).

Other documents sourced from witnesses

In the main, each of the parties' non-expert and expert witnesses gave their evidence-in-chief at the trial through the medium of a formal witness statement, prepared and exchanged between the parties before trial.
There were, as is now all too typical, a considerable number of evidentiary objections raised against components of the exchanged witness statements. Most objections were resolved at the trial. Revised and corrected witness statements were then tendered as the evidence-in-chief of each witness as an exhibit.
To illustrate, Mr Marsh's evidence-in-chief is found across three exhibits. First, in the text of his interlocutory affidavit, sworn 12 April 2012 (exhibit 5(a)). Second, by his witness statement of 13 February 2013, elaborating upon that affidavit (exhibit 5(b)). Finally, is his short supplementary witness statement, signed on 15 January 2014 (exhibit 5(c)). Certain paragraphs of Mr Marsh's written evidence‑in‑chief can be seen to be cross-referenced to documents which are found within a volume of the trial bundle.
Mr Baxter's evidence-in-chief was by his witness statement of 18 February 2014 (exhibit 26A), plus a short (amended) supplementary statement (exhibit 26B), also of 18 February 2014.
Save for one of the plaintiffs' witnesses (Ms Janine Morton), all the witnesses attended trial in person, by video-link or telephone, and were cross-examined on their witness statements.
All the trial evidence was recorded, transcribed and unusually for this case openly published on this court's website. I will refer at various parts of these reasons to the transcript page (ts) of a witness's evidence. In the main, that will be a reference either to evidence given under cross‑examination, or in re-examination.
Beyond this material there were some more documents which were tendered during the course of the trial, on an ad hoc basis.
In all, 41 exhibits were tendered during trial, inclusive of the nine-volume trial bundle (discretely received as exhibit 4).

Trial evidence from witnesses

Plaintiffs' witnesses at trial

At the trial the non-expert witnesses called on behalf of the plaintiffs comprised:
1.From the first-named plaintiff, Stephen William Marsh (Mr Marsh's evidence-in-chief by reference to an affidavit and two further witness statements which became exhibits 5(a), 5(b) and 5(c));
2.Mr Andrew Bishop, a senior public servant with the Tasmanian Government (Mr Bishop's witness statement became exhibit 12);
3.Ms Diane Gore (witness statement exhibit 15). Ms Gore is a former employee of NASAA's subsidiary corporation, NCO. She was engaged as regards the certification work of that body, conducted for NASAA. Ms Gore was based in South Australia. She would make certification assessment decisions concerning agricultural properties in Australia on the basis of written reports sent to her by local NCO inspectors. She made assessments in respect of the Eagle Rest property in 2011, after it had earlier been decertified in December 2010;
4.Ms Stephanie Goldfinch, another former employee of NCO and NASAA (witness statement exhibit 19). My reasons contain a distinct section dealing with the evidence of Ms Goldfinch. During her tenure with NASAA/NCO she was essentially the senior ranking decision maker for NCO. Ms Goldfinch was largely responsible for, first, a suspension decision as regards certain Eagle Rest paddocks (on 10 December 2010) then, the decertification decision, in respect of 70% of the area of Eagle Rest on 29 December 2010, and which remained in place until late 2013;
5.Ms Janet Denham, currently chairperson of NASAA and NCO. Ms Denham was the Chair of NASAA between 1996 to 2003, resuming that role again from October 2010, until now. Her evidence-in-chief is exhibit 20(a), 20(b) and 20(c);
6.Mr Sachin Ayachit, whose evidence was received by video-link from Mumbai. Mr Ayachit's witness statement is exhibit 21. Mr Ayachit is currently certification manager for NASAA Certified Organic Pty Ltd (NCO), NASAA's certification arm. Mr Ayachit has only held that position since August 2012 (exhibit 21);
7.Ms Janine Morton, exhibit 22. Ms Morton was not required for cross-examination;
8.Mr Jonathan Morton (exhibit 23) Ms Morton's husband. Mr Morton is sole director of the corporation Morton's Seed and Grain Pty Ltd. This corporation in the past had purchased grains organically grown by Mr and Mrs Marsh from Eagle Rest. The Mortons' seed sale business is NCO certified, as meeting NASAA standards;
9.Mr Frederick Davies, whose evidence was received by telephone from Bathurst, Victoria (see evidence-in-chief exhibit 24). Mr Davies' brief evidence essentially concerned a market for, and the higher prices obtainable for, organically grown linseed oil.
The plaintiffs also called two expert witnesses. First, was New South Wales based (Wagga Wagga) agriculture consultant, Mr Peter McInerney. He provided three reports (exhibits 13A, 13B and 13C), plus a table (exhibit 13D) which was a worked example of a wimmera ryegrass seed bank running down over three years.
The plaintiffs' other expert was Professor Rene Van Acker taken by video-link from Canada. He provided three expert reports (exhibits 16A, 16B and 16C).

Defendant's witnesses at trial

For the defendant, non-expert trial evidence was received from:
1.Mr Baxter (his evidence-in-chief being exhibits 26A and 26B);
2.Kojonup based agronomist, Mr Christopher Robinson, who had initially provided agronomy advice to Mr Baxter in the period between 2003 to 2006 (Mr Robinson then being overseas in the years 2007 and 2008). In that first period, Mr Robinson worked for Kojonup Agricultural Supplies.
Mr Robinson had returned to Western Australia at the end of 2008. He joined a new employer organisation on his return. This was the rural advisory organisation Farmanco. Mr Robinson now worked as an agronomist, based at Farmanco's Kojonup office, where he is still engaged. Mr Robinson returned to advising Mr Baxter as an agronomist from the commencement of the 2010 growing season. Mr Robinson's evidence-in-chief, given through his amended witness statement, is exhibit 30.
3.The defendant also led evidence from another local Kojonup farmer, Mr Digby Stretch. His evidence-in-chief became exhibit 29.
The defendant also called four experts at the trial:
(a)Professor Stephen Powles, a University of Western Australia academic who holds an undergraduate and Masters degree and a PhD in plant and agricultural science, whose three expert reports of 6 August 2012, 4 November 2013 and 24 November 2013 respectively became exhibits 32(a), 32(b) and 32(c);
(b)Professor Patrick Rüdelsheim, a bioethics and biosafety expert whose evidence-in-chief through a report of 2 October 2014, became exhibit 24;
(c)Dr Christopher Preston, an internationally recognised seed expert, whose report of 4 December 2013 became exhibit 27. Dr Preston was cross-examined by video-link from South Australia;
(d)Mr Jonathan Slee, whose report of 18 November 2013 became exhibit 34. Mr Slee was heavily challenged under cross-examination by the contention that large parts of his written report looked to be direct quotations from non-attributed sources, mainly as regards international organic standards (ts 987 - 988). Mr Slee did not really contest the assertion (see exhibit 40, by way of contrast to exhibit 34). Nevertheless, the substantive content of what is found in Mr Slee's report concerning international organic standards, save in respect of one matter in relation to European tolerances to GM material, did not really appear to be all that controversial.
That comprised the witness evidence given in the trial.

Factual narrative

I move then to matters which were essentially uncontroversial at the trial.
Stephen Marsh, as I mentioned, is the registered proprietor of Eagle Rest, at Kojonup. His close neighbour, Michael Baxter, is the registered proprietor of Sevenoaks, which roughly adjoins the south-west boundary of Eagle Rest.
The two Kojonup farms are separated by the Qualeup North and Glenorchy South road, which runs in contiguous fashion from the southern-most tip of Eagle Rest, in (roughly) a north-westerly direction.
Measured from boundary fence to boundary fence, the two farms are separated by the road reserve of 20.9 m. Lines of trees grow on either side of the road reserve (as seen on exhibit 6, see [currently page 7] as between Eagle Rest and Sevenoaks.
Paddock layouts within the two farms are also seen on the annotated and scaled aerial photograph tendered as exhibit 6.
Additionally, Mr Baxter owns and farms the discrete parcel of farming land, known as Baxter's Block, lying south-east of Eagle Rest. Baxter's Block is not contiguous with Sevenoaks. Nor does it border Eagle Rest.
An organic farming produce business conducted from Eagle Rest was operated by Mr Marsh with his wife, Susan, the second plaintiff, as a partnership. Using a process of paddock rotation, across yearly growing seasons, various of Eagle Rest's 13 paddocks were used by the Marshes to cultivate organic cereal crops. In other seasons the paddocks are rotated through a pasture phase, to carry sheep.
Organic cereal crops grown from Eagle Rest up to 2010 included wheat, oats, spelt and rye.
Likewise, from his two Kojonup farms, Mr Baxter also has run sheep and grown wheat, barley and oats. He has also grown conventional canola crops on Sevenoaks for at least 10 years prior to 2010.
The Marshes have never grown canola crops upon Eagle Rest (exhibit 5(a), affidavit Stephen Marsh, par 6). Nor, as I explain later, have the Marshes ever grown crops on Eagle Rest which are capable of cross-pollinating with canola, or GM canola.
In 2008, Mr Baxter had grown conventional canola on some paddocks of Sevenoaks. By 'conventional' is to say that the 2008 canola was not a genetically modified variety. Nor was this conventional canola attempted to be grown organically by Mr Baxter.
As I will explain in more detail, GM crops (including GM canola) could not lawfully be grown anywhere in Western Australia, before January 2010 (save for some approved and limited growing trials in 2009 - including a growing trial upon the property of another Kojonup farmer and witness at this trial - Mr Digby Stretch).
In about November 2008, Mr Marsh discovered 12 conventional (ie, not GM or organic) canola plants that had apparently self-sown (called volunteer plants) growing upon Eagle Rest (ts 202). He pulled out all the conventional canola plants (ts 204). The unwelcome discovery of the plants led Mr Marsh to visit Mr Baxter at Sevenoaks. He took with him some of the plants to show to Mr Baxter.
What was passed between the two men at the 2008 meeting is an issue of some minor dispute. But many aspects of their conversation are agreed.
Mr Marsh told Mr Baxter he believed the volunteer canola plants had 'come from Sevenoaks' (adopting the language of exhibit 1, par 14(ii) consolidated statement of facts agreed; but which is not a direct quotation of the passing words). Mr Baxter apparently did not dispute this at the time, or thereafter (exhibit 41, par 9).
I will interpolate, given that the canola plants had apparently 'self‑sown' on Eagle Rest, that this meant that some canola seeds must earlier have been moved to the soil at Eagle Rest, from Sevenoaks - in order to subsequently germinate as canola plants. What was said as to the mode of carriage of the canola seeds into Eagle Rest in the conversation of November 2008 is less clear.
Mr Marsh told Mr Baxter he was welcome to come over to Eagle Rest to look at the other (growing) volunteer canola plants. There appear to have been 12 such plants in 2008, see ts 202. Mr Baxter did not take up the offer to visit.
It is agreed that at the November 2008 meeting Mr Marsh also told Mr Baxter (I interpolate, no doubt with an eye to the future) that if the growing of GM canola ever became legal in Western Australia, and was grown by Mr Baxter upon Sevenoaks, and blown or carried on to Eagle Rest, that Mr Marsh's organic certification could be imperilled (see exhibit 41, par 9(iv)).
Genetically modified organisms (GMOs) were, Mr Marsh also told Mr Baxter at this time, not allowed in a certified organic system (exhibit 41, par 9(iv)).
Nevertheless, it is also accepted that Mr Baxter then responded to Mr Marsh at this meeting that he probably would grow GM canola, if it became legal to do so (exhibit 41, par 9(v)).
Despite the subject matter of the discussion and apparent disagreement of position, there is no suggestion put to me that this was not a cordial meeting as between the two Kojonup neighbours in November 2008.
Just over a year later, around March 2010, following a January 2010 ministerial order issued under the Genetically Modified Crops Act 2002 (WA) authorising the cultivation of GM canola in WA, Mr Baxter's agronomist, Mr Chris Robinson, met Mr Baxter at Sevenoaks.
The meeting was to settle upon that year's annual cropping programme for Sevenoaks and Baxter's Block. Mr Robinson now recommended that Mr Baxter plant Roundup Ready (RR) GM canola in three eastern paddocks of Sevenoaks. The three paddocks adjoined the road reserve. On the other side of the road reserve, as we have now established, lies the western paddocks Eagle Rest.
The same month, Mr Baxter attended a local Monsanto Australia seminar, concerning contractual requirements that needed to be met by farmers for obtaining RR canola seed in order to grow RR canola. One of the growing conditions was that any RR canola crop was only to be planted up to a distance of 5 metres from a paddock fence.
Between 14 and 17 May 2010, Mr Baxter sowed RR canola in his Range and Two Dams paddocks at Sevenoaks. However, he did not have enough RR canola seed to plant RR canola in the proposed third paddock (Mailbox). That paddock, in the end, was solely sown with conventional canola, in 2010.
In 2010, Mr Marsh had been verbally told by Mr Baxter of the proposed planting of GM canola in two boundary paddocks. A brief conversation took place at a 'busy bee' which both men attended, held early that year on the property of another Kojonup farmer, Mr Marinoni. There is little detail about this conversation in the evidence.
Mr Marsh described his crop rotation plan for Eagle Rest for 2010 in one of his witness statements (exhibit 5(b)). Table 1 attached to the statement records that for 2010, paddocks 1, 3 - 6, were to be used to grow organic oats. Paddock 2 was divided, with 6 ha for oats and 6.9 ha for hay. Paddocks 7 - 9 and 13 were to be used as pasture (for sheep). A part of paddock 11 was to be used to grow wheat. Mr Marsh's initial intention had been to grow organic wheat in western boundary paddock 10, closer to Sevenoaks. Mr Marsh's evidence clarified his move of that proposed crop to the more centrally located paddock 11 for that year's organic wheat crop. This was undertaken 'because Mr Baxter informed us he was going to go GM' (ts 219 - 220).
Eagle Rest paddock 11, slopes downwards at its southern end. The wheat crop was only sown on the northern, upper portion. This was, Mr Marsh said, a way of creating a 'buffer zone' (ts 223).
Boundary paddock 12 of Eagle Rest was used in 2010 to grow spelt and rye crops. However, the 2010 cereal crops in paddock 12 were never capable of being sold that season as certified organic produce. This was because Mr Marsh had earlier used paddock 12 to quarantine his sheep for a month, after a seasonal need to drench them with chemicals, to address parasite problems arising during 2009 (ts 222).
In September 2010, Mr Marsh had erected some new signs along the boundaries of Eagle Rest. The new signs said that the property was a 'certified organic farm' and 'GM free' (exhibit 41, par 6). A photograph of one sign, seen as carrying an endorsed date of September 2010, was tendered as exhibit 9.
About 29 September 2010, Mr Marsh hand-delivered to Mr Baxter a pro forma type document entitled 'Notice of intention to take legal action'. This document, along with its accompanying attached pages, is found at TB Vol 1, 246 - 252. By exhibit 1, the delivery of that document to Mr Baxter is agreed. However, the factual correctness of its content remains as heavily disputed.
The September 2010 notice document does not look to have been drafted by a layperson. Rather, it presents as a pro forma, quasi-legalistic document. Blank spaces of the document look to be filled out by Mr Marsh in his longhand - to identify his own specific details and also to direct the pro forma notice, once completed, to Mr Baxter particularly.
The notice says, among other things, that use of GMOs (meaning Genetically Modified Organisms) can cause 'catastrophic commercial losses' to farms not cultivating GM crops, particularly those accredited as organic farms (par 1). Such commercial losses are said, by the notice, to be caused as a consequence of organic farmers losing their certified status and being unable to charge the premium price which organic goods attract on the market (par 2). These losses would not, the notice continued, generally be covered by an insurance policy (par 3). Eagle Rest was identified as a certified organic farm (par 4).

The notice document proceeded to state, by reference to an asserted legal principle of strict liability, that a person would be responsible for losses 'caused by the escape of a dangerous thing from land even where there has been no fault or negligence' (par 7). The purported principle of strict liability, as described in the notice, was said to apply to an escape of GMOs 'irrespective of the means by which the GMOs escape or the unexpected intervention of any person' (par 8).
The document concluded by advising that the Marshes intended to take legal action in such an event(s) and, as well, gratuitously advising that Mr Baxter should obtain comprehensive indemnity insurance for his financial protection (pars 10 - 11). Attached to the notice was Schedule A, setting out a list of hypothetical items of loss the Marshes may seek to recover. Also attached were extracts containing s 3.2 of NASAA Organic Standards. Section 3.2 is entitled 'Genetically Modified Organisms'.
On 25 October 2010, Mr Marsh caused to be published in the local West Arthur Shire community newspaper (The Bleat) notice declaring Eagle Rest a 'Genetically Modified Organisms {GMO} Free Area'. It was said that court action would be taken in respect of 'any Forfeiture of GM FREE ACCREDITATION or ORGANIC CERTIFICATION' (emphasis in original) in the event that the land 'becomes contaminated with GMOs'.
The newspaper's notice continued to say that it would be relied on as demonstrating the public was alerted as to the 'foreseeability of the losses and damages' incurred.
Notices in substantially the same terms were also caused to be published by Mr Marsh in the Kojonup News on 5 and 19 November 2010, and again in The Bleat on 8 and 22 November 2010. The series of notices placed by Mr Marsh may be seen at TB Vol 1, 259 - 284.
As earlier mentioned, the plaintiffs' introduction of these notices into evidence as part of the trial bundle (exhibit 4) was agreed to by the defendant -on the limited basis that the notices did not go to prove the truth of their contents. To that end, footnote 3 in exhibit 1 says that the 'defendant does not agree with the statement that Eagle Rest was declared GMO free'.
Nevertheless, the fact that 476 of the 477 hectares of Eagle Rest had been certified by NASAA (more correctly by NASAA's subsidiary corporation, NCO) as an organic farm before and up to late 2010, is uncontroversially accepted at this trial.
Between 8 and 10 November 2010, Mr Baxter's engaged swathing contractor, a Mr Meredith, cut the Range and Two Dams RR canola plants. The cut plants were then pushed together by the swather into windrows and left standing in rows upon the two paddocks (see [21] ‑ [23] above).
In contrast, the conventional canola crop growing in the adjacent Mailbox paddock of Sevenoaks was harvested some weeks later by Mr Baxter, using direct heading (ts 831 - 832).
From a report compiled by DFAWA (see TB Vol 2, page 349) it appears Mr Marsh first noticed some canola swathes outside Sevenoaks, on 29 November 2010. They were then observed on the road reserve between Eagle Rest and Sevenoaks. The following day, Mr Marsh found swathes within his Eagle Rest property.
By 1 December 2010 Mr Marsh had notified DFAWA of the presence of canola swathes upon Eagle Rest. The next day, Mr Marsh sent two faxes to NCO officer Stephanie Goldfinch in South Australia. NCO is NASAA's wholly owned subsidiary corporation (NASAA Certified Organic Pty Ltd). It deals with the organic certification status of operators such as the Marshes. Its operations were carried on from a base in South Australia.
Mr Marsh's first communication to Ms Goldfinch (TB Vol 2, page 291) told her there was 'substantial contamination' from 'neighbours swathed GM Canola crop … up to 800 metres inside the boundary'. His second fax (TB Vol 2, page 292) revised this to 'an area up to 1.2km from GM boundary into our property by 1.6km wide … approximately 160 Ha', including 'hundreds of swathed GM plants and thousands of seeds spread across our land'. Mr Marsh also said his sheep were eating the swathes.
Two DFAWA officers and one local grower inspected Eagle Rest on 3 December 2010. A report of that inspection (dated 17 February 2011) is found at TB Vol 2, pages 348 - 366.
The inspectors were taken by Mr Marsh to various locations on Eagle Rest. The inspection party noted a presence of canola swathes, taking photographs and five samples of plant material. Photographs were attached to the report. The swathe samples were sent to an independent testing laboratory. The presence of RR canola in the tested swathe samples from Eagle Rest was advised on 23 December 2010.
Albeit never formally admitted at the trial, there can be no doubt as to the origin of these canola swathes as being from Sevenoaks and I will now render that finding, which was otherwise not agreed.
Mr Marsh's reactions or inactions after discovering what he always strongly suspected to be, and which was later confirmed by the testing, to be RR canola swathes on Eagle Rest, raise some issues of controversy dealt with later. Importantly, I do note a comment, when Mr Marsh took the DFAWA inspectors to see a swathe which was then stuck in a boundary gate. The report comment was that the swathe 'was left stuck in the chicken wire as Mr Marsh told the Visitors he wanted the plant to remain there' (see TB Vol 2, page 349).
Further on in their report, the DFAWA inspectors comment that they '[r]ecommended to Mr Marsh he collect the canola plant material that he had pointed out to us to prevent them from shedding seed and moving further into his property. Mr Marsh advised that he would rather the plants remain where they were for the time being' (see TB Vol 2, page 350).
The DFAWA inspectors also had told Mr Marsh that DFAWA would provide 'technical advice to Mr Marsh to help him manage the presence of GM material on his property'. However, the report noted that more information was required on the NASAA recertification process. I return to this aspect later.
On 4 December 2010, there was the first of a series of inspections at Eagle Rest by a representative of NASAA's certification subsidiary, NCO. The first NCO inspection was conducted by a Ms Kathe Purvis. Her written report concerning her inspection of 4 December 2010 is at TB Vol 2, pages 293 - 309. The document was originally incorporated into the trial bundle on 13 February 2014, subject to some submissions as to the limited scope of its use. However, on 18 February 2014, I was told the document was, by consent, in evidence at trial for all purposes, albeit Ms Purvis was not called as a witness.
Ms Purvis recorded that the Eagle Rest 'operator', viz the Marshes, had been 'fully compliant' (meaning with NASAA Standards for their organic status, as I will later explain). However, through 'no fault' of theirs, there was assessed by Ms Purvis to be a 'major non compliance' manifesting in 'GM canola … scattered across a large area of [the] property'. This included Eagle Rest paddocks 7, 8, 10 and 12. Ms Purvis' report did not say whether it was the whole or part of a paddock where swathes were found or in what concentration. The sheep grazing in paddock 7, it was inferred, had eaten the heads of the swathes (ie, only partly eaten, not entirely eaten, some swathed plants).
It was recorded by Ms Purvis that (on 4 December 2010) a 'strong southerly wind was blowing at the time of the inspection'. The wind gave rise to her 'concerns for areas further into the property due to the volume of plants material [sic] on site, the way it was moving along with the wind and the continuing strong wind that was blowing from the south'. Indeed, Ms Purvis further recorded being told by Mr Marsh that between her inspection at Eagle Rest and a subsequent follow up phone call, that swathes had now blown into paddock 13.
At its conclusion, Ms Purvis' inspection report stated that Mr Marsh 'will not act until he has advice from NASAA on the status of his crops', due to be harvested at that time.
The DFAWA report and other evidence indicates Mr Marsh was holding off not only harvesting the crops on Eagle Rest paddocks 1 to 6 (oats), 11 (wheat) and 12 (spelt and rye), but also that he was holding off making any immediate efforts to gather up and remove the canola swathes which had blown into Eagle Rest, pending some outcome or advice from NASAA (or NCO).
Back on Sevenoaks, between 2 and 4 December 2010, Mr Baxter completed the last phase in the swathing process, by the harvesting the ripened seed pods of the swathed RR canola out of the windrows in the Two Dams and Range paddocks.
On 10 December 2010, NCO's Executive Officer Stephanie Goldfinch wrote to the Marshes. She now informed them that NCO's organic certification for Eagle Rest paddocks 7 - 10, 12 and 13 was being suspended. This suspension was pending 'further investigations' (see TB Vol 2, pages 323 - 324). This appears to be a reference to the awaiting of test results conclusively confirming the presence of GMOs (ie, RR canola) in the swathe samples from Eagle Rest.
A second post incident inspection of Eagle Rest, undertaken by another NCO local representative, took place on 21 December 2010. In this instance, the inspection was conducted by a Ms Clare Coleman. At this time, it was apparent the previously observed swathes remained. More photographs and samples were taken. Ms Coleman did not give evidence at the trial.
For paddock 11 (in the middle section of Eagle Rest), it was noted there was a wheat crop growing on the upper, northern portion of the paddock. Three canola swathes had been found in the lower, southern part of paddock 11 - ie, out of the wheat crop itself. That appeared to be the extent of the NCO ascertained 'contamination' in paddock 11. From Ms Coleman's report, none of the three swathes identified were located within the wheat crop. Nothing suggests that the three cut plants could not have been physically collected and removed before seeds from their seed pods scattered, or were further scattered across Eagle Rest's paddocks. However, that collecting up did not happen until April 2011.
Ms Coleman's report concluded the wheat crop was 'free of contamination'. On the other hand, for paddock 12, some swathes had been found 'lodged within the [standing rye] crop'.
Samples of the canola swathes were again taken. Earlier samples taken by Ms Purvis had apparently been lost by the postal service. Samples were sent by Ms Coleman to a third party testing laboratory. The samples were eventually tested and proved positive for the presence of RR canola.
Results of that testing of the swathe samples were soon received by Ms Goldfinch for NCO in South Australia, on 29 December 2010.
The same day, Ms Goldfinch wrote again to the Marshes, informing them all of Eagle Rest's paddocks 7 - 13 were then being decertified - along with any crops growing thereon.
That left only Eagle Rest paddocks 1 - 6 (with their standing unharvested organic oats crop) remaining. Additionally, a small 6.6 ha area of Eagle Rest (Old Orchard, Well, House, Dam) was designated by NCO as a quarantine location for sheep which had been grazing on the canola swathes.
The 29 December 2010 NCO letter continued:
The decertified areas will remain as such until it can be verified that the GM material has been entirely removed. For this land to resume organic status, paddocks must be eradicated of GM material and verified by inspection during the cropping season.
Ms Goldfinch's decertification letter to the Marshes did not set any timeframe for Eagle Rest's possible future organic recertification - beyond a somewhat open-ended benchmark of the RR canola being 'eradicated'.
The NCO letter continued to inform the Marshes of their 'rights of appeal':
You may appeal any part of this Licence within 30 days of the date of this letter. Your appeal must be made in writing and it should include reasons for your appeal including any relevant documentation. NCO will consider your appeal carefully. If it is not resolved to your satisfaction, you have the right to ask NCO to constitute a formal appeal hearing to reconsider the matter.
How the Marshes might have had NCO's decertification decision altered or reversed is not apparent. For the time being, it may be noted that this NCO advice displayed, on its face, no reasons or explanation for the decertification decision.
The letter did not refer to any particular organic standards, either from the NASAA Standards or National Standards (both of which I will refer to later in more detail). Nor did it mention as relevant any clauses of the Marshes' NCO/NASAA contract as having possibly been transgressed or, at any rate, to identify a basis for the decision to decertify Eagle Rest's paddocks 7 to 13.
In the ensuing 2011 growing season at Kojonup, Mr Baxter did not sow any RR canola, or any other GM canola variety, upon his Sevenoaks' paddocks. He did, however, on some of his paddocks at Baxter's Block.
The position then, at the start of 2011, was that Eagle Rest's paddocks 7 - 13 stood as decertified by NCO. Paddocks 1 - 6 remained as certified organic. And a small area functioned, on a temporary basis, as a quarantine area for sheep. For the time being (ie, in 2011) there was no GM canola being grown in any of the paddocks of Sevenoaks.
During 2011, Mr Marsh discovered nine volunteer canola plants to be growing on Eagle Rest. One of these (found in paddock 5) tested negative for GM. The other eight plants tested positive to GM. Of these, four were found growing in paddock 10, after the summer rains from storms of January 2011. Later, three more cut canola plants were found by Mr Marsh growing in paddock 12. One more plant was found in paddock 13. This comprised the eight GM canola plants in total that were located by Mr Marsh on Eagle Rest during 2011.
Hence, only eight GM canola volunteer plants was the extent of the germinations of volunteer GM canola plants upon Eagle Rest in 2011 (see TB Vol 2, pages 374 - 376, 387 and ts 196 (Mr Marsh's examination-in-chief)).
After 2011, more GM canola volunteer plants were located at Eagle Rest before this matter proceeded to a trial, in February 2014.
I move to address some further, relatively uncontroversial, issues concerning canola and weeds.

More background to Canola and weeds

Canola is an oil seed vegetable plant grown commercially in many parts of Western Australia.
Kojonup agronomist Christopher Robinson (amended witness statement, exhibit 30) provides what is, I assess, uncontroversial background to the extent of canola grown in Western Australia and, in particular, in the Kojonup district. I mention also in this respect the evidence from local Kojonup farmer Digby Stretch, a witness at the trial called for the defence (exhibit 29).
As regards varieties of canola, Mr Robinson explained at par 15 that, generally speaking, there are four different types of canola. The varieties have different tolerances to weeds and to herbicides.
Mr Robinson explains (and I accept this evidence) as regards canola varieties and weeds:
15.There are four types of canola plants which have been grown in the shires, [the shires of Kojonup, Boyup Brook, West Arthur, Katanning, Tambellup, Wandering, Williams and Cranbrook] in which I work. These are:
(i)Conventional canola which has tolerance to group A and Lontrel herbicides but is now rarely grown because wild radish plants cannot be controlled in a conventional canola crop, as the herbicides which remain lethal to wild radish are also lethal to conventional canola.
(ii)Imidazoline tolerant canola. This is known as IT canola and has a tolerance to imidazoline type herbicides. Wild radish is developing resistance to group B herbicides including AMID and wimmera ryegrass has developed resistance to group B herbicides. Imidazoline is a group B herbicide.
(iii)Triazine tolerant canola. This is known as TT canola. TT canola is the most common type of canola grown in the Shires in which I work. Triazine is a group C herbicide. HRWR [Herbicide resistant Wimmera ryegrass] is resistant to group A and group C herbicides.
(iv)GM [genetically modified] canola has a tolerance to the glyphosate herbicide. Roundup Ready canola ('RR canola') is a variety of GM canola.
(v)Paraquat and sprayseed are group L herbicides.
(vi)Wimmera ryegrass is not resistant to paraquat and sprayseed [but] these herbicides are lethal to canola and cereal crops.
(vii)Paraquat and sprayseed are commonly used as knockdown sprays to kill wimmera ryegrass before the canola crop or cereal crop is planted. This avoids the need to use Roundup Ready herbicide … [ie, glyphosate which is commercially known as Roundup] … as a knockdown and assists to prevent the development of herbicide resistance to Roundup Ready herbicide spray.
(viii)Whilst the canola crop or cereal crop is growing, more wimmera ryegrass plants will continue to germinate if the paddock (if wimmera ryegrass seeds are present) and it is these late germinating wimmera ryegrass plants which [have] presented a serious problem to many growers.
16.All types of canola have a tolerance to group A herbicides which include clethodim and are used to selectively control the later germinating ryegrass.
Mr Robinson elaborates about the problematic weed known as wimmera ryegrass, or sometimes called Herbicide Resistant Wimmera Ryegrass (HRWR). At par 19 he explains:
Wimmera ryegrass ripens in the spring and releases its seed in the late spring/early summer, ie, around the time cereal and harvesting operations are commencing. The seeds from these plants are spread by wind, animals and water runoff. A wimmera ryegrass plant can produce up to 500 seeds.
At par 21(3) Mr Robinson further explains the plant/weed relationship between canola and wimmera ryegrass. He says:
(3)Canola is not a competitive plant. On the other hand, wimmera ryegrass is a very competitive plant and will out-compete canola for moisture, nutrition and growth. I have observed late germinating wimmera ryegrass when not adequately controlled to reduce crop yields by about 80% in severe cases.
(4)If the wimmera ryegrass problem is not controlled its seed banks will build up on an increasing basis in the paddock and the problem will become more severe from year to year.
Mr Robinson's evidence explaining the nature of different canola varieties, as well as the problematic issue of weed competitiveness reducing the yields in a canola crop, particularly due to the adverse effects of wimmera ryegrass was, as I apprehend it, wholly uncontentious. I accept all this evidence.
I now need to say something about legislative and executive events in Western Australia which underpin what was a change in State government policy in early 2010 – to permit for the first time the lawful cultivation of a genetically modified (canola) crop in this State.

January 2010: it becomes lawful to grow GM canola in Western Australia

In 2003, the West Australian Parliament passed the Genetically Modified Crop Free Areas Act 2003 (WA) (GMCFAA).
Sections 4 to 6 of the GMCFAA provide:
4.       Designation of genetically modified crops free areas
(1)The Minister may, by order published in the Gazette, designate an area of the State as an area in which -
(a)a genetically modified crop must not be cultivated; or
(b)a genetically modified crop specified in the order must not be cultivated.
(2)An order, or a combination of orders, may designate the whole of the State.
(3)An order may be amended or revoked by further order published in the Gazette.
(4)Section 42 of the Interpretation Act 1984 applies to an order as if the order were a regulation.
5.       Offence
(1)A person commits an offence if -
(a)the person cultivates a genetically modified crop …
(4)Subsection (1) does not apply to the cultivation of a genetically modified organism if the cultivation is covered by an exemption granted under section 6.
6.       Exemptions
(1)The Minister may, by order published in the Gazette, exempt a person, or a specified class of persons, from the application of section 5(1) to a specified extent in relation to a specified area or in any other specified way.
(2)An exemption may be granted subject to specified conditions.
(3)The Minister may, by order published in the Gazette, vary the conditions to which an exemption is subject or revoke the exemption.
(4)Section 42 of the Interpretation Act 1984 applies to an order under subsection (1) or (3) as if the order were a regulation.
(5)An exemption may be included in an order designating an area under section 4.

The Western Australia, Government Gazette, No 49 (22 March 2004) carried the Minister for Agriculture's Genetically Modified Crop Free Areas Order 2004 (see TB Vol 1, page 210).
This order of the Minister designated the whole of the state of Western Australia as an area where genetically modified crops could not be cultivated. I note, particularly, cl 3 is expressed to be for the purpose of preserving the identity of non-genetically modified crops for marketing purposes.
Just under six years later, on 25 January 2010, then Minister for Agriculture, Mr Redman, issued his exemption order, pursuant to s 6(1) of the GMCFAA (see exhibit 5A, [41]). This order now exempted any person cultivating GM canola in any part of Western Australia (see s 5(1) of the GMCFAA), if the GM canola in question was licensed for international release into the environment under the Gene Technology Act 2000 (Commonwealth) (the GTA). Section 5 of the Commonwealth legislation provides:
5.Offence
(1)A person commits an offence if -
(a)the person cultivates a genetically modified crop;
(b)the crop is cultivated in an area that is designated in an order under section 4;
(c)if the order is made under section 4(1)(b), the crop is specified in the order; and
(d)the person knows, or is reckless as to whether or not, the crop is a genetically modified crop.
Penalty: $200 000.
(2)Subsection (1) does not apply to the cultivation of a genetically modified organism under a GMO licence if —
(a)the licence authorises release of the genetically modified organism into the environment but only to the extent of release for the purposes of a field trial; and
(b)the cultivation is a field trial that complies with the licence.
(3)Subsection (1) does not apply to the cultivation of a genetically modified organism if the cultivation does not involve the intentional release of the organism into the environment.
(4)Subsection (1) does not apply to the cultivation of a genetically modified organism if the cultivation is covered by an exemption granted under section 6.
(5)Proceedings for an offence against subsection (1) are to be dealt with by a court constituted by a magistrate.
There is no dispute in this trial that the variety RR canola, that was planted and harvested on Sevenoaks by Mr Baxter during 2010, was not licensed for international release. In other words, persons growing RR canola were exempted under the WA Minister's exemption order of 25 January 2010 under s 6(1) of the GMCFAA.
Earlier, there had been some limited GM canola trials in WA during 2009. These were carried out in accord with other exclusions issued under the Western Australian Act. One 2009 trial was conducted on Mr Digby Stretch's Kojonup property.
It is now necessary to notice some definitions from the GMCFAA and the GTA. I will refer to three. The significance of these definitions emerges as background later in the reasons, in a context of evaluating issues relating to the asserted 'contamination' and 'genetic contamination' of Eagle Rest by the presence of GM canola swathes from Sevenoaks.
First, by s 3 of the GMCFAA, the term 'Gene Technology' has a meaning taken from s 10(1) of the Gene Technology Act 2000 (Cth). This in turn is ultimately seen to be defined as:
gene technology means any technique for the modification of genes or other genetic material, but does not include:
(a)sexual reproduction; or
(b)homologous recombination; or
(c)any other technique specified in the regulations for the purposes of this paragraph.
Second, under s 3 GMCFAA:
'Genetically modified crop' means a crop that consists of or includes plants that are genetically modified organisms.
Third, under s 10(1) of the Gene Technology Act 2000 (Cth) and s 3 of the GMCFAA:
'genetically modified organism' means:
(a)an organism that has been modified by gene technology; or
(b)an organism that has inherited particular traits from an organism (the initial organism), being traits that occurred in the initial organism because of gene technology;
…
There was no suggestion made in this trial, nor could there reasonably have been, that the conduct of Mr Baxter in planting GM canola (ie, RR canola) on two of his eastern boundary paddocks at Sevenoaks in 2010, contravened any law of this State, or of the Commonwealth. Mr Baxter's conduct in planting GM canola in 2010 in the two paddocks of Sevenoaks was entirely lawful conduct.
So, after January 2010, an opportunity for West Australian farmers to lawfully grow GM canola as a commercial exercise arose as a consequence of two key events. First, the actions of the Western Australian Legislature in 2004, in initially permitting exemptions by s 5 of the GMCFAA. Second, by the executive order issued under s 6 of the GMCFAA as published in the Government Gazette of 25 January 2010, by which the State Minister of Agriculture exempted GM canola that was licensed for international release from the prohibitions of the GMCFAA.
The next two sections in these reasons address scientific evidence at the trial that was essentially uncontroversial.

Scientific evidence at trial concerning the properties of genetically modified (GM) canola

The plaintiffs' expert, Rene Van Acker is Associate Dean of the Ontario Agricultural College, as well as a Professor in the department of Plant Agriculture at the University of Guelph, Canada. Professor Van Acker is an expert in crop science and weed management, holding a doctorate in crop weed ecology.
Professor Van Acker's research areas include weed seedling recruitment biology, ecology and the co-existence of GM and non-GM crops.
Professor Van Acker is a widely published author of many articles, as identified within his reports for the plaintiffs (exhibits 16A, 16B and 16C).
At page 5 of his report (exhibit 16A) Professor Van Acker explains the nature of genetic engineering or genetic modification. It is convenient to adopt his explanations:
Genetic engineering (GE) and genetic modification (GM) both refer to the techniques that allow for specific pieces of DNA to be moved from one organism and inserted into another. The intention of GM is that the piece or pieces of DNA that are transferred between organisms are a specific gene (or genes – the transferred genes are referred to as transgenes) that in code for a desired trait (ie herbicide tolerance). That is then expressed in the receiving organism. The novelty of GM is:
(1)that very specific pieces of DNA can be moved between organisms (ie a single gene); and
(2)that the technique allows DNA to be moved between any organisms (ie DNA movement is not limited by species boundaries and/or sexual compatibility requirements). GM allows DNA transfer between organisms that could not occur in nature and would not be possible via traditional plants or animal breeding techniques. As such, the possibilities in terms of what genes (or DNA) may be transferred into an organism are almost endless and profoundly beyond what would be possible naturally...
Roundup Ready canola is an example of a GM crop with the trait of herbicide tolerance (tolerance to the herbicide glyphosate) is achieved in canola by transferring two new genes into canola using GM techniques. One gene produces a version of the target enzyme of the glyphosate herbicide (EPSP synthase) that is insensitive to the herbicide (does not bind the herbicide and so is not affected by it) and a second gene which expresses a protein that metabolises (breaks down) the glyphosate herbicide into constitute chemicals that do not have any herbicidal affects. The action of these two genes makes the GM Roundup Ready canola tolerant to the glyphosate herbicide (exhibit 16A, page 5).
At trial there were minimal, if any, differences as between Professor Van Acker and the defendant's bioethics and biosafety expert, Professor Patrick Rüdelsheim, of the Universities of Antwerp and Ghent in Belgium. Professor Rüdelsheim's report, dated 2 October 2013, became exhibit 28.
Section 3.2 of Professor Rüdelsheim's report addresses the issue of the release in Australia of GM canola. At page 15, he quotes from a statement of issues made by the Office of the (Australian) Gene Technology Regulator (OGTR) of 2003. At that time, the OGTR had just issued a licence to Monsanto permitting the commercial release in Australia of its RR canola GT73 (see page 11 in section 2.3 of Professor Rüdelsheim's report). The report said:
In a subsequent communication OGTR confirmed that the RR canola can be used in the same manner as conventional canola, including the use as stockfeed. At the same time the Australian Pesticides and Veterinary Medicines Authority (APVMA), which is responsible for the registration of agricultural chemicals, concluded an extensive assessment of the herbicide and approved the use of it for weed control in RR canola crops.
Specifically concerning the public safety of RR canola, Professor Rüdelsheim then refers to and adopts what is said in a report by the Australian New Zealand Food Authority (ANZFA) (now called Food Standards Australia New Zealand) (FSANZ) which said:
ANZFA concluded that no potential public health and safety concerns had been identified in the safety assessment of food derived from this RR canola [referring to a 1999 draft risk analysis report identified in footnotes 6 on page 15]. Based on the data submitted by the applicant, food derived from RR canola GT73, was regarded to be equivalent to food derived from conventional canola in respect of its composition, safety and end use. Similarly, following rigorous assessment (Office of Gene Technology Regulator, 2003), the Gene Technology Regulator considered that the risks posed by the proposed commercial release of RR canola to human health, safety and the environment (were) no greater than those posed by conventional (non-GM) canola (page 15).
Page 15 of Professor Rüdelsheim's report addresses the residual presence of RR canola vegetative plants and seeds. Another observation cited from the OGTR's 2003 publication in that respect was:
The emergence of volunteer plants subsequent to the cultivation of a crop, and their control or removal prior to the next season's planting, is an integral part of normal agricultural practice that is not in any way restricted or peculiar to either canola or GM crops... It will not pose any greater risks to human health and safety or the environment than can conventional canola. Therefore no risk management conditions are proposed in relation to weediness.
An experts' pre-trial conferral conference between Professor Van Acker and Professor Rüdelsheim of 22 January 2014 generated their joint agreed memorandum, tendered at trial as exhibit 17B. Three main topics were identified by that memorandum as having been discussed between them. After discussion there were no points of remaining difference. Point two from the conferral memorandum addressed 'the possibility of cross pollination between Roundup Ready canola pollen and plants other than canola plants'. To that issue, the two experts had agreed in these terms:
It is known for canola that there is outcrossing potential first to other canola plants, secondly to related Brassicaceae species. For the latter, however, it is typically rare as we each have shown in our respective reports. For the species that Mr Marsh typically has been farming including cereal crops such as oats, barley and wheat there is no possibility of outcrossing from canola. In all cases, the outcrossing potential would be the same for RR canola as it would be for non-RR canola. (my emphasis in bold)
I accept all this expert evidence as now mentioned from Professors Van Acker and Rüdelsheim. There was minimal, if any, controversy as between them in relation to their respective reports. Both were impressive witnesses in my assessment.
With the benefit of that uncontroversial expert evidence, I can turn to address scientific evidence at the trial concerning the physical impacts (if any) of the 2010 GM canola swathe incursion by wind to Eagle Rest.

Scientific evidence as to the modes of possible GM trait transference concerning RR canola

The scope of Mr Baxter's alleged duty of reasonable care owed to his neighbours, Mr and Mrs Marsh, was controversial at the trial. To his accepted knowledge, the Marshes had been running a wholly organic farming operation at Eagle Rest for some years. In that context it should first be asked whether, in 2010, an escape of some GM canola material from Mr Baxter's paddocks at Sevenoaks posed any physical dangers to persons, animals or property at Eagle Rest (as opposed to purely economic consequences).
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).
As regards the issue of a possible unintended spread, transference or dissemination of GM traits from GM canola, Professor Van Acker's primary expert report (exhibit 16A) once again is helpful. I adopt what he says at pages 6 - 7, particularly his explanation of transgene movement, under a heading, 'Pollen Mediated GM Material Movement' (page 7). Professor Van Acker explains that there are only two known methods of GM material movement, being either a transfer by pollen or by seed. I note and accept these observations:
The two vectors of GM material movement are pollen and seed. Gene flow via pollen tends to occur over shorter distances, generally, but pollen can be carried long distances by wind or pollinators (of some species) and Rieger et al 2002 have shown in Australia, that the potential for very long distance (over 2 kilometres) pollen mediated gene flow is possible in canola. The distance for effective pollen mediated gene flow (PMGF) depends on many factors including, to what extent the species will outcross, the size and weight of its pollen, the size of the pollen source and the weather (in relation to movement of the pollen as well as effects on the receptivity of the female), (7).
The point was revisited during Professor Van Acker's cross-examination. He explained:
Now, to be specific, what you are focusing upon here is the movement of GM traits from one plant organism to another. Is that right?---Yes. Yes, that's right.
Not simply the movement of GM plant material in the air or without actually - the movement of GM traits into another organism that previously did not have them?---Well, I go on to talk about pollen mediated gene flow and seed mediated gene flow, so that does involve pollen flow and seed movement.
Yes, but can I put it to you this way, there is [sic] only two ways, isn't there, in which there can be a movement of GM traits from one plant organism to another. One is via pollen - - -?---Right.
- - - and the other is via seed. Is that right?---Yes, right.
And in relation to the seed, the way in which you have the movement of GM traits from one plant organism to another is because volunteers can grow and they in themselves become a source of the movement of pollen, which enables cross-pollination and therefore the transfer of GM traits into another organism. Is that right?---That's right (ts 479 - 480). (my emphasis in bold)
So, in terms of the issues presently relevant to the present litigation, it is clear from this evidence from the Marshes' own expert witness at trial that there was no possible risk of a pollen-mediated GM movement from Sevenoaks to Eagle Rest - at any relevant time. Mr Marsh's evidence was that at no stage had he ever sought to grow or harvest any variety of canola on Eagle Rest. Accordingly, there was zero potential for a pollen-mediated transfer of GM traits from a GM canola crop grown at Sevenoaks in 2010 to another plaint species on Eagle Rest. That is my finding on the evidence led at this trial.
Hence the only transference mode remaining as a possible risk of GM gene transfer from Sevenoaks to Eagle Rest was the mode of a seed mediated movement, involving necessarily the germination of a volunteer GM canola plant in the soil of Eagle Rest.
As to this, Professor Van Acker deals with the issue at page 8 of his expert report (exhibit 16A) under a heading, 'Seed Mediated GM Material Movement'. To be clear, the context is a GM canola seed movement to another location and which seed then germinates in the soil at that secondary location. The germinated canola (ie, volunteer) plant must then grow, so as to itself produce its own pollen, thereby later creating over time the risk of transference by a pollen-mediated GM trait transfer. The GM trait transference to another species would then arise, in effect, at one (or more) stages removed from a direct pollen to pollen transference. At some point, however, pollen needs to be produced from the volunteer plant to effect a cross-fertilisation. I note this from Professor Van Acker's report (8).
Seed movement is another means of GM material movement and admixture of seed can occur at many points within farming and grain handling operations ... . Genes (GM material) may travel great distances when crops seeds are transported by humans either knowingly or unknowingly ... and with the assistance of the seed and grain movement infrastructure, transgene movement can potentially occur at a global scale ... . In addition, because seeds may be persistent, seed movement can facilitate GM material movement and gene flow over time.
Relatively little research has been done on the nature of seed mediated GM material movement. What has been acknowledged in relation to seed mediated GM material movement is that it is often related to human involvement or human error in regard to handling or managing crops or seeds ... . In terms of seed movement, certainly complete separation of operations (eg farming and grain handling) is acknowledged as a prudent means of working towards successful co-existence between GM and non-GM crop production and towards the goal of preventing GM material from ending up where it is not intended, expected or wanted ... . Starting with absolutely clean seed (seed free from GM material) is critical ... and the stringent separation of GM free seed production from any sort of GM crop farming or handling, and frequent testing is required in this regard.
In Western Canada, my own research group ... tested certified canola seed lots for the adventitious presence (AP) of unintended GM traits (transgenes) and found that AP levels varied significantly among the companies whose seed lots we tested ... . Our studies suggested that approaches and protocols likely differed among companies with respect to preventing AP and some companies demonstrated an ability to maintain AP of unintended transgenes at very low levels (zero or near zero levels in certified seed lots of canola). It was obvious to us that some companies make a systematic effort to achieve consistently low AP levels. ...
The persistence of seeds of GM crops is an important consideration for transgene escape and movement. After a crop has been harvested, volunteer and feral GM crop populations can appear in subsequent years and act as a place for the transgenes to come from or escape to. In this sense, for crop species which have large and robust volunteer and feral populations, and especially for crops that produce very persistent seed (or propagule) banks (like canola) a meta-population for a given transgene may arise within a given region ... . The persistence of volunteer canola has been studied extensively. Canola is known to be an effective and persistent volunteer in part because its seed has the ability to enter into secondary dormancy ... . In Western Canada, the average persistence of volunteer canola is 2 - 5 years ... and volunteer canola presence in farmers [sic] fields has been shown to decline rapidly after the first one or two years ... . However, many researchers have measured longer persistence of canola at low levels ... . The implication here is that even if one controls all volunteer plants and prevents any further seed entry it could take many years (and possibly more than a decade) to eliminate an escaped canola population if it has had a chance to establish a seed bank. (my emphasis in bold)

In circumstances where a court is asked to exercise a discretion to grant permanent injunctive relief, the absence of an empirical basis to support any buffer distance sought (in perpetuity) is a negative consideration of some moment.

Conclusion

In the circumstances, the Marsh's action for damages and a permanent injunction against Mr Baxter, must fail.
Upon the publication of these reasons, I propose to make, when moved, an order to that effect.
As to associated issues of legal costs, the standard rule is that the successful party in the contested litigation should receive its taxed legal costs paid by the losing party. Prima facie then, that is the order as to legal costs which presents as being appropriate in the present outcome. However, I shall hear the parties as to their respective costs positions if that is desired or in case special costs orders are sought. I would propose to hear the parties as to costs on the papers, upon the basis of the parties sequentially filed written submissions and affidavit materials (if necessary).
As the successful party in the litigation I would propose that the defendant, Mr Baxter, by his solicitors file and serve upon the plaintiff's solicitors within 21 days of today, a minute of proposed orders as to costs supported by written submissions (not to exceed 10 pages) and with any supplementary affidavit materials relied upon. It of course goes without saying that the parties should confer through their solicitors concerning such orders.
I would afford to the plaintiff through their solicitors a similar period of 21 days after the receipt of the defendant's costs materials to respond with any submissions or answering affidavit materials, concerning a different costs outcome.
I would thereafter propose to resolve any residual outstanding costs issues as between the parties, on the papers, without a further hearing, on the basis of the submitted materials. The parties of course have liberty to make a submission seeking an oral hearing, should that be considered necessary.
Accordingly, the orders today in light of these published reasons will be that:
(a)the plaintiff's action is dismissed; and
(b)all issues as to costs are reserved.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSH -v- BAXTER [2014] WASC 187 (S)

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 19 SEPTEMBER 2014

FILE NO/S: CIV 1561 of 2012

BETWEEN: STEPHEN WILLIAM MARSH
First Plaintiff
SUSAN GENEVIEVE MARSH
Second Plaintiff
AND
MICHAEL OWEN BAXTER
Defendant

Catchwords:

Costs - Special costs orders - Indemnification principle - Stay sought - Information as to successful parties' obligation to bear his legal costs - Costs principles

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Result:

Costs orders issued in defendant's favour

Category: B

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Defendant:     No appearance

Solicitors:

First Plaintiff                :     Slater & Gordon
Second Plaintiff            :     Slater & Gordon
Defendant:     Bradley Bayly Legal

Case(s) referred to in judgment(s):

Atwell v Roberts [2013] WASCA 37 (S)
Bolton v Stange [2001] WASCA 34
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S)
EDWF Holdings No 1 Pty Ltd v EDWF Holdings No 2 Pty Ltd [2008] WASC 275 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
Noye v Robbins [2010] WASCA 83
Noye v Robbins [No 6] [2008] WASC 266
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2)
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 14 (S)
Windus v Director of Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207

KENNETH MARTIN J: Having successfully defended all aspects of the plaintiffs' case at the trial, the defendant, Mr Baxter, by his minute of proposed orders of 20 June 2014, seeks orders that the plaintiffs pay his taxed costs of the action, including reserved costs.
Mr Baxter also moves for some special costs orders applicable to the taxation of his costs. He seeks by his minute (par 2) that his trial costs be allowed and taxed without regard to any of the limits as set under applicable costs scale determinations. Alternatively, he seeks (by par 3) that a taxation of costs proceed without regard to the limits imposed by the relevant costs determinations in respect of six aspects of the costs scale, namely:
(a)the giving of discovery of documents (scale item 7);
(b)defence (scale item 3(b));
(c) proceedings in chambers (scale item 10(a));
(d)preparation of case (scale item 17);
(e)fee on brief for senior counsel and for senior counsel fee for subsequent days of trial (scale items 20(b) and 20(d)); and
(f)counsel fee on brief and for counsel fee for subsequent days of trial (scale items 20(a) and 20(c)).
By par 4 of his minute Mr Baxter also seeks that the taxing officer be directed to make reasonable allowances for:
(a)The preparation and attendance at the mediation conference by both Senior Counsel and Counsel in addition to the allowances for the Instructing Legal Practitioner;
(b)The preparation for and attendance at trial including travel, accommodation and other expenses of the expert witnesses;
(c)Further preparation carried out by Senior Counsel, Counsel and Instructing Legal Practitioner after the commencement of [the] trial.
As foreshadowed in my primary reasons, this outstanding trial costs issue has been dealt with entirely on the papers.
Mr Baxter's application seeking orders for his taxed costs and special costs is supported by the affidavit of Kimberley Theresa Bavin, sworn 17 June 2014. Ms Bavin is a solicitor employed by Mr Baxter's instructing solicitors. Her short affidavit essentially attaches Mr Baxter's draft party/party bill of costs for taxation against the plaintiffs. At par 5 of her affidavit Ms Bavin deposes:
The amounts claimed within the Defendant's Draft Party/Party Bill of Costs for Taxation correctly reflect the work done on a Party/Party basis in relation to the various items in this matter.
I append as attachment A to these reasons Mr Baxter's draft party/party bill of costs as proposed for a taxation. Essentially, the draft shows a potential claim for taxed costs sought as against the plaintiffs and showing 64 different aspects of claimed costs in the amount of $707,615.42 and coupled with claimed disbursements (seen across items 65 - 93 of the draft bill) in the further amount of $96,373.71. That constitutes in aggregate a claim for taxed costs and disbursements sought by Mr Baxter against the plaintiffs, in the amount of '$803,989.10'. I note that figure, now given in the draft bill of costs, in fact appears to be three cents short of the actual aggregate sum, but intentional or not, that discrepancy is of little moment.
Mr Baxter's taxed costs orders are supported by written submissions from his counsel (Mr Forbes) of 18 June 2014, setting out the underlying statutory framework for claiming legal costs (s 280 of the Legal Profession Act 2008 (WA)) and in particular s 280(2) and which, as regards costs orders, empowers a court to do all or any of the following; namely to:
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed.
There are two principal aspects to a successful invocation of s 280(2) so as to obtain a special costs order. First is a requirement that the court be moved to the level of holding the opinion that the amount of costs allowable in respect of a matter under a legal costs determination would be 'inadequate', without intervention. The second aspect is that it must then be established by the claimant to the court's satisfaction that the demonstrated inadequacy in taxed costs under the scales arises because of one or more of the 'unusual difficulty, complexity or importance of the matter': see Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] addressing a predecessor statutory provision as to costs, which was in terms substantially equivalent to s 280(2) of the Legal Profession Act 2008 (WA) (namely, s 215 of the Legal Practice Act 2003 (WA)); see also Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) [3] and Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 14 (S) [7] - [9].
The requirement in respect of the court reaching an assessment that the costs allowable in respect of a matter under a legal costs determination is inadequate can be surmounted where a claimant party shows that there is a fairly arguable case that a party's proposed bill of costs to be presented to a taxing officer may tax out at amounts greater than the limits which would otherwise have been imposed under the applicable costs determination scale. But this is not an arithmetic exercise. The court brings to account in making that assessment its overall impressions about the case, as well as its broad experiences of the workings of the litigation process.
As regards the second component of s 280(2) via the phrase 'unusual difficulty, complexity or importance of the matter' it is well-established that the adjective 'unusual' only qualifies the word 'difficulty' within that phrase. Hence, the word 'unusual' does not qualify the other ensuing criteria, namely 'complexity' or 'importance': see Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] and SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106]; Cape Lambert Resources Ltd [3] - [5]; and Atwell v Roberts [2013] WASCA 37 (S) [15] - [17].
Both questions to be addressed under s 280 of the Legal Profession Act will be addressed by the court as matters of overall impression, rather than becoming a subject of detailed evaluation: see EDWF Holdings No 1 Pty Ltd v EDWF Holdings No 2 Pty Ltd [2008] WASC 275 (S) [7].
In rendering its s 280 evaluation a court will necessarily draw upon its own experience and act upon broad impressions which are gained during the running of the relevant litigation, particularly taking account of the nature and magnitude of issues which have been raised and determined: see Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [43].
But the effect of a special costs order, once made, does not ultimately inhibit the discretion of a taxing officer in the taxation process itself. If a special costs order is made, that event merely allows a taxing officer to consider the potential for an end costs allowance outcome upon the taxation which may ultimately exceed the quantum of any particular scale limit. It always remains entirely within the taxing officer's discretion whether or not to allow an amount claimed as a reasonable allowance for the work carried out.
The effect of a special costs order raising or removing a scale limit is simply to free a taxing officer of a quantitative constraint that would otherwise be delivered by the scale limits: see Heartlink [26] and SDS Corporation Ltd v Pasdonnay [162].
None of the aforementioned principles concerning costs orders presented here as being at all controversial on my review of the exchanged written submissions between these parties concerning costs orders.

The plaintiffs' submissions

The responsive position of the unsuccessful plaintiffs at trial, concerning costs, is discernible from their rival minute of proposed costs orders of 11 July 2014. This is explained in the plaintiffs' written submissions as to costs of the same date by the plaintiffs' costs counsel (Ms M L Coulson). The submissions observe at [24] that the plaintiffs do not take issue with any of the legal principles cited in the defendant's submissions. In particular, the applicability as regards s 280(2) of the two-limb test from Heartlink at [16] is reiterated.
Essentially then, the stance of the plaintiffs, as reflected under their minute and submissions, is to accept the defendant now holds an entitlement to seek an order for the taxed costs of the action (subject to raising a plenary point culminating in a submission put primarily, but in the alternative, that the defendant's application for costs and special costs orders ought be stayed pending a determination as to that plenary issue). The plaintiffs' submissions do not oppose a taxing officer making reasonable allowances for four of the six items as claimed by Mr Baxter without regard to limits imposed by the relevant legal costs determinations (other than as to allowing increased hourly rates): see par 3.2 of the plaintiffs' minute of proposed costs orders.
Essentially then, there presents only minimal controversy as regards Mr Baxter's advocated costs orders seeking the removal of scale limits in respect of:
•giving discovery of documents (item 7)
•preparation of case (item 17)
•fee on brief for senior counsel and senior counsel fee for subsequent days of trial (items 20(b) and 20(d))
•fee on brief for counsel and counsel fee for subsequent days of trial (items 20(a) and 20(c))
By reference then to par 3 of the defendant's minute of proposed orders, only the claims seeking a removal of scale limits in respect of item (b), the defence (scale item 3(b)) and item (c), proceedings in chambers (scale item 10(a)), now raise any substantive controversy. However, remaining in dispute at all levels is the allied request by Mr Baxter that his taxation of costs against the plaintiffs proceed without reference to the limits of the hourly rates, which are also set under the relevant costs determinations.
As regards the first Heartlink hurdle (that is, inadequacy) underlying Mr Baxter's application seeking special costs orders pursuant to s 280(2), the plaintiffs have contended via their written submissions:
•(par 29) it is only those scale items the defendant has identified at par 3 of the defendant's minute that are relevant and no other scale limits or items should be altered. In other words, the plaintiffs reject any blanket approach seeking the lifting of all scale limits. They contend this would result in a lack of clarity and certainty, as well as a substantive failure to satisfy the first limb;
•(par 30) the plaintiffs do accept, however, that 'there are sufficient grounds justifying the making of special costs orders in favour of the Defendant, in relation to Scale items identified at number 3 of the Defendant's Minute, other than numbers 3(b) and 3(c), and other than in relation to hourly rates'. The plaintiffs observe, as is fully accepted, that a mere lifting or removal of a scale limit does not bind or impinge upon the ultimate decision of the taxing officer. They repeat that the effect of such an order is simply to free the taxing officer of a constraint that would have otherwise impacted upon a taxation by reason of a scale limit: see again Heartlink [25] - [26].
As to a meeting of the second Heartlink limb, concerning the criteria required to enliven the s 280(2) threshold for a special costs order, namely either unusual difficulty, complexity or importance, once again the plaintiffs' written submissions sensibly display what is a realistic concession at par 42, in these terms:
Notwithstanding the Defendant's very brief submissions regarding the Second Limb … the Plaintiffs do not take issue with the satisfaction of the Second Limb.

Summary of position

Subject to my ensuing resolution of the plenary (alternative) issue raised by the plaintiffs concerning the requested stay of Mr Baxter's taxed costs application, it may now be appreciated that otherwise, the range of the disputation concerning a making of taxed trial costs orders favouring Mr Baxter against the plaintiffs is narrowed.
Subject then, to my later determination of the plenary submission of the plaintiffs concerning a stay, I can say that beyond the parties' submissions, I have been independently satisfied as a matter of overall impression for this trial as to a likely inadequacy of a taxation outcome for Mr Baxter under the applicable costs scales of the relevant legal costs determinations. That is a view based upon my assessment of the wide dimensions of the trial, now determined. That impression is rendered bearing in mind I have also been the case manager of the action in the CMC list of this court since its commencement in 2012 and, of course, was the trial judge.
I am also independently satisfied the second limb of s 280(2) is met. There is here a demonstrable satisfaction of all aspects of that provision, namely, unusual difficulty, complexity and not to mention an undeniable importance of the matter to participating parties and more generally. In that respect, the wide dimensions of the parties' trial submissions and the responding scale of my reasons for decision - compel what are essentially self-evident conclusions to that end.
I will also say, however, at this point that I do accept two sub‑aspects of the plaintiffs' submissions as regards a taxation of costs for Mr Baxter and the making of special orders. First, on my assessment, a plenary order allowing a taxation to proceed without regard to any of the limits of the applicable costs determinations (alternatively sought under par 2 of the defendant's minute), is not appropriate. In that respect, see observations of Edelman J in Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2) [24]. His Honour observed that a plenary order lifting all scale limits was not appropriate. I endorse that approach as a matter of principle. In my view, it is preferable in principle to proceed as the defendant's minute does in the alternative, by identifying particular scale items requiring adjustment or removal: see par 3 of the defendant's minute, cf the plaintiffs' minute at 3.2.
Second, on the evidence provided for this application, I am not persuaded that a removal of the scale limits concerning hourly rates for legal practitioners under the scale, is or has been justified. An increase in rates would appear to be implicit via some of the claims for taxed costs, as seen under the draft bill. I would not make any orders as regards increasing hourly scale rates. To that end, I note recent observations by Edelman J in Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S) [22] referring in turn to Pullin J's observations in Flotilla [22]. In present circumstances, no basis to alter the rates has been shown.
As regards the plaintiffs' objections in respect of Mr Baxter's claimed removal of scale limits in respect of items (b) and (c) (namely, defence - scale item 3(b) and proceedings in chambers, scale item 10(a)), then notwithstanding the plaintiffs' submissions under pars 35 - 37, my decision is that the limits imposed by the costs determination scale should be removed. An ultimate decision as to the level of a reasonable allowance should be left for the assessment of the taxing officer - without the impediment of any quantum scale limit intruding into that evaluation.
As to the defence, the plaintiffs' submissions correctly point out that the claim in respect of the amended defence is properly identified under item 15 of the draft bill, showing a claimed amount of $17,003.80. Next, it is said at par 37 of the plaintiffs' submissions:
There is no costs order in favour of the Defendant in relation to the Amended Defence and the Defendant's Submissions do not address the issue other than assuming an entitlement to these costs.

However, on this issue, I must disagree. The defendant succeeded at the trial upon his pleaded defence and, in my view, should have an opportunity to recover at a taxation the reasonable costs of the pleading of Mr Baxter's revised defence at the trial under this amendment to his defence pleading.
Likewise, as regards the claim in respect of proceedings in chambers and scale item 10(a), I would conclude it is also appropriate to remove that scale limit, to allow a taxation to proceed without the intrusion of any such constraint. The foreshadowed chambers claim is in respect of item 8 of the draft bill and concerns the parties' strategic conference in chambers before me on 3 August 2012, in the ultimate amount of $2,288.
The plaintiffs also oppose proposed orders seen under par 4 of the defendant's minute (pars 40 and 41 of their written submissions). In that respect, the core submission is such orders are unnecessary. It is put:
The taxing officer has a discretion to determine reasonable allowances, if any, for these costs, and accordingly, directions from the Court are unnecessary.
Upon this issue, I accept the defendant's submissions under their pars 43 to 52. Again, the orders sought in such terms do not fetter a taxing officer's ultimate discretion. I accept that the directions as are sought may, in these areas, reduce potential for uncertainty, or for disputation on the taxation of the defendant's costs.
Accordingly, but subject to my ensuing resolution of the plaintiffs' plenary submission which is advanced in the alternative for a stay, appropriate orders concerning Mr Baxter's taxed costs should issue in the following terms:
1.The plaintiffs do pay the defendant's costs of the action, including reserved costs, to be taxed if not agreed.
2.The taxing officer, in taxing the bill of costs of the defendant, is to make reasonable allowances for the following items and without regard to the scale limits imposed under the relevant legal costs determinations, in relation to:
(a)giving discovery of documents (scale item 7);
(b)defence (scale item 3(b));
(c)proceedings in chambers (scale item 10(a));
(d)preparation of case (scale item 17);
(e)fee on brief for senior counsel and for senior counsel fee for subsequent days of trial (scale items 20(b) and 20(d));
(f)counsel fee on brief and for counsel fee for subsequent days of trial (scale items 20(a) and 20(c)).
3.The removal of the scale limits under the relevant legal costs determinations under order 2 above does not extend to increase the hourly rates as allowed under the scales.
4.The taxing officer is also directed to make reasonable allowances for:
(a)the preparation and attendance at the mediation by both senior counsel and counsel in addition to the allowances for the instructing legal practitioner;
(b)the preparation for and attendance at the trial, including travel, accommodation and other expenses of the expert witnesses;
(c)further preparation carried out by senior counsel, counsel and instructing legal practitioner after the commencement of the trial.
Those costs orders are appropriate subject to a resolution of the plenary deferment issue raised by the plaintiffs, which I have deferred till now, concerning the proposed stay pending the provision of requested costs identification information as sought by the plaintiffs from Mr Baxter but declined.

Plenary issue

The plaintiffs' costs minute by pars 1 and 2, seeks these orders:
1.In relation to Part A of the Plaintiffs' Responsive Submissions dated 11 July 2014 ('the Responsive Submissions'), within 14 days, the Defendant file and serve an affidavit deposing to the following matters:
1.1Information regarding the Defendant's liability for the costs claim by him in the Action above including, but not limited to, any arrangements between the Defendant and the Pastoralists and Graziers Association of WA ('the PGA'), the Defendant's crop insurance company and Monsanto.
1.2Annexing any documents that address the extent of the liability between the Defendant and his solicitors, including the documents that outline the arrangements, if any, between the Defendant and/or the PGA, the Defendant's crop insurance company and/or Monsanto.
2.Further, that the defendant's application for costs and for special costs orders be stayed pending the determination of the defendant's liability for those costs (as claimed by him in the action).
Application to this court to compel Mr Baxter's provision of this costs information was supported by the plaintiffs' written submissions of 11 July 2014: see pt A - headed 'No entitlement to costs' (pars 13 - 22).
In part, these submissions of the plaintiffs contend:
14.The Plaintiffs submit that they have reasonable grounds to query whether or not the Defendant has any liability for the costs that the Defendant is seeking from the Plaintiffs. See Mr Walter's Affidavit and Mr Walter's Supplementary Affidavit.
Part A of the plaintiffs' costs submissions then concludes:
21.If the successful litigant is under no liability to his or her own lawyers for costs, there is no basis upon which the Indemnity Principle is to operate; and in such circumstances if the unsuccessful party were to pay costs to the successful party, the result would be to enrich the successful party by the amount of any such payment, which is inconsistent with the Indemnity Principle: Adams v London Improved Motor Coach Builders Ltd [1920] All ER Rep 340 at page 342.
22. Accordingly, the Plaintiffs submit that the Defendant is not entitled to the costs that he now seeks until a Liability Issue is determined; and the Plaintiffs seek the orders outlined at numbers 1 and 2 in the Plaintiffs' Minute.
The application to compel provision of this information and for the stay is supported by two affidavits filed by the plaintiffs' solicitor, Mr Mark Jonathan Walter of Slater & Gordon Lawyers.
Mr Walter's first affidavit, sworn 10 July 2014, appends a number of documents. First, as annexures MJW1, MJW2 and MJW3, there is a stream of correspondence passing between Coulson Legal, the engaged costs consultant solicitors acting on behalf of the plaintiffs, and the defendant's solicitors, Bradley Bayly Legal. In short, the correspondence of 7 and 8 July 2014 from Coulson Legal had requested information from the defendant's solicitors concerning possible legal cost related arrangements as between Mr Baxter and the PGA, or Mr Baxter's crop insurance company. This was requested, so it was put, 'to ensure that your client has incurred liability for the costs'.
The following letter of 8 July 2014 requested information concerning arrangements, if any, between Mr Baxter and Monsanto as regards his legal costs.
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 request in your letter is based on mere speculation and is inconsistent with case law (Bolton v Strange [2001] WASCA 73 at [7] - [8]).
Annexure MJW4 to Mr Walter's affidavit then attached a variety of media sourced clippings from diverse sources. This material extended to include the Western Grain Growers News issue 1 of 15 February 2011 and 2 July 2011, a printout from the internet of two pages (pages 13 and 14 of the affidavit) under a heading, Dow Jones, an extract from The Countryman apparently of 27 February 2014 and a further internet printout of two pages (pages 16 and 17), once again under the heading Dow Jones. A last media gathered extract appears to be a printout from an ABC News website of 19 June 2014.
Mr Walter then concludes his first affidavit, in terms:
10.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 swore a supplementary affidavit of 11 July 2014, this time attaching as the bundle of documentation marked MJW5
true copies of the financial statements for M O Baxter & Co and Seven Oaks Farm Trust for the financial years ending 30 June 2012 and 30 June 2013 relating to the Defendant's farming business ('the Financial Statements').
Mr Walter observed:
6.The Financial Statements make no reference to the Defendant incurring any legal expenses, which are ordinarily a deductible business expense for taxation purposes.
7.Based on the Financial Statements, I verily believe that I have reasonable grounds to query whether or not the Defendant has paid, or has any liability to pay, the costs that the Defendant is seeking from the Plaintiffs.
It is apparent from the plaintiffs' written costs submissions (under pt A) that from a precedent perspective, considerable reliance is put for the costs information being sought by production of documents by Mr Baxter, upon Noye v Robbins [No 6] [2008] WASC 266 [3]. It was submitted:
18.The Court has previously ordered the production of documents where it was apparent that some arrangement had been made for payment of the successful party's costs of the action by a third party.
Noye v Robbins [No 6] was later taken (with other issues in the surrounding litigation) on appeal to the Court of Appeal: see Noye v Robbins [2010] WASCA 83. Immediately it can be seen that the underlying circumstances were different to this case. It had been demonstrated in Noye v Robbins [No 6] that the State had already met and fully discharged the costs liability of that successful respondent, Inspector Robbins, to his solicitors.
Noye v Robbins [No 6] was not a case of a party holding suspicions over another party to civil litigation receiving some degree of funding support for their costs exposure to its own lawyers. Noye v Robbins [No 6] was a situation of the respondent's trial costs to his lawyers having been completely paid and that obligation fully discharged by the State. The proposed recovery of taxed party/party cost against the unsuccessful party to that litigation, Mr Noye, would only have been, in the end, for the ultimate subrogated benefit of the State - under the terms of costs indemnification repayment arrangements in place between the State and Inspector Robbins. To that end, I note observations of the trial judge in Noye v Robbins [No 6] at [3], as to the information disclosure orders made:
However, counsel for the plaintiff submitted that there had been a funding agreement, the details of which were not then fully known to the plaintiff, under which the first defendant had all of his legal costs of this litigation paid from another source and that he was not personally liable to repay any of that funding. On this basis, it was submitted for the plaintiff that, not being under any liability to pay his costs of the proceedings, or to repay the source from which those costs had been funded, the first defendant was not entitled to an order for costs against the plaintiff because there was no payment or liability for which he needed an indemnity. (my emphasis in bold)
That was the different context in which in Noye v Robbins [No 6] the disclosure by affidavit orders as regards providing documents comprising the underlying agreements relating to funding assistance were made by the trial judge.
In the present case, the plaintiffs' plenary submission as regards a required disclosure by Mr Baxter of documents on affidavit and a stay was responded to by the defendant's further written submissions of 16 July 2014.
Those submissions draw attention to the comprehensive reasons of Owen JA on the appeal for that Noye litigation, concerning costs. Particularly relevant is his Honour's discussion of the (costs) indemnification principle, at [295] - [338] of those reasons and an ultimate upholding of the costs orders below, which favoured Inspector Robbins.
The reasons addressing costs by Owen JA were agreed with by Pullin JA and by Buss JA (see Pullin JA at [381] and Buss JA at [382]). At [313] Owen JA said:
I prefer the view that, even if the liability has been discharged prior to the award of costs, a successful party can still recover costs under the principle in Adams. There are three reasons which lead me to this conclusion. First, the authorities do not, as a matter of principle, appear to differentiate between situations in which the liability exists and has not been discharged and those in which the liability existed but has now been discharged. Secondly, in several cases a successful party has been permitted to recover costs under the Adams principle even though their liability had already been discharged by a third party. The third reason is that the indemnity principle is a flexible principle designed to allow for a just and fair result. In my view, in this instance fairness dictates that Robbins should be allowed to recover his costs.
Working from those principles, 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. 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. Even the unsourced hearsay statements in the collected media articles speak only of Mr Baxter receiving some 'support' (as regards meeting his overall costs liability). But 'support', by receiving contributions towards legal costs falls conceptually a very long way short of properly showing a basis to think Mr Baxter is, or has been, relieved of all personal responsibility to his engaged solicitors for their costs incurred in defending the plaintiffs' ultimately unsuccessful action against him.
Likewise, Mr Walter's assembly of two financial years' financial statements for M O Baxter & Co is wholly equivocal and unhelpful. I assess that material as of no assistance towards showing that Mr Baxter does not bear any legal exposure to his solicitors for his solicitor/client costs incurred in the defence of the plaintiffs' action against him.
Mr Walter's conclusions, therefore, expressed in two affidavits, to the effect that he thinks he holds a reasonable basis to suspect that the indemnity principle as regards costs is not applicable to the present case is, on a proper analysis, wholly misplaced.
Accordingly, the plenary objection raised against making an immediate order for taxed costs in Mr Baxter's favour, with special costs orders, fails. 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: see Windus v Director of Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207 [19].
In the present case, where Mr Baxter has been and continues to be represented by legal practitioners, the Court should assume that the relationship of solicitor and client exists between them and thereby carries a consequential obligation in the client, Mr Baxter, to be responsible for his legal costs as they fall due: see Bolton v Stange [2001] WASCA 34 [7]. As I assess matters, nothing has seriously emerged from the materials presented to undermine or detract from that position.
Consequently, reasonable grounds have not been established to raise any question or doubts over whether Mr Baxter is or was under an exposure to meet his trial costs to his engaged solicitors. An information gathering quest as proposed by the Marshes' solicitors is not appropriate.
Accordingly, there should be orders in the terms I have identified at [33] above.

ATTACHMENT A

[2014] WASC 187

28 May 2014