Marsh v Baxter
[2013] WASC 209
•23 APRIL 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | MARSH -v- BAXTER [2013] WASC 209 |
| CORAM | : | KENNETH MARTIN J |
| HEARD | : | 23 APRIL 2013 |
| DELIVERED | : | 23 APRIL 2013 |
| PUBLISHED | : | 29 MAY 2013 |
| FILE NO/S | : | CIV 1561 of 2012 |
| BETWEEN | : STEPHEN WILLIAM MARSH |
Plaintiff
AND
MICHAEL OWEN BAXTER
Defendant
Catchwords:
Application for urgent interlocutory - Organic farming - Genetically modified crops - Buffer zones - Prohibition on planting - Balance of convenience - Novel facts - Pure economic loss - Adequacy of damages
Legislation:
Nil
Result:
Application refused
[2013] WASC 209
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J T Rush QC & Mr T J Hammond |
| Defendant | : | Ms P E Cahill SC & Ms F Vernon |
Solicitors:
| Plaintiff | : | Slater & Gordon |
| Defendant | : | Bradley Bayly Legal |
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR
57
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 170 CLR
520
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR
148
Goldman v Hargrave [1967] 1 AC 13; [1966] UKPC 2
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Rylands v Fletcher [1868] UKHL 1; (1868) CR 3 HL 330
Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569
[2013] WASC 209
KENNETH MARTIN J
KENNETH MARTIN J:
(This judgment was delivered extemporaneously and has been edited from
the transcript.)1 This is an application for an urgent interlocutory injunction by
chamber summons filed by the plaintiff on 9 April 2013. It relates to the 2013 growing season and the foreshadowed planting by the defendant of a crop known as genetically modified canola, which I will refer to as GMC. The main action itself was commenced in this court in April 2012, almost a year ago, and it has been case managed by me in the CMC list since that time.
2 It is presently anticipated that there will need to be a two to three
week trial. Dates for the trial have not yet been fixed but, according to the present timetable, it is likely that a trial could be ready to commence in early 2014. Thus, there may be a first instance trial resolution of the action before the 2014 growing season.
3 As of now, the action has progressed at a relatively slow pace. The
plaintiff has filed its witness statements and is awaiting one further expert report (from a Dr Snow) which is said to be due on 29 April 2013. Dr Snow's evidence, I am told, concerns seed dispersal by wind and related issues. That evidence will apparently go to the question of safe distances and suitable buffer zones as between distinct cropping or grazing operations.
Background facts
4 By way of background, the plaintiff and the defendant are
neighbouring farmers in the south-west of Western Australia. The plaintiff's farm is known as Eagle Rest. The defendant's adjoining farm is known as Seven Oaks.
5 The plaintiff has devoted himself to organic farming for some years.
In 2004, he obtained a certification from a private corporation, the National Association for Sustainable Agriculture Australia (NASAA), concerning the recognition of his growing of organic produce and raising of organic livestock on Eagle Rest. A certification from NASAA allowed Mr Marsh to market his organically grown or raised produce under a label 'certified organic'. It is said the 'certified organic' label allowed the plaintiff to sell his produce and livestock at greater than standard prices. Hence, the plaintiff is asserting that the NASAA certification constitutes a valuable economic right.
[2013] WASC 209
KENNETH MARTIN J
6 In late 2010, a number of the plaintiff's paddocks at Eagle Rest lost
their certified organic certified status from NASAA. This is said to be in consequence of finding, GMC plants (known as 'volunteer' GMC plants) on Eagle Rest. It appears that in 2010, some GMC matter was carried by the wind and self-propagated as GMC plants on the Eagle Rest property.
7 It is assumed by the plaintiff that the matter which germinated as
'volunteer' GMC plants on Eagle Rest travelled by wind from the defendant's neighbouring Seven Oaks property. The 2010 GMC crop on Seven Oaks had been harvested by the defendant using a method known as 'swathing'. Apparently, such a cutting and stacking method of harvesting generates a greater risk of GMC matter being thrown up in the air. Thus, posing a greater risk of moving from one property to another by wind than would otherwise be the case if the head of the canola plant was more directly harvested.
8 By its 9 April 2013 chamber summons, the plaintiff, almost a year
after commencing the litigation, now urgently seeks an interlocutory injunction to stop the defendant planting a GMC crop in 2013 within a 2.5 km distance to the boundary of Eagle Rest. By par 3 of the same chamber summons, the plaintiff also seeks to restrain harvesting of any GMC crop on Seven Oaks by the method known as 'swathing'.
9 The present application arose after the defendant, through his
solicitors, gave notice of his intent to plant a GMC crop on two paddocks of the Seven Oaks property for the 2013 growing season. Relevant passing solicitor correspondence is found in an affidavit of Ms Chenoah Ellis sworn 17 April 2013. Annexure CE1 to this affidavit is a letter from the defendant's solicitors, Bradley Bayly Legal, dated 2 April 2013. By this letter the plaintiff's solicitors, Slater and Gordon, were advised:
My client has instructed me that he proposes to grow GM canola in two paddocks on his farm this year. The details of the paddocks are: (1) Two Dams paddock, which is separated at the closest point by 310 metres from Eagle Rest; (2) Big Dam paddock, which is separated at the closest point by 400 metres from Eagle Rest.
The letter ends:
My client proposes to harvest the GM canola crops by direct harvest and not by swathing.
10 The 2 April 2013 letter generated a deal of subsequent solicitor
correspondence, culminating ultimately in the present urgent injunction application. Prior to this, there had been, for both the 2011 and 2012
[2013] WASC 209
KENNETH MARTIN J
growing seasons, some consensual undertakings and arrangements put in place between the parties. So, in 2012, the defendant undertook through his solicitors, to not grow GMC within a distance of Eagle Rest which was acceptable to the plaintiff. On 16 April 2012, Bradley Bayly Legal sent a letter (BGB1 in Mr Bradley's affidavit of 19 April 2013) which said:
My client has measured that at the closest point the GM canola paddocks are separated by 1.1 km from the Marsh farm.
11 No difficulty was raised by Mr Marsh in 2012 over Mr Baxter
growing, planting or harvesting conventional (non-GMC) canola in paddocks closer to the Marsh farm. A threatened injunction application which had been considered by Mr Marsh in April 2012 concerning that season was able to be avoided. Unfortunately, that has proven not to be so for this year.
It is plain that an undertaking given by the defendant through his solicitors in 2012 was confined to that 2012 growing season. About 2013, nothing was said. Hence, 'all bets are off' for 2013.
13 This matter became urgent after Mr Baxter's solicitors gave their
notice on 2 April 2013 of their client's intention to plant GMC in the two paddocks I have mentioned on 24 April 2013. Mr Baxter says that it was his practice to customarily begin planting (seeding) around Anzac Day each year. He subsequently revised that proposed commencement of planting date back to 29 April 2013.
14 Therefore, unless restrained, there seems to be imminent prospect of
Mr Baxter planting GMC on his Two Dams paddock, which is separated at the closest point by only 310 m from Eagle Rest, and also on Big Dam paddock, separated at the closest point by 400 m from Eagle Rest. Materially, however, there is no relevant threat for 2013 of Mr Baxter harvesting his 2013 GMC crop by the process known as swathing.
15 Mr Baxter, through counsel, offered the undertaking not to harvest
by swathing for 2013. The court will accept that undertaking. This undertaking should be formalised for the record in due course. But, in the circumstances, any relief by interlocutory injunction against a threat of harvesting of canola by swathing in the 2013 growing season, as claimed at par 3 of the plaintiff's chamber summons, is removed. There is no relevant swathing threat that requires the court's restraint. That aspect of the application falls away.
[2013] WASC 209
KENNETH MARTIN J
16 That leaves par 2 of the chamber summons by which the plaintiff
seeks to restrain the defendant planting GMC in 2013 by imposing a prohibition against the planting of GMC if it is within a certain distance of Eagle Rest. Paragraph 2 of the plaintiff's chamber summons as drawn sought a distance restraint by reference to planting 'within 2.5 km radius of the boundary of land under the control of the Plaintiff'.
17 Written submissions prepared by the plaintiff for this application and
affidavit materials filed on behalf of the plaintiff in support of injunctive relief have been drawn with reference to a requested buffer zone restraint sought of 2.5 km.
18 However, immediately at the commencement of argument before me
yesterday (Monday, 22 April 2013), Senior Counsel for the plaintiff said the plaintiff was only seeking a restraint buffer distance of 1.1 km against the defendant's GMC in 2013. This distance, he said, was in accord with a present 'status quo'. The reference to a 'status quo' arises out of the past undertakings by the defendant, accepted by a consensus in 2011 and also applicable in the 2012 growing season. Those consensual undertakings and arrangements for the 2011 and the 2012 growing seasons have now expired. The former status quo should not necessarily continue for 2013.
19 Some material was put before me in a second affidavit of Mr Bradley
for the defendant explaining the consensus reached between the parties as to GMC planting and harvesting in the 2011 growing season. That material presents as uncontroversial and, albeit late, will be accepted. It simply shows that, in 2011, the parties were able to resolve between them a regime that obviated any need for any injunctive relief at that time. This was essentially because the defendant's paddock use and farm crop rotation methods dictated that, in 2011, he was proposing to plant and harvest GMC on another property he owns, known as Baxter's Block. Baxter's Block is much further away from Eagle Rest than Seven Oaks. Hence, the threat of any airborne or other incursion of a GMC matter or plant or seed was remote in 2011. This was also the case for 2012.
20 I will assess the present application for interlocutory relief as a
restraint claim for a buffer zone of 1.1 km on the basis that the plaintiff's action is approaching readiness for trial in the first quarter of 2014. As I indicated, the plaintiff has filed its non-expert witness statements and some further expert evidence. The plaintiff awaits a further expert report by Dr Snow due by 29 April 2013.
[2013] WASC 209
KENNETH MARTIN J
21 From the defendant's perspective, it is yet to file its witness
statements or expert reports. However, the defendant should be in a position, based on the current directions, for a two to three week trial within that 2014 time frame. Thus, I am essentially evaluating an interlocutory injunction buffer distance application to be applicable, if granted, for the 2013 GMC growing season.
The applicable principles
22 Principles applicable to the grant of interlocutory injunctions were
not in contention between the parties. I first mention oft cited observations in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. In particular I refer to the passages from the reasons of Gummow and Hayne JJ at [65] - [72], dealing with the concept of a prima facie case being required to be shown by an applicant. I also refer to observations by Gleeson CJ and Crennan J at [19] in Australian Broadcasting Corporation v O'Neill to the same effect, although by reference to their parallel terminology of an applicant showing a serious question to be tried.
23 There is, of course, an interrelationship between the limbs of the test
for an interlocutory injunction: a serious question or prima facie case on the one hand, and the balance of convenience on the other. Sir Anthony Mason's observations in the Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 decision are frequently referred to as illustrative of the interrelationship. Hence, in circumstances where there is a strong, powerful or overwhelming prima facie case or serious question raised, such circumstances may lead to the granting of an interlocutory injunction where the balance of convenience between the parties is not so strong in favour of the applicant. Conversely, if the serious question or prima facie case arguments present as more marginal, then a powerful balance of convenience favouring a grant of interlocutory relief may still lead to the plaintiff being successful in that application for an interlocutory injunction.
I approach the evaluation on that basis.
| Disposition |
In the present case the pleadings have long closed and it is clear that the plaintiff's action is:
(a)
entirely of a common law character, with the plaintiff seeking injunctive relief and common law damages but no equitable relief;
[2013] WASC 209
KENNETH MARTIN J
(b) for permanent injunctive relief upon the common law cause of action grounded upon private nuisance; and (c) as regards a common law negligence action also raised by the plaintiff, it is clear that the cause of action as articulated by the plaintiff is grounded entirely upon the plaintiff seeking damages or compensation for his pure economic loss. 26 The nature of the economic loss as claimed springs out of the alleged
2010 loss of the plaintiff's organic certification from NASAA. Apparently NASAA applies a 'zero tolerance' policy in its approach to certification. Where a presence of genetically modified matter is identified proximate to land that would otherwise be sought to be categorised as 'certified organic', the NASAA certification is withdrawn.
Certain paddocks at Eagle Rest were decertified by NASAA in 2010. These remain decertified in 2013. The only consequence is economic for the plaintiff. This is because it is said that the plaintiff now, in consequence of de-certification, allegedly receives less money for his Eagle Rest grown produce than he otherwise would have received, had his livestock or produce been able to go to market carrying the NASAA certification, 'certified organic'.
28 Hence, the case now awaiting a trial in early 2014, is unlike prior
cases factually known to the law. Take, for instance, cases where some water or other accumulated substance escapes from land, causing damage to the land or property of a neighbour, such as the classic situation of Rylands v Fletcher [1868] UKHL 1; (1868) CR 3 HL 330 (but see Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 170 CLR 520 555-556). Or where fire or some other harmful phenomenon physically escapes a defendant's property to the plaintiff's property and there causing injury and harm, such as in the Goldman v Hargrave [1967] 1 AC 13; [1966] UKPC 2 series of cases from the Supreme Court of Western Australia to the Privy Council. There are other cases where some potentially lethal virus or disease that ought to have been properly contained and controlled, such as foot-and-mouth disease, escapes and causes injury to a neighbouring plaintiff's land or chattels, see for instance, Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569. See also the facts of Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, where potato blight was present on a property and from there escaped in negligent circumstances that caused economic injury to neighbouring land owners and potato growers.
[2013] WASC 209
KENNETH MARTIN J
29 Those cases are well established tort law scenarios. The present
scenario of pure economic loss from a third party's de-certification as to a status, does not precisely fit those factual categories of case; particularly as the growing of GMC is an entirely lawful activity as explicitly authorised by the Parliament of Western Australia in 2010.
30 It was accepted by Senior Counsel for the plaintiff that the present
case is factually somewhat novel. No previous case authority was cited to me from any other common law jurisdiction of a grower of a lawful genetically modified crop who had been restrained by a court from growing that product on a basis of allegedly adverse economic implications for a neighbour. Hence, this tort case falls into a somewhat pioneering class of case, by virtue of its presenting facts.
31 The defendant contends I should evaluate the plaintiff's case at this
point as a marginal or weak, and factor that into the weighed interrelationship with the balance of convenience. The plaintiff says that the merits its case for trial should be viewed as more than respectable as a matter of first principles. For myself, the overriding consideration in determining this application must be the balance of convenience as between a grant or refusal of relief for the 2013 growing season. I evaluate the strength of the plaintiff's case viewed at this time on a basis the plaintiff has, in principle, an arguable case, not necessarily a strong or overwhelming case, to take to trial. That, of course, is only my provisional evaluation as of now, on the material before me. A trial has not begun yet.
32 For what I assess as a presently dominant consideration of an
evaluation of the balance of an evaluation of convenience, the defendant says against injunctive relief that the balance of convenience favours it rather than the plaintiff. As part of that evaluation and because I am dealing exclusively with a common law cause of action, I am required to also consider whether the more usual common law relief of damages, is an adequate remedy for the plaintiff in the circumstances even if it wins at a trial. The defendant contends that, in the present circumstances, common law damages is a more than adequate remedy for this plaintiff if at the end of the day the matter goes to trial and the plaintiff ultimately proves successful.
33 Those factors are said by the defendant to be enough, either
separately or in combination, to defeat this application. The defendant also raises some asserted delays by the plaintiff. But I put those matters to one side for the moment.
[2013] WASC 209
KENNETH MARTIN J
34 On the other hand, the plaintiff says by reference to the most recent
affidavit by Mr Marsh, that the plaintiff’s paddocks at Eagle Rest, today stand a good prospect of regaining their lost NASAA organic certification and that these restoration prospects are threatened by the defendant’s proposed GMC planting for 2013. The plaintiff says this consideration favours it on an evaluation of the balance of convenience.
35 Mr Marsh’s personal speculation about the future prospects of
regaining certification from NASAA has to be treated as somewhat speculative. But even accepting a hypothetical prospect of a potential re-certification of his paddocks from NASAA, the question must be asked where that would take Mr Marsh in terms of an improvement to his overall financial position, post re-acquiring NASAA organic certification. On this key issue, I find the evidence presently before me to be unacceptably vague and highly speculative.
36 There has apparently been exchanged for the purposes of the trial, on
behalf of the plaintiff, an expert report from Aberdeen Consulting that deals with the plaintiff's claimed damages in the period of 2010 and thereafter. That expert material might have been exchanged between the parties, but it certainly has not been filed with the court. I have examined the court file and there is no such document. Nor is it appended to any affidavit material relied upon by the plaintiff in this present application.
37 A passing reference was made to the Aberdeen Consulting report
yesterday by Senior Counsel for the plaintiff. This was objected to by Senior Counsel for the defendant. I had not at that point appreciated that there was no such report on the court file. But in the circumstances I must afford any observations about its content, no weight. They are in any event speculative.
38 On the other hand, Mr Baxter's affidavit of 19 April 2013, puts up
what I assess provisionally at this time to be some very plausible and legitimate reasoning for wanting to grow GMC on two paddocks of Seven Oaks in 2013. In the first place, Mr Baxter farms his properties on orthodox principles of crop rotation. Secondly, at par 19 of his affidavit of 19 April 2013, Mr Baxter deposes to experiencing a rye grass weed problem on the two paddocks of Seven Oaks. He seeks to address that weed problem by growing GMC in 2013 in the paddocks, then subsequently applying a herbicide Roundup, in order to tackle the rye grass weed problem. Mr Baxter says this at par 19(4) and (5) of his affidavit:
[2013] WASC 209
KENNETH MARTIN J
In my experience the superior HRWR control associated with the growing of Roundup Ready Canola and though the use of Round Up herbicide will result in significantly higher yields of Roundup Ready Canola compared to the yields if non-GM canola was grown in the same paddock particularly where HRWR is present;
If I am unable to grow Roundup Ready Canola in the Big Dam and Two Dams paddocks in 2013 the HRWR will not be controlled with the result that the yield of any crop grown in such paddocks this year or in subsequent years will be reduced. Round Up herbicide cannot be used on cereal crops or non-GM canola because they are not resistant to Round Up herbicide;
Mr Baxter says further at par 20:
The Roundup herbicide programme, used with Roundup Ready Canola, is far more effective and significantly less expensive than the conventional herbicide programs associated with growing non-GM canola.
39 Mr Baxter offers three reasons: 'less application of Roundup
herbicide is required when compared to conventional herbicides'; the rye grass at issue is 'resistant to conventional herbicide'; and that 'multiple applications of different conventional herbicides are generally used with non-GM canola with inferior results' when rye grass is present.
40 Mr Baxter concludes that in respect of his proposal to grow GMC on
two Seven Oaks paddocks in 2013, he will implement a limited distance buffer zone as between his GMC crop and the plaintiff's property at Eagle Rest. Mr Baxter states as:
(1) I am aware of the GM canola planting practices of other farmers in
the Boyup Brook Kojonup district;(2) GM canola is commonly grown with a buffer zone well less than
300 metres from adjoining farms;(3) In order to grow Roundup Ready Canola a farmer must be licensed by Monsanto. Under the Monsanto licence conditions the farmer is required to leave a five metre buffer zone between the Roundup Ready Canola crop and another crop.
41 Hence, it appears at this stage that there are plausible, legitimate
reasons for Mr Baxter growing GMC on Seven Oaks in the 2013 season. That is, GMC is resistant to the Roundup that would subsequently be applied to control the rye grass, whereas conventional canola is not. This presents now as a powerful reason to justify why the defendant seeks to act as he does imminently in 2013.
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KENNETH MARTIN J
42 The plaintiff claims the relief of a 1.1 km buffer zone as between its
property and the defendant’s GMC crop for the 2013 growing season. However, the defendant is offering the buffer zone of 300 m for one paddock and 400 m for the other. Mr Baxter is resisting the plaintiff’s claims for a 1.1 km buffer zone free of GMC. I assess no empirical basis on the material before me to support a rationale for Mr Marsh's claim to a further 800 m of buffer distance.
43 The incursion of a 'volunteer' GM canola plant or plants to Eagle
Rest in 2010, which led to NASAA subsequently decertifying some of the Eagle Rest paddocks, plainly occurred in circumstances where the defendant in 2010 harvested using the swathing method. That harvesting method seems to be more likely to generate airborne canola matter, that may then lead to a GMC airborne incursion problem by wind to a neighbouring property.
44 But, in 2013, an undertaking not to use swathing as the canola
harvesting method and to instead harvest the heads of all GMC in an orthodox fashion has been openly given by Mr Baxter and accepted by the court.
45 For 2013, the defendant, on his own property, is seeking to lawfully
grow GMC for legitimate reasons. If he is not allowed to proceed as proposed, his farm may suffer longer term weed problems. In contrast, the plaintiff wants the extra 800 m buffer zone against the defendant's neighbouring GMC paddocks, but does not give any empirical basis to support why the extra 800 metres buffer is sought, in circumstances where there will be no swathing.
46 The plaintiff says that he has got a prospect of getting re-certification
for his paddocks for NASAA in 2013. But there is no guarantee and it is something outside his control. In that respect, I have taken into account a witness statement filed by Mr Ayachit on behalf of the plaintiff, for the purposes of the trial. Albeit that it is not sworn, I will evaluate now what Mr Ayachit says at par 23 and par 28 of his statement, concerning the foreshadowed re-certification of the Eagle Rest paddocks at around October 2013.
47 I will take the most favourable view for the plaintiff about his
evidence and I will weigh the Ayachit statement for him into the overall equation. Nevertheless, his forensic problem now is not so much in suggesting a looming prospect of re-certification. It is the total absence of any follow-on evidence as to how the plaintiff would stand to be in a
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better economic position, as a consequence of a possible October 2013
paddock re-certification by NASAA.48 In his 12 April 2012 affidavit, Mr Marsh accepted that the direct
heading of GMC rather than by swathing, would actually reduce a risk of what he referred to as a 'contamination of his property'. In that respect, I refer to pars 118, 119 and 120 of that affidavit, which concluded at 120:
There is much less chance of canola seeds becoming airborne and travelling any great distance if this method of harvesting is used.
49 The potential risk I evaluate now, is in circumstances where there
will be no swathing in 2013. Without swathing, that risk of an airborne spread of GMC will be much less, from the plaintiff's own evidence on this application.
50 By a 2013 affidavit, Mr Marsh now seeks to re-establish the risk of
GMC contamination. He attempts this by par 17 of his affidavit. I allow par 17, although a foundation\basis for his now expressed fears of a significant risk, on my assessment of his evidence, amount to little more than bare assertions, rather than giving me an empirical foundation in facts for his as expressed fears.
I observe, to round matters off, that objection was taken to par 20 through to par 25 of Mr Marsh's 2013 affidavit, on the basis that they express opinions, without a requisite basis in expertise to demonstrate any proper qualification to express those opinions. Again, I allow this material. But, in my view, it is unconvincing, as regards the present efforts to impose a buffer zone of beyond the given 300 m outwards to a buffer range of 1.1 km, as now sought. I do, however, uphold objections to par 33 and par 34 of Mr Marsh's 2013 affidavit as well as an objection to par 35.
Conclusion
52 I must balance what I assess as a threat of tangible physical damage
by weeds potentially to the defendant at Seven Oaks if he is unable to proceed with his GMC cropping program for 2013, against a more speculative economic future loss to the plaintiff, if he does not regain his lost NASAA paddock re-certification, which may give rise to what are presently unquantified potential future economic losses for Mr Marsh.
53 On my assessment, the balance of convenience presently does not
favour the plaintiff. Injected into this balancing exercise as a factor, in a context of a scenario in which the ancillary jurisdiction of a court of
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equity is sought to be invoked to assist the plaintiff's common law causes of action, is a need to assess the suitability of the common law's usual remedy of damages, as the potentially adequate remedy, for Mr Marsh, should he win at the trial.
54 I assess the position presently to be that common law damages would
be an adequate remedy for this plaintiff, if he wins. Working out these damages is the very exercise that appears to be under way at present, in terms of trying to quantify the economic damage arising out of the 2010 decertification of the plaintiff's Eagle Rest paddocks by NASAA.
55 The balance of convenience, therefore, coupled to damages
presenting now to be an adequate remedy, conditions my assessment of an end result now, as overwhelmingly in favour of the defendant. Assessed by reference to the threat carried by planting GMC canola in the 2013 growing season, my assessment is that the plaintiff's interlocutory injunction application fails.
56 Finally, I mention that the defendant relied upon some asserted
delays by the plaintiff. It is true that the plaintiff has pursued this action so far, at a rather leisurely pace, since it was commenced about a year ago in April 2012. In all the circumstances, however, bearing in mind explanations offered for why the plaintiff has faced difficulties, particularly by needing to chase overseas expert reports and the somewhat novel character of this action, coupled with the overwhelming counter-force of the other considerations I have mentioned, any delay factor presents to me as essentially neutral.
57 The application for the interlocutory relief will be refused, on the
basis of the court's acceptance of the defendant's undertaking not to
harvest by swathing in the 2013 growing season.
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