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Federal Court of Australia - Full Court Decisions |
Last Updated: 20 September 2002
Beringer Blass Wine Estates Limited v Geographical Indications Committee [2002] FCAFC 295
Administrative Appeals Tribunal Act 1975 (Cth) ss 23, 43, 43(2B), 44
Australian Wine and Brandy Corporation Act 1980 (Cth), ss 3, 4, 5D, 40A, 40T, 44
Australian Wine and Brandy Corporation Amendment Act 1993 (Cth)
Australian Wine and Brandy Corporation Regulations 1981, regs 23, 24, 25
Agreement between Australia and the European Community on Trade in Wine, and Protocol, January 1994
Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited
The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 cited
Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877 cited
Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 cited
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 followed
BERINGER BLASS WINE ESTATES LIMITED v GEOGRAPHICAL INDICATIONS COMMITTEE, SOUTHCORP GROUP, COONAWARRA GRAPE GROWERS ASSOCIATION INC, COONAWARRA VIGNERONS ASSOCIATION INC, COONAWARRA RESPONDENTS AND JOINED PARTIES
S 196 OF 2001
R D MACLEOD v GEOGRAPHICAL INDICATIONS COMMITTEE, SOUTHCORP GROUP, COONAWARRA GRAPE GROWERS ASSOCIATION INC, COONAWARRA VIGNERONS ASSOCIATION INC, COONAWARRA RESPONDENTS AND JOINED PARTIES
S 199 OF 2001
D M AND P J CASTINE v GEOGRAPHICAL INDICATIONS COMMITTEE, SOUTHCORP GROUP, COONAWARRA GRAPE GROWERS ASSOCIATION INC, COONAWARRA VIGNERONS ASSOCIATION INC, COONAWARRA RESPONDENTS AND JOINED PARTIES
S 200 OF 2001
J D AND P G KIDMAN v GEOGRAPHICAL INDICATIONS COMMITTEE, SOUTHCORP GROUP, COONAWARRA GRAPE GROWERS ASSOCIATION INC, COONAWARRA VIGNERONS ASSOCIATION INC, COONAWARRA RESPONDENTS AND JOINED PARTIES
S 201 OF 2001
NARADINA PTY LTD v GEOGRAPHICAL INDICATIONS COMMITTEE, SOUTHCORP GROUP, COONAWARRA GRAPE GROWERS ASSOCIATION INC, COONAWARRA VIGNERONS ASSOCIATION INC, COONAWARRA RESPONDENTS AND JOINED PARTIES
S 202 OF 2001
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ
20 SEPTEMBER 2002
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
|
1. The matter be re-listed on a date to be fixed to settle the terms of the final order to be entered in accordance with the published reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
|
JUDGES: |
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ |
DATE OF ORDER: |
20 SEPTEMBER 2002 |
WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The matter be re-listed on a date to be fixed to settle the terms of the final order to be entered in accordance with the published reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
S 200 OF 2001 |
BETWEEN: |
D M AND P J CASTINE APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
JUDGES: |
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ |
DATE OF ORDER: |
20 SEPTEMBER 2002 |
WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The matter be re-listed on a date to be fixed to settle the terms of the final order to be entered in accordance with the published reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
S 201 OF 2001 |
BETWEEN: |
J D AND P G KIDMAN APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
JUDGES: |
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ |
DATE OF ORDER: |
20 SEPTEMBER 2002 |
WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The matter be re-listed on a date to be fixed to settle the terms of the final order to be entered in accordance with the published reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
S 202 OF 2002 |
BETWEEN: |
NARADINA PTY LTD APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
JUDGES: |
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ |
DATE OF ORDER: |
20 SEPTEMBER 2002 |
WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. The matter be re-listed on a date to be fixed to settle the terms of the final order to be entered in accordance with the published reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
SOUTH AUSTRALIA DISTRICT REGISTRY |
|
BETWEEN: |
BERINGER BLASS WINE ESTATES LIMITED S 196 OF 2001 APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
BETWEEN: |
R D MACLEOD S 199 OF 2001 APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
BETWEEN: |
D M AND P J CASTINE S 200 OF 2001 APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
BETWEEN: |
J D AND P G KIDMAN S 201 OF 2001 APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
BETWEEN: |
NARADINA PTY LTD S 202 OF 2001 APPLICANT |
AND: |
GEOGRAPHICAL INDICATIONS COMMITTEE FIRST RESPONDENT SOUTHCORP GROUP SECOND RESPONDENT COONAWARRA GRAPE GROWERS ASSOCIATION INC THIRD RESPONDENT COONAWARRA VIGNERONS ASSOCIATION INC FOURTH RESPONDENT COONAWARRA RESPONDENTS FIFTH RESPONDENT JOINED PARTIES SIXTH RESPONDENT |
JUDGES: |
von DOUSSA, O'LOUGHLIN and MANSFIELD JJ |
DATE: |
20 SEPTEMBER 2002 |
PLACE: |
ADELAIDE |
THE COURT:
1 These five appeals brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) have been heard together. In each notice of appeal the applicant seeks to have set aside that part of the decision of the Administrative Appeals Tribunal (the AAT) made on 5 October 2001 which has the effect of excluding the applicant's property from the area to be determined as the geographical indication for the "Coonawarra" wine region in South Australia.
2 The decision of the AAT, from which these appeals are brought, concerned forty-six applications in which grape growers sought to have reviewed a decision of the first respondent, the Geographical Indications Committee (GIC), which determined a geographical indication called "Coonawarra". All the applications to the AAT concerned vineyards or land that fell outside the geographical boundary fixed by the GIC's determination (the GIC determination).
3 By its decision, the AAT set aside the GIC determination under review and directed that the matter be remitted to the GIC for implementation of the Coonawarra region boundary in accordance with the AAT's description of the boundaries (the AAT decision). The effect of the AAT decision was to increase the area comprised within the Coonawarra geographical indication so as to include the properties of twenty-four of the applicants who had sought review. The properties to which the remaining twenty-two applications related fell outside the new boundary description. Five of those properties are the subject matter of the present appeals; they are each close to the boundary description in the AAT decision.
The legislation
4 It is convenient at the outset to refer to the legislation under which the determination of the Coonawarra geographical indication occurred, and to its background.
5 In 1993 the Australian Wine and Brandy Corporation Act 1980 (Cth) (AWBC Act) was amended by the Australian Wine and Brandy Corporation Amendment Act 1993 (the 1993 amendments). The 1993 amendments introduced provisions establishing the GIC to determine geographical indications in relation to regions and localities in Australia. The purpose of the 1993 amendments was to enable an agreement between Australia and the European Community to enter into force (the A-EC Agreement) (see Australian Wine and Brandy Corporation Amendment Bill, Second Reading Speech, 29 September 1993 Hansard at 1342). The A-EC Agreement had been negotiated between Australia and the European Commission officials by that time, although the formal Agreement was not done until January 1994. The A-EC Agreement entered into force on 1 March 1994.
6 Under Article 3(2) of the A-EC Agreement, the Contracting Parties are to take all the general and specific measures necessary to ensure that the obligations laid down in the A-EC Agreement are fulfilled, and to ensure that the objectives of the A-EC Agreement are attained. Under Article 6, the Contracting Parties agree to take all measures necessary, in accordance with the A-EC Agreement, for the reciprocal protection of the names referred to in Article 7. These are names used for the description and presentation of wines originating in the territory of the Contracting Parties. Article 7 provides that, as regards wines originating in Australia, the following names are protected:
"I the name `Australia' or other names used to indicate this country;II the geographical indications and traditional expressions referred in Annex II."
Annex II to the Agreement relevantly refers to:
"ZONESouth East
Regions
Borde[r]town
Buckingham-Mundulla
Coonawarra
Padthaway
Penola"
Article 2 of the A-EC Agreement defines a number of expressions including:
"`geographical indication' shall mean an indication as specified in Annex II, including an `Appellation of Origin', which is recognized in the laws and regulations of a Contracting Party for the purpose of the description and presentation of a wine originating in the territory of a Contracting Party, or in a region or locality in that territory, where a given quality, reputation or other characteristic of the wine is essentially attributable to its geographical origin;"
7 It follows from Article 2 that under the A-EC Agreement a geographical indication designates a geographical area to which the quality, reputation or other characteristic of the wine is essentially attributable.
8 The objects of the AWBC Act are set out in s 3 which provides:
"(1) The objects of this Act are:(a) to promote and control the export of grape products from Australia; and
(b) to promote and control the sale and distribution, after export, of Australian grape products; and
(c) to promote trade and commerce in grape products among the States, between States and Territories and within the Territories; and
(d) to improve the production of grape products, and encourage the consumption of grape products, in the Territories; and
(e) to enable Australia to fulfil its obligations under prescribed wine-trading agreements; and
(f) for the purpose of achieving any of the objects set out in the preceding paragraphs:
(i) to determine the boundaries of the various regions and localities in Australia in which wine is produced; and
(ii) to give identifying names to those regions and localities; and
(iii) to determine the varieties of grapes that may be used in the manufacture of wine in Australia;
and this Act shall be construed and administered accordingly."
Objects (e) and (f) were introduced by the 1993 amendments.
9 Section 4 of the AWBC Act defines many expressions used in the legislation, including:
"geographical indication, in relation to wine, means:(a) a word or expression used in the description and presentation of the wine to indicate the country, region or locality in which the wine originated; or
(b) a word or expression used in the description and presentation of the wine to suggest that a particular quality, reputation or characteristic of the wine is attributable to the wine having originated in the country, region or locality indicated by the word or expression."
10 It will be noted that objects (f)(i) and (ii) in s 3(1) of the AWBC Act, and pars (a) and (b) of the s 4 definition of geographical indication, describe two discrete features of a geographical indication: first, the word or expression used as the identifying name for the region or location and, secondly, the geographical area which constitutes the region or locality.
11 Section 5D(b) of the AWBC Act provides that, for the purposes of the Act, a wine is taken to have originated in a particular region or locality of Australia only if the wine is made from grapes grown in that region or locality.
12 Part VIB (ss 40, 40A-40ZF) was introduced by the 1993 amendments. Section 40A provides:
"The object of this Part is to regulate the sale, export and import of wine:(a) for the purpose of enabling Australia to fulfil its obligations under prescribed wine-trading agreements; and
(b) for certain other purposes for which the Parliament has power to make laws;
and this Part is to be interpreted and administered accordingly."
13 It is an express requirement of the object clauses in both s 3 and s 40A that the Act be interpreted and administered to fulfil Australia's obligations under, inter alia, the A-EC Agreement. Australia's obligations under the Agreement are not merely relevant as an aid to interpretation in the event of there otherwise being ambiguity in the language of the statute: cf Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287.
14 Section 40N provides for the establishment of the GIC. Under s 40P the function of the GIC is to make determinations of geographical indications for wine in relation to regions and localities in Australia, and it has power to do all things necessary and convenient in connection with this function. Other sections of Part VIB make provision for interested parties to apply to the GIC for the determination of a geographical indication, and specify the procedural steps that the GIC must follow leading up to the making of a final determination. Section 40T deals with the making of determinations and provides:
"(1) In determining a geographical indication, the Committee must:(a) identify in the determination the boundaries of the area or areas in the region or locality to which the determination relates; and
(b) determine the word or expression to be used to indicate that area or those areas.
(2) If the regulations prescribe criteria for use by the Committee in determining a geographical indication, the Committee is to have regard to those criteria.
(3) When making a determination as a result of an application, the Committee may do either or both of the following:
(a) determine an area or areas having boundaries different from those stated in the application;
(b) determine a word or expression to be used to indicate the area or areas constituting the geographical indication that is different from a word or expression proposed in the application."
Section 40T, recognising the separate objects stated in s 3(f)(i) and (ii), imposes two requirements on the GIC. It is to identify the boundary of the area or areas to which the determination relates, and it is to determine the word or expression (i.e. the name) to be used to indicate that area or those areas. This dual function is to be borne in mind when considering Part 5 of the Australian Wine and Brandy Corporation Regulations 1981 (the Regulations) to which s 40T(2) refers.
15 Part 5 of the Regulations relevantly provides:
"23 Determining geographical indicationsFor the purpose of making determinations under section 40T of the Act, the Geographical Indications Committee is to have regard to the criteria set out in this Part.
24 Interpretation
In this Part:
region means an area of land that:
(a) may comprise one or more subregions; and
(b) is a single tract of land that is discrete and homogeneous in its grape growing attributes to a degree that:
(i) is measurable; and
(ii) is less substantial than in a subregion; and
(c) usually produces at least 500 tonnes of wine grapes in a year; and
(d) comprises at least 5 wine grape vineyards of at least 5 hectares each that do not have any common ownership, whether or not it also comprises 1 or more vineyards of less than 5 hectares; and
(e) may reasonably be regarded as a region.
subregion means an area of land that:
(a) is part of a region; and
(b) is a single tract of land that is discrete and homogeneous in its grape growing attributes to a degree that is substantial; and
(c) usually produces at least 500 tonnes of wine grapes in a year; and
(d) comprises at least 5 wine grape vineyards of at least 5 hectares each that do not have any common ownership, whether or not it also comprises 1 or more vineyards of less than 5 hectares; and
(e) may reasonably be regarded as a subregion.
...
zone means an area of land that:
(a) may comprise one or more regions; or
(b) may reasonably be regarded as a zone.
25 Criteria for determining geographical indications
For the purposes of subsection 40T(2) of the Act, the Committee is to have regard to the following criteria:
(a) whether the area falls within the definition of a subregion, a region, a zone or any other area;
(b) the history of the founding and development of the area, ascertained from local government records, newspaper archives, books, maps or other relevant material;
(c) the existence in relation to the area of natural features, including rivers, contour lines and other topographical features;
(d) the existence in relation to the area of constructed features, including roads, railways, towns and buildings;
(e) the boundary of the area suggested in the application to the Committee under section 40R;
(f) ordinance survey map grid references in relation to the area;
(g) local government boundary maps in relation to the area;
(h) the existence in relation to the area of a word or expression to indicate that area, including:
(i) any history relating to the word or expression; and
(ii) whether, and to what extent, the word or expression is known to wine retailers beyond the boundaries of the area; and
(iii) whether, and to what extent, the word or expression has been traditionally used in the area or elsewhere; and
(iv) the appropriateness of the word or expression;
(i) the degree of discreteness and homogeneity of the proposed geographical indication in respect of the following attributes:
(i) the geological formation of the area;
(ii) the degree to which the climate of the area is uniform, having regard to the temperature, atmospheric pressure, humidity, rainfall, number of hours of sunshine and any other weather conditions experienced in the area throughout the year;
(iii) whether the date on which harvesting a particular variety of wine grapes is expected to begin in the area is the same as the date on which harvesting grapes of the same variety is expected to begin in neighbouring areas;
(iv) whether part or all of the area is within a natural drainage basin;
(v) the availability of water from an irrigation scheme;
(vi) the elevation of the area;
(vii) any plans for the development of the area proposed by Commonwealth, State or municipal authorities;
(viii) any relevant traditional divisions within the area;
(ix) the history of grape and wine production in the area.
Note In determining a geographical indication under subsection 40Q(1) of the Act, the Committee is not prohibited under the Act from having regard to any other
relevant matters."
16 The note to reg 25 makes it clear that the list of prescribed criteria to which the Committee is to have regard is not intended as an exhaustive list. The GIC may have regard to any other relevant matters. However, the direction in reg 25 requires that the GIC must have regard to each of the specified criterion and "give weight to them as a fundamental element" in reaching its decision: see Gibbs CJ in The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333. Soil and soil science are examples of matters which in the present case all parties have treated as other relevant matters to which regard should be had.
Applications to the GIC and AAT
17 On 12 December 1995 the Joint Committee of the Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc, as parties with the requisite interest under s 40R of the AWBC Act, lodged an application to the GIC for it to determine a region called "Coonawarra". Thereafter the GIC:
* pursuant to s 40U of the AWBC Act, made an interim determination of the Coonawarra region on 30 April 1997 (the interim determination);
* received submissions between May 1997 and October 1998 pursuant to an invitation by notice made in accordance with s 40V(2) of the AWBC Act;
* proposed a variation to the interim determination on 3 February 1999;
* received further submissions between February 1999 and July 1999 pursuant to a further invitation by notice published on 3 February 1999; and
* made the GIC determination on 10 May 2000.
18 Forty-six applications by parties dissatisfied with the GIC determination were then made to the AAT for the GIC determination to be reviewed. Before the AAT, the GIC, the Southcorp Group, the Coonawarra Grape Growers Association Inc, the Coonawarra Vignerons Association Inc and the Coonawarra Respondents, were all joined as respondents to the proceedings. At first the GIC sought to take an active role in opposition to the review by the AAT, but the AAT ruled that it was to take only a limited role, confined generally to providing assistance where necessary to the AAT. An appeal against that ruling to this Court was dismissed: Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877.
19 The review conducted by the AAT was a full merits review which required the AAT to make a determination on the material placed before it by the parties. In reaching its decision, the AAT stood in the shoes of the GIC, authorised to exercise all the powers and discretions that are conferred on the GIC by the AWBC Act: see s 43 of the AAT Act and Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 671.
20 Whilst s 40T(1) of the AWBC Act imposed on the GIC, and in turn the AAT, dual obligations to determine both an identifying name for, and the boundaries of, the area of land which will constitute a region comprising the geographical indication, in this instance the function of the GIC and AAT was qualified by the A-EC Agreement which specified that a geographical indication protected by it would be the "Coonawarra" region in the South East Zone of South Australia. To that extent, the name of the geographical indication was pre-determined. What was required in this case was the exercise envisaged by s 40T(1)(a) to delineate the geographical area that constituted the Coonawarra region.
21 Before the AAT the applicants proposed an extensive area surrounding and extending many kilometres from the Coonawarra township. Their case focussed attention mainly on wine growing attributes, and in particular climate and temperature. On the other hand, the Southcorp Group and the Coonawarra Respondents contended that the area had been defined historically by reference to a cigar shaped limestone ridge which runs north and south through the Coonawarra township, and on which can be found an abundance of terra rossa soil. They acknowledged that over the years the public perception of the Coonawarra wine growing area had extended somewhat beyond the cigar shaped ridge. This had been acknowledged by a resolution passed in 1984 by an unincorporated body named the Viticultural Council of South Eastern South Australia (whose members comprised wine growers). Nevertheless, the Southcorp Group and the Coonawarra Respondents contended that the geographical indication should reflect the prominence to the cigar feature, and should not extend much beyond it. The decision reached by the AAT is discussed below.
Respondents to the Appeals
22 The GIC is named as the first respondent in the proceedings before this Court, and has indicated that it will abide by the decision of the Court, save as to costs.
23 The Southcorp Group is the second respondent in these proceedings, and comprises five companies identified in Schedule 1 to the applications before this Court. Those companies have vineyards that are centrally located within the GIC determination boundaries for the Coonawarra region. The Southcorp Group is the principal opponent to the relief sought by the present applicants.
24 The Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc have been joined as the third and fourth respondents to the proceedings in this Court, but have not taken any active part.
25 The Coonawarra Respondents have been joined as the fifth respondents. They comprise the proprietors of twenty-five vineyards that were included within the boundary fixed by the GIC determination.
26 Before the AAT, Hamilton Ewing Vineyards, York Consultants Pty Ltd and twenty other parties were joined as additional applicants. Those parties, along with all the other parties who were named in the proceedings before the AAT, whether as applicants or respondents, who are not otherwise parties to the proceedings before this Court, have been joined in this Court as the sixth respondent. They are referred to as the "Joined Parties". They are identified in Schedule 3 to the applications. The Joined Parties include both the parties who failed before the AAT and have taken no further steps to challenge that decision, and those parties who succeeded before the AAT and whose vineyards are now included within the boundary description contained in the AAT decision. The Joined Parties did not appear at the hearing before this Court.
27 It is significant that the Joined Parties were joined by direction of this Court on 19 December 2001 at a time when the application by the applicant, Beringer Blass Wine Estates Limited (Beringer Blass), contended that the determination of the AAT was vitiated by the AAT having made its decision in contravention of s 23(1) of the AAT Act. It seems that ground was pleaded as the AAT decision was given by a tribunal comprised of the President and one member, whereas when the hearing commenced, the tribunal comprised the President and two members. One member had in the meantime retired. Section 23 of the AAT Act makes provision for the retirement of a member in the course of a hearing. Before the hearing of these applications, that ground of challenge was abandoned. The remaining grounds pleaded by each of the applicants seek to challenge the AAT decision only insofar as it relates to their interests. Those grounds do not seek to challenge the decision insofar as it relates to the fifth and sixth respondents, the Coonawarra Respondents or the Joined Parties. Once Beringer Blass abandoned the ground of challenge which would have vitiated the entire AAT decision, the fifth and sixth respondents appear to have taken the view that they have no real interest in the proceedings that required their active participation. They did not appear at the hearing of the applications.
The AAT Decision
28 The AAT received a great deal of evidence about the natural phenomena and scientific aspects of areas in the south east of South Australia generally called Coonawarra, Penola, Wrattonbully and the Limestone Coast Zone. The AAT in its reasons for decision noted that there was much common ground about basic geology, topography, natural features and climate of Coonawarra and adjacent regions. However, there was considerable disagreement about soil and viticultural prospects in some localities and the implications of that for a boundary determination.
29 The AAT made the following findings. Coonawarra, the town and surrounding area, is located some 430km south east of Adelaide, near the Victorian border, between the towns of Naracoorte and Mount Gambier, and adjacent to the small township of Penola. A dominant feature is referred to either as the Limestone Ridge or "the cigar" (the cigar). The cigar is overlain by a combination of terra rossa and other soils and runs approximately north-south, virtually parallel to the coast which is some sixty-five kilometres to the west. Coonawarra has a predominantly winter rainfall with a long cool ripening period for grapes. There is a good supply of high quality ground water which is used to establish new vines, for frost control, and for supplementary irrigation when needed. The area has a reputation for consistent production of high quality grapes which has led to premium wine production.
30 In their submissions to this Court, counsel made frequent reference to maps which described the location and dimension of the cigar as corresponding to the area of the Penola Land System delineated in mapping compiled by N B Billings and M A Cann, and published by Primary Industries and Resources SA. The Court understood this description to be common ground between the parties. The mapping shows the cigar to be between approximately two and four kilometres wide, and approximately twenty-six to twenty-eight kilometres long. At par 49 of its reasons, the AAT refers to the cigar as being two to four kilometres wide and twelve to fourteen kilometres long. We treat this statement of the length of the cigar to be a misdescription. Counsel have so treated it in the conduct of the appeal. Moreover, the balance of the AAT's reasons indicated that the AAT intended its frequent references to the cigar to mean an area much longer than twelve to fourteen kilometres (see in particulars pars 67, 69, 74 and 237 as to the southern limits, and par 160 as to the northern limits).
31 The AAT said that in more scientific terms, the area can be described as follows (par 50 of the AAT decision):
"The Coonawarra region is a relatively low flat plain lying between the Cave Range some 25 kilometres to the west of the Limestone Ridge and the Naracoorte Range some 10 kilometres to the east.`The Naracoorte Range is the eastern most and the first shoreline of a series of dune ranges running parallel to one another, each located to the west and associated with the inter glacial periods ... The shoreline to the west of Coonawarra is Cave Range and the elevation here is less than 10 metres above the adjacent plain. As water receded from these ranges during each ice age, the next parallel range was formed during the next glacial period, as a result of slow tectonic uplift and ecstatic sea level changes. The Naracoorte Range is dated approximately 750,000 years ago, whereas the Cave Range to the west of Coonawarra is dated about 650,000 years ago, putting Coonawarra somewhere in between, approximately 700,000 years ago.
Unlike the Limestone Ridge which runs north-south, the Naracoorte Range runs NW-SE and rises some 40 to 70 metres above the Coonawarra plain, originally the seabed between the Naracoorte Range and Stewarts and Cave Ranges dunal systems.'"
32 To the west of the Naracoorte Range, the Gambier Limestone is at a depth of about eighteen to twenty-four metres and is overlain by Coomandook, Bridgewater and Padthaway formations, which represent a sequence of marine and lagoonal sediments. These formations contain much calcareous material and the general view is that Coonawarra terra rossa soils formed on site from parent material, formed from marine limestone deposits by weathering of carbonates.
33 The terra rossa soils on the cigar are red-brown in colour, have a higher clay content and less sand than those in neighbouring areas, and overlay what is believed to be marine limestone developed on elevated areas of Bridgewater formation. These terra rossa soils are formed as a result of weathering due to exposure to sun and air and are not uncommon, generally found as isolated outcrops in the wine zone known as the Limestone Coast zone of the south-east of South Australia.
34 The cigar is located at an historic shoal not recently subject to inundation. That area contains more clay than the surrounding areas and various of the parties before the AAT claimed it to be unique as an extensive and continuous ridge of terra rossa soil of marine origin.
35 The extensive areas of plain away from the cigar are believed to have been lagoons for long periods in the past and are located on the marine and lagoonal sediments of the Padthaway formation. There are still numerous swamps, lakes and low-lying areas where the soils are described as "ground water rendzina". Even the higher ground may be inundated at times and the soils are very heavy, grey or black in colour and have good water-holding capacity, but are prone to severe cracking when dry. These soils are described as "rendzina", and are well suited to cropping, but, according to the viticultural experts, not horticulture. Planting of vines on these soils is problematical, as they tend to be highly vigorous and, in all but the driest years, there is a difficulty in ripening grapes. Generally these plantings, if made at all, are restricted to early ripening white varieties.
36 Adjacent to the cigar and also found throughout the area in the form of isolated small "islands" or outcrops, are reddish to dark brown soils which have similarities with the terra rossa soil on the cigar, but often contain higher proportions of sand and maybe terra rossa "transitional" soils. These "islands" are slightly higher than the surrounding land. They are generally associated with a high water table and are prone to flooding, so that the soils have been less subject to oxidation.
37 On the scientific evidence led from geographers, cartographers, soil scientists, viticulturists and research scientists with relevant expertise in one or other aspect of grape and wine production, the AAT concluded that climate is a primary factor governing grape production. However, this factor did not provide a useful basis for a boundary determination as the climate is generally uniform across a wide tract of land, at least between the Cave Range in the west and the Naracoorte Range in the east, and extending a considerable distance north and south.
38 Whilst there was general agreement that soil types and characteristics are an important consideration, mapping of soil types is not precise, and although dominant soil types can be identified for given localities, considerable variation occurs. From contested evidence on this topic three points emerged:
(1) the cigar is probably the most substantial area of terra rossa in Australia, but little evidence exists that it is unique or has special properties other than perhaps a higher clay content and good drainage;
(2) a number of areas exist outside the GIC determination which are already proven, or have prospects for, premium grape production; and
(3) there are substantial areas within the boundary proposed by the applicants where viticultural prospects are low given the nature of the soil and evidence of water logging and poor drainage.
39 The AAT noted that terra rossa soil probably did not constitute more than about 25 to 33 per cent of the area within the GIC determination, and "islands" of terra rossa existed elsewhere. Moreover, the AAT found that viticultural management practice can be used to modify initial soil characteristics by ripping, drainage and irrigation. Throughout most of the area proposed by the applicants before the AAT, high quality ground water is available.
40 None of the experts in the various scientific areas could provide a key to defining the Coonawarra region. Climate was not a discrete delineator. Soil characteristics were not a discrete delineator, unless the boundary was strictly confined to the cigar - a boundary not suggested by any of the parties or the GIC. On the evidence of geographers a number of boundaries were "feasible" in scientific terms.
41 The AAT therefore looked for other criteria as discriminators of the region to be called Coonawarra. The AAT considered the role of history in determining the boundary, and concluded that history had a critical role in making the determination.
42 The AAT noted that evidence as to the historical events was largely non-contentious. However, the significance of some of the events and the weight to be given to them was keenly disputed between the parties. Significantly, none of the historical experts who gave evidence suggested a particular boundary for the Coonawarra region. One expert suggested that, according to his historical method, the area covered by the cigar appeared to be the most appropriate current use of the name, whereas other experts suggested an expansive historical view of the area which would encompass the area proposed by the applicants. Many of the applicants provided evidence to show that the name Coonawarra had been used in association with their vineyards, or was a component of their postal address, or had found expression in marketing material or family historical information.
43 The AAT then turned to the historical significance of the resolution of the Viticultural Council of South Eastern South Australia passed on 25 October 1984. The resolution occurred at an Annual General Meeting. By a vote of its members then present, they resolved that the Coonawarra's boundary should be "within the Hundreds of Penola and Comaum". At the time, the Council was an unincorporated association covering the whole of the south east of South Australia. Its membership was open to all grape growers in the area. At the time it had thirty-one members said by one witness to represent a majority of the south east of South Australia's wine industry. Eighteen people representing members were present at the meeting. The Southcorp Group in particular emphasised the significance of this resolution, contending that it was communicated to the members of the Council either by their attendance at the meeting or by copies of the minutes sent to them afterwards. The Southcorp Group argued that the fact that the resolution had apparently not been debated or questioned at the time or at subsequent meetings held in 1985 and 1991 required that it be given weight. Whilst conceding that the Council did not have a legally enforceable right to preclude anyone from using the word "Coonawarra", the Southcorp Group contended that the Council intended by its resolution to bind its members, and the resolution represented the views of growers and vignerons in the area; hence it was historically significant. Whilst the AAT noted that the arguments of the Southcorp Group were contested for a number of reasons, it made no findings in respect of those arguments. The arguments included that the resolution was not based on expert evidence, was not well researched, and was not properly publicised. The AAT said:
"115 We agree with the submissions of the Respondents as to the historical relevance of the 1984 resolution. As the first attempt of the Viticultural Council to define the boundary of the Coonawarra region, it has had great significance, including an effect on boundaries within and outside the Hundreds specified thereafter. This significance continues to the present day.116 We consider that the 1984 Resolution was intended to extend the viticultural area accepted as Coonawarra beyond the area of the cigar. It is particularly significant that no party to the proceeding before the Tribunal argues that the Tribunal should revert to the cigar boundary as the boundary of the Coonawarra wine region. There is agreement that one cannot `turn back the clock'. This, in our view, was confirmed in 1984."
44 Having considered what it described as the scientific evidence and the historical evidence, the AAT then expressed its conclusions which included the following essential findings:
"118 Our decision as to the boundary of this region must, we have concluded, be made on the most current evidence available which is relevant to the criteria. Developments between 1995-2001 are therefore all relevant to the application of a number of the criteria including use of name Coonawarra. The fact that this usage was undertaken in the period in which consideration was being given to fixing the boundary is, we consider, relevant to the weight given to the evidence.119 We have concluded that the process of boundary setting under this legislation is not designed to allow for expansion of Coonawarra to create a benefit for future marketing activities ...
...
121 We have concluded after examining the history of the area that the traditional appellation of the cigar area had been Coonawarra and in 1984 a substantial expansion of the area was agreed by the viticultural community to accept that the two Hundreds of Comaum and Penola comprised the region ...
...
124 A great deal of the evidence presented by Applicants, particularly those not proximate to the cigar or even the two Hundreds of Comaum and Penola is based on similarity of soil types, climate and grape produce. We accept that the vineyards of the Applicants within the boundary proposed by the Applicants grow fruit suitable for use in "Coonawarra - style" wine. This was not challenged. The expert viticulturists explained this in great detail. The key to this outcome is a combination of climate and viticultural practices associated with the climate of the area.
...
126 However we have concluded that whether a vineyard is physically on or off the cigar cannot of itself be determinative of whether it is within or outside the Coonawarra boundary. It has been of considerably less significance since 1984 when the producers accepted a larger regional identity for Coonawarra. To adopt an inclusive approach based on the 1984 resolution would suggest that vineyards within the two Hundreds at this time must have a strong claim to be considered to be within the boundaries of the Coonawarra region at the present time.
127 The remaining question is whether in 2001, when the boundary must be established and registered, there is room for contraction or expansion of the Hundred lines for any relevant reason i.e. having considered the criteria in Regulation 25. We have concluded, having considered all the evidence, that there is room for both contraction and expansion.
128 All parties acknowledge that the Hundred lines while having a great deal of historical integrity have less geographical or scientific integrity. They were not it seems, chosen to emphasise homogeneity or discreteness or with consideration of the natural features of the area but for reasons of utility.
...
130 We have concluded that there is no absolutely `correct' boundary for this region. Which boundary, therefore, is preferable is, as all the parties concede, a matter of weight and judgment.
...
134 The parties who want a greatly enlarged boundary are dismissive of the 1984 resolution of the Viticultural Council. They criticise its private and unpublicised nature, the aura of `parish pump' politics which hung over it, and its unscientific approach. It is characterised by historical expert as an `inadequate' boundary, even in 1984. Yet even parties like the Fifth and Sixth Joined Parties acknowledge its potential relevance to the following criteria:
Regulation 25(h)(i) - the history relating to the word `Coonawarra''
Regulation 25(h)(iii) - the traditional use of the word in the area;
Regulation 25(i)(viii) - the traditional divisions with the area; and
Regulation 25(i)(ix) - the history of grape and wine production within the area.
135 These parties also described this resolution as `exclusionary' in nature and point out that, at that time aggrieved persons had no way of challenging the decision. We consider that in spite of those criticisms this resolution, particularly, as it was made by an overwhelming majority of those affected i.e. the wine production community living and working in the area, is an important historical event. We regard it as an important starting point in establishing the boundary of the Coonawarra region within the framework of the criteria.
136 We have not, however concluded that the borders of the two Hundreds of Comaum and Penola were then, or are now, immutable as a boundary for the region. As we have previously stated, the Viticultural Council itself considered altering their accepted boundary from time to time. This is particularly evident from the minutes of council meetings dealing with the initial application to the GIC. When having to deal with the legislated criteria there is an acknowledgment by the parties, then and now, that the Hundred lines, while able to be incorporated as part of, geographical boundaries, do not reflect geographical and scientific features which, according to the criteria must be considered. We have therefore, for geographical reasons excluded some land currently within the two Hundreds.
137 ... The adoption of the two Hundreds as the wine region border was also, in our view, recognition by the local wine industry that the boundaries of the cigar shaped strip of terra rossa soil at the heart of the region was no longer an adequate marker for the boundary of the Coonawarra in 1984. It remained at that time, however, a significant part of the expanded region. That, in our view, remains the position today. Whether one characterises it as a `marketing tool' or even challenges the homogeneity of the cigar itself, it is historically and scientifically the signature of the Coonawarra Wine Region. Proximity to this strip of arable soil would be in our view, an important factor in the determination of the boundary. Because of this, we do not consider, at this time, unless an overwhelming countervailing reason was demonstrated that land outside the two Hundreds and not proximate to the topography of the cigar could justify inclusion in a Coonawarra Wine Region."
45 Finally, the Tribunal turned to consider what it described as the "Degree of discreteness and homogeneity of the proposed regional boundary". The definition of "region" requires that the area of land be a single tract that is discrete and homogeneous in its grape growing attributes: reg 24. Regulation 25(i), as one of the relevant criteria for determining geographical indications, includes the degree of discreteness and homogeneity of the proposed geographical indicator in respect of a number of attributes there listed. In relation to the expression "grape growing attributes" in the definition of region, the AAT said:
"139. The GIC submitted, and we accept, that `grape growing attributes' of a single tract of land is not synonymous with `grapevine attributes'. The performance of the vineyards within the proposed region and consequent quality issues are not relevant to the homogeneity and discreteness of the region in question. We have also accepted the submission that soil, although not specifically mentioned is relevant to the geographical formation of the earth being one of the components of geology....
143. We have had particular regard in relation to homogeneity to the `relevant traditional divisions' within the area ie. the Hundred lines and to the extensive history of grape and wine production in the area. As our reasons have stated a substantial amount of the land within the proposed area has been involved in grape production and wine making for a considerable period. There are some new vineyards in the proposed area, however the land is closely planted with vineyards and this industry is the major economic activity.
144. The land outside the proposed region however, in our view has substantially less homogeneity in its grape growing attributes than that of the region. There are to the west of the regions boundary large areas of soil which are, as they currently stand, unsuitable for viticulture. The vineyards in this Western Area are currently located in pockets of soil suitable for viticulture. The evidence of grape production within the proposed area is much greater than that within the areas to the west and south of the region.
...
146. In establishing this particular region the criteria which relate to the history and traditional divisions within the area have been more useful as a means of determining the boundary of a reasonably homogenous tract of land. Further geographical features, consistent with this historical and traditional division have been used to establish a region reasonably discrete from its surrounding areas."
Boundaries described by the GIC determination and the AAT decision
46 As already indicated, the cigar covers an area running north and south approximately twenty-six to twenty-eight kilometres long and two to four kilometres wide. At the northern end it is about one to two kilometres east of the western boundary of the Hundred of Comaum, and at the southern end it is approximately three to five kilometres east of the western boundary of the Hundred of Penola. At the northern end, the cigar is approximately two and a half kilometres south of the northern boundary of the Hundred of Comaum, and at the southern end the cigar is approximately the same distance north of the southern boundary of the Hundred of Penola. The western boundary fixed by the GIC determination, proceeding from the north in a southerly direction, followed for about half its length the western boundary of the Hundred of Comaum, and then moved somewhat to the east. Overall, the western boundary of the GIC determination included an area to the west of the cigar varying up to about three kilometres wide.
47 The eastern boundary of the GIC determination included land to the east of the cigar - at some points extending five to six and a half kilometres to the east. The GIC determination to the north barely extended beyond the cigar, and to the south did not include all of the cigar on the basis that the township of Penola should not be included within the GIC determination. The 1999 proposed variation to the interim determination published by the GIC had included areas both to the north and to the south of the boundaries of the final GIC determination and, in particular, extended north beyond the northern boundary of the Hundred of Comaum so as to include Petaluma Ltd's "Sharefarmers" vineyard and also most of the properties of Naradina Pty Ltd and Mr R D MacLeod, which are the subject of two of the applications presently before this Court. The southern boundary of the Sharefarmers vineyard runs along the northern boundary of the Hundred of Comaum.
48 The GIC determination included an area of 157.7 square kilometres. The applicants before the AAT sought to extend the boundary in all directions so as to include an area of approximately 1030 square kilometres. In the result, the AAT decision described a boundary which increased the geographical indication which had been determined by the GIC by a considerable extent, although the area encompassed by the new boundary description is not disclosed in the material before the Court.
49 The AAT decision extended the boundary to the north-west and the south-west so as to follow the western boundaries of the Hundreds of Comaum and Penola. The boundary immediately north of the cigar generally followed the northern boundary of the Hundred of Comaum, but was extended further north beyond the Hundred boundary to include the Sharefarmers vineyard. The geographical indication was also extended to the east. Due east of Coonawarra it travelled as far as the Victorian border. The eastern boundary runs along the Victorian border for a distance exceeding twelve kilometres, and varies between nine and almost twelve kilometres from the eastern boundary of the cigar. However, the portions of the Hundred of Comaum to the north-east, and the Hundred of Penola to the south-east, were excluded on the basis that the boundary should only run to the western boundary of the Comaum and Penola forests.
50 The AAT said that it included the Sharefarmers vineyard within the geographical indication because the history of the vineyard and its geographical features created a strong case for inclusion, even though it was not within the two Hundreds. The geographical features appear to be that it had adjoined the boundaries declared by the 1984 Viticultural Council resolution, and by the final GIC determination. Petaluma Ltd purchased the Sharefarmers land in 1983, and had progressively planted it with a range of grape varieties thereafter. It was said that the soil topography and management of the vineyard was homogeneous with those vineyards within the 1984 boundary. Since its purchase the vineyard had been managed by the same team which managed another vineyard situated on the cigar, and the vineyard had always been treated by Petaluma Ltd and its investors as a Coonawarra vineyard. The Coonawarra appellation had been used on labels by Petaluma Ltd for its wines made from that vineyard's grapes since 1989, and all export Sharefarmers' wine had been labelled Coonawarra. The AAT said that it accepted the submission based on this evidence that the usage by Petaluma Ltd of the name "Coonawarra" had established a substantial reputation for the Sharefarmers' vineyard.
Location of the applicants' land
51 The land, the subject of the present application by Naradina Pty Ltd, adjoins the northern boundary of the Sharefarmers vineyard, and the land of Mr R D MacLeod adjoins the Naradina Pty Ltd land. The vineyards of Beringer Blass are immediately to the north and east of the land of Mr MacLeod. The southern boundary of the Beringer Blass vineyard is a little over four kilometres north of the northern end of the cigar, and approximately two kilometres north of the Hundred of Comaum. The southern boundary of the Naradina Pty Ltd land would be less than one kilometre north of the Hundred of Comaum.
52 The land of D M and P J Castine at its nearest point is 100 metres west of the boundaries of the Hundreds of Comaum and Penola. It is about five kilometres south-west of the Coonawarra township, and approximately two and a half to three kilometres from the western boundary of the cigar. It is therefore significantly closer to the cigar than much of the land to the east of the cigar included within the boundaries described in the AAT determination.
53 The subject land of the J D and P G Kidman partnership is due west of the southern end of the cigar, and about four to five kilometres from it. Its eastern boundary is less than one and a half kilometres west of the Hundred of Penola.
The Appeal by Beringer Blass
54 The Beringer Blass vineyards, the subject of this appeal, are known as "Robertson's Well". The AAT gave the following reasons for not including Robertson's Well within the geographical indication:
"223 The property, running largely north-south is located north of Comaum in the Hundred of Joanna, at the base of the Naracoorte Range. `Robertsons Well' was a joint venture with the Lillicrap Family in 1993, approximately 74 hectares being planted, limited to the better soils on the land. The name `Robertsons Well' has a market in the wine industry but there is no record of use of the label or descriptor as `Coonawarra'.224 Evidence presented to us in relation to the management of these properties together with the Applicant's properties on the cigar, in order to support a connection to the Coonawarra, is, we consider, equivocal. The property is well north of Comaum and has in our view no objective connection with the Coonawarra region. The soils on the property which we accept are similar to the cigar soils, are not, in light of our view of the application of the criteria to this region, sufficient to satisfy us on that basis alone that the property should be included."
55 Beringer Blass contends that the above finding reflects the following four errors of law:
(a) by requiring Beringer Blass to satisfy a higher threshold test under the AWBC Act and the Regulations for the inclusion of Robertson's Well in the Coonawarra region boundary than it did for those parties whose properties fell within the Hundreds of Comaum and Penola, the AAT wrongly applied the criteria. In particular, the AAT erred in construing the Regulations so as to require the "history" criteria in reg 25 to amount to an overwhelming countervailing reason for including a property within the Coonawarra region in circumstances where a vineyard is not located within the Hundreds of Comaum and Penola (see par 137 of the AAT's reasons set out above);
(b) the finding that there was no record of the use of Robertson's Well label or descriptor as Coonawarra was wrong in fact, and constituted an error of law because it was unsupported by probative material, ignored relevant material and was perverse, arbitrary and unreasonable;
(c) the finding that Robertson's Well had no objective connection with the Coonawarra region was also wrong in fact and constituted an error of law for the same reason as the factual error alleged in ground (b);
(d) the AAT erred in law in failing to take into account relevant considerations namely:
(i) Robertson's Well is proximate to the topography of the cigar and is closer to that topography than several of the properties of other parties found by the AAT to be within the Coonawarra Region;
(ii) there was no evidence before the AAT, and no finding by it, that the land between the northern boundary of the Coonawarra region as determined by the AAT and Robertson's Well was not sufficiently homogeneous or otherwise so unsuitable as to exclude Robertson's Well from the Coonawarra Region; and
(iii) Robertson's Well lies to the west of the forest line which the Tribunal chose as forming the north-eastern boundary of the Coonawarra region.
56 The gravamen of the first ground is that the AAT constructed and applied a test to determine the geographical indication which was not in accordance with the requirements of the AWBC Act and Regulations. It is contended that, under the AAT's test, such importance was given to the "history" criteria that the AAT lost sight of the real object and purpose of determining a geographical indication.
57 A geographical indication is defined in s 4(1) of the AWBC Act to mean a word or expression used in the description and presentation of wine to indicate the country, region or locality in which the wine originated. Wine is taken to have originated in a particular locality or region only if the wine is made from grapes grown in that locality or region: s 5D. We have earlier pointed out that in this instance the task of the AAT was to determine the boundaries of a region already designated as the Coonawarra region by the A-EC Agreement. The purpose for determining the boundaries of the Coonawarra region as a geographical indication is to advance the objects of the AWBC Act. Section 40A is of particular importance in providing that the object of Part VIB of the AWBC Act is to regulate the sale, export and import of wine for the purpose of enabling Australia to fulfil its obligations under prescribed wine-trading agreements (in the present case under the A-EC Agreement). Part VIB is to be interpreted and administered accordingly. It follows that the Regulations - which are subservient to the AWBC Act - must also be interpreted and administered accordingly.
58 For present purposes, the central requirement to enable Australia to fulfil its obligations under the A-EC Agreement is to determine a geographical indication within the meaning of Article 2 of the A-EC Agreement. Such a geographical indication is one recognised in the law of Australia for the purpose of the description and presentation of wine originating in a region "where a given quality, reputation or other characteristic of the wine is essentially attributable to its geographical origin". That definition intends that the geographical indication will indicate a wine, the characteristics of which are essentially attributable to the region where the grapes, from which it is made, are grown.
59 The characteristics of wine essentially attributable to the region where the grapes are grown will not be influenced by the location within that region of local government or land survey boundaries administratively fixed for reasons unrelated to soil, climate or other conditions which bear on grapevine horticulture. Whilst boundaries of this kind may have a role to play in the selection of an appropriate name, word or expression to describe a region, to use them to identify the region is likely to introduce a wholly irrelevant consideration.
60 That the identification of the boundaries of a region, and the determination of a word or expression to be used to identify the region so determined, are separate matters is reflected in pars (a) and (b) respectively of s 40T(1) of the ABWC Act. Section 40T(2) recognises that in determining the geographical indication regard shall be had to the criteria prescribed in the Regulations. In construing reg 25, the separate requirements in s 40T(1) to identify an area, and to determine a name for it, must be remembered. In particular, reg 25(h) is cast so as to connect with s 40T(1)(b). Regulation 25(h) requires the decision-maker to have regard to "the existence in relation to the area of a word or expression to indicate that area ...". Those words assume that the area (in this case the region) has already been identified, and reg 25(h) then prescribes criteria to which regard must be had in determining a word or expression to indicate the area so identified. Regulation 25(h) does not prescribe criteria that are intended to aid in the identification of the boundaries of the region that is to be named. To use the criteria prescribed in reg 25(h) as aids in the identification of the area which comprises a region is to misunderstand and misapply reg 25. In our opinion that occurred in this case. The AAT has said at par 134 of its reasons that it has used the criteria prescribed in reg 25(h)(i) and (iii) to consider the evidence. In pars 134 and 135 of the reasons, the AAT has placed importance on the history of the use of the word "Coonawarra" as a factor delineating the region.
61 In the present case, as the name of the Coonawarra region was pre-determined by the A-EC Agreement, the function of the GIC, and in turn the AAT, was to identify the boundaries of the area comprising the region under s 40T(1)(a). The circumstance that the scope of the determination was limited for that reason cannot alter the proper interpretation of reg 25(h).
62 The references to historical information in the criteria in reg 25 are, however, not confined to reg 25(h). Regulation 25(b) refers to the history of the founding and development of the area; reg 25(f) refers to ordinance survey map grid references; reg 25(g) refers to local government boundary maps; reg 25(i), in requiring that regard be had to the degree of discreteness and homogeneity of the proposed geographical indication, includes as a relevant attribute the "history of grape and wine production in the area". How each particular criterion is relevant to one or both of the tasks which s 40T(1) requires of the decision-maker can be gleaned from a reading of regs 24 and 25 as a whole.
63 Regulation 24 is set out earlier in these reasons, and includes the definitions of "region" and "subregion". In this case the task of the AAT was to identify the region which, relevantly, may comprise one or more subregions and:
"is a single tract of land that is discrete and homogeneous in its grape growing attributes to a degree that:(i) is measurable; and
(ii) is less substantial than in a subregion; ..."
One of the integers of the definition of subregion is that it be a single tract of land that is discrete and homogeneous in its grape growing attributes to a degree that is substantial. Both the definition of "region" and the definition of "subregion" also require minimum wine grape production and a number of vineyards, and each definition concludes with a requirement that the area of land may reasonably be regarded as a region, or subregion, as the case may be.
64 The definition of "region" in reg 24 indicates the degree of discreteness and homogeneity in grape growing attributes that is to be aimed for when drawing boundaries. A substantial degree of discreteness and homogeneity in grape growing attributes is to be aimed for in defining a subregion, but a lesser degree is required for defining a region. The requirement that the area identified may reasonably be regarded as a region directs that the identification of boundaries must be undertaken in a manner that produces an overall result that is reasonable and internally consistent.
65 The subject matter of reg 24 is relevant to the task required under s 40T(1)(a) - that is, to identify the boundaries of the region which is determined as the geographical indication. In the definition of "region" there is not the slightest hint that pre-existing administrative boundaries, such as those fixed for local government or land survey purposes for reasons unrelated to grape growing attributes of the land, could have any relevance to identifying the relevant single tract of land that is discrete and homogeneous in its grape growing attributes to the requisite degree.
66 Regulation 25 should be understood as a further aid to fulfilling the two tasks required by s 40T(1). However, when regard is had to each of the criterion prescribed in reg 25, it is important to consider how that criterion is relevant to each of the tasks required by s 40T(1). For example, in reg 25(d) reference to the existence of constructed features including roads, railways, towns and buildings, and in reg 25(f) and (g) reference to survey map grid references, and to local government boundary maps, cannot be relevant to determining a tract of land that is discrete and homogeneous in its grape growing attributes. Rather, those matters are likely to be relevant to the determination of reasonable boundary lines for such an area otherwise determined, and may also be relevant (although not in this case) in determining an appropriate word or expression to identify the region. Whereas reg 25(h) by its opening words indicates that the criteria which it prescribes are relevant to determining a word or expression to indicate the region otherwise identified as required by s 40T(1)(b), reg 25(i) by its opening words indicates that it prescribes criteria that are relevant to the task under s 40T(1)(a) in identifying the boundaries of the region; that is the boundaries of an area that is a single tract of land that is discrete and homogeneous in its grape growing attributes to the degree required by the definition in reg 24. Although reg 25(i) does not repeat the words "in its grape growing attributes" after the words "degree of discreteness and homogeneity", when reg 24 and reg 25 are read together this is plainly the interpretation which should be given to reg 25(i). It follows that the criteria in reg 25(i), (viii) and (ix), in referring to any relevant divisions in the area, and to the history of grape and wine production in the area, as attributes to be considered, is concerned with the relevance of that history in identifying a single tract of land that is discrete and homogeneous in its grape growing attributes. The history of grape and wine production in an area will be relevant to show where grapes have traditionally been grown, to identify the extent of the area where grape growing has been successful, and to identify the extent of an area which has produced wine with characteristics that are recognised as coming from that area.
67 Historical events are also referred to in the criterion described in reg 25(b), namely the history of the founding and development of the area. Again, we think the relevance of this criterion is most likely to arise in determining the word or expression to be used to indicate the region otherwise determined. However, it is possible that, in a particular case, the founding and development of the area may provide evidence that is relevant to identifying the boundaries of a tract of land that is discrete and homogeneous in its grape growing attributes - in the same way as the history of grape and wine production in the area may be relevant under reg 25(i)(ix).
68 When the Regulations are so understood, the 1984 Viticultural Council resolution, which assumes major importance in the reasoning of the AAT, could be relevant only insofar as it provides probative material identifying boundaries of a single tract of land that is discrete and homogeneous in its grape growing attributes. The 1984 meeting of the Viticultural Council, which resolved that the Coonawarra boundaries should be "within the Hundreds of Penola and Comaum", was its Annual General Meeting. The resolution is recorded as having been moved and passed under General Business. As such, it is reasonable to infer that notice of this item of general business was not given in advance to members. It seems clear that the boundary proposed by the resolution was not a boundary based on any research or expert evidence. At the most, the resolution provides some evidence that some viticulturists knowledgeable in and about the area considered that the region which produced grapes from which wine recognised as "Coonawarra" was made, extended beyond - and well beyond - the cigar.
69 The AAT in its findings in pars 115, 116, 121, 127 and 128 (set out above) has however given the limited evidentiary value of that evidence a status in the identification of the boundaries of the Coonawarra Region that is unjustified on the proper interpretation of reg 24 and reg 25. The finding of the AAT in par 128 demonstrates the way in which its misconstruction of reg 24 and reg 25 has diverted its attention from the central issue, which is to identify a single tract of land that is discrete and homogeneous in its grape growing attributes to the requisite degree. See also the finding in par 136 of the AAT's reasons.
70 The misconstruction of reg 24 and reg 25 caused the AAT to wrongly use the two Hundred boundaries as an exclusionary device, only to be waived in the case of "an overwhelming countervailing reason" (par 137 of the AAT's reasons).
71 The conclusions reached by the AAT cannot be justified on the basis that they were reached by taking into account "other relevant matters" which reg 25 permits. First, the AAT did not purport to so decide the case. Secondly, the power to take into account other relevant matters cannot be used to import criteria that are inconsistent with the purpose and intent of regs 24 and 25, and that is the effect of the use which the AAT made of the 1984 Viticultural Council resolution.
72 The task which confronted the AAT was not an easy one. As it noted, climate, water, drainage and soil conditions did not provide discernible boundaries. The cigar had long since ceased to delineate the grape producing area from which wine recognised as Coonawarra originated. The AAT found, at par 137 of the reasons, that proximity to the cigar was an important indication of the boundaries, and no party in these appeals has criticised that finding. But the notion of proximity was not alone enough to identify boundaries, or even approximate boundaries, with any precision. This is illustrated by the fact that the eastern boundary fixed under the AAT determination extends to the Victorian border, whereas it only extends a comparatively short distance to the west. To the west of the cigar, the AAT noted that the pockets or islands of terra rossa soil were more sparse than to the east, and treated this as providing an understandable and reasonable basis for not extending the boundary as far to the west as to the east. This finding is warranted on the evidence, and, as a general factor to be brought into account, is in accordance with the reg 25 criteria. However, to simply adopt the boundaries of the Hundreds as the western boundary of the region when vineyards not much further to the west are much nearer to the cigar than many vineyards to the east that are included, produces a result that is not internally consistent and, without more, is both arbitrary and not based on the central identifier of a region prescribed in reg 24. The case for inclusion of the Robertson's Well vineyard and the lands of Naradina Pty Ltd and Mr R D MacLeod within the boundaries is even stronger as the adverse soil profile which develops as one moves to the west of the cigar is not present in these lands. On the contrary, the AAT held (at par 224 of the reasons set out above) that the soils on Robertson's Well are similar to the cigar soils. By inference, the soils of the other two properties which lie between Robertson's Well and the northern end of the cigar would also have similar soils.
73 The difficulties in identifying boundaries to an area that may reasonably be regarded as the Coonawarra region within the meaning of reg 24 provides reason for a decision-maker to have regard to historical information, but only insofar as that information is properly to be taken into account in light of the definitional requirements of reg 24, and the purpose of the criteria in reg 25. In the application by Petaluma Ltd the AAT relied heavily on historical information, namely the industry and market acceptance and recognition of the Coonawarra region as a descriptor of the characteristics of wine originating from the Sharefarmers' vineyard. The AAT treated that evidence as an "overwhelming countervailing reason" to depart from the Hundred boundaries. The weight attributable to that kind of historical evidence in the case of Petaluma Ltd illustrates the importance of similar evidence in the cases of other applicants who claim to have their vineyards included within the boundaries of the Coonawarra Region.
74 For the reasons already given, we consider that the AAT fell into error of law in its construction of regs 24 and 25, and we think it is clear that the misconstruction of the regulations directly affected the outcome of the Beringer Blass application. Accordingly the application by Beringer Blass must succeed.
75 We turn, however, to briefly consider the other three grounds on which the decision is challenged.
76 The second ground of appeal contends that the AAT was wrong as a matter of fact in finding that, whilst the name "Robertson's Well" has a market in the wine industry, there is no record of use of the label or descriptor as "Coonawarra". Lengthy submissions were made in support of this ground by Beringer Blass, and in opposition by the Southcorp Group.
77 Beringer Blass relies on evidence that its holding company, Mildara, has since 1993 marketed "Robertson's Well" wines, the front label of which includes the words "Robertson's Well" and "Coonawarra", and the back label of which reads:
"John `Poor Man' Robertson was one of the most illustrious pioneers of the Coonawarra region and at one time ran 60,000 sheep on his property. Part of that station was named Robertson's Well after a large well sunk into the district's hard layer of limestone in the 1840's. That property is now a Mildara vineyard."
Other evidence was also led by Beringer Blass establishing that marketing material published in relation to Robertson's Well wines contained similar information. Thus a "sales brief" document published in 1994 reads:
"The name Robertson's Well comes from one of the new Mildara Vineyard developments in the Coonawarra region. John `Poor Man' Robertson was of the Coonawarra districts most illustrious pioneers - at one stage running over 60,000 sheep on his property. He sunk a Well into the districts hard layer of limestone to water his stock - this Well is now in the middle of one of our vineyards. We hope the name Robertson's Well will have the same sort of feel and warmth as Jamieson's Run."
78 Another promotional leaflet published in relation to Robertson's Well 1992 Coonawarra Cabernet Sauvignon contained similar information about John Robertson's history and concludes with a statement "Part of the station was named Robertson's Well after a large well sunk into the district's hard layer of limestone in the 1840's. This property is now a Mildara vineyard".
79 The Southcorp Group contends that the AAT did not fall into factual error because the wine marketed as "Robertson's Well" with a Coonawarra descriptor in its labelling, originates from grapes grown not on Robertson's Well, but in another vineyard on the cigar - an area clearly within the Coonawarra region on any view of the appropriate boundaries.
80 This labelling information falls within the notion of historical information that we have discussed in the interpretation of regs 24 and 25. We think the relevance of the information turns upon the construction of those Regulations. If our construction is correct, we do not think the evidence assists the case of Beringer Blass. The evidence establishes that, as a matter of history, Mildara has claimed that the Robertson's Well vineyard is on land which it has been designated as within the Coonawarra region. However, that is not information that is relevant for the purpose of criteria reg 25(i)(ix). It is not history of grape and wine production in the area. Unlike the use of the Coonawarra descriptor in the case of Sharefarmers, where it described a wine with characteristics which had received recognition as being from the Coonawarra region in the industry and market circles, the wine recognised under the Robertson's Well label as having Coonawarra characteristics, originated not from a Robertson's well vineyard, but from elsewhere.
81 However, if we are wrong in our construction of regs 24 and 25, and it is relevant under the reg 25 criteria to have regard to historical events which demonstrate the use of "Coonawarra" to describe geographical areas for purposes not related to the grape growing attributes of the land, then it would follow that the evidence discussed above, which Beringer Blass relies on in support of the second ground of its appeal, would have relevance. In this event, we would agree with the submission made by Beringer Blass that the AAT erred in those findings of fact, and that the findings were unreasonable or arbitrary having regard to the evidence. Findings of this kind are errors of law. Thus, if our interpretation of regs 24 and 25 is wrong, whilst Beringer Blass may not then succeed on the first ground, we think the present appeal would succeed on the second ground of appeal.
82 Under the third ground of appeal it is contended that the AAT erred in finding that the Robertson's Well property had no objective connection with the Coonawarra region. For similar reasons to those just given in relation to the second ground, on the interpretation which we place on regs 24 and 25, we do not think that evidence of the kind relied upon by Beringer Blass, namely evidence about their postal address and about the recognition by trade customers that Robertson's Well is at Coonawarra, assists the Beringer Blass case. Evidence of that kind is not evidence which bears on the question whether an area is a single tract of land that is discrete and homogeneous in its grape growing attributes. In any event, this evidence was said by the AAT to be equivocal, and if, contrary to our view, the material was relevant, we are not persuaded that this conclusion is wrong.
83 The fourth ground contends that the AAT erred in law in failing to take into account three relevant considerations which we have earlier identified at par 55. We agree with the submissions of Beringer Blass that the AAT did not take into account these matters. On the proper interpretation of regs 24 and 25, we consider these matters were of relevance and entitled to considerable weight. The Robertson's Well property is much closer to the topography of the cigar than many properties to the east of the cigar which are included in the geographical indication. Not only was there no evidence before the AAT that the land between the northern boundary of the geographical indicator determined by the AAT and the Robertson's Well property was not homogeneous or otherwise unsuitable so as to exclude the property, there are express findings as to similarity of climatic and soil conditions to those pertaining to the cigar. Further, it is correct, as the applicants contend, that Robertson's Well lies well to the west of the forest line which the AAT chose as forming the north-east boundary line of the geographical indicator. The failure to take into account these relevant matters is a product of the erroneous construction which the AAT placed upon regs 24 and 25.
84 For these reasons, the application to this Court by Beringer Blass must succeed.
Appeal by D M and P J Castine
85 We have already described the location of this land. At the closest point the land is 100 metres west of the Hundreds of Comaum and Penola and much closer to the cigar than many of the vineyards within the AAT determination boundaries. Not all of this land has yet been developed as vineyards. The Tribunal said:
"166 The Vineyards on Sections 115 and 116 comprise four hectares which were planted in 1994 and eight hectares planted in 1997. The first vintage was in 1997; it was sold to Normans Wines Ltd as have subsequent vintages. The Applicant claims and we accept that the grapes are regarded as high quality Coonawarra style produce. The vineyards are, however, remote from the cigar area and the Hundreds of Comaum and Penola. Inclusion would involve the addition of a tract of intervening unsuitable ground to the region which would affect its homogeneity. This factor outweighs in our view the particular historical evidence of connection to the Coonawarra region presented to us. The Applicant's land is not included in the boundary of the region we have determined."
86 The finding that the grapes grown on this land are regarded as high quality Coonawarra style produce requires further elaboration. The evidence was that the grapes have been harvested from the property and sold to Norman's Wines, and that since 1997 Norman's has made them into premium wines labelled "Coonawarra Cabernet Sauvignon". The evidence therefore establishes a trade recognition of the characteristic of the wine as essentially attributable to its origin within the Coonawarra region (see Article 2 of the A-EC agreement). Moreover, that history is relevant to be taken into account under reg 25(i)(ix) as evidence about the grape growing attributes of the land. This factor, however, has been discounted by the AAT primarily, we think, because of the importance which is placed upon the Hundred boundaries. We have already given our reasons for concluding that the AAT misconstrued regs 24 and 25, and erred in adopting the Hundred boundaries as a factor for excluding land beyond them.
87 These applicants also contend that the finding of the AAT that inclusion of their land would involve the addition of a tract of intervening unsuitable ground within the geographical indication which would effect homogeneity, is unreasonable and unjustified either by evidence or by any findings that it made. There is a strip of land running parallel to the cigar between the western boundary of the cigar and the western boundary of the Hundreds of Comaum and Penola which, in the vicinity of the subject land of D M and P J Castine, is about three kilometres wide. There is no finding by the Tribunal that within that three kilometre strip, or within the further 100 metres travelling west to the subject land, there is any variation in the topography. It is pointed out that to extend the boundary of the geographical indication to the west so as to include the subject land would not involve the addition of much intervening land. Having regard to the evidence that the terra rossa soil type typical of the cigar did not constitute more than about 25 to 33 per cent of the area within the GIC determination, and apparently a lower percentage in the case of the area encompassed by the AAT determination, the presence of some unsuitable land that might be included in the extension hardly seems a factor that could carry weight sufficient to overcome what the AAT has described as historical evidence of connection to the Coonawarra Region.
88 We think the proper inference from the reasons of the AAT is that, if error had not been made in the interpretation and application of regs 24 and 25, the conclusion of the AAT would have been different. In our opinion the application by D M and P J Castine should succeed.
Appeal by J D and P G Kidman
89 The subject land of these applicants includes a vineyard known as "Bonley". The brief reasons of the AAT for excluding this property misdescribes the extent of the sections of land that are involved. However, nothing turns on that, as the reasons expressed plainly apply to the whole of the land identified in the maps and papers that were before the AAT.
90 The uncontradicted evidence about the land was that in 1996 two hectares of Cabernet Sauvignon vines were planted. In each of 1997 and 1998 a further two hectares of Cabernet Sauvignon were planted so that at the time of the AAT hearing there was a total of six hectares of vines, and in addition a further eight hectares of land for future plantings.
91 The AAT said:
"203 They [the sections comprising the property] were not included in the Joint Committee application or subsequent GIC determinations.204 The first vintage in 1999 from this property was sold to Normans. Six hectares were planted in 1996, eight hectares have potential for grape growing. However extension of the boundary to include this property would in our view result in much intervening unsuitable land also being encompassed within the boundary affecting its homogeneity and there are no countervailing historical or other reasons for disregarding this fact. For that reason we are not satisfied that the inclusion of these properties in the region of Coonawarra would be justified on the criteria."
92 The concluding sentence of this passage should be understood as meaning that the AAT is not satisfied that the inclusion of the properties would be justified on the criteria which the AAT itself had earlier established: see in particular par 137 of its reasons. We have already expressed our view that the criteria established by the AAT, and in particular its reliance on the boundaries of the Hundreds of Comaum and Penola, are not in accordance with the requirements of regs 24 and 25. That error plainly affects the conclusion reached in relation to the land of J D and P G Kidman.
93 In the case of this land, the extent of intervening land that would be encompassed by extending the boundary to include it is marginally greater than in the case of D M and P J Castine. However, as in the case of the property of D M and P J Castine, the findings of the Tribunal do not indicate any significant difference in the suitability of the land lying between the eastern boundary of the subject land and the southern end of the cigar which lies about four to five kilometres to the east. The subject land is much closer to the cigar than much of the included land lying to the east of the cigar. In terms of proximity it therefore has a stronger claim for inclusion than that other land.
94 Of particular significance to the merits for inclusion of the land in the geographical indication is evidence as to the production of wine from grapes grown there. This evidence appears to have been either overlooked or misunderstood by the AAT as it is not consistent with the finding that there are "no countervailing historical or other reasons" for disregarding the fact that the land lies to the west of the boundary of the Hundred of Penola. The evidence is that the first vintage from the land, in 1999, and all vintages thereafter, are subject to a ten year contract to Norman's Wines. The contract provides for a premium payment if the grapes are included in "Tarlina-Coonawarra Cabernet Sauvignon". A premium was paid to the applicants by Norman's Wine for both the first vintage in 1999 and the second vintage in 2000. The wine maker at Norman's determined grapes sourced from the vineyard were of premium quality required for Norman's "Coonawarra" flagship wine. This is relevant evidence as to industry recognition of a wine characteristic of the "Coonawarra" region.
95 It appears that the Tribunal may have wrongly attributed the significance of the applicant's ten year contract with Norman's, and the Coonawarra premium payments in 1999 and 2000, to another applicant in the proceedings who, coincidentally, is referred to in the papers as J D Kidman. In respect of the land of the other Mr Kidman, the Tribunal said:
"200 However, the land has been owned since 1974, there were negotiations with B R L Hardy for its produce, and now this Applicant has a ten year contract with Normans, with premium payments being made in 1999 and 2000. The area is within Penola and adjoins other properties south of the township considered to have viticultural prospects."
That land was included within the boundaries of the AAT determination. On the evidence, the other Mr Kidman had no long term contract, and his first harvest was due in March 2001.
96 The finding in relation to J D and P G Kidman that "there are no countervailing historical or other reasons" which justified the inclusion of the land, is a finding which reflects a failure to take into account relevant evidence and, for this reason, reflects an error of law. In our opinion this application must succeed both for the error of law just identified, and because the AAT's conclusions about the land were based on a misconstruction of regs 24 and 25.
Appeals by Mr R D MacLeod and Naradina Pty Ltd
97 We have earlier described the location of this land. The Naradina Pty Ltd property lies immediately to the north of, and shares a boundary with, the Sharefarmers vineyard. The property of Mr MacLeod lies immediately to the north of, and has a common boundary with the Naradina Pty Ltd property. The Robertson's Well land lies immediately to the north of the Naradina property and to the north and west of Mr MacLeod's land. The AAT said:
"MacLeod R D208 The property which is the subject of the application is within Sections 18, 19, 50 in the Hundred of Joanna, within the Naracoorte Ranges proclaimed `Wells' region. Vineyards were proposed in 1997, but as far as is known, have not yet been planted.
209 The sections were not included in the original application by the Joint Committee, but were within the GIC proposed variation, later being excluded from the GIC final determination.
210 The property is well outside the Hundred of Comaum, with no evidence of historical or other connection to the Coonawarra area and we are not satisfied that it should be included in the Coonawarra region."
"Naradina Pty Ltd: (A MacLeod)
231 The properties which are subject to the review by this Tribunal are Sections 6, 7, 10, 11, 12 and 16, Hundred of Joanna, all being located west of the Riddoch Highway, apart from section 16, east of the Highway, immediately south of the Robertson's Well vineyard of Mildara Blass.
232 Section 16 has 5.4 hectares of vines planted in 1997, 8.9 hectares planted in 1999 and ten hectares planted for 2000 and there is a ten year contract with Orlando, but at average district price. The grapes are regarded as high standard.
233 As this property is north of Comaum, there is no compelling historical case for inclusion, because of labelling or other evidence. The geographical criteria do not counterbalance this conclusion and we are not satisfied that these properties should be included in the Coonawarra Region."
98 Again, there is a misdescription by the AAT of the sections of land involved in the property of Mr R D MacLeod, but nothing turns on this.
99 In the case of the Naradina property there is a finding that the grapes are regarded as high standard. We have already commented that it follows by inference from the finding that the soils of the Robertson's Well are similar to the cigar soils, that similar soils extend from the northern end of the cigar through to properties of Petaluma Ltd, Naradina Pty Ltd and Mr MacLeod. The southern boundary of Mr MacLeod's property is within about four kilometres of the northern end of the cigar, and the whole of the Naradina Pty Ltd property is even closer. Both properties are significantly nearer the cigar than much of the land lying to the east of the cigar which is within the geographical indicator described in the AAT decision. It all lies west of the forest which the AAT adopted in determining the north-east boundary of the geographical indicator. There is no finding that the inclusion of these properties would detract from the discreteness or homogeneity in the grape growing attributes of a region that included them.
100 We consider it is clear that in deciding to exclude these properties the Tribunal has applied the erroneous test which it formulated in par 137 of its reasons, and has wrongly used the northern boundary of the Hundred of Comaum as a prime facie criterion that excludes these properties. In our opinion both applicants have established errors of law and their applications should succeed.
101 It is to be noted that it was common ground between the parties that reg 24 requires that the geographical indication be in respect of a single tract of land. It is not possible for a geographical indication to aggregate a number of discrete "islands" of land, whether by reason of their terra rossa soil or any other distinguishing characteristics. If, for example, the Robertson's Well property should be included on a proper application of regs 24 and 25, then the intervening land must also be included. To achieve a boundary that is reasonable and internally consistent, a boundary that included the Robertson's Well would inevitably include the properties of Mr R D MacLeod and Naradina Pty Ltd.
102 Finally, we note that in relation to the appeals by each of the applicants other than Beringer Blass, it was contended that the AAT fell into error of law by failing to give reasons which met the requirements of s 43(2B) of the AAT Act. That section requires the Tribunal to give written reasons for its decision, which include its findings on material questions of fact, and references to the evidence or other material on which those findings were based. Without going at length into the arguments made in support of this contention, it is based on an assertion that the Tribunal failed to adequately explain the conclusions expressed in the passages we have set out above about the lands of each of the applicants, and failed to explain what it meant by "homogeneity". This ground of appeal is without substance. Section 430(1) of the Migration Act 1958 (Cth) is in substantially similar terms to s 43(2B) of the AAT Act. The extent of the obligation imposed by such a section on a decision-maker was considered by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1. McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said at [67]-[68]:
"In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?"Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out some findings additional to those which it actually made. In Singh [2000] FCA 845; (2000) 98 FCR 469 at [47]- [48] significance was attached to the use of the word `material' in s 430(1)(c). It was said that "material" in the expression `material questions of fact' must mean `objectively material'. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read `material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision."
103 In the present case the Tribunal delivered elaborate reasons extending over some seventy-five pages. The process of reasoning followed by the Tribunal, together with findings of fact material to that reasoning process, are set out in a way that quite plainly and adequately discloses the subjective thought processes of the Tribunal. The disclosure of those processes has presented no difficulty to the applicants in the presentation of arguments as to why and where the Tribunal fell into error. The purpose for the giving of reasons was more than sufficiently fulfilled in the present case.
Summary
104 For the reasons given, we consider that each of the five applications before the Court succeeds. The decisions of the AAT in relation to the lands of each of the applicants must be set aside.
105 How then should this conclusion be implemented? Section 44(4) of the AAT Act provides that the Court may make such order as it thinks appropriate by reason of its decision, and s 44(5) provides:
"Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."
106 Section 44(4) does not give this Court wide power to make whatever order it likes. The restricted nature of the orders which s 44(5) identifies recognises that the Court's powers are limited. An appeal to this Court lies under s 44(1) of the AAT Act only on a question of law. In the event that an error of law is found, that finding provides the subject matter of the order which the Court is empowered to make, the purpose of the order being to enable the decision making process envisaged by the relevant legislation to occur free from the legal error.
107 The AWBC Act vests the authority and powers to determine a geographical indicator in the GIC. Upon review of a decision of the GIC under the AAT Act, the authority and powers are transferred to the AAT. However, even if the AAT commits an error of law, the authority and powers to make a lawful determination remain with the AAT, and do not pass to this Court in exercise of its limited jurisdiction under s 44 of the AAT Act.
108 However commercially convenient it might be for the parties if this Court were to determine a geographical indication by drawing boundaries on a map which incorporate the properties of the applicants, this Court has no power to do so. Nor does this Court have power to remit the matter to the AAT with a direction to the AAT to make a determination that adopts boundaries identified by this Court unless all parties who have a real interest in the proceedings consent. Subject to what we are about to say, the power of this Court is limited to remitting the matter to the AAT to determine the applications of Beringer Blass, R D MacLeod, D M and P J Castine, J D and P G Kidman and Naradina Pty Ltd, in accordance with the construction placed on regs 24 and 25 by this Court.
109 At the commencement of these reasons we referred briefly to the order which the AAT made at the conclusion of the many matters before it. The actual terms of the order were:
"Decision We set aside the decision under review and direct that the matter be referred to the GIC for implementation of the Coonawarra Region boundary in accordance with our description of the boundary."
110 The AAT did not assay the task of drawing boundaries on a map. The delineation of precise boundaries is a necessary part of a determination of a geographical indication. The setting aside of the GIC determination means that there is no longer a final determination in existence. The AAT remitted the task of making a final determination to the GIC in accordance with its directions.
111 At the commencement of the hearing of these appeals we were informed by counsel for the GIC that the GIC has not made another determination. It had endeavoured to translate the reasons of the AAT into lines on a map, but had encountered difficulties in doing so in two areas. The GIC was intending to go back to the AAT for directions, but then put the matter on hold pending the outcome of proceedings in this Court.
112 The simple expedient of the GIC approaching the AAT for directions is now frustrated by two events. First, the President of the AAT who comprised one of the members of the Tribunal that made the decision has now retired. Secondly, the reasons of the AAT must now be implemented subject to the judgment of this Court. The effect of the judgment of this Court, absent an agreement over boundaries, will be that there is no decision about the merits of the applications which the five applicants to this Court made to the AAT. If we simply remit the subject matter of the present appeals to the AAT, a differently constituted tribunal will have to conduct another hearing of the five unresolved applications. In doing so, the AAT would be obliged to take into account that it has already favourably determined the application of twenty-four of the forty-six applicants who applied to it for review, and, save for the five applicants who have applied to this Court, has dismissed the other applications. Those decisions require that the land of the twenty-four applicants who were successful before it remain within the geographical indication. Similarly, those properties that have been excluded by earlier decisions which have not been set aside must remain excluded.
113 Having regard to these considerations, and the reasons of this Court, we think it is probable that the parties whose rights are affected by this decision would have little difficulty in agreeing new boundaries. The scope for disagreement should be extremely limited. Unless some agreement is reached between those parties, the difficulties which previously troubled the GIC will remain, and the parties will be put to further expense in trying to sort those difficulties out in other proceedings.
114 In these circumstances, and at the suggestion of the parties to these applications, we propose to publish our reasons, and then hear the parties as to what orders should be made. If the parties are prepared to abide by the reasons for decision which this Court has published, we would urge the parties, and the GIC in particular, to settle upon boundaries. Orders can then be framed that will remit the present five applications to the AAT on terms that will avoid a further merits hearing, and will lead to a speedy final determination by the GIC.
115 We will deal with the question of costs when we hear the parties as to the terms of the order which this Court should now make.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices von Doussa, O'Loughlin and Mansfield. |
Associate:
Dated: 20 September 2002
Counsel for Beringer Blass Wines Estates Limited: |
Mr N J Young QC with Mr P Jopling QC |
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Solicitor for Beringer Blass Wines Estates Limited: |
Corrs Chambers Westgarth |
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Counsel for R D MacLeod: |
Mr A Robertson SC with Mr D G Gaszner |
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Solicitor for R D MacLeod: |
Thomson Playford |
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Counsel for D M and P J Castine: |
Mr A Robertson SC with Mr D G Gaszner |
|
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Solicitor for D M and P J Castine: |
Thomson Playford |
|
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Counsel for J D and P G Kidman: |
Mr A Robertson SC with Mr D G Gaszner |
|
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Solicitor for J D and P G Kidman: |
Thomson Playford |
|
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Counsel for Naradina Pty Ltd: |
Mr A Robertson SC with Mr D G Gaszner |
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Solicitor for Naradina Pty Ltd: |
Thomson Playford |
|
|
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Counsel for Geographical Indications Committee: |
Mr G Gretsas |
|
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Solicitor for Geographical Indications Committee: |
Gretsas Chrzaszcz |
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Counsel for Southcorp Group: |
Mr I C Robertson |
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Solicitor for Southcorp Group: |
Finlaysons |
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Date of Hearing: |
11 and 12 June 2002 |
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Date of Judgment: |
20 September 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/295.html