Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee

Case [2007] FCAFC 122

FEDERAL COURT OF AUSTRALIA

Baxendale’s Vineyard Pty Ltd v The Geographical Indications Committee
[2007] FCAFC 122

PRIMARY INDUSTRY – wine regions – determination of geographical indication – whether the Whitlands High Plateaux region should be part of or separate from the King Valley region - identification of boundaries of regions – application of the Australian Wine and Brandy Corporation Act 1980 (Cth) – application of the criteria set out in the Australian Wine and Brandy Corporation Regulations 1981 (Cth) – the meaning of appellation of origin – determination of King Valley region – Agreement between Australia and the European Community on Trade in Wine and Protocol [1994] ATS 6

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether or nor the grounds of appeal raise questions of law – Tribunal’s decision affirmed

Australian Wine and Brandy Corporation Act 1980 (Cth) ss 3(1), 4, 5A, 5B, 6, 40C, 40D, 40N, 40P, 40PA, 40Q, 40T(2), 40U, 40V, 40W, 40Y, 40ZA
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Wine and Brandy Corporation Regulations 1981 ss 23, 24, 25

Beringer Blass Wine Estates Ltd v Geographical Indications Committee (2002) 125 FCR 155 considered
NBGM v Minister for Immigration and Multicultural Affairs (2006) 81 ALJR 337 applied

BAXENDALE'S VINEYARD PTY LTD, JAMES GOLDIE BAXENDALE, WILLIAM JAMES HARDIE, JOHN LOVE AND ANDREW D WRIGHT v THE GEOGRAPHICAL INDICATIONS COMMITTEE AND KING VALLEY VIGNERONS INC

SAD 259 OF 2006

EMMETT, DOWSETT AND SIOPIS JJ
10 AUGUST 2007
BRISBANE (VIA VIDEO LINK) (HEARD IN MELBOURNE)


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 259 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JUSTICE DOWNES, PRESIDENT

BETWEEN:

BAXENDALE'S VINEYARD PTY LTD, JAMES GOLDIE BAXENDALE, WILLIAM JAMES HARDIE, JOHN LOVE AND ANDREW D WRIGHT
Applicants

AND:

THE GEOGRAPHICAL INDICATIONS COMMITTEE
First Respondent

KING VALLEY VIGNERONS INC
Second Respondent

JUDGES:

EMMETT, DOWSETT AND SIOPIS JJ

DATE OF ORDER:

10 AUGUST 2007

WHERE MADE:

BRISBANE (VIA VIDEO LINK) (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.the application for leave to amend the notice of appeal be refused;

2.the appeal be dismissed;

3.the applicant pay the second respondent’s costs of the appeal;

4.should the first respondent wish to apply for any order as to its costs it may file and serve relevant submissions within seven days of the publication of these reasons; and

5.in the event of submissions being so filed, the applicant file and serve any submissions in reply within a further three days.

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

SAD 259 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JUSTICE DOWNES, PRESIDENT

BETWEEN:

BAXENDALE'S VINEYARD PTY LTD, JAMES GOLDIE BAXENDALE, WILLIAM JAMES HARDIE, JOHN LOVE AND ANDREW D WRIGHT
Applicants

AND:

THE GEOGRAPHICAL INDICATIONS COMMITTEE
First Respondent

KING VALLEY VIGNERONS INC
Second Respondent

JUDGES:

EMMETT, DOWSETT…

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Details
AGLC
Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCAFC 122
Case
[2007] FCAFC 122
Decision Date

CaseChat Overview and Summary

Baxendale's Vineyard Pty Ltd and others appealed against a decision of the President of the Administrative Appeals Tribunal (Tribunal). The decision was made under the Australian Wine and Brandy Corporation Act 1980 (Cth) (AWB Act). The appeal was pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which requires the appeal to be 'on a question of law'. The applicants contested the use of the words "King Valley" and "Whitlands High Plateaux" in the description and presentation of Australian wine. The case concerned geographical areas in north-eastern Victoria, where grapes suitable for wine-making are grown. The AWB Act regulates the use of words in the description and presentation of wines, enacted partly to implement an agreement between Australia and the European Community concerning wine sales (the EC agreement).

The key legal issues were whether the AWB Act's primary purpose was to give effect to Australia's obligations under the EC agreement, and whether this agreement should be a dominant consideration in interpreting the AWB Act. The applicants argued that the Tribunal's approach to its task was flawed because it considered two separate applications as distinct, rather than recognising that both related to the final determination by the Committee on 23 November 2004 concerning the King Valley region. The applicants also argued that the Tribunal erred by considering the size of the proposed Whitlands region as a disqualifying factor against its separate existence as a region, despite the fact that it met the prerequisite of comprising at least five wine grape vineyards of at least five hectares each that do not have any common ownership.

The court found that the applicants had not raised a question of law that warranted appeal. The Tribunal correctly considered the two applications together as they both related to the final determination made by the Committee on the King Valley region. The court also found that the Tribunal did not err in considering the size of the proposed Whitlands region, as the criteria specified in the regulations were not exhaustive and it was open to the Tribunal to conclude that the area was not a region because of its size. The court dismissed the appeal and ordered that the applicants pay the second respondent's costs of the appeal. The first respondent was given the opportunity to apply for its costs if it wished to do so.

Orders

Orders of the court

1. the application for leave to amend the notice of appeal be refused;

2. the appeal be dismissed;

3. the applicant pay the second respondent’s costs of the appeal;

4. should the first respondent wish to apply for any order as to its costs it may file and serve relevant submissions within seven days of the publication of these reasons; and

5. in the event of submissions being so filed, the applicant file and serve any submissions in reply within a further three days.

Background

Background to the litigation

This is an appeal from a decision of the President of the Administrative Appeals Tribunal (the “Tribunal”). The decision was made pursuant to the Australian Wine and Brandy Corporation Act 1980 (Cth) (the “AWB Act”). The appeal is pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). Such an appeal must be ‘on a question of law’. It is by no means clear that the applicants have raised such a question. BACKGROUND The case concerns use of the words “King Valley” in the description and presentation of Australian wine. The case also concerns use of the words “Whitlands High Plateaux” in that context. The King River and the King Valley are in north-eastern Victoria. Whitlands is an elevated area to the west of the King River. Opinions may differ as to whether it lies within the river valley. The King Valley and the Whitlands area are grape-growing areas, the grapes being suitable for wine-making. The AWB Act regulates the use of words in the description and presentation of wines. The relevant provisions were enacted in circumstances which are set out in the Tribunal’s reasons. A purpose of such enactment was to provide a legal framework for the operation of an agreement between Australia and the European Community concerning the sale of wine (the “EC agreement”). THE AWB ACT Much of the applicants’ argument depends upon the proposition that the primary purpose of the AWB Act is to give effect to Australia’s obligations pursuant to the EC agreement, and that the terms of that agreement are therefore a relevant, indeed a dominant, consideration in the construction of the AWB Act and the Regulations. However that approach may not be consistent with the approach adopted by the majority of the High Court in NBGM v Minister for Immigration and Multicultural Affairs (2006) 81 ALJR 337, concerning ‘the steps which an Australian court should take in situations in which international instruments have been referred to in, or adopted wholly or in part by, enactments.’ In that case the Court was considering the operation of the Migration Act 1958 (Cth) and the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. However their Honours’ remarks constitute an authoritative guide for present purposes. At [61] the majority observed:‘The first step is to ascertain, with precision, what the Australian law is; that is to say, what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. The first step is not, … to derive an understanding of the proper interpretation and operation of the convention.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT, DOWSETT AND SIOPIS JJ
Regulation 25(i) then provides for a final criterion consisting of the degree of discreteness and homogeneity of the proposed geographical indication in respect of nine attributes. The nine attributes are as follows:(i) the geological formation of the area;(ii) the degree to which the climate of the area is uniform;(iii)whether the date on which harvesting a particular variety of grapes is expected to begin in the area is the same as the date on which harvesting grapes, the same variety of which 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 governmental authorities;(viii)any relevant traditional divisions within the area;(ix)the history of grape and wine production in the area.Attributes (vii) and (viii) are not specifically related to grape growing. They should probably be understood as referring to development or divisions that have some bearing on grape growing. THE TRIBUNAL’S DECISION On 8 September 1997, the King Valley Vignerons applied to the Committee for the determination of a region to be known as “King Valley”. On 1 October 1997, the Committee published an interim determination in respect of that application. From December 1997 to April 1998, the Committee received submissions in relation to its interim determination. In June 1998, the Whitlands Vignerons made a separate application for the determination of a different region to be known as “Whitlands High Plateaux”. The area of the proposed Whitlands region is wholly within the area of the proposed King Valley region. From December 1998 to March 2004, the Committee received further submissions in relation to the King Valley application. On 23 November 2004, the Committee published a final determination of a region to be known as King Valley. At that stage, no interim determination had been made in respect of the proposed Whitlands region. Both the Whitlands Vignerons and the King Valley Vignerons lodged applications to the Tribunal for review of the Committee’s decision of 23 November 2004. It is significant that both review applications relate to the same decision by the Committee, namely, the final determination made by the Committee on 23 November 2004. In its reasons, the Tribunal characterised the issue before it as being whether there should be one region or whether there should be two regions. The Tribunal observed that there was no dispute that there should be a region called King Valley. The issue was whether there should be a separate region called “Whitlands High Plateaux”. The Tribunal also identified another broad issue, namely, whether any such separate region should include two ridges to the north of the main plateau. However, having regard to the decision made by the Tribunal, that issue does not presently arise. The Tribunal appears to have approached its task on the basis that there were two reviews before the Tribunal, one in respect of the Whitlands application to the Committee and the other in respect of the King Valley application to the Committee. However, since s 40Y of the Act only authorises an application for review of a final determination and no final determination has been made in respect of the application by the Whitlands Vignerons, both applications before the Tribunal must be regarded as relating to the final determination made by the Committee concerning the King Valley region. Both the Whitlands Vignerons and the King Valley Vignerons sought review of the final determination in relation to the King Valley region, but for different reasons.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT, DOWSETT AND SIOPIS JJ

There has been no request to the Tribunal for further reasons. Indeed, after the Tribunal published its reasons, there were several communications between the parties and the Tribunal concerning the need for a further directions hearing. Specifically, at one stage, the Whitlands Vignerons indicated that they wished to make further submissions concerning “anomalies which [they] consider to be fundamental”. Despite requests for particulars of those “anomalies” nothing was provided. At the further directions hearing conducted by the Tribunal after it had published its reasons, no complaint was made concerning the inadequacy of reasons on the part of the Tribunal. The ground is in effect a veiled invitation to the Full Court to invite the Tribunal to reconsider its ultimate conclusions, based on the primary findings made by the Tribunal, without identifying an error of law. Irrelevant Consideration The Whitlands Vignerons also say that the Tribunal erred by taking into account, as a disqualifying factor against the conclusion that there should be separate regions, the fact that the proposed Whitlands region was geographically small. They say that the only relevant consideration as to whether the area satisfied the requirement for a region is that the area comprise at least five wine grape vineyards of at least five hectares each that do not have any common ownership. The area of the proposed Whitlands region satisfied that requirement. They complain that, notwithstanding that the proposed Whitlands region satisfied that prerequisite, the Tribunal referred to “the relatively small area” and dismissed different grape growing characteristics “in the area under consideration”, as all occurring in the same general location in terms of latitude and longitude. They say that the Tribunal focussed impermissibly upon the relatively small size of the proposed Whitlands region. However, the criteria specified in Regulation 25 are not exhaustive. Even if the prerequisite that an area comprised at least five wine grape vineyards of the relevant size, it would still be open to the Committee or the Tribunal to conclude that the area was not a region because of its size. The Whitlands Vignerons complained specifically about a reference made by the Tribunal to an area being “too small to be a region in itself”. However, that reference was made in the context of determining the boundaries of the King Valley region. The Tribunal considered that it was inappropriate to include land in a region on which wine grapes will not be grown. However, the Tribunal also considered that it was inappropriate to exclude land on which wine grapes might be grown although they are not presently being grown. Those observations were made in the context of determining whether an area known as the Rose Valley should be included in the King Valley region. The Tribunal considered that, if that area were not included in the King Valley region, it could not practically be part of a wine region because it would be sandwiched between two other regions and would be too small to be a region in itself. That observation does not indicate an erroneous approach on the part of the Tribunal in relation to its conclusion that there should be only one region and not two separate regions as the Whitlands Vignerons contended. CONCLUSION