Penola High School and Ors and Geographical Indications Committee and Ors
[2000] AATA 922
•19 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 922
ADMINISTRATIVE APPEALS TRIBUNAL )
)No S2000/182, 183, 186-227, 305 and 313
GENERAL ADMINISTRATIVE DIVISION )
Re PENOLA HIGH SCHOOL BALTERSAN INVESTMENTS PTY LTD GC KOCH RE & MJ WITTWER GARRISON PARK NOMINEES PTY LTD DB MARKS GW, DJ & KD BERKIN RD MACLEOD NARADINA PTY LTD CASTINE KANAWINKA FAMILY TRUST MJ & KE PALM AKERINGA PLAINS PTY LTD DM & PJ CASTINE SJ SKEER GN SKEER BW DAVIS GH & SC GILES COONAWARRA PENOLA WINE INDUSTRY ASSOCIATION KGM & GJ SKENE B TIDSWELL H & VJ MCLEAN & SON OLD PENOLA PASTORAL COMPANY PTY LTD TRADING AS RYMILL COONAWARRA GREG GARTNER PTY LTD SCHOOLHOUSE PROJECTS PTY LTD SKYRON PTY LTD KJ & DM MERRETT MJ & AW GARTNER PG DOUGLAS & JM KITCHEN BJ & BJ PROVIS THOMAS RYMILL & CO OLEN PTY LTD VENADO PTY LTD J DAVIDSON A W LILLECRAP NOMINEES PTY LTD A CHILDS JD KIDMAN GLENBROOK ESTATE PTY LTD & PR COPPING MULLIGAN & TOPWAY DEVELOPMENTS PTY LTD PETALUMA LIMITED MB TYRRELL E F & D M WILLIAMS JD & PG KIDMAN KIDMAN COMAUM & CLYTHA KOPPAMURRA WINES PTY LTD MILDARA BLASS LIMITED DUNKELD PASTORAL CO PTY LTD
Applicants
And GEOGRAPHICAL INDICATIONS COMMITTEE
First Respondent
And
SOUTHCORP GROUP (COMPRISING SOUTHCORP WINES PTY LTD
LINDEMANS WINES PTY LTD
ROUGE HOMME WINES PTY LTD
B SEPPELT & SONS LTD
WYNNS COONAWARRA ESTATE PTY LTD)Second Respondent
And
COONAWARRA GRAPE GROWERS ASSOCIATION INC
Third Respondent
And
COONAWARRA VIGNERONS ASSOCIATION INC
Fourth Respondent
DECISION
Tribunal Justice D F O'Connor, President
Date19 October 2000
PlaceAdelaide
Decision The Tribunal orders that the role of the GIC in the substantive hearing of this matter shall be limited in the following manner: to provide assistance to this Tribunal when called upon; to make opening submissions if the GIC thinks fit; to make submissions as to the public interest at the conclusion of the hearing; and to provide to this Tribunal any further material at its disposal which may be necessary for the AAT to reach the correct or preferable decision.
..............................................
President
PRACTICE & PROCEDURE – proper role of first respondent decision maker during hearing
Administrative Appeals Tribunal Act 1975 s 30, 33, 39
Australian Wine and Brandy Corporation Act 1980
New Broadcasting v Australian Broadcasting Tribunal (1987) 73 ALR 420
BTR v Westinghouse Brake & Signal Co (1992) 34 FCR 246
R v Australian Broadcasting Tribunal & Others; Ex parte Hardiman & Others (1980) 29 ALR 289
Re Control Investment Pty Ltd & Ors and Australian Broadcasting Tribunal (No 2)(1981) 3 ALD 88
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
REASONS FOR DECISION
19 October 2000 Justice D F O'Connor, President
As a preliminary issue and to facilitate the proper preparation of all the matters and evidence for consideration by the AAT, it is necessary to determine the role and function of the Geographical Indications Committee ("GIC"), the decision maker and first respondent in this merits review.
BackgroundThe GIC was established by to section 40N of the Australian Wine and Brandy Corporation Act 1980 (Cth) ("the Act"). Pursuant to section 40P of that Act, the function of the GIC is to make determinations of geographical indications for wine in relation to regions and localities in Australia. For the purpose of making determinations under section 40T, the criteria to which the GIC is to have regard is prescribed by regulation 25 of the Australian Wine and Brandy Corporation Regulations ("the Regulations").
The GIC described its procedures (as set down in the Act) as follows. The GIC makes an interim decision on the application and the available evidence, then invites and considers submissions. It is required to consult with declared national bodies and it may consult with others. Parties making these submissions to it do not as of right have the ability to test each other's material. It then makes a final determination as to geographical boundaries.
After a protracted inquiry process the GIC made a final determination in relation to the Geographical Indication of Coonawarra on 10 May 2000. Forty-six applications for review of this determination by the Administrative Appeals Tribunal ("AAT") under section 40Y of the Act have been made.
Relevant legislative provisionsThe GIC is clearly a party to the proceeding (s 30, Administrative Appeals Tribunal Act 1975 (the AAT Act)) as the body which made the decision under review. However, the conduct of proceedings before the Tribunal is within the discretion of the Tribunal itself: s 33(1)(a). Relevantly the text of the section is set out below:
…
Procedure of Tribunal33. (1) In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
…
Section 39 relates to the presentation of a party's case.
Opportunity to make submissions concerning evidence
39.(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
…
Role sought by the GIC
During a directions hearing held on 9 August 2000 in subsequent written submissions and at a further directions hearing held today, the GIC has argued that its role in these proceedings should be an active one. The GIC seeks to perform a role described by Davies J in New Broadcasting v Australian Broadcasting Tribunal (1987) 73 ALR 420, where the role of the ABT included adducing evidence, questioning evidence, presenting substantive submissions and clarifying the practices and policy of the ABT. The GIC has concluded from the statements of principle made in this case that it has a right to exercise this active role whether required or sought by the AAT or not.
The GIC states and I accept that it seeks to assist the AAT in coming to the best decision in the public interest and the interests of the wine industry generally on "an objective analysis of the relevant criteria". However it submits that this involves:
providing the documents and information to the AAT upon which it based its decision; and
where necessary (and such necessity being determined by the GIC), objective testing and adducing of evidence so as to avoid the need for the AAT to do so; and
to make substantive submissions in relation to the proper interpretation of the Act and Regulations, the public interest and policy issues that have to be considered by the GIC; and
to assist the AAT in coming to the best possible decision in the public interest and that of the wine industry, on an objective analysis of the criteria and the totality of the evidence, because of its specialist knowledge of the wine industry and the system of setting geographical indications; and
to address on jurisdiction, powers and procedures of the AAT if required.
The GIC does not seek to canvass issues of commercial interest to the other parties.
In support of its submissions as to its role the GIC referred to BTR v Westinghouse Brake & Signal Co (1992) 34 FCR 246 where the Commission made submissions on jurisdiction, construction of sections of the law, and the powers of the Commission under the sections. The Commission was cautioned by the Court in that case against making submissions on issues which other parties could properly address.
Counsel for GIC asserts that as the applicants and joined parties are motivated by commercial self interest there is a role for the GIC in representing the public interest which will not be addressed by the other parties. The GIC claims the public interest is constituted by:
protection of the interests of consumers;
ensuring the viability of the wine export industry;
ensuring the integrity and reputation of the Coonawarra region is maintained;
maintaining the integrity of the system of establishing geographical indications under the Act; and
meeting Australia's treaty obligations.
Counsel for GIC claims the GIC has specialised experience in the wine industry which would assist the AAT. However this does not extend to the GIC playing the role of an expert to the AAT during the course of the hearing.
The Tribunal has to date joined three parties to the proceedings who oppose the application. These parties intend to take an active role in the review.
In New Broadcasting v Australian Broadcasting Tribunal (1987) 73 ALR 420 at 430-1 Davies J cited the High Court as urging a limited role for a respondent tribunal and drew a distinction between that case and the situation in New Broadcasting saying relevantly:
The last matter on which I need comment is the limited role performed by counsel for the ABT in the hearing of this review. The role performed was that encouraged by the remarks of Gibbs CJ, Stephen, Mason, Aickin and Wilson JJ in R v Australian Broadcasting Tribunal & Others; Ex parte Hardiman & Others (1980) 29 ALR 289 at 306. Their Honours mentioned that in that case counsel for the ABT had taken the course of presenting a substantive argument and went on to say:
"... The course which was adopted by the Tribunal in this court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."
However, in a proceeding before the Administrative Appeals Tribunal ("the AAT"), it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course. It is also the course which is intended by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). Section 30(1) of that Act provides that the person who made the decision will be a party to the proceedings before the AAT. The AAT proceeds by way of a hearing or re-hearing at which the parties attend. The function of the AAT is review on the merits of a matter. It considers for itself both the facts and the law. Seldom does the AAT refer a matter back to the decision-maker to be fully re-considered. In the overwhelming proportion of cases, the AAT considers for itself what decision, in the exercise of the primary decision-making power, is the correct or preferable decision. That is the function which the AAT exercised in Re Control Investment Pty Ltd & Ors and Australian Broadcasting Tribunal (No 2)(1981) 3 ALD 88 and in this present case.
In the exercise of this function, the AAT is assisted if the representative for the decision-maker fulfils the role of adducing evidence, of questioning evidence and of presenting substantive submissions. If the representative for the decision-maker does not do this and there is no other party present to undertake that role, it could become necessary for the AAT itself to take an active role in questioning witnesses and even in adducing evidence. Such a role does not stand well with the AAT's function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions.However, Davies J went on to note:
In some cases, it could well be appropriate for counsel for the ABT to exercise a limited role. Such a case probably was Re Control Investment, cited above, in which several parties were represented before the AAT and all relevant points of view were put. In that case, the ABT limited its role to assisting clarification of the practices and policy of the ABT and to assisting the AAT as requested. But that was a very different case from the present for all the evidence was properly tested.
The current matter is clearly a case in this latter category. As noted by Davies J, a key determinant in the role of the primary decision maker in a hearing before the AAT is the extent to which the evidence being presented to the AAT is properly tested without its involvement. The existence of joined parties with interests in opposition to those of the applicants would indicate, at this stage, that there will be a thorough testing of the evidence.
This conclusion is further supported by the discretionary nature of procedure before the AAT created by section 33 of the AAT Act. The duty of the AAT is to determine the correct or preferable decision. It is able to seek assistance from respondent. It can shape the procedure of the hearing so as to ensure the correct or preferable decision is reached while guided by section 33 in ensuring an expeditious proceeding. Avoiding duplication avoids time delays and costs, which are relevant to all proceedings but particularly those with commercial consequences.
The GIC argues that Hardiman's case does not apply to it because it is not a "tribunal" in the same sense as the ABT was in that case. In my view the principle in Hardiman's case is relevant to all bodies which make binding determinations and where partisan views would, generally, destroy the effectiveness of that body in future administrative decisionmaking. This unfortunate consequence is often unavoidable if the Tribunal is faced with the same situation as in New Broadcasting. In such a case, the AAT might need the active participation of the decision maker so that its duty to make the correct or preferable decision could be fulfilled. Here, however, there are parties able to take the role of contradictor and the problem does not arise.
The GIC submits that even if the principle from Hardiman's case did apply, Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 provides an exception in that where the proceedings are not between parties in contest and where there is no intervention by the Attorney-General to represent the public interest, it may be desirable for the Tribunal whose decision is under review to make submissions through counsel. Fagan dealt with a Tribunal body. In Fagan Brennan J (as he then was) remarked, at 682:
In this case the [Crimes Compensation] Tribunal appeared by counsel as respondent to contest the appellant's case. Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it (Reg v. Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at pp 35-36 ). But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf Corporate Affairs Commission v. Bradley (1974) 1 NSWLR 391 ) and neither a law officer nor a public official is heard by the court (cf. Reg v. Cook; Ex parte Twigg (1980) 147 CLR 15), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here, the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs. Therefore I would make an order awarding the applicant his costs against the Tribunal both here and in the Supreme Court.
Again Fagan's case may be distinguished from the current case as the joinder of the Southcorp Group and industry associations provides the proceedings with a contradictor. Further there is nothing in the Act which creates for the GIC a positive policy role or any duty in relation to the public interest. One would expect that in a case such as this that role might be better performed by the Wine and Brandy Corporation or a representative of the Minister.
AAT Procedure under the AAT ActWithout question, while not bound by the rules of evidence, the AAT is bound by the principles of natural justice and is required to extend to the decision maker respondent procedural fairness. The question to be determined in each case is how this is to be achieved (Casey v Repatriation Commission (1995) 39 ALD 34 at 38, per Hill J) because the AAT can inform itself in such manner as it thinks appropriate: s 33(1)(c), AAT Act.
The AAT's obligation to accord procedural fairness will generally involve providing an opportunity to a party to adduce relevant evidence and to cross-examine on relevant matters: Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; Australian Postal Commission v Hayes (1989) 23 FCR 320. Accordingly, there may be occasions when the Tribunal's refusal to permit cross-examination may constitute reviewable error, as noted by Mansfield J in Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060. This is not, however a risk in this case. The GIC conceded that it has no interest in the proceedings in the sense that it, as an entity, is not affected by the outcome.
ConclusionThe GIC risks, in its approach to these proceedings, creating the difficulty outlined by High Court in Hardiman's case. By so doing it endangers the impartiality which it is expected to maintain. Relief could be granted in the form of remittal and the GIC has a continuing role in the registration process.
The Tribunal accepts that there is a value in the GIC making submissions as to the public interest elements involved in the determination of this case. The GIC has filed with the Tribunal a quantity of documentation, including maps. It is anticipated that the assistance of the GIC will be sought to explain the significance of those documents.
However apart from this I consider that the role of the GIC in the substantive hearing of this matter shall be limited in the following manner:
to provide assistance to this Tribunal when called upon;
to make opening submissions if the GIC thinks fit;
to make submissions as to the public interest at the conclusion of the hearing; and
to provide to this Tribunal any further material at its disposal which may be necessary for the AAT to reach the correct or preferable decision.
The GIC will also be able to take a watching brief during the proceedings.
Further, at any time it deems it fit the GIC will be able to make a particular application to participate more actively if future circumstances, presently unknown, arise. At that time the principles enunciated in Hardiman and the other relevant cases will be addressed in exercising the ongoing discretion available to the AAT under its legislation to control its procedures.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Justice D F O'Connor, President
Signed: .....................................................................................
AssociateDate of Hearing 19 October 2000
Date of Decision 19 October 2000
Counsel for the Applicant see table below
Solicitor for the Applicant see table below
Counsel for the First Respondent Sashi Maharaj
Solicitor for the First Respondent Gretsas Chrzaszcz
Counsel for the Second Respondent Ian Robertson
Solicitor for the Second Respondent Finlaysons
Counsel for the Third and Fourth Respondents Simon Lane
Solicitor for the Third and Fourth Respondents O'Loughlins
S2000/182 Penola High School No appearance
S2000/183 Baltersan Investments Pty Ltd
Stephen Mann
S2000/186 GC Koch Peter Westley Wallace Westley & Co
S2000/187 RE & MJ Wittwer Peter Westley Wallace Westley & Co
S2000/188 Garrison Park Nominees Pty Ltd
Peter Westley Wallace Westley & Co
S2000/189 D B Marks Peter Westley Wallace Westley & Co
S2000/190 GW, DJ & KD Berkin Peter Westley Wallace Westley & Co
S2000/191 R D MacLeod Peter Westley Wallace Westley & Co
S2000/192 Naradina Pty Ltd Peter Westley Wallace Westley & Co
S2000/193Castine Kanawinka Family Trust
Peter Westley Wallace Westley & Co
S2000/194 MJ & KE Palm Peter Westley Wallace Westley & Co
S2000/195 Akeringa Plains Pty Ltd & P & M McNeil
Peter Westley Wallace Westley & Co
S2000/196 DM & PJ Castine Peter Westley Wallace Westley & Co
S2000/197 SJ SkeerPeter Westley Wallace Westley & Co
S2000/198 GN Skeer Peter Westley Wallace Westley & Co
S2000/199 BW Davis Peter WestleyWallace Westley & Co
S2000/200 GH & SC Giles Peter Westley Wallace Westley & Co
S2000/201 Coonawarra Penola Wine Industry Association
Peter Westley Wallace Westley & Co
S2000/202 KGM & GJ Skene Peter Westley Wallace Westley & Co
S2000/203 Ben Tidswell (Heathfield Ridge Pty Ltd)
Michael Steele Ward & Partners
S2000/204 H & VJ McLean & Son David Rydon Johnson Winter Slattery
S2000/205 Old Penola Pastoral Company Pty Ltd trading as Rymill Coonawarra
David Rydon Johnson Winter Slattery
S2000/206 Greg Gartner Pty Ltd Anne Bampton Fisher Jeffries
S2000/207 Schoolhouse Projects Pty Ltd
Anne Bampton Fisher Jeffries
S2000/208 Skyron Pty Ltd Anne Bampton Fisher Jeffries
S2000/209 KJ & DM Merrett Anne Bampton Fisher Jeffries
S2000/210 MJ & AW Gartner Anne Bampton Fisher Jeffries
S2000/211 PG Douglas & JM Kitchen Anne Bampton Fisher Jeffries
S2000/212 BJ & BJ Provis Anne Bampton Fisher Jeffries
S2000/213 Thomas Rymill David Rydon Johnson Winter & Slattery
S2000/214 Olen Pty Ltd David Rydon Johnson Winter & Slattery
S2000/215 Venado Pty Ltd David Rydon Johnson Winter & Slattery
S2000/216 John Davidson David Rydon Johnson Winter & Slattery
S2000/217 A W Lillecrap Nominees Pty Ltd and CK Lillecrap
Peter Westley Wallace Westley & Co
S2000/218 A Childs Peter Westley Wallace Westley & Co
S2000/219 John Dennis Kidman Philip Broderick RJ Watts & Co
S2000/220 Glenbrook Estate Pty Ltd & P R Copping
Gary Coppola Donaldson Walsh
S2000/221 B F Mulligan, & Topway Developments Pty Ltd
David Gaszner Thomson Playford
S2000/222 Petaluma Limited Gary Coppola Donaldson Walsh
S2000/223 Murray B Tyrrell David Gaszner Thomson Playford
S2000/224 EF & DM Williams Philip Broderick RJ Watts & Co
S2000/225 James Duncan Kidman & Philip Grant
David Gaszner Thomson Playford
S2000/226 Kidman Comaum & Clytha David Gaszner Thomson Playford
S2000/227 Koppamurra Wines Pty Ltd
Philip Broderick Lempriere Abbot McLeod
S2000/305 Mildara Blass Limited Peter Jopling QC Corrs Chambers Westgarth
S2000/313 Dunkeld Pastoral Co Pty Ltd Paul Anastassiou Norton Gledhill
0
13
0