Whitlands High Plateaux and Anor and Geographical Indications Committee

[2005] AATA 292

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)S2004/429

GENERAL ADMINISTRATIVE DIVISION		)
Re		WHITLANDS HIGH PLATEAUX

Applicant

And GEOGRAPHICAL INDICATIONS COMMITTEE

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)V2004/1376

GENERAL ADMINISTRATIVE DIVISION		)
Re		KING VALLEY VIGNERONS INC

Applicant

And GEOGRAPHICAL INDICATIONS COMMITTEE

Respondent

INTERLOCUTORY DECISION AND DIRECTIONS

Tribunal Justice Downes, President

Date30 March 2005

PlaceMelbourne

Decision

1.    I stand over this directions hearing generally rather than to a particular date. I do so on the basis that as soon as possible, the parties will either communicate to my associate the terms of their agreed directions, or that they are unable to agree as to those directions.  In the latter event, they will communicate the form of their alternative directions.  If the directions are agreed, and seem acceptable to me and require nothing further, I will make them informally without the need for anyone to attend.  If I am concerned about any of the provisions in the directions, or if agreement is not reached, then the matter will be resumed at a time arranged with my associate.

2.    I direct the Victorian applicants to file all documents on which they wish to rely in the Victorian Registry and the South Australian applicants to file all documents on which they wish to rely in the South Australian Registry.  The documents must be served on all other applicants at their addresses notified to the Registry in which those applicants commenced their proceedings. 

..............................................

President

REASONS FOR DECISION

Justice Downes, President

Introduction

1. There are before me a number of applications for review of decisions of the Geographical Indications Committee relating to the appellation, King Valley.  One group of applicants has commenced proceedings in the Victorian registry of the Tribunal.  Another group has commenced proceedings in the South Australian registry of the Tribunal.  These matters have been brought before me this morning for directions generally, and in particular for directions as to the identity of the registry in which the matters should proceed, and as to the question whether the hearing should ultimately take place in Victoria or South Australia. 

2. It is agreed by the parties that the matters should be consolidated, or at least heard together, because there is one decision to be reviewed, and accordingly the Tribunal must ultimately make one decision itself.  It is also accepted that the issues that arise in the proceedings are such that it is convenient for the matters to be heard together. 

3. At the commencement of the proceedings this morning, I made some observations which were prompted by my having read the affidavits and written submissions that the applicants had filed.  I indicated that it seemed to me that, because the Tribunal is an administrative tribunal and not a court which has strict requirements relating to the identity of the registry in which matters proceed, a way in which the question of how the matters should proceed, so far as the identity of the registry is concerned, could be arrived at in a relatively informal way, by the applicant in Victoria utilising the Victorian registry, and the applicant in South Australia utilising the South Australian registry.

4. I pointed out that I proposed, at any event for the moment, to supervise the case management of the matters, which I would largely be doing from Sydney, as a result of which it would be necessary for documents, whether filed in Victoria or South Australia,  to be sent to Sydney.  I ultimately suggested, after hearing counsel and Mr Gretsas for the Committee, that I proposed that the Victorian applicants should file all documents on which they wish rely in the Victorian registry, but that they should take the step of serving the documents or copies of the documents, in South Australia, on both the other applicants and the Committee.  And that the South Australian applicants should file their documents in the South Australian registry and serve them in a similar fashion.  

5. As I understand it, the parties have really agreed that this practical means of dealing with the issue relating to the registry is a satisfactory means.  In those circumstances I do not think it is necessary for me to make any direction as to which registry a consolidated matter should proceed in.  Rather I will leave it in the informal way I have indicated. 

6. At some stage it will be necessary to either formally consolidate the existing proceedings, or to make an order that they be heard together, or even, possibly, to add the parties not common to all proceedings to the proceeding to which they are not presently parties.  However, I have no doubt that the parties will come to agreement as to which is the best way to proceed in this respect.  It may depend upon the actual evidence that is filed and the way the issues emerge.  So I do not propose to make any order relating to consolidation or any other similar order at this stage, but rather to indicate that such an order will be made in terms appropriate at the time, at or prior to the commencement of the hearing.  

7. There still remains an issue as to the place at which the hearing should be listed.  In this respect the helpful written submissions supplied by the parties suggested the alternatives of Melbourne and Adelaide.  When I made my observations at the beginning of the hearing, I suggested a potential alternative for at least some part of the hearing, namely, Wangaratta, which is near to the King Valley area, or some other town even closer, if possible.

8. I think that the parties are all agreed that this could be a good idea, particularly because all parties agree that a view should take place during the hearing.  I am also conscious of the fact that the King Valley Vignerons Inc is a corporation owned by vignerons from the area.  At present there are 97 members of the corporation.  I understand that approximately seven of them will be giving evidence  and it may be convenient for their evidence to be heard near the vineyards in conjunction with the agreed view.

9. I do not think it is necessary for me to make any final ruling, at present, as to where the hearing should take place.  It seems to me that flexibility in accommodating the place of hearing is probably important.  I have in mind that where Wangaratta is the convenient place, that that might be the place of hearing.  I have in mind that if there are experts or others from Adelaide or Melbourne in sufficient numbers, that the hearing could move from one place to the other.  I really think it is better to see how the evidence lines up and make a decision as to the venue when more is known about the evidence.

10. It may be appropriate, however, to say just one or two things about the issues that have been raised by the parties in their written submissions relating to venue.  I have read the helpful written submissions of both parties with care, and I have listened to what they have said.  Both parties point to the cost to them of a hearing in the other State.  I have no doubt that it will involve extra cost for the Adelaide applicants to present at a hearing in Melbourne and for the Melbourne applicants to present at a hearing in Adelaide.  Unfortunately, this cannot be avoided.  I know that the Melbourne applicants say that the Adelaide applicants are really as closely associated with Victoria as they are with South Australia; but I take the point, from their evidence and written submissions, that they have instructed lawyers in Adelaide and that a principal witness would find Adelaide the most convenient venue to give his evidence.  It seems to me that these matters are entitled to weight in just the same way as the fact that there are vignerons associated with the Victorian applicants living in Victoria.

11. Nevertheless, I think I must take note of the fact that the geographical area under consideration is within the State of Victoria.  That would seem to me to be a factor of some significance, particularly when both parties suggest that a view will be essential.  There is no doubt that the region is substantially further away from Adelaide than it is from Melbourne.  I think it is also appropriate to take note of the fact that some 97 applicants in reality, albeit through a corporation of which they are members, live, as to the vast majority of them, in or near the region under consideration, while the Adelaide applicants involve a lesser number.

12. I am conscious of the fact that the committee itself is located in Adelaide, and that would seem to be a factor which justified and, on their evidence, was the reason why, at least in part, the Adelaide applicants decided to bring the proceedings in Adelaide.  But the Committee, through its solicitor, Mr Gretsas, has informed me that it is neutral as to the place of hearing.  Nevertheless I do take into account that the Committee is located in Adelaide, and that the proceedings brought by the South Australian applicants were so brought, at least in part, because of that fact.

13. As I have said, I think that where the hearing or parts of the hearing actually take place should depend very heavily upon the convenience and cost overall that will be involved.  For example, it would not, I think, be appropriate for three or four counsel, whatever is the ultimate number of counsel, along with solicitors and the Tribunal, to move from one place to another, simply to hear the evidence of one witness, who found it more convenient to give evidence in, let us say, Melbourne rather than Adelaide.  Unless there was some problem which could not be overcome, which prevented such a witness from going to the place where the Tribunal was already sitting, then the convenient course would be for the one witness, rather than the many, to move.  That may impact in due course on the question of whether there are separate hearings in Melbourne or Adelaide.  Whether there should be hearings in Melbourne or Adelaide, will depend, as I have said, on the way matters unfold. 

14. However, I think it is fair to say that based on the reasons that I have just given, my inclination at present will be, although I will hear argument again at the relevant time, that if all things are otherwise equal, and there must be a choice between Melbourne and Adelaide, that Melbourne is the place that seems to me to be most closely associated with the background to this matter and would be my tentative choice as to the selection between the two.  However, I suspect that this issue will not arise further, because the parties have already demonstrated before me commendable goodwill in dealing with these matters on a cooperative basis and I am sure that that will happen when the hearing is closer. 

15. I think that disposes of the two major issues that I was asked to consider this morning.  I have indicated to the parties that I would like the matter to be got ready for hearing expeditiously, but without imposing burdens which will operate against the interests of justice in connection with the final decision.  I have also indicated that my present inclination is to hear the matter myself, although I may hear the matter with one or two other members of the Tribunal.  Nevertheless, I will involve myself with the case management of the matter, as I mentioned earlier. 

16. The first step that is required is the giving of some directions relating to the preparation of the matter for hearing.  I have already indicated that I think it will be appropriate to have statements of facts, issues, and contentions in the usual way within the Tribunal, which will usefully identify the factual basis, and the decisions which should flow from the factual basis, and the reasons for the decisions, as contended for by the parties.  Unless there is a problem which is not, I think, anticipated, at present, I would expect that the evidence would be in the form of experts' reports and signed statements or affidavits, if it is not expected that the witness is likely to be required for cross-examination. 

17. I have also raised the possibility that some of the experts' evidence should be given concurrently in accordance with the practice now widespread within the Tribunal, which had one of its first manifestations in the Coonawarra Case before O'Connor J.

18. However, within those broad parameters, I think it is appropriate that the parties themselves should seek to come to agreement as to the timetable and events to be covered by directions.  The parties support this approach.

19. Accordingly, I propose to stand over this directions hearing and I think I will stand it over generally rather than to a particular date.  I do so on the following basis.  As soon as possible, the parties will either communicate to my associate the terms of their agreed directions, or that they are unable to agree as to those directions.  In the latter event, they will communicate the form of their alternative directions.  If the directions are agreed, and seem acceptable to me and require nothing further, I will make them informally without the need for anyone to attend.  If I am concerned about any of the provisions in the directions, or if agreement is not reached, then the matter will be resumed at a time arranged with my associate.

20. As I have indicated, I would like the matter to proceed as expeditiously as possible, and so I am really proceeding on the basis that this morning the first steps can be put in place to that end. 

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed:     ............................................................................
                  Peter Pikis, Associate

Date of Hearing  30 March 2005
Date of Decision  30 March 2005

Counsel for the First Applicant          Mr Anderson
Solicitor for the First Applicant          Corrs Chambers Westgarth
Counsel for the Second Applicant     Mr Barrett
Solicitor for the Second Applicant     Iles Selley Lawyers

Representative for Respondent        Mr G Grestas