Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee

THE CONTENTION 9 The second respondents contend:

1. that the present application by way of appeal should have been instituted in the Victoria District Registry of the Court in accordance with O 53 r 1 and O 53 r 2(2) of the Federal Court Rules, or alternatively
2. if the application was properly issued in the South Australia District Registry, the Court should in the exercise of its discretion determine under O 53 r 2(3) of the Rules that the appropriate Registry for the proceeding is the Victoria District Registry.

CONSIDERATION 10 Section 44(2A)(b) of the AAT Act prescribes that an appeal from the AAT shall be instituted as prescribed in the Federal Court Rules. Order 53 of the Rules deals with appeals from the AAT. Order 53 r 2(2) provides for a notice of appeal to be filed "in an appropriate Registry", and O 53 r 2(3) permits the Court to later order that a nominated Registry is the appropriate Registry for a particular appeal (my emphasis). Order 53 r 1 defines "appropriate Registry" as a "District Registry in the State or Territory in which the Tribunal heard the matter." 11 The researches of counsel have not revealed any authorities as to what is meant by the "hearing" referred to in O 53 r 1, nor any discussion as to the term "appropriate Registry". 12 In Australian Telecommunications Corporation v Lambroglon (1990) 12 AAR 515 at 519 Ryan J indicated that because O 53 was not qualified in any way by reference to the other Rules, it should in the first instance determine the practice and procedure applicable to appeals from the AAT. The parties made no submission to the contrary. 13 Indeed, the second respondent stressed that the Court should apply O 53 in its terms, rather than direct that the venue of the hearing of the appeal be changed to the Victoria District Registry under s 48 of the Federal Court of Australia Act 1976 (Cth), or under O 30 r 6(1), or that the proceeding be transferred to that Registry under O 10 r 1(2)(f), having regard to the definition of the "proper place" in O 1 r 4 of the Rules. 14 In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477. 15 Whilst those cases deal with the scope of the term "hearing" in the Court, I see no reason why a different meaning should be given to that term in O 53 r 1 because it refers to a hearing by the AAT. 16 Section 20(4)(b) of the AAT Act empowers the President to give directions as to the places at which the AAT may sit. Section 20A provides for sittings from time to time at places at which there are Registries established, but that the AAT may sit at any place in Australia or in an external Territory. It is unclear whether, if in the case of a District Registry established under s 64 of the AAT Act, s 20A refers to the physical location of the Registry as established or the general area of the State itself. Section 35A provides that the AAT may, at either a directions hearing or at the hearing of a proceeding, allow a person to participate by telephone or by video. 17 Clearly the AAT sits where the member hearing the matter sits, although it is not so clear, where the AAT is comprised of more than one member and they are in different locations and conduct the hearing by video, whether the AAT sits only in the location of the presiding member or in those locations where its members are sitting. Also, it does not follow that where an AAT member sits to give directions or to hear evidence or submissions in a matter is the Registry in which the AAT hears the matter. The matter may be heard in the Registry in which it is instituted and conducted, even though the member may sit in different physical locations around Australia. 18 The starting point is to identify the matter which the AAT heard. Order 53 r 1 does not expressly refer to the District Registry of the AAT in which the matter was heard. If it did so, the first contention could be simply determined. The AAT decision now the subject of the appeal was made in a matter in the South Australia District Registry of the AAT, notwithstanding that the actual hearing of the matter took place largely in Victoria. Because the AAT may sit in various locations, it would then be sensible to treat O 53 r 1 as referring to the District Registry of the AAT in which the matter was conducted. In this instance, the AAT heard two matters together. One was conducted in its South Australia District Registry and one in its Victoria District Registry. It would then follow that the appeal may have been properly instituted in the South Australia District Registry of the Court. It might equally have been properly instituted in the Victoria District Registry. 19 However, O 53 r 1 directs attention not to the District Registry of the AAT in which it heard the matter but to the geographical place, namely the State or Territory, in which the AAT heard the matter. The hearing must be the hearing of the issue in the matter which led to the decision the subject of the appeal. In the present appeal, that issue was the definition of, and extent of, the King Valley wine region. The President sat only in Victoria apart from giving his decision, which he gave in Sydney (so the hearing of the matter may be said to have taken place both in Victoria and New South Wales). The application does not complain of the orders made, or declined, at directions hearings. However, I do not consider it is possible to divorce the location of the directions hearings from "the matter" referred to in O 53 r 1. The hearing to which O 53 r 1 refers is that of the matter itself, and not a particular issue or issues, or a particular step or steps in the process. The term "matter" of course conveys the whole of the controversy before the AAT: South Australia v Victoria (1911) 12 CLR 667 at 675; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 507-509. 20 As the first directions hearing took place in Adelaide, in my view, the hearing of the matter by the AAT extended across South Australia and Victoria, as well as New South Wales, where at least one directions hearing was held and judgment was given. I note that the President directed also that documents in the two proceedings were to be filed in either the South Australia or the Victoria Registries of the AAT. 21 I conclude therefore that the present appeal was properly instituted in the South Australia District Registry. It is then necessary to address the second contention referred to in [9] above. 22 There is no indication in the Rules, or so far as I can determine, including from the researches of counsel, as to the considerations relevant to making an order under O 53 r 2(3) that a Registry other than an appropriate Registry in which an appeal has properly been instituted is the appropriate Registry. 23 Order 53 r 2(3) provides, at least, for circumstances such as the present where (for the reasons I have given) there are three appropriate Registries in which the appeal might have been instituted. The discretion to make such an order no doubt exists because, amongst other things, the identification of appropriate Registries may be the consequence of costs considerations or the convenience of the AAT for a particular sitting. For example, although the decision of the AAT was given in Sydney in this matter, there was no other connection of the matter with Sydney. 24 The parties did not seek to rely on the jurisprudence concerning the transfer of proceedings or the determination of the "proper place" of proceedings under s 48 of the FCA Act, or O 10 r 1(2)(f) of the Rules. However, their submissions focussed upon the connection of the subject of the AAT proceedings and this appeal to Victoria and the respective convenience of the parties. Their submissions therefore in fact centred upon the sort of considerations discussed in National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 and subsequent decisions concerning s 48 of the FCA Act and O 10 r 1(2)(f). 25 In this matter, there is no circumstance relevant to the efficient administration of the Court to be weighed. The appeal will be heard following the next Full Court callover with equal facility in Adelaide or Melbourne. 26 Clearly, the subject matter of the appeal is in Victoria. Nothing more need to be said on that point. The application to the AAT in its South Australia District Registry appears to have been made because the applicants were South Australian based, and had relevant interests in or in the vicinity of the King Valley area. 27 The further conduct of this appeal, whether in the South Australia District Registry or in the Victoria Registry, will cause some but, in my view, not great inconvenience to one or other of the applicants or the second respondent. The appeal book must be settled. That can be done by a Registrar in either Registry with the parties attending in person or by telephone. It is not likely to be seriously contentious. There should then be a callover which can again be attended by one or other of the parties' representatives by telephone and without inconvenience. Finally, there will be a hearing. Either the applicants (or some of them) or the second respondent (or some of its representatives), and their legal teams, will need to attend interstate for the hearing. In the case of the second respondent, its solicitor in any event will have to travel to Melbourne or Adelaide from Wangaratta (and I accept it is more convenient and faster for him to attend in Melbourne) and their counsel is based in Melbourne. Despite the concerns of the parties, I do not consider that the further conduct of the application - wherever it is to take place - will require the appointment of fresh solicitors interstate. 28 In my judgment, I should determine that the Victoria District Registry is the appropriate Registry for the appeal. I do so because, in essence, the appeal concerns the identification of a vineyard region in Victoria. The nature of the issue, and its connection with Victoria, is confirmed by the fact that ultimately all the evidence was heard in Victoria. As I have noted, there is no particular consideration relevant to the efficient administration of the Court, and I do not regard the convenience of the parties or their proper interests as pointing firmly in any particular direction. 29 In my view, generally speaking, little weight should be given to the fact that counsel or the solicitors for a party are in a particular location. Principally, that is because the selection of counsel and solicitors is a matter for the parties. Their choice should not be of significance to the identification of the proper place of a matter. The Court is a national Court, with Registries in each State and Territory and can sit anywhere in Australia. However, to an extent, there is a tendency for parties to institute proceedings in a Registry of the Court convenient to counsel or the solicitors for the parties rather than in a Registry which has a real connection with the subject matter of the dispute, or indeed with the parties themselves or the witnesses. I do not think that the Registry where proceedings are instituted should be dictated by that consideration. Further, where that is the case, it may well be appropriate to transfer the proceeding to a proper place, having regard to the considerations discussed in Sentry and other cases. 30 For those reasons, I order that the Victoria District Registry is the appropriate Registry for this appeal and that the proceeding be transferred to the Victoria District Registry of the Court. 31 In my view, as the second respondent has succeeded on its motion, but only on one of the two matters it argued, the appropriate order is that the costs of the second respondent on the motion should be its costs on the appeal. The intention of that order is that, if the appeal is successful, there will in effect be no costs of the motion, but if the appeal is dismissed and the second respondent gets its costs of the appeal, those costs will include its costs of and incidental to the motion. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 23 January 2007 Counsel for the Applicant: D Agresta

Solicitor for the Applicants: Iles Selley Lawyers

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: T Ginnane SC and L De Ferrari

Date of Hearing: 14 December 2006

Date of Judgment: 25 January 2007