(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: