Gary Edmond*
DISORDER WITH LAW:
DETERMINING THE GEOGRAPHICAL INDICATION
FOR THE COONAWARRA WINE REGION
Coonawarra, historic, if much-disputed, wine region in South Australia’s
Limestone Coast Zone and the most popularly revered wine region in
AUSTRALIA for Cabernet Sauvignon, grown on its famous strip of TERRA
ROSSA soil.
Jancis Robinson (ed), The Oxford Companion to Wine (2nd ed, 1999).
I. INTRODUCTION
T
his empirical study follows a protracted dispute over one of Australia’s
premier wine regions. Surveying the introduction of a regulatory scheme
in a small rural community it demonstrates the potentially disruptive
impact of law and explores some of the limitations of legal and
regulatory processes.1 In this instance, the domestic ramifications of an
international trade agreement between Australia and Europe generated frustration,
animosity and eventually litigation. Attempts to repair the situation through
ordinary legal mechanisms seem to have merely superimposed considerable
*
1
BA(Hons) University of Wollongong, LLB(Hons) University of Sydney, PhD University of
Cambridge. Faculty of Law, The University of New South Wales, Sydney 2052,
[email protected]. This project was made possible by a Goldstar Award in conjunction
with a Faculty Research Grant. The author would like to thank the many people who gave
generously of their time, opinions and materials. I am particularly appreciative of contributions
from: Doug Balnaves, Joy Bowen, Lita and Tony Brady, Johan Bruwer, Sue and W.G. Butler,
Pat and Des Castine, Andrew Childs, Peter Copping, Kent Cowley, Bruce Davis, Chris
Dearden, Nancy and Michael Detmold, Sandy Donaldson, Bruce Drinkwater, Grant Feary,
Max Foale, Michael Gartner, David Gaszner, John Gava, Shirley and Graham Giles, George
Gretsas, James Halliday, Mark Hamilton, Meredith and John Hinze, Evan Hiscock, Wendy and
Ian Hollick, John Innes, James and Tim Kidman, John Kidman, Sid Kidman, David Lear,
Ginny and Andrew Ligertwood, Brian Lynn, Owen Malone, Nan and Stephen Mann, David
Maschmedt, Oliver Mayo, Barry Mulligan, David Murdock, Maria Myers, Vic Patrick, Leo
Pech, John Pendrigh, Brendan Provis, Bruce Redman, Peter Rymill, Thomas Rymill, Ken
Skene, Steven Skeer, Richard Smart, Derek Smith, Wayne Stehbens, Stephen Stern, Ernie
Sullivan, Ben Tidswell, Vicki Waye, Peter Weinberg, Peter Westley and a few who preferred
anonymity. I would also like to express my thanks to the School of Law, University of
Adelaide, for hospitably accommodating my numerous trips to Adelaide and the South East.
Unlike the justly famous study by Ellickson, this project focuses on recourse to law and its
implications. Cf Robert Ellickson, ‘Of Coase and Cattle: Dispute Resolution Among
Neighbours in Shasta County’ (1986) 38 Stanford Law Review 623; Robert Ellickson, Order
Without Law: How Neighbours Settle Disputes (1991).
60
EDMOND – COONAWARRA WINE REGION
expense and delay on the existing difficulties. Significantly, the move to law
amplified uncertainty and contributed, though not always directly, to unprincipled
and unsatisfactory outcomes.
The following study provides a detailed account of what might be described as law
on the ground.2 This applies in three senses. First, and most conspicuously, the
study documents one of the most controversial and acrimonious episodes in the
history of the Australian wine industry — the dispute over the boundary for the
Coonawarra wine region. The second sense introduces the local impressions of a
regulatory scheme and local attempts to influence its determinations. In this way it
traces the way disputes are understood and conducted in practice. It also brings the
implications and aftermath of disputes into focus. The third and most abstract
allusion introduces the question of why legal processes and legal institutions were
practically incapable of resolving a protracted dispute which disrupted a celebrated
community in the South East of South Australia. In relation to this third sense, the
study might suggest that law and legal processes were not firmly grounded. That is,
regulatory bodies and legal institutions experienced considerable difficulty
administering a regulatory scheme and evaluating evidence in a way that produced
a fair, principled and credible solution to the boundary dispute. Even though the
proper legal principles were eventually clarified through an appeal to the Federal
Court, in practice there was no way of applying the relevant law to all the parties
involved, or implicated, in the controversy. In consequence, the inconsistent
application of law produced a series of regional boundaries with little relevance to
the statutory framework. In this way it directly contributed to the legal alienation of
many participants and attentive members of the public.
The study, then, illustrates how recourse to law effectively failed a highly
successful and prestigious segment of the Australian wine industry. In this
particular instance the move to law contributed to social and economic disorder.3
Through a detailed overview of the history of the dispute, the statutory framework
and some of the evidence, this essay endeavours to expose some of the contextual
dimensions of what appears to have been a routine legal process.4 Rather than
2
3
4
Susan Silbey and Austin Sarat, ‘Critical traditions in law and society research’ (1987) 21 Law
& Society Review 165; David Engel, ‘The Oven Bird’s Song: Insiders, Outsiders, and Personal
Injuries in an American Community’ (1984) 18 Law and Society Review 551; Steven Yearley,
‘Bog Standards: Science and Conservation at a Public Inquiry’ (1989) 19 Social Studies of
Science 421.
Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life
(1998). See also Stewart Macaulay, ‘Non-Contractual Relations in Business: A preliminary
study’ (1963) 28 American Sociological Review 55.
None of the lawyers or judges described the case as aberrant or suggested that it was
characterised by impropriety and irregularity. Even if the subject matter is considered unusual,
the institutions and processes are not. While it is not intended to suggest that the following
circumstances are representative — whatever that might mean — the study is nevertheless
exemplary. Indeed, focussing on a novel dispute can help us to appreciate the complexity
(2006) 27 Adelaide Law Review
61
merely recriminate, it adopts a more elucidatory posture — endeavouring to
identify some of the difficulties confronting parties, experts, decision makers and a
small agricultural community. It even encourages the reader to take the opportunity
to assume the challenging role of primary decision maker and attempt to produce
their own regional solution.
Unfortunately, the most salient aspects of this study seem to be: the benefits of
avoiding litigation; the unpredictability of legal and regulatory processes; and to
some extent the legal reproduction of hierarchy.5 As we shall see, these kinds of
‘lessons’ may encourage strategic action and recourse to informal remedies. They
contribute little to public confidence in our laws and legal institutions. What follows
is, therefore, an attempt to understand some of the implications of an ordinary legal
process widely perceived as a legal failure.
II. WINE TREATIES, GEOGRAPHICAL INDICATIONS AND DOMESTIC LAW
A. EC-Australia Wine Agreement 1994 (or Treaty)
From the late 1980s the Australian wine industry was confronted with the question
of how to increase wine exports. One of the main constraints on trade was its
continuing use of European terms like Champagne, Claret, Burgundy and
Bordeaux.6 In order to access the European Community (‘the EC’) Australian wine
producers were told they would need to abandon these terms and develop their own
5
6
associated with some of the more taken-for-granted features of ordinary legal and regulatory
processes.
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic against the
System (2004).
There have been several famous suits over the use of French wine terms. For one literary
account, from the UK, see ‘Champagne on Trial’, Wines and Vines (June 1961) reprinted
(December 2003) 42 discussing J Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 All
ER 561. Even in Australia there have been several prominent wine industry trials and appeals.
Henschke, for example, unsuccessfully alleged that Rosemount’s ‘Hill of Gold’ infringed its
registered ‘Hill of Grace’ trade mark, see CA Henschke & Co v Rosemount Estates Pty Ltd
[2000] FCA 1539 (Unreported, Ryan, Branson and Lehane JJ, 31 October 2000). See also
Thomson and Ors v B Seppelt & Sons Ltd (1925) 37 CLR 305; Comite Interprofessionel du Vin
de Champagne v NL Burton Pty Ltd (1981) 38 ALR 664; Comite Interprofessionnel des Vins
Cotes de Provence v Stuart Alexander Bryce and Anor [1996] 742 FCA 1 (Unreported, Heerey
J, 23 August 1996); Koppamurra Wines Pty Ltd v Mildara Blass Ltd [1998] 226 FCA
(Unreported, Von Doussa J, 3 March 1998); Gartner v Carter; In the matter of Gartner Wines
Pty Ltd [2004] FCA 258 (Unreported, Lander J, 17 March 2004); Gartner v Ernst & Young
(No 3) [2003] FCA 1437 (Unreported, Mansfield J, 8 December 2003). More recently another
boundary dispute associated with the King Valley in Victoria has been appealed to the AAT:
Whitlands High Plateaux and Anor v Geographical Indications Committee [2005] AATA 292
(Unreported, Downes J, 30 March 2005).
62
EDMOND – COONAWARRA WINE REGION
appellation-style system.7 In Europe wine production tends to be highly regulated.
For example, under the system appellation d'origine contrôllée in France, land has
to be inspected and approved before vines can be planted, only certain varieties of
grape can be grown in a particular region, the number of vines and maximum grape
production per hectare is prescribed, the amount of irrigation, if any, is determined,
and variables such as the trellis height, distance between trellises, the type of
pruning and methods of harvesting are all specified.8 This invasive regulation is
conventionally believed to reflect long traditions where grape varieties, production
techniques and wine styles best suited to the local terroir have been identified and
perfected.9 In contrast, the success of the relatively young Australian wine industry
is popularly associated with experimentation, local competition, technological
innovation and a general lack of regulatory intervention.10
These were the circumstances facing European and Australian attempts to negotiate
the EC-Australia Wine Agreement (‘the Treaty’). Australian wine producers were
willing to dispense with the traditional European wine terms but they baulked at any
7
8
9
10
Dropping the European wine terms was also consistent with recent trends in international trade
and intellectual property law following GATT and TRIPS. See Bernard O’Connor, The Law of
Geographical Indications (2004); William van Caenegem, ‘Registered Geographical
Indications: Between Intellectual Property and Rural Policy’ (Pt 1) (2003) 6 Journal of World
Intellectual Property 699; William van Caenegem, ‘Registered Geographical Indications:
Between Intellectual Property and Rural Policy’ (Pt 2) (2003) 6 Journal of World Intellectual
Property 861.
Elizabeth Barham, ‘Translating Terroir: The Global Challenge of French AOC Labelling’
(2003) 19 Journal of Rural Studies 127; Warren Moran, ‘The Wine Appellation as Territory in
France and California’ (1993) 83 Annals of the Association of American Geographers 694;
Daniel Gade, ‘Tradition, Territory, and Terroir in French Viniculture: Cassis, France, and
Appellation Contrôllée’ (2004) 94 Annals of the Association of American Geographers 848.
For a history of the Bordeaux classification see Dewey Markham Jr, 1855: A History of the
Bordeaux Classification (1998); Alessandro Stanziani, ‘Wine Reputation and Quality Controls:
The Origin of the AOCs in 19th Century France’ (2004) 18 European Journal of Law &
Economics 149.
Jancis Robinson in The Oxford Companion to Wine (2nd ed, 1999) defines ‘terroir’ as: ‘much
discussed term for the total natural environment of any viticultural site. … Major components
of terroir are soil (as the word suggests) and local topography, together with their interactions
with each other and with macroclimate to determine mesoclimate and vine microclimate. The
holistic combination of all these is held to give each site its own unique terroir, which is
reflected in its wines more or less consistently from year to year, to some degree regardless of
variations in methods of viticulture and wine-making. … The extent to which terroir effects are
unique is, however, debatable, and of course commercially important, which makes the subject
controversial.’ For a situated example of the ‘debate’ and the extent of ‘typicity’ or ‘distinctive
character’ see Barham, above n 8, 128–32 and Moran, above n 8, 715–16. More generally, see
James Wilson, Terroir: The Role of Geology, Climate and Culture in the Making of French
Wine (1998).
David Aylward, ‘A Documentary of Innovation Support among New World Wine Industries’
(2003) 14 Journal of Wine Research 31; Prime Minister’s Science, Engineering and Innovation
Council, The Australian Wine Industry: Success through Industry Leadership, Planning and
Innovation (1999).
(2006) 27 Adelaide Law Review
63
intrusive regulation of grape and wine production. Eventually a compromise was
brokered. Australia would phase out the use of European expressions and begin to
use generic varietal names, like Chardonnay, Shiraz and Cabernet Sauvignon. It
would also recognise and protect established European expressions within its
borders. Instead of imposing appellations on the domestic wine industry, Australia
agreed to label its wines with geographic indications (‘GIs’). These ‘geographical
indications’, also known as labels of origin, would specify the ‘region’ from which
the grapes in a wine originated.11 Now, under the terms of the Treaty, Australia
would be obliged to resolve clearly the boundaries of its ill-defined wine producing
districts.12
The Australian negotiators were contented with this outcome. The Australian wine
industry had sought the least intrusive regulatory mechanism which would provide
access to European markets. The generation of regional boundaries was not
envisaged as a serious impediment. The Australian negotiators had been in close
consultation with wine industry groups during the Treaty negotiations. They
envisaged that regional boundaries would be drawn quickly and inclusively,
recognising the need to protect individuals who had previously used a particular
regional ascription (usually described as ‘prior use’). One of the negotiators, John
Pendrigh AM, Chairman of the Australian Wine and Brandy Corporation (‘the
AWBC’) and the International Trade and Technical Advisory Committee (‘the
ITTAC’), thought regionalisation might consume about six months.13 Even before
the Treaty with the EC was finalised or any domestic process established, the
AWBC was encouraging grape growers and vignerons to begin to identify their
regional boundaries. During this period dozens of regional boundaries were quickly
and relatively uncontroversially mapped and forwarded to the AWBC and its state
equivalents.
B. Domestic law: The Australian Wine and Brandy Corporation Act and
Regulations
The Treaty was completed in 1993 and came into effect on 1 March 1994.14 The
new domestic regulatory scheme was incorporated within the Australian Wine and
11
12
13
14
Australian wine producers indicated that they would follow the approach to GIs associated
with TRIPS.
For a very useful discussion of attempts to impose a variety of modernist projects on a
recalcitrant world, see James Scott, Seeing Like a State: How Certain Schemes to Improve the
Human Condition have Failed (1998).
ITTAC was a technical advisory committee which assisted those engaged in the Treaty
negotiations with the Europeans. See John Pendrigh, AAT Witness Statement, 5 January 2001
and Senate Economics References Committee, Parliament of Australia, Promoting Australian
Industry (1997) 37–41.
Agreement between Australia and the European Community on Trade in Wine, and Protocol,
opened for signature 26 January 1994, ATS 1994 No 6 (entered into force 1 March 1994).
64
EDMOND – COONAWARRA WINE REGION
Brandy Corporation Act 1980 (Cth) (‘the AWBC Act’) in 1993.15 The objects of the
amended AWBC Act are set out in Section 3:
(1) The objects of this Act are:
(a) to promote and control the export of grape products from Australia;
and
(b) to promote and control the sale and distribution, after export, of
Australian grape products; and
(c) to promote trade and commerce in grape products among the States,
between States and Territories and within the Territories; and
(d) to improve the production of grape products, and encourage the
consumption of grape products, in the Territories; and
(e) to enable Australia to fulfill its obligations under prescribed winetrading agreements; and
(f) for the purpose of achieving any of the objects set out in the
preceding paragraphs:
(i) to determine the boundaries of the various regions and localities
in Australia in which wine is produced; and
(ii) to give identifying names to those regions and localities; and
(iii) to determine the varieties of grapes that may be used in the
manufacture of wine in Australia;
and this Act shall be construed and administered accordingly.
The objects are consistent with the goals motivating the Australian negotiators.
They place particular emphasis on the promotion of export trade.
In order to fulfil these objects Australian wine producers were required to determine
regional boundaries or GIs. Section 4 of the AWBC Act explains that:
geographical indication, in relation to wine, means:
(a) a word or expression used in the description and presentation of the wine
to indicate the country, region or locality in which the wine originated; or
(b) a word or expression used in the description and presentation of the wine
to suggest that a particular quality, reputation or characteristic of the wine
is attributable to the wine having originated in the country, region or
locality indicated by the word or expression.
It is notable that Australian wine producers have been exclusively concerned with
(a). The second definition (b) was applicable to the European-style appellations
more concerned with the quality and the regional character typically associated with
terroir.16
15
16
Amended by the Australian Wine and Brandy Corporation Amendment Act 1993 (Cth).
Notwithstanding the terms of the EC-Australia Wine Agreement the Australians have restricted
the meaning of GIs to (a). See Stephen Stern, ‘Geographical Indications – Suitability of the
(2006) 27 Adelaide Law Review
65
The geographical indications for Australia’s wine regions were arranged in a
hierarchical structure. The following example draws on Eden Valley, part of the
Barossa zone in South Australia.
Country
State
Zone
Region
Sub-region
Australia
South Australia
Barossa
Eden Valley
High Eden
This study is primarily concerned with the geographical indication for the
Coonawarra wine region. One of the more prominent of Australia’s wine producing
areas, the name ‘Coonawarra’ was expressly included in Annex II of the ECAustralia Wine Agreement in the following manner:
Zone
Regions
South East [later changed to Limestone Coast]
Bordertown
Buckingham-Mundulla
Coonawarra
Padthaway
Penola
The Annex listed established and proposed wine regions submitted by local wine
industry groups. Many of the names, like ‘South East’, were subsequently modified.
For our purposes, it is significant that in the ‘South East’ zone ‘Penola’ was
included as a region in addition to ‘Coonawarra’ and ‘Padthaway’.
Initially, it was envisaged by those in the AWBC that the determination of GIs for
wine, and the resolution of any regional disagreements, would be undertaken inhouse.17 However, the power to determine GIs was eventually vested in an
17
GIC’s Current Criteria’ (International Wine Law Association – Australasian Chapter, 25
October 1998); Stephen Stern with Stéphanie Léger, ‘Geographical Indications: “What’s in a
name?”‘ (Melbourne, 27 July 2000); Stephen Stern and Christie Fund, ‘The Australian System
of Registration and Protection of Geographical indications for Wines’ (2000) 5 Flinders
Journal of Law Reform 39; Vicki Waye, ‘Multilateral vs Bilateral Agreements and Geographic
Indications’ (2006) International Currents (forthcoming).
Australian Wine and Brandy Corporation, About Us <http://www.awbc.com.au/
Content.aspx?p=2> at 12 January 2006: ‘Established in July 1981 as a successor to the
Australian Wine Board, The Australian Wine and Brandy Corporation … is the Australian
Government authority responsible for the promotion and regulation of Australian wine and
brandy.’
66
EDMOND – COONAWARRA WINE REGION
independent statutory body: the Geographical Indications Committee (‘the GIC’).18
Under the AWBC Act the GIC was responsible for making regional determinations.
The AWBC Act provided:
40T Making of determinations
(1) In determining a geographical indication, the Committee [GIC] must:
(a) identify in the determination the boundaries of the area or areas in the
region or locality to which the determination relates; and
(b) determine the word or expression to be used to indicate that area or
those areas.
(2) If the regulations prescribe criteria for use by the Committee in
determining a geographical indication, the Committee is to have regard to
those criteria.
The three-member GIC was comprised of an AWBC nominee and representatives
from each of the grape growing and vigneron communities.19 They were responsible
for determining both the geographical boundaries of the proposed wine region and
the expression (or name) used to designate that area. In the case of ‘Coonawarra’,
because the ‘word or expression’ was already provided in the Annex to the Treaty,
the GIC was only required to determine the appropriate regional boundary.
While the GIC was empowered to initiate a determination unilaterally, in practice
the local wine industry was encouraged to generate its own application (Section
40Q, Regulation 26).20 In this way, the GIC was responsive to applications from
local wine industry organisations. According to the process stipulated under the
AWBC Act, the GIC was obliged to produce and advertise an ‘Interim
Determination’ and accept submissions from interested parties (Sections 40U, 40V).
Thereafter, the GIC was to make a ‘Final Determination’ which would be formally
gazetted (Sections 40W, 40X). Any party aggrieved by the decision was entitled to
seek a merits review by the Administrative Appeals Tribunal (‘the AAT’) and
thereafter to appeal to the Federal Court of Australia on matters of law (Section
40Y). As we shall see, the dispute over the Coonawarra GI ultimately followed this
course.
18
19
20
Pendrigh wrote to Brian Croser (President, Winemakers Federation of Australia), Bruce
Lilburn (Department of Primary Industries and Energy) and Ian Mackley (AWBC) expressing
his ‘extreme concern’ about the proposal for an independent committee. Fax from John
Pendrigh, Chair ITTAC, to Bruce Lilburn, 7 June 1993; Letter from John Pendrigh to Brian
Croser, 29 May 1993.
AWBC Act, sch 2.
The GIC produced a guide to assist with applications: GIC, Details of Proposed Australian
Geographical Indications (29 November 1994).
(2006) 27 Adelaide Law Review
67
In order to fulfil the objects of the AWBC Act and the terms of the EC-Australia
Wine Agreement a set of regulations was developed to govern the process of
regionalisation. The Australian Wine and Brandy Corporation Regulations 1981
(‘the Regulations’), particularly those pertaining to criteria (Regulation 25) for
determining regions and subregions (Regulation 24), are central to the following
discussion and reproduced in full:
Part 5 Criteria for determining geographical indications
23 Determining geographical indications
For the purpose of making determinations under section 40T of the Act, the
Geographical Indications Committee is to have regard to the criteria set out in
this Part.
24 Interpretation
In this Part:
region means an area of land that:
(a) may comprise one or more subregions; and
(b) 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; and
(c) usually produces at least 500 tonnes of wine grapes in a year; and
(d) comprises at least 5 wine grape vineyards of at least 5 hectares each that
do not have any common ownership, whether or not it also comprises 1 or
more vineyards of less than 5 hectares; and
(e) may reasonably be regarded as a region.
subregion means an area of land that:
(a) is part of a region; and
(b) is a single tract of land that is discrete and homogeneous in its grape
growing attributes to a degree that is substantial; and
(c) usually produces at least 500 tonnes of wine grapes in a year; and
(d) comprises at least 5 wine grape vineyards of at least 5 hectares each that
do not have any common ownership, whether or not it also comprises 1 or
more vineyards of less than 5 hectares; and
(e) may reasonably be regarded as a subregion.
zone means an area of land that:
(a) may comprise one or more regions; or
(b) may reasonably be regarded as a zone.
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EDMOND – COONAWARRA WINE REGION
25 Criteria for determining geographical indications
For the purposes of subsection 40T (2) of the Act, the Committee [GIC] is to
have regard to the following criteria:
(a) whether the area falls within the definition of a subregion, a region, a
zone or any other area;
(b) the history of the founding and development of the area, ascertained from
local government records, newspaper archives, books, maps or other
relevant material;
(c) the existence in relation to the area of natural features, including rivers,
contour lines and other topographical features;
(d) the existence in relation to the area of constructed features, including
roads, railways, towns and buildings;
(e) the boundary of the area suggested in the application to the Committee
under section 40R;
(f) ordinance survey map grid references in relation to the area;
(g) local government boundary maps in relation to the area;
(h) the existence in relation to the area of a word or expression to indicate
that area, including:
(i)
any history relating to the word or expression; and
(ii) whether, and to what extent, the word or expression is known
to wine retailers beyond the boundaries of the area; and
(iii) whether, and to what extent, the word or expression has been
traditionally used in the area or elsewhere; and
(iv) the appropriateness of the word or expression;
(i) the degree of discreteness and homogeneity of the proposed geographical
indication in respect of the following attributes:
(i)
the geological formation of the area;
(ii) the degree to which the climate of the area is uniform, having
regard to the temperature, atmospheric pressure, humidity,
rainfall, number of hours of sunshine and any other weather
conditions experienced in the area throughout the year;
(iii) whether the date on which harvesting a particular variety of
wine grapes is expected to begin in the area is the same as the
date on which harvesting grapes of the same variety 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
Commonwealth, State or municipal authorities;
(viii) any relevant traditional divisions within the area;
(ix) the history of grape and wine production in the area
(2006) 27 Adelaide Law Review
69
Note In determining a geographical indication under subsection 40Q (1) of
the Act, the Committee is not prohibited under the Act from having regard to
any other relevant matters.
There are no references here to quality or the regional character of wines.
One of the supplementary benefits of the Treaty was the development of an
improved means of monitoring the content and labelling of Australia’s domestic
wines. Prior to the EC-Australia Wine Agreement and the 1993 amendments to the
AWBC Act, apart from disparate state fair trading laws and the Trade Practices Act
1974 (Cth), and notwithstanding the existence of a Label Integrity Program (‘LIP’),
there was limited scope for formally regulating claims about the origins and
varieties of grapes used in the production of Australian wines. Existing schemes
were seriously compromised by the absence of clearly demarcated regional
boundaries. Individuals and organizations might disagree about whether a grape
grower or wine maker was within a particular region; however, unless the labelling
was manifestly deceptive it would be difficult to prosecute or rectify. There are
many anecdotes — relating to the period prior to the introduction of geographical
indications, and the possibility of a more rigorous auditing regime — of producers
in premier wine regions marketing more wine than they produced locally.21 Now,
‘wine manufacturers’ are required to keep detailed records of ‘wine goods’ which
include their geographical indication. This is ‘to ensure the truth, and the reputation
for truthfulness, of statements made on wine labels, or made for commercial
purposes in other ways, about the vintage, variety or geographical indication of
wine manufactured in Australia’ (Section 39A).22
III. MAKING COONAWARRA: FROM ‘APPELLATION’ TO GEOGRAPHICAL
INDICATION
A. Introduction to the district
The Coonawarra district (rather than GI) is located in the South East of South
Australia, about 400 km from Adelaide. The district takes in the towns of Penola
and Coonawarra. Penola was founded in the 1850s and has a population of about
1250. It is a district centre subservient to the regional service towns of Naracoorte
(pop. 5 200) 51 km to the north and Mt Gambier (pop. 23 000) 50 km to the south.
Coonawarra has a regular population of about 35. It is located about 10 km north of
Penola and was established in the 1890s (Figure 1). The town boasts a community
hall, a general store which operates as a bakery, post office and service station,
some cottage accommodation, Red Fingers restaurant, a few streets of houses and a
21
22
For example, Oliver Mayo, The Wines of Australia (1991) 233–6. See also Trade Practices
Commissioner v Von Berg & Curtis; The Vales Wine Company Pty Ltd (1996) 145 ALR 241.
John Beeston, A Concise History of Australian Wine (3rd revised ed, 2001) 262–263.
70
EDMOND – COONAWARRA WINE REGION
small commemorative park. The few blocks that make up the town are surrounded
by vineyards.
The main industries in the Coonawarra district are wool, prime beef and lamb,
cropping, grape and wine production and, more recently, tourism.
Figure 1
Limestone Coast: the South East of South Australia. Reproduced with permission
from James Halliday’s Wine Atlas of Australia (Hardie Grant Books, 2006).
(2006) 27 Adelaide Law Review
71
B. Early boundaries and the GIC Determinations
People in the Coonawarra wine industry have been thinking about soil and regional
boundaries for decades. In the 1970s there was even a proposal to establish a
Coonawarra appellation.23 There were early attempts to distinguish Coonawarra
from Keppoch — which later became the Padthaway wine region — to the north
(Figure 2). There were also early attempts to map the terra rossa soils on the central
platform. The slightly raised platform, also known as the ‘strip’, ‘cigar’ or ‘ridge’,
is one of the defining features in the history of grape and wine production in the
district (Figure 3).
Writing in the 1960s and 1970s, commentators like Dr Max Lake and Dr Sam
Benwell thought plantings in and around the Coonawarra township would cease
when the platform was fully planted. Consider Benwell’s description and forecast:
Coonawarra is a confined viticultural space. There can be no suburban spread,
no ribbon development. Once off the terra rossa, the soil is sour dead stuff,
just no place for choice vines. The select area, much of it still under grass, will
eventually carry vines—more vines than you can see today. But finally it will
be covered, and that will be it. Fortress Coonawarra.24
For much of Coonawarra’s history the central platform and the wine region were
largely co-extensive.25 From the 1970s, however, more vines were planted away
from the platform. As the wine industry rapidly expanded, in the 1980s and
particularly the 1990s, vineyards were planted well beyond the famous terra rossa
soils conventionally associated with the platform and the town of Coonawarra.
Benwell, and other commentators, had not anticipated the tremendous growth in the
industry and the substantial developments away from the platform nor allowed for
23
24
25
Sam Benwell, Coonawarra a Vignoble (1972) 40; Beeston, above n 22, 224. Ironically,
Benwell thought that ‘It’s about time some wine areas in Australia did the same, and in
Coonawarra it would be much simpler than in most.’ See also Dan Murphy, Classification of
Australian Wines (1974). Under the Liquor and Accommodation Act 1990 (Tas) the
Department of Primary Industries, Water and Environment has responsibility ‘to provide an
appellation system for Tasmanian wine’. This ‘Appellation of Origin system’ commenced in
1986. See Liz Close and Sue Field, ‘“In vino veritas”: The Tasmanian Appellation of Origin
System for Tasmanian Wine: An Empirical Study’ (1994) 14 AAL. The grape growers and
vignerons of Mudgee also experimented with an appellation, through the Mudgee Appellation
Society (launched in September 1979), until GIs were introduced. See, for example, Douglas
Seabrook, ‘Whose wine is that?’ Sunday Mail (Adelaide) 26 August 1979; ‘Appellation
Control 8 Years on at Mudgee’ Botobolar Bugle, July 1987, 4–5.
Benwell, above n 23, 40; Max Lake, Classic Wines of Australia (1966). Though, compare
Mark Babidge, Wynns Coonawarra Estate: The Estate that Made the Coonawarra Famous
(1984) 39.
However, significant proportions of some of the earlier vineyards, like Wynns Coonawarra
Estate, were planted on darker soils on or adjacent to the platform. See Ivor Roberts and
Douglas Bagin, Exploring Australian Wines (1969) 122 and Figure 14.
72
EDMOND – COONAWARRA WINE REGION
technological innovation. More recent attempts to define, and occasionally defend,
a boundary were constrained by the geographical uncertainties confronting precursors to the modern LIP. Ongoing development and concerns about viticultural
expansion and the need to maintain a distinctive regional character, especially as
Padthaway (previously Keppoch) expanded and gained recognition, led to a
boundary proposal at the annual general meeting of the Viticultural Council of the
South East of South Australia (‘the VCSESA’) in 1984.26 At that meeting Sid
Kidman, a local grape grower and wine producer (S Kidman Wines and The Ridge),
Figure 2 Early hand sketch distinguishing Coonawarra from Keppoch (and Padthaway).
26
This was the main viticultural organisation in the South East. After the Treaty it changed its
name to the Limestone Coast Wine Industry Council.
(2006) 27 Adelaide Law Review
Figure 3
27
73
A map of the platform from Babidge’s, Wynns Coonawarra Estate (1984).27 In this
map the town of Penola is located just below the ‘Cigar’, where the lots are small.
According to Babidge, his map was based on some 1500 auger holes and was intended to help
Wynns ascertain where to plant vines. The term ‘cigar’ is reputedly based on this map. Mark
Babidge, AAT Witness Statement, 19 January 2000, 9–10.
74
EDMOND – COONAWARRA WINE REGION
proposed a motion without notice from the floor which restricted the ‘Coonawarra
Wine Producing District’ to the Hundreds of Comaum and Penola (see Figure 18).28
‘Hundreds’ are administrative areas, roughly ten miles by ten miles, set out by the
South Australian government in the 1860s to facilitate the distribution of land.29
Kidman’s motion (‘the 1984 resolution’) was passed and what became known as
the ‘Coonawarra viticultural area’ was affirmed at subsequent annual general
meetings of the VCSESA. It probably does not require comment, but given the
subsequent significance of this resolution, it is important to remember that it was a
local determination made before the Treaty negotiations and without the benefit of
the criteria eventually incorporated in the Regulations of the AWBC Act.
The question of regional boundaries assumed greater prominence from around 1990
as the AWBC notified producers throughout Australia of the impending need to
determine geographical indications in accordance with the terms of the emergent
EC-Australia Wine Agreement and revitalised LIP. Notwithstanding tremendous
expansion in the local wine industry since Kidman’s motion in 1984, some
members of the VCSESA attempted to reduce the size of the Coonawarra
viticultural area by proposing a region considerably smaller than the two hundreds.
These initial attempts to refine the Coonawarra wine region did not generate
support among the majority of VCSESA members and the 1984 boundary was
subsequently re-affirmed. In theory the VCSESA represented all grape growers in
the South East of South Australia. In reality it was dominated by established
‘Padthaway’ and ‘Coonawarra’ viticultural interests. Members from outside the two
hundreds created problems for those administering the VCSESA. The responsibility
of wide representation across the South East made it difficult for the Executive to
promote a restricted Coonawarra wine region through the VCSESA. Consequently,
from 1993, efforts to develop a regional boundary shifted to the Coonawarra
Vignerons’ Association (‘the CVA’) and the recently established Coonawarra
Grape Growers’ Association (‘the CGGA’). In line with the 1984 resolution, the
constitutions of both these ‘Coonawarra’ Associations restricted membership to the
Hundreds of Comaum and Penola.30
28
29
30
In the previous year (1983) Sid Kidman had sold land just beyond the two hundreds to a
syndicate that was planning to develop a vineyard. This would eventually become Petaluma’s
Sharefarmers vineyard. Somewhat confusingly, the Sharefarmers land was advertised as both
part of and beyond ‘Coonawarra’: ‘just north of the famed Coonawarra wine producing
district, 15 km north Coonawarra and 27 km south Naracoorte’ and ‘presents an excellent
opportunity to acquire land in the Coonawarra viticultural area.’ Stock Journal (Adelaide) 30
June 1983, 36. There are many Kidmans in the district, with some tracing links back to the
great pastoralist Sir Sydney Kidman (1857–1935). For our purposes the reader should
distinguish Sid Kidman (one of the Gang of 25), from several other Kidmans who owned land
and vineyards excluded from the Coonawarra wine region by the GIC.
The hundreds were actually surveyed progressively and vary somewhat in shape and size.
The CVA incorporated on 12 November 1985. Its Constitution explains that the organization is
intended ‘to represent the specific interests of the Coonawarra vineyard owners’. Membership
(2006) 27 Adelaide Law Review
75
Even before the Treaty came into effect or the GIC was established, the VCSESA
had written to the AWBC asking it to adopt formally the 1984 resolution.31 By
December 1993, however, the CGGA had invited the AWBC to recognise a wine
region much smaller than the 1984 resolution. The proposed region was loosely
based around the platform and included remote vineyard ‘islands’ (Figure 4).32
Nothing came of these submissions. They do, however, suggest a desire among the
CGGA members to refine substantially the 1984 resolution and to have the
boundary issue resolved quickly.
These were not the only moves afoot. In 1990 Brian Croser wrote to the VCSESA
criticising their parochialism and explaining the need for an expansive wine region
which incorporated Petaluma’s Sharefarmer vineyard and a number of other local
vineyards planted beyond the two hundreds.33 Croser was President of the
Winemakers Federation of Australia (1991–1993, 1997–1999), Executive Chairman
of Petaluma and a member of ITTAC. Petaluma owned vineyards in several
Australian wine regions, including the Evans vineyard on the central platform in the
Hundred of Comaum and the Sharefarmer’s vineyard (established 1983) in the
Hundred of Joanna, located across a narrow dirt road from the 1984 boundary
proposed by Syd Kidman (Figure 11). In May 1993, as the Treaty negotiations were
being finalised, AWBC representatives (John Pendrigh and Ian Mackley) visited
Coonawarra to explain the effects of the Treaty. They advocated an ‘inclusive’
approach to the GI process and the need to recognise ‘prior use’ of the ascription
‘Coonawarra’.34 By this stage several producers outside of the Hundreds of
Comaum and Penola were using or had used ‘Coonawarra’ on their labels — some
for more than a decade. The 1993 meeting, at Coonawarra’s Chardonnay Lodge,
was attended by local grape growers and vignerons, including the growing number
of producers based outside the two hundreds. By all accounts it was extremely
volatile.
31
32
33
34
of the CVA was restricted to those: ‘holders of a producers license … in the Coonawarra
viticultural area, within the Hundreds of Penola and Comaum.’ The CGGA was incorporated
on 8 October 1993. Membership of the CGGA required: ‘A grower of wine grapes … within
the Hundreds of Penola and Comaum and more particularly that wine grape growing area
known as Coonawarra.’
Letter from Ian Hollick, President VCSESA, to Allan Russell, AWBC, 15 August 1991. In this
letter the Hundreds of Comaum and Penola are presented as ‘the Coonawarra Viticultural Area
sub region.’ Letter from Doug Balnaves, Secretary VCSESA, to General Manager, AWBC, 13
May 1993.
CGGA, “Coonawarra” Regional Ascription, submission to AWBC (November 1993).
Letter from Brian Croser to the President, VCSESA, 20 August 1990, 5; Brian Croser, AAT
Witness Statement, 16 December 2000.
Pendrigh, AAT Witness Statement, 5 January 2001 [24], 50–8. Subsequently, Pendrigh wrote a
brief explanatory letter which subsequently became a widely circulated document: Letter from
John Pendrigh to Brian Croser, Executive Chairman, Petaluma Wines, 2 May 1997.
76
Figure 4
EDMOND – COONAWARRA WINE REGION
CGGA map of Coonawarra with ‘islands’ (1994).
(2006) 27 Adelaide Law Review
77
Elsewhere beyond the two hundreds, Barry Mulligan had been making his own
proposals to the AWBC.35 Mulligan was an owner of St Mary’s (established 1986),
a wine producer located in the adjacent Hundred of Killanoola. Initially Mulligan
advanced a proposal for a separate Penola wine region (Figure 5). The name
Figure 5
35
St Mary’s amended proposal for a Penola wine region (1993). The original proposal
did not include any land in the Hundred of Penola. This and several other figures
include the GIC’s Final Determination for Coonawarra (ie the smaller boundary).
For example, Letter from Barry Mulligan and Kym Hooper to AWBC, 16 March 1992
proposing the ‘Penola wine producing region’ as the Hundreds of Killanoola, Monbulla,
Nangwarry and Grey and a revision of the ‘Penola wine producing region’ on 7 May 1993
which included the southern part of the Hundred of Penola. See also St Mary’s Vineyards,
Regional Submission to the Australian Wine and Brandy Corporation Geographical
Indications Committee for the Spatial and Textual Definition of the Proposed Region of
Coonawarra (12 June 1996). Subsequently, Bruce Tyrrell, Lee Castine, Steven and Gary Skeer
and others sent letters to the AWBC in support of this proposal.
78
EDMOND – COONAWARRA WINE REGION
‘Penola’ was, accordingly, listed in Annex II to the Treaty. However, once
Mulligan (and others) realised that larger and more influential producers, like
Petaluma, were seeking inclusion in a Coonawarra GI that extended beyond the
limits of the 1984 resolution he (temporarily) abandoned the proposal for a Penola
GI and pursued inclusion in the more prestigious Coonawarra wine region (Figure
6).36
Figure 6
36
St Mary’s Application for a Coonawarra wine region which included the six
Hundreds of Killanoola, Comaum, Monbulla, Penola, Grey and Nangwarry (1996).
Letter from Barry Mulligan to Margaret Mountford, AWBC, 27 August 1993.
(2006) 27 Adelaide Law Review
79
When it was eventually established the GIC was under no misapprehension about
parties in the Hundreds of Robertson, Joanna, Killanoola, Monbulla, Grey and
Spence seeking inclusion in the Coonawarra wine region, or the looming
controversy. Nevertheless, they invited the CGGA and the CVA to make a joint
application for the Coonawarra GI.37
In 1994 the CGGA and the CVA formed a Joint Committee. They subsequently
produced ‘Terms of Reference’ and in December of the following year submitted an
Application for a Coonawarra GI. Significantly, the ‘Terms of Reference’ restricted
the Application to land currently under vine or in the process of being developed
into vineyard in the Hundreds of Comaum and Penola as of June 1995. Unable to
include islands (Regulation 24(b)), the joint Application proposed a Coonawarra
wine region which appears to have been produced by simply drawing a line around
vineyards and vineyard developments owned by members of the two
Associations.38 For members of these Associations the proposed wine region, which
extended well beyond the platform, was inclusive. When put to a vote, the members
voted unanimously in favour of the Joint Committee’s proposed wine region.
The Joint Committee also produced a lengthy document in support of their
proposed boundary. Overwritten by a journalist, the Application traversed a range
of issues specified in the Regulations. These are summarised in the first section,
entitled ‘Key Points Defining the Region’:
37
38
The GIC dismissed the CGGA’s initial application in 1993 because, without the participation
of the CVA, it was considered insufficiently representative.
Jeremy Crampton, ‘Maps as Social Constructions: Power, Communication and Visualisation’
(2001) 25 Progress in Human Geography 235; Geoff King, Mapping Reality: An Exploration
of Cultural Cartographies (1996); Thomas Gieryn, Cultural Boundaries of Science: Credibility
on the Line (1999). Compare the map drawing exercise in Spike Milligan, Puckoon (1963).
80
EDMOND – COONAWARRA WINE REGION
*
*
*
*
*
*
*
*
*
*
*
*
*
*
150 years of history since pastoral settlement
Close early association between Coonawarra and winemaking through the
Riddoch Coonawarra Fruit Colony (circa 1890s)
Distinct soil type – terra rossa – unique clay content distinguishes it from
other red “terra rossa” soils found in the South East. Difficult to define
exact boundaries.
Transitional soils (brown rendzinas) between terra rossa and western
boundary – different to black “groundwater rendzinas”
Coonawarra ridge created at different geological era (650,000 years) than
adjacent ridges which are older and younger.
Coonawarra different elevation to surrounding ridges.
Climatic uniformity
Uniform date of harvest
Plentiful supply of good quality underground water
Distinct irrigation area – Comaum Caroline Proclaimed Wells Area
Contained within one local government boundary (DC of Penola)
Since 1984 defined as Hundreds of Penola and Comaum – well publicised
democratic decision by elected committee (SE Viticultural Council).39
Recognised wine style and type – particularly red wines
100% agreement to GIC boundary application by winemakers and
grapegrowers (December 1995).40
In the body of its Application the Joint Committee emphasised the special
properties of the terra rossa soils on the platform:
It is important to note that terra rossa is a soil type which occurs throughout
the South East in strips (as in Coonawarra and Koppamurra) and in isolated
pockets. However, evidence suggests that other terra rossa soils in the South
East are sandier while Coonawarra terra rossa is unique due to its slightly
higher clay composition. … Coonawarra terra rossa soil is distinctly different
to terra rossa in other regions.41
39
40
41
Joint Committee, Australian Geographic Indication: Application (12 December 1995) 34:
‘Research of the local Penola Pennant newspaper and the Border Watch newspaper (Mount
Gambier) of 1984 and 1985 does not reveal news reports or advertising of the 1984 decision.
The only record is the minutes of the 1984 and the subsequent 1985 annual meetings of the SE
Viticultural Council. Nevertheless, it is clear from subsequent meetings and correspondence
that the decision was publicly known.’
Joint Committee, Application, above n 39. Many of these claims were contested and many of
those who subsequently appealed to the AAT and Federal Court contended that they had been
oblivious to the 1984 resolution.
Ibid 18–19.
(2006) 27 Adelaide Law Review
81
The Application also attached considerable historical importance to the 1984
resolution. For the Joint Committee:
Only one commonly acknowledged, publicly agreed and clearly defined
description has existed for the Coonawarra in its 100 year history – the
Hundreds of Comaum and Penola as passed by the Viticultural Council of the
South East of SA at their Annual General Meeting on October 25, 1984. At no
stage was any correspondence received by either organization from their
membership opposing these resolutions.42
There was no previous manifestation of the boundary proposed in the Application
of December 1995. It was advanced as a compromise between the ‘strip of terra
rossa surrounding the Coonawarra township’ and vineyards planted within the two
administrative hundreds. The resulting area ‘does not extend beyond the accepted
1984 boundary but is wider than the approximate terra rossa strip boundary.’43 This
boundary also:
recognises that while no clearly defined terra rossa strip has existed in the
past, the intention of most grapegrowers has been to locate their vineyards as
close as possible to it, either for the soil, or the elevation and protection
against inundation and frost it offers. Those growers who have located their
vineyards well away from the terra rossa strip (but often on terra rossa soil)
and within the Hundreds of Penola and Comaum must also be given
recognition for their commercial investment, which they believed was within
the definition offered by the SE Viticultural Council in 1984.44
The Joint Committee accepted that the Coonawarra GI might include all of the two
Hundreds, but suggested that the inclusion of ‘non-viticultural pine forest land and
land which is clearly swampy’ was ‘not in the interest of the GIC’.45
In line with Section 40U of the AWBC Act the GIC made an Interim Determination
for the Coonawarra wine region in April 1997.46 As Figure 7 indicates, the GIC
effectively ‘rubber-stamped’ the Associations’ joint Application.47
42
43
44
45
46
Ibid 30. Given the membership requirements stipulated by the constitutions of the CVA and
CGGA it was unlikely that their members would complain.
Ibid 31. In this extract ‘approximate’ should read ‘proximate’. Generally, I have refrained from
trying to correct errors and misspellings.
Ibid 31.
Ibid.
As the AWBC website explains: ‘The textual description is the legal definition. These maps
are merely representations. In the event of an inconsistency the textual description takes
precedence.’
Australian
Wine
and
Brandy
Corporation,
Wine
Regions
<http://www.awbc.com.au/GIMapList.aspx?p=31> at 11 January 2006. For an overview of the
82
EDMOND – COONAWARRA WINE REGION
Even before its Interim Determination, the GIC had received many letters and
entreaties from local graziers, croppers, grape growers, winemakers and otherwise
attentive or interested parties who were not members of the two ‘Coonawarra’
Associations (the CVA and CGGA). Most were trying to obtain information about
the GI process or trying to register formally their interest or request inclusion
(occasionally without explanation) in the wine region. Typically, the GIC replied to
such correspondence by explaining that there would be a formal opportunity to
make submissions once an Interim Determination had been announced. Many
correspondents were encouraged to contact the CVA or CGGA. Before the
publication of notice of the Interim Determination few people outside the
Associations seemed to know about the size or boundaries of the proposed GI or
even the existence of the 1984 resolution.48
47
48
use of maps in court, see George Cho, ‘Maps and the Law: How far can you go in Court?’
(2001) 51 Globe 1.
There was some suggestion that the GIC (or a member of the GIC) had unilaterally altered the
Joint Committee’s Application by moving the northern-most boundary slightly to the south;
further away from Petaluma’s Sharefarmer vineyard (see Figure 7 and 7a). This alleged
modification was discussed during the AAT hearings and in various interviews. Modification
might suggest that the GIC was sensitive to the local controversy and the kinds of arguments
that could be advanced. Sharefarmers had a stronger case if they were just four metres (across
a narrow dirt road) from the Interim Determination than if they were many hundreds of metres
or whole kilometres. Transcript of Proceedings, Coonawarra Penola Wine Industry
Association Inc & Ors and Geographical Indications Committee (Administrative Appeals
Tribunal, 15 March 2001), 1738–49; Applicants’ Closing Submissions, Coonawarra Penola
Wine Industry Association Inc & Ors and Geographical Indications Committee
(Administrative Appeals Tribunal, 22 March 2001), 57.
The AAT accepted that even Croser did not know about the 1984 resolution. Coonawarra
Penola Wine Industry Association Inc & Ors and Geographical Indications Committee [2001]
AATA 844 (Unreported, O’Connor J and Assoc. Prof. Davis, 5 October 2001) (‘CPWIA v
GIC’) [ 251]. The Gang of 25 produced a number of affidavits which indicated that some
people outside the VCSESA, CVA and CGGA were apprised of the 1984 resolution.
(2006) 27 Adelaide Law Review
Figure 7
83
GIC’s First Interim Determination (1997)
Figure 7a Detail from the Application by the Joint Committee of the CVA and CGGA (1995).
Note the difference between the proposed boundaries near the Comaum-Joanna
Hundred boundary adjacent to Petaluma’s Sharefarmers vineyard.
84
EDMOND – COONAWARRA WINE REGION
The GIC received many submissions (34) in response to its first Interim
Determination. The early correspondence had been informal, occasionally hand
written and rarely attentive to the AWBC Act and Regulations. After the Interim
Determination was advertised, however, many of those facing exclusion from the
proposed wine region turned to lawyers and (usually then to) experts to make a case
for their inclusion. Several producers, such as Riddoch Estate (established 1970),
Koppamurra (established 1975), Petaluma and St Mary’s, generated elaborate
submissions that were attentive to the Regulations and incorporated expert evidence
from geologists, soil scientists and viticulturists. Some of the submissions were
critical of the actual process and referred to concerns about natural justice. Several
law firms, such as Wallace Westley & Co in Naracoorte, Lempriere Abbott
McLeod and Thomson Playford in Adelaide, represented the interests of multiple
parties and produced generic submissions which systematically addressed the
Regulations and were then tailored to the specific circumstances of each excluded
party. The GIC sought further particulars from the Joint Committee and solicited its
comments on the voluminous submissions received in relation to the Application it
had effectively ratified.
In response to the submissions, and most particularly radiometric data supplied by
Petaluma, the GIC issued a second Interim Determination on 3 February 1999 and
once again accepted submissions.49 The second Interim Determination extended the
region to the north beyond the 1984 boundary (Figure 8) to incorporate Petaluma’s
Sharefarmer vineyard located in the Hundred of Joanna. It also excised some of the
land in the north east of its first Interim Determination. The preliminary radiometric
evidence was subsequently abandoned as those outside the region generated more
expert evidence and the GIC began to seek professional expert advice of its own.50
Prior to the first Interim Determination the GIC and the Associations had not
solicited expert opinions. Rather, they had relied upon the expertise and knowledge
of their members, some historical documentation, earlier attempts to map the region
and the writings of wine journalists and commentators like James Halliday, Oz
Clarke, Huon Hooke, Len Evans and Mark Babidge.51 The second Interim
Determination generated even more submissions (47) from those excluded from the
proposed region. As the process continued the submissions became more detailed
49
50
51
Geographical Indications Committee, ‘Coonawarra’ interim Determination & Proposed
Variation’ (3 February 1999). Based on a postal survey, 87.5 per cent of the members of the
CVA and CGGA were in favour of this second Interim Determination. Voting rights and fee
contributions are based on size of vineyards and/or volume of grape and wine production.
Dr Alfred Cass was retained as a consultant on soils. Toward the end of the exercise the GIC
began to correspond with a broader range of experts, including experts retained by those
excluded from the various determinations. (See Appendix 1)
Joint Committee, above n 39, 14, 18, 27; Jancis Robinson, Vines, Grapes and Wines (1986);
Len Evans, Complete Book of Australian Wine (4th ed, 1984) 294; Oz Clarke, New Classic
Wines (1991); James Halliday, Coonawarra: The History, the Vignerons & the Wines (1983);
James Halliday, Wine Atlas of Australia and New Zealand (1991) 215; Huon Hooke, ‘Wine’,
Sydney Morning Herald (Sydney) 19 September 1995; Babidge, above n 24.
(2006) 27 Adelaide Law Review
Figure 8
85
The GIC’s Second Interim Determination (1999). Note the additions and excisions.
86
EDMOND – COONAWARRA WINE REGION
and more critical. They incorporated increasing amounts of expert evidence
pertaining to soils, climate, geography, hydrology and viticulture and began
comparing the proposed Coonawarra GI with other Australian wine regions already
finalised.
The protracted process, along with what were perceived as unproductive encounters
with the ‘Coonawarra’ Associations and the GIC, led many of those facing
exclusion from the Coonawarra wine region to form their own (alternative) wine
industry organisation. In 1999 the Coonawarra Penola Wine Industry Association
(CPWIA) was established to represent the broader district, particularly those
vineyards and wineries not covered by the CVA and CGGA.52 Though small in
production terms, the 31 members it had assembled by 2000 evidenced a degree of
dissatisfaction in the wine industry in the South East. As an industry organization
the CPWIA hoped to improve access and enhance the stature of its members before
the GIC. The CPWIA also submitted its own application for a Coonawarra wine
region (Figure 9).53 Unlike the Application from the Joint Committee this was
neither solicited nor appreciated by the GIC. If anything, by coordinating disparate
parties and introducing another representative body, the CPWIA created difficulties
for the GIC. Its application to join the Limestone Coast Wine Industry Council
(formerly the VCSESA) seems to have been ignored and attempts to organise a
meeting between the executive of the CPWIA and the Joint Committee were
unsuccessful.54
52
53
54
The CPWIA incorporated on 1 May 1999. The notice of the original meeting explained that:
‘all parties with an interest in and commitment to the grape growing and wine making
industries throughout the Coonawarra/Penola District who feel that they presently have
insufficient representation in the Coonawarra regional boundary application process are invited
to attend.’ Lee Castine, AAT Witness Statement for CPWIA, 13 December 2000, 2.
Coonawarra Penola Wine Industry Association Inc, Application: Coonawarra Region (June
1999).
The CPWIA insisted that their lawyers should attend what was envisaged as a ‘no prejudice’
meeting. The Joint Committee would not accede to this request. Letter from Lee Castine,
President CPWIA to Wendy Hollick, President CVA, 31 May 1999; letter from Lee Castine,
President CPWIA to Brendan Provis, President CGGA, 31 May 1999.
(2006) 27 Adelaide Law Review
Figure 9
CPWIA Application for the Coonawarra wine region (1999).
87
88
EDMOND – COONAWARRA WINE REGION
On 3 April 2000, just weeks before publishing its Final Determination, the GIC
wrote to several interested parties — including Peter Copping, Brian Croser of
Petaluma, John Davidson, Graham and Shirley Giles, Colin Goldsworthy, Greg and
Emma Koch, Neil McLean, Dennis Marks, Chris Raidis, Peter Rymill, Tania Shaw,
P. and E. Williams and the Principal of Penola High School — indicating that the
Committee envisaged excluding their properties from the final version of the
Coonawarra GI. This group of correspondents included members of the CGGA and
CVA as well as those who had previously made submissions. While not apprised of
the precise location of the proposed final boundary, these parties were afforded an
opportunity to respond to the looming likelihood of exclusion. Prior to this
notification, each of these properties had been included in previous interim
determinations. In the short time available most wrote back expressing surprise and
complaining about an ‘ambush’ at the end of a decade. Threatened with exclusion,
Peter Rymill, great grandson of John Riddoch, member of the Joint Committee and
owner of the Three Mile vineyard to the south of Penola, rapidly produced a very
impressive case for inclusion.55 The various responses were to no avail. The CVA
and CGGA were afforded an opportunity to vote on the Final Determination and 81
per cent of the votes were cast in favour of the GIC’s region.56
The Final Determination for the Coonawarra GI was presented as part of the GIC’s
‘three region solution’ (Figure 10).57 The GI for the Coonawarra was integrated
with the interim determinations for the proposed Wrattonbully and Penola wine
regions. In part, this appears to have been a concession to the regional needs of
grape growers and vignerons, particularly those in the CPWIA, to the west of the
platform. However, the three region solution seems primarily intended to delineate
a Coonawarra wine region consistent with the aspirations of the CGGA and CVA.
Those with vineyards excised, like Copping and Rymill, felt they were sacrificed to
provide the nascent Penola wine region with ‘critical mass’.
55
56
57
Letter from Peter Rymill to Guy Darling, GIC, 26 April 2000. The GIC also received
responses from Peter Copping, John Davidson, Graham and Shirley Giles, Penola High
School, Petaluma and Tania Shaw.
Coonawarra Grape Growers’ Association, (Press Release, 29 May 2000).
Geographical Indications Committee, Statement of Findings on Material Questions of Fact and
Reasons for Decision – (Section 37 of the Administrative Appeals Tribunal Act) (2000).
(2006) 27 Adelaide Law Review
Figure 10 The GIC’s Final Determination (2000) and three region solution.
89
90
EDMOND – COONAWARRA WINE REGION
It had taken the GIC from 1994 to 2000 to produce an exclusive and contentious
boundary for the Coonawarra wine region. During a period of unprecedented
growth in the Australian wine industry, the final boundary encircled a region even
smaller than the boundary proposed in the original Application by the CVA and
CGGA in 1995. The GIC was aware that the Coonawarra GI was heading to the
AAT when it advertised its Final Determination on 10 May 2000 and produced the
Statement of Reasons pursuant to Section 28 of the AAT Act.
IV. (SOME OF THE) EVIDENCE
To begin, it is important to distinguish, at least conceptually, between Coonawarra
township, the Coonawarra wine region (or GI) and the more diffuse but expansive
Coonawarra district. To varying degrees these different categories overlap one
another and to some extent their use embodies evidentiary assumptions.58 Those
inside the GI delineated in the Final Determination were trying to argue that the
Coonawarra wine region should be proximate to the township and immediate
surrounds, particularly the platform. Those excluded were attempting to correlate
the Coonawarra wine region with the broader district. These attempts were
complicated because the concepts were not temporally stable and there was some
debate over the significance of the township and traditional, perhaps even nostalgic,
concepts of ‘the Coonawarra’ for the definition of a wine region.59 All of this was
more or less superimposed on the question of ‘grape growing attributes’ required by
the Regulations.
When the dispute arrived at the AAT the Applicants — whose properties were
excluded from the region determined by the GIC — proposed an inclusive wine
region based on land systems and the cadastre (Figure 11).60 This proposal was
developed by two academic geographers, Max Foale and Derek Smith, who drew
on the work of other experts and the latest maps (Appendix 1).61 At approximately 1
030 km2 it was considerably larger than the various incarnations produced by the
GIC. By way of comparison, the GIC’s Final Determination covered about 158
km2.
58
59
60
61
Brian Harley, ‘Maps, Knowledge and Power’ in Denis Cosgrove and Stephen Daniels, (eds),
The Iconography of Landscape: Essays on the Symbolic Representation, Design and Use of
Past Environments (1988) 277.
The area, rather than the town, is generally referred to as ‘Coonawarra’ or ‘the Coonawarra’.
Locals are more inclined to use ‘Coonawarra’.
‘Inclusion’ was a principle guiding the various applications. We should also note that this
proposal included most of the land the Applicants sought to have included in the ‘Coonawarra
wine region’, not necessarily all of the land owned by the Applicants in the Coonawarra
district.
Appendix 1 contains a list of the expert witnesses referred to in this paper.
(2006) 27 Adelaide Law Review
Figure 11
Applicants’ proposed boundary for the AAT (drawn by Foale and Smith) and the
GIC’s Final Determination with the location of Applicants and Fifth Respondents
(the ‘Gang of 25’), (2001). Thanks to Chris Dearden of Daedalus (SA).
91
92
EDMOND – COONAWARRA WINE REGION
The GIC entered the proceedings in the AAT intent on defending its Final
Determination. After an interlocutory appeal to the Federal Court that task fell upon
a group of (unsuspecting) Respondents composed of those from ‘inside’ the
boundary who were willing to defend it.62 Members of the CVA and CGGA, the
Respondents included Southcorp (the owner of Penfolds, Lindemans, Rosemount
Estate, Wynns Coonawarra Estate, Seppelt and Rouge Homme) and a group of
smaller producers known among themselves as the ‘Gang of 25’ and to the
Applicants by the more colourful, if pejorative, moniker ‘Rednecks’. The ‘Gang’
included Balnaves of Coonawarra, Banks Kidman, Bowen Estate, Brand’s of
Coonawarra, Coonawarra Premium Vineyards, Ey Estate, Flint’s of Coonawarra,
Hollick, Lawrence Victor Estate, Majella, Parker Coonawarra Estate, Penley Estate,
Punters Corner, S Kidman, Redman, Vincorp, Weatherall Vineyards and Zema
Estate.
Now it is my intention to provide an overview of the evidence associated with the
GIC’s decision and appeals to the AAT and, indirectly, the Federal Court. While
parties generated additional evidence for the hearing before the AAT, much of the
evidence and argument had already been rehearsed in submissions to the GIC.
Rather than produce a diachronic account of the evidence assembled for each
proceeding the following synoptic overview provides a useful basis to assess the
performances of the GIC, AAT and the Federal Court, as well as identify some of
the limitations inherent in the process.63
A. History of Coonawarra
i. Early European settlement and the emergence of the wine industry
The South East was originally Pinchunga land. Apart from the derivation of the
word ‘Coonawarra’ the Pinchunga people play no further role in this version of the
story.
What eventually became the Coonawarra district was first settled by Europeans in
the early 1840s. Alexander Cameron (1810–1881) was among the earliest settlers.
62
63
It is not clear just how unsuspecting these parties were. Southcorp, for example, would have
been aware, through its legal representatives, that it was unlikely that the GIC would be
allowed to defend its determination. With respect to those inside the Final Determination, they
assumed, once the GIC had been marginalised through the interlocutory appeal, that the CVA
and CGGA would represent their interest in the AAT. The Constitutions of the Associations,
however, required them to act in the interests of all members. Because some of the members
were among the Applicants the Associations were obliged to withdraw. This is when the ‘Gang
of 25’ formed.
As far as possible this presentation is intended to avoid historical recriminations, see Gary
Edmond, ‘Whigs in Court: Historiographical Problems with Expert Evidence’ (2002) 14 Yale
Journal of Law and the Humanities 123.
(2006) 27 Adelaide Law Review
93
From Scotland, Cameron leased and purchased large tracts of land on which he
grazed sheep. In 1850 he donated land to establish the town of Penola. Penola is
perhaps most famous today as the site of the early ministry of Sister Mary McKillop
(1842–1909), the only beatified Australian. For our purposes another Scottish
migrant, John Riddoch (1827–1901), is the most significant individual in the early
history of the district and the wine industry. Riddoch made a fortune selling
supplies on the Victorian gold fields. He subsequently moved to the South East
where, from the early 1860s, he acquired vast leases and purchased extensive
freehold land. These acquisitions included large parts of the platform and the land
on which the town of Coonawarra would later be established. Riddoch was a
farmer, parliamentarian (in South Australia), philanthropist and entrepreneur. He
promoted the extension of the railway into the South East and hoped to increase the
value of his holdings by encouraging agricultural diversification and growth. The
first wine grapes in the district were planted at Yallum Park, Riddoch’s homestead
in the Hundred of Monbulla (see Figure 18).
In the early 1890s, in fulfilment of an entrepreneurial vision, for what would briefly
be known as the Penola Fruit Growing Colony, Riddoch advertised 10-acre farm
blocks on the platform to the north of Penola.64 By the mid 1890s colonists had
planted more than 10 000 fruit trees and some 95 000 vines on the platform in the
Hundred of Comaum (Figure 12). The second vintage, in 1896, produced 9 500
gallons of wine. This rose to 50 000 gallons by 1902 and 70 000 gallons by 1909. In
accordance with a promise, Riddoch built what is now the Wynns iconic triple
gabled limestone cellar, in order to process the grapes produced by the Fruit Colony
(Figure 13).
Tensions with the more established community at Penola led the nascent Fruit
Colony to assert independence by changing its name to the Coonawarra Fruit
Colony in 1897.65 ‘Coonawarra’ was the name Riddoch had assigned to wine made
from his own grapes. It was an Aboriginal word which is conventionally understood
to mean ‘honeysuckle ridge’ or ‘place of signal fires’.66 The word may, however,
possess a more subversive meaning. According to one surviving account, when
young ‘Jack’ Riddoch was sent to ‘Yallum Jackie’ — one of the few remaining
Aborigines in the district — to obtain a name for the family’s wine, (t)he(y) may
64
65
66
W. Catton Grasby, The Coonawarra Fruit Colony and Yallum Estate near Penola, South
Australia (1899) 38.
The tensions seem to have emerged in response to inflated rates levied on the Fruit Colony
land along with condescension from the more established settlement to the south.
Mayo, above n 21, 249; Dr Peter Bell, AAT Witness Statement, 15 December 2000, 5. Bell
includes ‘to light a fire’ among the definitions.
94
EDMOND – COONAWARRA WINE REGION
have played a joke on the unsuspecting father. According to this version
‘Coonawarra’ also means ‘pile of excrement’.67
Figure 12 Map of Coonawarra Fruit Colony from Grasby, The Coonawarra Fruit Colony
(1899).
67
Peter Rymill, AAT Witness Statement, 12 December 2000, 7; Dr David Dunstan, AAT
Witness Statement, 19 December 2000, [17]; Robert Linn, ‘AAT Witness Statement’, 18
December 2000, 18.
(2006) 27 Adelaide Law Review
95
Figure 13 Advertisement featuring representations of Wynns (originally Riddoch’s) three
gabled cellar.
Despite Riddoch’s enthusiasm the Fruit Colony was not particularly successful. The
stockpile of unsold wine steadily accumulated. Depression in the 1890s, along with
pests, disease, frosts and the distance to markets made business difficult. The loss of
patronage, after Riddoch’s death in 1901 further compromised the experiment. With
none of the Riddoch children interested in assuming control Riddoch’s vast estate
was broken up and sold. The winery was purchased by a series of companies —
Chateau Tanunda, Milne & Co, and Woodleys (Chateau Comaum) — with most of
the grapes and unsold surplus wines distilled into brandy. This practice continued
well into the 1940s. Overall the Australian wine industry was depressed for the first
half of the twentieth century.68 For the first 60 years Coonawarra was a marginal
wine producer and the Redman family were among the few to persist with winemaking.69
In 1951 Samuel Wynn & Sons purchased Riddoch’s winery and vineyard from
Woodley Wines for £22 000. This marked the ‘beginning of a revival in
68
69
Responding to the downturn in the Australian wine industry, the South Australian government
encouraged grape growers to convert to dairying and fruit crops through a vine-pull scheme
implemented in the 1930s. See Halliday, Coonawarra, 34.
Les Hinton, Redman Wine: Story of a winemaker (1971).
96
EDMOND – COONAWARRA WINE REGION
winemaking at Coonawarra’.70 Wynns immediately produced a black label Claret
and the following year Redmans began bottling wine under the Rouge Homme
label. Slowly Coonawarra acquired a reputation as a region capable of producing
premium quality red wines. In response, larger producers such as Mildara (1955),
Penfolds (1960), Lindemans (1965) and Seppelt (1971) began to purchase land
along the central platform at unprecedented prices (Figure 14). These corporations
were followed by smaller producers who also purchased land or planted vines on
land their families had previously used to crop or graze sheep (see Figure 15). They
include: Redman (1966), Brands Laira (1966), Terra Rossa (1970), Riddoch Estate
(1970), Hungerford Hill (1971), Bowen Estate (1972), Rymill (1974) Leconfield
(1974), Balnaves (1975), Yalumba (1975), Penowarra (1978), Koppamurra (1975),
Petaluma (Evans vineyard, 1978), Katnook Estate (1980, and the Coonawarra
Machine Company, 1969), Haselgrove (1980), Rosemount (1980), Ladbroke Grove
(1982), Zema Estate (1982), Hollick (1982), Petaluma (Sharefarmers, 1983), S.
Kidman Wines (1984, also The Ridge), Parker (1985), St Mary’s (1986), Orlando
(1986), Highbank (1986), Koonara (1988), Penley Estate (1988), Punters Corner
(1988), Ey Estate (1989), Banks Thargo (1996), Majella (1991), Lawrence Victor
Estate (1994), Patrick T (1996), Kopparossa (1996), DiGiorgio (1998), Murdock
(1998), Reschke (1998), Stonehaven (1998), Jim Barry (1998), Heathfield Ridge
(1998), The Blok Estate (1999), Flints (2001) and Gartner Wines (2001).71
Viticultural development and the price of land, particularly land on the platform,
continued to increase. Vineyard expansion radiated from the town of Coonawarra
and Wynns Coonawarra Estate. Most of the initial plantings were on an area known
as the ‘Golden Mile’ — roughly between Drain C and the dirt boundary road (the V
& A Lane) dividing the Hundreds of Comaum and Penola (see Figures 15 and 16).
Thereafter, plantings extended to the north, south, east and, to a more limited
extent, the west. Plantings, as Figure 11 illustrates, extended well beyond the
platform and the two hundreds of Comaum and Penola.72
70
71
72
Dunstan, above n 67, [43]; Halliday, Coonawarra, above n 51, 35–8.
Italicised producers owned vineyards beyond the Hundreds of Comaum and Penola. Many of
the producers from the platform (and the Gang of 25) like Zema and Hollicks, Southcorp and
Mildara Blass, also held extensive vineyards outside the two hundreds. The dates are indicative
and not all of these producers are still in existence. Some have changed owners and/or names.
Figure 11 is not exhaustive. There were grape producers — like Tania Shaw whose property in
the Hundreds of Monbulla and Penola was excluded by the GIC — who did not participate in
the appeals to the AAT or the Federal Court.
(2006) 27 Adelaide Law Review
Figure 14 Map from Lake, Classic Wines of Australia (1966), 34.73 Note the ‘Limit of Terra
Rosa’.
73
See also Walter James, Wine in Australia: A Handbook (1952).
97
98
EDMOND – COONAWARRA WINE REGION
Figure 15 Tourist map of ‘Coonawarra’ wineries (2004).
Expansion of the region continued through the 1960s and 1970s, perhaps slowing a
little until the mid 1980s. It was from the end of the 1980s, however, at the very
time when the Treaty negotiations commenced and the boundary issue re-surfaced,
that the wine industry and exports began to grow at an unprecedented rate (see
Table 1). The conclusion of the EC-Australia Wine Agreement facilitated export
trade with Europe, stimulated plantings and required Australian producers to use
regional ascriptions (like ‘Coonawarra’) even before their regional boundaries were
finally determined.
(2006) 27 Adelaide Law Review
99
Table 1 provides an indication of the rapid growth in planting, production and
export trade over the last two decades, especially since 1990:74
1400
1200
1000
800
Litres (Millions)
Dollars (Millions)
600
400
200
2001
1999
1997
1995
1993
1991
1989
1987
1985
0
Table 1: Australian wine exports
Based on a graph by John Pendrigh (5 January 2001)
The dollar figures for 1990 and 1992 are estimates.
i. Historical change and the myth of the terra rossa
The historians who provided evidence to the AAT tended to agree on the early
settlement and development of the South East. Differences emerged when it came
to what was understood by the term ‘Coonawarra’ and the extent to which the
meaning had evolved. The historical witness for the Respondents, Dr Peter Bell,
presented an historically stable Coonawarra. Commenting on its dimensions Bell
explained:
The general pattern of use of the word Coonawarra to describe an area is quite
clear. … All historical uses of the word from that time [the turn of the
twentieth century] on refer quite specifically to the township and the small
74
According to the AWBC wine exports experienced a compound annual growth rate of over 18
per cent from 1988 to 2001. Australian Wine and Brandy Corporation, Wine Export Approval
Report (2001). During the same period Europe’s share of world wine exports slipped from 96
per cent to 68 per cent. Australian Wine and Brandy Corporation, The Australian and New
Zealand Wine Industry Directory (2002).
100
EDMOND – COONAWARRA WINE REGION
adjacent area of terra rossa soil planted with vines, never to a larger
surrounding area.75
Bell did not fare well in cross-examination. Alan Robertson QC identified several
examples where ‘Coonawarra’ had been used in relation to places and vineyards
well beyond the platform and the two hundreds. Some of these examples were
drawn from the very texts relied upon by Bell to support a narrow and static
conceptualisation. Bell also testified that, methodologically, historians were not
favourably predisposed to dealing with recent events.76
In contrast, Dr David Dunstan, Rob Linn, Mark Babidge and Peter Rymill all
testified that the meaning of ‘Coonawarra’ was contingent and evolving. They
identified changes, or stages, in what was understood as ‘Coonawarra’ and
suggested that the recent expansion throughout the 1990s, with which they were
happy to deal, had produced the most comprehensive ‘Coonawarra’ thus far. They
were supported by official correspondence and an assortment of publications which
characterised properties and wineries well beyond the two hundreds as part of
‘Coonawarra’.77 According to Dunstan:
For all of its 100 years the Coonawarra has been a dynamic and changing
area, in which the wine industry has been an important, if fluctuating
influence. But the Coonawarra is more than this. The wine industry, and not a
small and privately interested group of vignerons, does not have a monopoly
on the word ‘Coonawarra’. Neither should it be allowed to define it narrowly.
Wine industry usage of the word Coonawarra should be commensurate with
the district community’s understanding of the term and reflect the industry’s
own dynamic character. … Neither the 1984 resolution of the Viticultural
Council or the GIC Final Determination is consistent with reality.78
Linn concurred:
It is therefore important to note, historically, that ‘Coonawarra’ as a region has
changed its boundaries over time. To the extent there is a co-relation between
Coonawarra and the wine industry in that area, then it fluctuated to suit the
75
76
77
78
Bell, above n 66, 8.
Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors and
Geographical Indications Committee (Administrative Appeals Tribunal, 8 March 2001), 1061–
83.
For example, see the discussion of Koppamurra in Mayo, above n 21, 116–19; Oz Clarke,
Wine Atlas: Wines and Wine Regions of the World (1995) 279; Peter Forrestal, Discover
Australia: Wineries (1999) 317; Len Evans, Australian and New Zealand Complete Book of
Wines (1973); Halliday, Wine Atlas, above n 51, 216–17; James Halliday, Pocket Companion
to Australian and New Zealand Wine (1995) 224–5, 336; James Halliday, Australian and New
Zealand Wine Companion (1997) 180, 281.
Dunstan, above n 67, [39].
(2006) 27 Adelaide Law Review
101
expansion or contraction of the wine industry. The contraction, as seen above,
ended in the 1950s-1960s and, from this time, there has been continual
growth. The industry’s development has followed a pattern established by the
likes of John Riddoch.79
These perspectives led to divergent interpretations of the significance of the 1984
resolution. For Bell the resolution represented a defining moment in the history of
the ‘Coonawarra’ wine industry. According to Dunstan and Linn it was merely one
part of a long historical process. For them it was significant that the 1984 resolution
was passed in the years before the largest expansion in the history of grape and
wine production in the district. They also believed its value was impaired by its
private and self-serving character. Dunstan, who had been working as a wine
journalist in 1984, had never heard of it. This was consistent with the accounts of
many locals and even a few members of the VCSESA, whose number included
Croser. Babidge, who was a senior manager at Wynns and involved with the
VCSESA, testified that he believed the 1984 resolution was relatively insignificant
and, at that particular AGM, he was far more concerned about getting ‘caught for
20 grand to re-asphalt the Coonawarra airstrip’.80
The other interesting dimension of the historical evidence, emerging primarily
during the provision of concurrent expert evidence to the AAT, concerned
‘Coonawarra’s’ soils.81 Linn and Dunstan both explained that the significance of the
‘terra rossa’ owed more to creative marketing than viticulture.
MR LINN: I find this notion of Coonawarra being on terra rossa and on this
so-called cigar something that I just can’t agree with historically. … My
reading at the moment suggests it was a marketing ploy from the fifties on and
I can’t find any other way of describing that use of it.82
DR DUNSTAN: So I am very interested in the way … Coonawarra’s history
helps generate a range of myths about it. Myths which are I believe are
affecting us today. I think that we have had to deconstruct if you like, the
image of what Coonawarra means and we also need to look at what it has
been in the last 10 years and what it has evolved into. … I don’t believe the
79
80
81
82
Linn, above n 67, 32–3.
Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors and
Geographical Indications Committee (Administrative Appeals Tribunal, 7 March 2001), 830.
It was Babidge’s contention that if a serious regional boundary were proposed then Wynns,
Lindemans, Mildara and Penfolds would all have sent senior representatives, including their
marketing managers, to the meeting. Moreover, the boundary proposal would have been listed
as a special agenda item. See Mark Babidge, AAT Witness Statement, 19 January 2000, 16.
Concurrent evidence (also known as an expert ‘hot tub’) occurs when experts give thematic
evidence as part of a joint session. This procedure is discussed in more detail in Section 7.C.iii.
Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors and
Geographical Indications Committee (Administrative Appeals Tribunal, 8 March 2001), 1038.
102
EDMOND – COONAWARRA WINE REGION
terra rossa is unimportant. I believe it is an important landmark but I believe
also that its image has been historically constructed and it’s not just a creature
of science and it is worthwhile delving into that construction. … I think that
the feature of the terra rossa, the strip, the cigar, whatever you like, has had a
very powerful impact in its time and that it has been a very important defining
feature. I think, however, as things evolve, as people are educated to a greater
extent, it may assume lesser importance. … but we have never really known
for certain which wines had come off the red strip and which wines have come
off the black strip. What we have known is that wines labelled Coonawarra
have been either good or bad but very often wine quality is associated more
with the maker, equally as with the area. The area is a footprint, as we were
talking about before, but I am not convinced that the association of wine
quality of the so called terra rossa strip is absolute. I am not certain, if the
public thought that, that was justified in all essences. 83
Babidge claimed that the terra rossa soil only assumed prominence after it was
decided, over a dinner with David Wynn, to use it to promote Wynn’s wines and
‘Coonawarra’. Interestingly, there are few references to the local terra rossas or
their superior viticultural properties prior to Wynns advertising their Coonawarra
wines from the 1950s.84
B. Geological formation, soils and topography
Soils, particularly the association between the platform, the terra rossa and
successful viticultural outcomes, have played a conspicuous part in the marketing,
mapping and local conceptualisations of the Coonawarra wine region and district.85
Nevertheless, most of the experts who provided reports or appeared before the GIC
and AAT were, like the historians, critical of the reliance placed on the terra rossa
and the apparent attempt to define a wine region using soil as the primary
determinant.
83
84
85
Ibid 1012–1013, 1049, 1110–1111.
Ibid 1063. The Respondents’ expert historical witness, Dr Peter Bell, agreed: ‘Strictly
speaking, yes, to my knowledge, no one had used that term [terra rossa] to describe that soil
before the 1950s. We have fallen into the habit of projecting it backwards in time.’ Much
earlier, in an interview, David Wynn had explained that: ‘My prime aim is an extensive
advertising campaign in Melbourne to make the Coonawarra famous. People, when thinking of
claret, would then naturally think of Coonawarra’, Penola Pennant (Mount Gambier) 29 April
1954. In a commemorative text, Babidge had written: ‘It is often claimed that soils have a
major influence in wine quality, and although some soils appear to produce better fruit, this is
probably coincidental with micro climate’. Babidge, above n 24, 28. Like Grasby, above n 64,
written to promote Riddoch’s vision of a local fruit colony, Babidge’s text, from the early
1980s, formed part of another ‘Coonawarra’ marketing exercise.
While soils are not mentioned explicitly among the factors enumerated in Regulation 25, they
might be included under Regulation 25(i)(i) ‘the geological formation of the area’ or in relation
‘to any other relevant matters’.
(2006) 27 Adelaide Law Review
103
i. Geological formation
The geology of the Coonawarra district has been shaped by marine incursions
which occurred millions of years ago. The retreating sea left a series of parallel
dunes which formed the Naracoorte Ranges to the east and the Cave and Stewart
Ranges to the west (see Figure 16). The platform (also known as the ‘cigar’ or
‘strip’) is probably the remains of a dune or lagoonal shoal. There is also a
lineament, the Kanawinka Fault, on the Naracoorte Ranges which has altered their
orientation relative to the other dunes. The sediment deposited by the ancient seas
led to the formation of layers of limestone (or calcrete). Overlying the tertiary-age
Gambier Limestone is the younger Bridgewater Formation which is between 650
000 and 800 000 years old. The terra rossa soils on the ranges and the platform
seem to have formed through the weathering of these calcretes.86
Figure 16 Map from Homes and Waterhouse. Rises (and ranges) and plains. Drain C bisects
the platform.
86
Kenneth Wetherby, AAT Witness Statement, 18 December 2000, 9.
104
EDMOND – COONAWARRA WINE REGION
ii. Soils
It is important to make four preliminary points about soils in the Coonawarra
district. First, the soil types vary considerably. Second, considerable variation may
be found across relatively small distances, even over a few yards. Within a single
vineyard or paddock soil types can vary dramatically. Third, there are no
comprehensive soil maps of the Coonawarra district.87 Fourth, while terra rossa
remains prominent in advertising, wine journalism and popular consciousness, it
has been abandoned as a classification by soil scientists.88 In its place pedologists
have developed more rigorous descriptions such as Isbell’s Australian Soil
Classification. According to Isbell’s classification the platform is composed of Red
Chromosols, Petrocalcic Black Dermosol and Petrocalcic Leptic Tenosol (see
87
88
As much is conceded in the Joint Committee, Application, above n 39, 19: ‘No current
empirical evidence exists which will provide a sharp boundary between soil types.’ Moreover,
the Joint Committee intimated that a soil map might require a ‘million dollar survey’. Little
had changed since Gerard Blackburn had written: ‘No detailed survey has been made of the
soils in this association’ in The Soils of County Grey, South Australia (1959) 32; Gerard
Blackburn, ‘Soils’ in M. Tyler, C. Twidale, J. King and J. Holmes (eds), Natural History of the
South East (1983) 39–48. Among the writings of wine commentators and journalists there is
considerable variation in the description of the platform (cigar, strip or ridge). Lake, above n
24, 22, for example, described it as ‘a long strip of red soil a couple of feet thick, several miles
in length and in most of it, less than a mile wide. It is a light loam (terra rossa, rare throughout
the world) and sits on some two to three yards of chalk’. In Coonawarra, above n 51, 150,
James Halliday, wrote: ‘the terra rossa cigar … extends for 15 kilometres north of Penola,
varying in width from 200 metres to 1.5 kilometres.’ Dr Bell summarised some of these
descriptions in his AAT Witness Statement, 8: ‘They all refer to a small area, although it
variously described as 12 km, 14.5 km, 15 km, 16 km, 7.2 miles, 8 miles and 9 miles in length,
by under 1 km, under 1.5 km, 1.5 km, under 2 km, 2 km, 2–3 km, under 1 mile, 1.2 miles and 3
miles in width. Taking the smallest pair of these dimensions defines an area under 1 km wide
by 11.5 km long , and the largest an area 5 km wide by 16 km long. Historically, no one has
ever suggested that the name applies to a larger area than this.’ If we compare the Applicants’
Closing Submissions, above n 47, 13, the Penola Land System (PNL) is described as a low
platform 27 km by 2.5 km wide.
According to Blackburn, The Soils of County Grey, above n 87, 16–17: ‘Terra Rossa. — This
name has been given to red or red-brown soils overlying limestone. The surface textures
include sand, sandy loam, loam, or clay loam and there is rarely any change in texture below
the surface. In many places the soil is extremely shallow with frequent limestone outcrops.
Deeper soils, i.e. more than 18 in. to limestone, are rare; those with a sandier surface and clay
subsoil should be regarded as red-brown earths but their total area is very small.’ See also
Gerard Blackburn, The Soils of Counties Macdonnell and Robe, South Australia (1964) 17, 23.
As this description suggests, ‘terra rossa’ is used to refer to a range of soils. Because the term
was used by the Joint Committee, GIC, AAT, Federal Court, the vast majority of parties, and
even experts, for the purposes of this paper that nomenclature has been retained. However, we
should remember that ‘terra rossa’ — even before we address the question of whether such
soils are possessed of special viticultural properties — is vulnerable to classificatory
aspersions.
(2006) 27 Adelaide Law Review
105
Appendix 2).89 The term ‘terra rossa’ was replaced because it did not possess a
sufficiently precise or consistent technical meaning. Imprecision meant that in
practice people using the term often referred to a range of different soils. Typically,
‘terra rossa’ was used to describe red and brown (sometimes sandy) loams and clays
that formed over a limestone (or calcrete) base.
Together, these four points rendered the use of soils, including the famed terra
rossas, problematic as a demarcation criterion for a wine region. Moreover, the
Joint Committee and GIC had both proposed wine regions which extended well
beyond the major concentration of terra rossa-type soils on the platform.
Much of the soil evidence was limited to quite specific soil surveys conducted prior
to the establishment of individual vineyards, like those for Robertson’s Well
(Figure 17), for use in the GI process and appeal to the AAT, or was based upon
anecdotal claims with limited scientific support. Most of the local graziers, croppers
and grape growers possessed an intimate practical knowledge of the variety and
quality of soils along with the drainage characteristics of their properties.
Fortunately, what we do have is a series of soil association and soil landscape maps
produced, respectively, in the 1950s by CSIRO/Blackburn (Figure 18) and in the
late 1990s by Primary Industry and Resources South Australia (PIRSA, Figure 19).
Soil maps (like Figure 17) provide detailed information about different types of
soils and tend to be produced using relatively large scales because accuracy requires
a considerable amount of ‘ground truthing’. The expense of physical inspections,
core samples, pits and chemical tests tends to preclude extensive soil mapping
projects.90 Soil landscape (and soil association) maps, in comparison, are usually
undertaken on a smaller scale, in the vicinity of 1:50 000 to 1:100 000, and provide
an indication of the predominant soils and approximate proportions based on aerial
photography and more limited ‘truthing’. They do not purport to provide reliable
boundaries between different types of soil and some of their limits are suggested in
the text on the draft PIRSA map (Figure 19).91 As the geographers, Foale and
Smith, explained: ‘It must be noted that the Soil Landscape Units plotted by PIRSA
are not “soil” maps or units, but are indicative of assemblages of various related soil
characteristics. … the boundaries of individual components have not been and
cannot be mapped at this scale.’92
89
90
91
92
Ray Isbell, The Australian Soil Classification (1996 and revised ed 2002); KH Northcote,
‘Soils and Australian Viticulture’ in BG Coombe and PR Dry (eds), Viticulture (Australian
Industrial Publishers 1988) 76, 80.
Ronald McDonald et al (eds), Australian Soil and Land Survey Field Handbook (2nd ed, 1998).
Foale and Smith, AAT Witness Statement: The Coonawarra Region, 15 December 2000, 10.
Ibid.
106
Figure 17
EDMOND – COONAWARRA WINE REGION
Soil Map of Robertson’s Well vineyard (Hundred of Joanna). Thanks to PIRSA.
(2006) 27 Adelaide Law Review
107
108
EDMOND – COONAWARRA WINE REGION
Figure 18 Blackburn/CSIRO map (1959-1964) (with detail of the platform). Note that the
platform just passes the town of Penola. Compare Figure 19. Hundred names are
provided in the grid in Figure 18 as well as the detail.
(2006) 27 Adelaide Law Review
109
Figure 19 Draft PIRSA Land Systems map (1999). Thanks to PIRSA.
What the land system maps show is that out to the west and south-west of the
platform there are wide plains of dark soils, known as black or ground water
rendzinas and cracking clays, which historically have been susceptible to
inundation. Most of the soils on the plains are poorly drained and not well suited to
viticulture, especially the production of grapes for dry red wines.93 These soil
landscapes are described as Glen Roy (GLR) and Maaoope (MAO) on the PIRSA
map. Before the construction of drains in the nineteenth and early twentieth
93
Blackburn, The Soils of County Grey, above n 87, 17: ‘Rendzina soils are black or almost so
and overlie limestone. Those in Country Grey are mainly black clay soils over limestone
subject to water-logging or flooding under natural conditions. There are also some very dark
brown clays, apparently free flooding but not extensive in area and a distinction may be made
between the more extensive types, referred to as groundwater rendzina, and the less common
type, the rendzina. The latter type is similar to some types of terra rossa in all respects except
colour but the ground-water rendzina is not to be confused with other local soils.’ See also
Blackburn, The Soils of Counties Macdonnell and Robe, above n 88, 18–19.
110
EDMOND – COONAWARRA WINE REGION
centuries these plains were even more vulnerable to inundation (Figure 16). As the
plains dried the agricultural potential of the black soils gradually improved. There
are, however, numerous slightly elevated outcrops to the west offering well drained
reddish soils. Examples include the Castine, Skene and Skeer vineyards as well as
St Mary’s and Heathfield Ridge on the Cave and Stewart Ranges.94 To the east of
the platform, toward the Naracoorte Ranges, there are more red and brown soils
than to the west and also more sands (KLN). The prevalence of sands in the soils to
the east was the result of a fairly recent geological event (occurring roughly 10 000
years ago) which produced a ‘thin veneer of Lowan Sand over the terra rossa
profile.’95 Some of the areas to the east and south east host extensive forestry
plantations. They are unsuited to viticulture and appear unlikely to be planted (for
the time being).
The draft PIRSA land systems map indicates that the Penola soil landscape (PNL)
includes non-terra rossa soils and Naracoorte (NRC) and Wrattonbully (WRT,
previously KBL) contain substantial amounts of red and brown clays and red sandy
loams all over limestone (Figure 19).96 Writing in the 1960s Blackburn rated his soil
associations, which formed the basis for the subsequent PIRSA classifications, from
A to D in descending order of agricultural and viticultural potential. Only the
Naracoorte association (NRC) received an A.97 Commenting on the district, Foale
and Smith advised that ‘almost all of the Land Systems and Soil Associations which
are mapped contain soils which are suitable for viticulture.’ These included: NRC,
KLN, NGW, WRT, SHO, CRG and even the GLR and MAO soil landscapes (see
Figure 19). We might also note that the draft map, produced by PIRSA in 1999,
extended the soil suite associated with the platform (PNL) further south (below the
township of Penola) than the earlier map produced by Blackburn and the CSIRO
(Figures 18 and 19).98
Using the GIC’s Final Determination, David Maschmedt, Leader of the Land
Resources Unit at PIRSA, calculated that the Final Determination was composed of
the following soil landscapes: KLN (46.6%), GLR (27.3%), PNL (24.6%) and NRC
(1.5%). This meant that the soil landscape most closely associated with the platform
(PNL) made up less than a quarter of the GIC’s Final Determination. Many of those
94
95
96
97
98
There are two properties owned by two different Castines in the Hundred of Killanoola. Des
and Pat Castine were involved in the appeal to the Federal Court. The Kanawinka Family Trust
is owned by Lee Castine and family.
Wetherby, above n 86, 8.
Blackburn, The Soils of County Grey, above n 87, 32: Blackburn recorded the existence of
minor areas of black soils in the lower, and consequently wetter, parts of the Penola
Association (PNL).
Blackburn, The Soils of Counties Macdonnell and Robe, above n 88, 46.
The production of PIRSA maps during the regionalisation process was a potentially powerful
and disruptive resource. See Crampton, above n 38; Harley, above n 58.
(2006) 27 Adelaide Law Review
111
excluded from the Coonawarra wine region possessed ‘terra rossa’ soils and/or soils
similar to those planted with vines within the Coonawarra GI.
The GIC and its primary soils expert, Dr Alfred Cass, do not seem to have relied
upon the PIRSA maps in their decision making. Rather, in excluding the land south
of Penola from the Final Determination, they embraced the version of the platform
described by Blackburn in the 1950s. Interestingly, Cass relied upon (and arguably
misinterpreted) the data from site samples produced for the PIRSA mapping
project — rather than the maps based on the data — to support the exclusion of the
area south of Penola from the Coonawarra wine region.99 While it is difficult to
ascertain the GIC’s actual reasoning and motivations, we should not overlook the
possibility that Blackburn’s soil associations provided a convenient rationalisation
for a more limited Coonawarra GI as part of the three region solution.
The soil evidence supports a number of generalisations. What we can say is that
terra rossa-type soils are relatively common throughout the South East.100 While the
platform may contain the largest concentrations of reddish loams and clays,
outcrops of terra rossa soils are common, particularly in slightly elevated areas. The
favourable viticultural characteristics associated with the terra rossas seem largely
attributable to sub-soil limestone and calcretes. The soils on the platform tend, on
average, to be better drained and therefore less susceptible to inundation than the
soils on the flat plains to the west. This helps to explain why the townships and
transport corridors were developed along the platform. There are, however,
extensive plantings of vines on slightly elevated outcrops and the hills beyond the
platform and the Hundreds of Comaum and Penola.
iii. Topography
According to the geographers, Foale and Smith, the entire Coonawarra district
displayed ‘remarkable topographic uniformity.’101 Colloquially, we might say that
the district is flat and fairly featureless. To the east the gently undulating Naracoorte
Ranges stand 50 to 60 metres above the surrounding plains — which are about 55
metres above sea level. To the west the Cave and Stewart Ranges rise only 10 to 20
metres. On average the platform is elevated about 0.5 to 1 metre above the plains,
with the occasional peak at 2 metres. In order to demonstrate this high degree of
99
100
101
David Maschmedt, AAT Witness Statement, 12 December 2000, 9, 20–22; Wetherby, above n
86, 9; Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors
and Geographical Indications Committee (Administrative Appeals Tribunal, 7 March 2001),
837 and Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors
and Geographical Indications Committee (Administrative Appeals Tribunal, 8 March 2001),
951.
Joint Committee, Application, above n 39, 18.
Foale and Smith, AAT Witness Statement, above n 91, 19.
112
EDMOND – COONAWARRA WINE REGION
uniformity, Foale drew a series of topographical cross-sections (Figures 20a and
21b). Foale’s cross-section illustrates the minor variations encountered across a 30
km section of the Coonawarra district running east to west.102
Figure 20 a. Foale and Smith, Cross-section of Coonawarra district (vertical exaggeration 25
times)
b. Cross-section of Coonawarra district (no vertical exaggeration)
The geographers were critical of the GIC’s reliance on a 60 metre contour line,
identified as a former ‘historical shoreline’, for approximately 8 km of the northeastern boundary (with the proposed Wrattonbully region) of the Final
Determination (see Figure 10). They explained that ‘there is no geological or
geomorphological basis for this proposition. There were many “historic shorelines”
as the sea advanced and then retreated, but the present 60 metre contour is
undoubtedly not one of them.’103 For Foale and Smith, the ‘historic shoreline’ was
buried somewhere below more recently deposited sediments and the 60 metre
contour was used in an arbitrary fashion. Inexplicably, it was a boundary in some
places and not in others. In some parts of the Final Determination the 60 metre
contour lay within a boundary apparently not influenced by ‘any change of slope,
landform, soil type, climate, hydrology or land use.’104
102
103
104
See also Blackburn, above n 88, 7.
Foale and Smith, AAT Witness Statement, above n 91, 21.
Ibid 22.
(2006) 27 Adelaide Law Review
113
iv. Proximity
In the reasoning of the Joint Committee, the GIC and the AAT the idea of proximity
to the platform assumed considerable importance.105 For the soil scientists and
geographers, as well as some of the lawyers, ‘proximity’ was a peculiar concept.
The experts wondered about the viticultural or geographical significance of having
land or vines proximate to, but not part of, the largest concentration of terra rossas
in the South East. Consider the responses of Maschmedt, Foale and Smith:
the concept remoteness or proximity is not reasonably defined. Even if the
GIC did explain what it means by proximate, from a topographic or soil
landscape perspective, proximity as a concept is meaningless …106
the GIC justified inclusion of significant parts of other Land Systems in a
curious way, by reference to their “proximity” to the “cigar”. The GIC does
not explain this “proximity” approach and there is no geographical or
geomorphological logic or other justification to it. Where in a significantly
uniform landscape does “proximity” end and “remoteness” begin? The
“proximity” of the boundary to the “cigar” varies significantly at almost every
point along the boundary.107
Moreover, as the second extract contends, ‘proximity’ was used inconsistently.
Some vineyards seem to have been included in the Coonawarra GI because they
were close to the platform whereas others, which were as close and occasionally
even more proximate, were not.108
C. Viticulture
For the purpose of making quality wines, grape vines perform best in well-drained
soils. Drainage characteristics seem to be more important than the chemical
properties of the soils.109 Hence the desirability of sub-surface limestone and
calcretes. The viticulturist aims to manage, actually limit, the water available to the
vine when the fruit is developing in order to stress the vine and produce small
intensely flavoured berries. Vines with access to water tend to have excessive
105
106
107
108
109
CPWIA v GIC, above n 48, [137]; GIC, Statement of Findings on Material Questions of Fact
and Reasons for Decision, above n 57.
Maschmedt, Witness Statement, above n 99, 22.
Foale and Smith, AAT Witness Statement, above n 91, 23.
Prior to the Federal Court decision, many Applicants, like St Mary’s, W and J Hetherington
(Garrison Park) and Petaluma, embraced ‘proximity’ in their submissions and statements: St
Mary’s, Synopsis of Submission, 29 May 1997, 10; St Mary’s, Submission in relation to
Interim Determination – Geographical Indications “Coonawarra”, 31 July 1997, 5; Letter from
Kylie Gould, WS DeGaris & Co (lawyers for the Heatheringtons) to the Presiding Member,
GIC, 3 March 1999; Croser, AAT Witness Statement, above n 33, 10.
Smart, AAT General Witness Statement, 19 December 2000, 27–35.
114
EDMOND – COONAWARRA WINE REGION
vigour, produce high yields of large watery berries and may encounter difficulty
ripening.110
Viticultural experts tended to play down the significance of soils in the production
of quality grapes. According to consultants, Di Davidson and Dr Richard Smart,
claims about the special viticultural properties of terra rossa, from the platform or
elsewhere, were exaggerated. For them, other kinds of soil were also capable of
producing premium quality grapes. Both testified that ‘difficulties’ with many soil
types could be mitigated relatively inexpensively. Davidson and Smart explained
that a broad range of the soils present in the Coonawarra district could be
successfully planted to vines. They also suggested that, given the initial cost of
establishing a vineyard, it was highly unlikely that the really inferior soils,
particularly those subject to regular inundation, would be developed. For Davidson,
that was ‘a bogey that I think you can put to rest’.111 She continued:
MS DAVIDSON: One point I would like to reinforce is that the word
“difficult” was used sometimes to describe certain soils. There’s nothing
inherently wrong with the difficult soil and as we know from our wide
experience around Australia and around the World, many difficult soils are
capable of giving very high quality fruit [i.e. grapes] and the second thing to
add in there I think is that the cost of manipulation of soils, if that is a word
that can used, is really infinitesimal in the overall scheme of things.112
Smart agreed. Irrigation practices, he noted, reflected the variation of soils within
vineyards as well as the ability to manage soil properties:
DR SMART: We have more tools at our disposal for soil management and
amelioration than we do for many aspects of viticulture, your Honour, and it
is, in fact, the bread and butter that Di [Davidson] and I live by to impose
these sort of management procedures. They’re not difficult, they’re certainly
not very expensive in the overall scheme of things, sow a cover crop
compared to $50,000 per hectare for establishing a vineyard is - is a trifling, a
trifling comparison.113
Moreover, the ability to manage different soils and mitigate some of their
limitations through controlled irrigation, cover crops and canopy management led
Davidson and Smart to question the use of soils or proximity to soils in the
110
111
112
113
P.G. John, ‘Wine making expectations for Coonawarra dry red styles’ (1989).
Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 512–514.
Transcript of Proceedings, CPWIA v GIC (AAT, 7 March 2001) 838.
Ibid 844.
(2006) 27 Adelaide Law Review
115
determination of a boundary for the wine region. As Davidson queried, if ‘you can
manipulate soils, how valid are they to define the boundary’?114
These kinds of perspectives were captured in the following, largely consensual,
exchange from an expert panel convened during the AAT hearing.
JUSTICE O’CONNOR: I suppose, the combined message I am receiving
listening to you, is that while everyone acknowledges the importance of soil in
the year 2001, what I am hearing from viticulturists is that it has become, over
time, less important in terms of its unique or particular properties because
viticultural science or management of this soil and its product allows - well,
common outcomes, if I could call it, but that is good grapes or whatever - - …
DR CASS: Yes, that is a fair summary, your Honour.
MS DAVIDSON: Yes.
JUSTICE O’CONNOR: You can grow good grapes in anything if you have
got enough money?
MR WETHERBY: If you know the characteristics.
…
MS DAVIDSON: Yes.115
The high costs of establishing a vineyard appear to have influenced the
development choices of virtually all of the Applicants who appealed to the AAT.
Some graziers, like Stephen Mann (Baltersan Investments) and the Hinzes,
postponed planned developments while the wool industry was depressed and
investment capital in short supply.116 Those who had established vineyards, like
Ken Skene in the Hundred of Grey and the Castines and Skeers in the Hundred of
Monbulla, established relatively small vineyards on the most suitable parts of what
were often considerable land holdings. Usually this meant that vines were planted
on slightly elevated outcrops of predominantly red and brown loams or clays over a
limestone base.
In addition, in the absence of detailed soil maps or reliable confessions, it was not
always obvious who on the inside of the Final Determination (or elsewhere) was
planted on terra rossa-type soils. During cross-examination Brian ‘Prof’ Lynn (of
Majella, see Figures 11 and 15) was, perhaps understandably, reluctant to comment
114
115
116
Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 540.
Transcript of Proceedings, CPWIA v GIC (AAT, 6 March 2001) 788–789.
It is possible that some of the Applicants were advancing an intention to develop a vineyard
primarily to enhance their claim for inclusion in the wine region. Some have not planted vines
even after their ‘success’ at the AAT. However, accounting for this behaviour is complicated
by the current oversupply of grapes.
116
EDMOND – COONAWARRA WINE REGION
on the soils beneath the vines owned by his neighbours and fellow Respondents.117
For, as the PIRSA soil landscape maps suggested, the platform was not composed
exclusively of well drained red soils. Maschmedt’s calculations indicated that the
GIC’s Final Determination was dominated by soil suites other than PNL.118
Throughout the process of regionalisation there was disagreement about the
desirability of the platform and explanations for its soils and grapes attracting
premium prices. Those on the platform, particularly Lynn, David Murdock and
Doug Balnaves, argued that the soil was excellent for growing grapes for red wines,
particularly Cabernet Sauvignon and Shiraz. For the Respondents, these soils were
superior because of intrinsic qualities, including the fact that they required less
mitigation and management. The Respondents presented the terra rossa from the
strip as unique with particularly desirable viticultural qualities.
Notwithstanding assertions about the superiority of the terra rossa soils, many
claims about soils around Coonawarra appear difficult to substantiate.
MR MASCHMEDT: I come back to Dr Smart and Di’s [Davidson] point of
view that we’re really talking about the viticultural response and I guess I’m
interested in the answer of the question: if these [terra rossa] soils are so
special and so unique - whatever those terms mean - where is the scientific
evidence to demonstrate that?119
Maschmedt’s question, from a panel session with a range of soil and viticultural
experts at the AAT, went unanswered. There was no scientific support for claims
about the superior viticultural properties of the soils on the platform. According to
Ken Wetherby, an experienced soil scientist who had undertaken a series of tests,
there was no difference in formation or chemical properties between the soils on the
platform, various raised outcrops in the district, and the reddish soils on the Cave,
Stewart and Naracoorte Ranges.120
The viticultural experts for the Applicants were not arguing that land on the
platform was not well suited to viticulture. Rather, they were suggesting that it was
117
118
119
120
Compare Halliday, Wine Atlas, above n 51, 218, where, Mildara’s chief viticulturist is depicted
in the section on Coonawarra. The caption reads: ‘Vic Patrick, formerly Wynns and now
Mildara chief viticulturist, knows every square centimetre of soil in Coonawarra.’
As much was conceded in the Joint Committee, Australian Geographic Indication:
Application, above n 39, 31: ‘Expanding the boundary beyond the terra rossa is necessary to
recognise the considerable investment made by winemakers and grapegrowers during
Coonawarra’s most substantial and rapid period of development (since 1984).’
Transcript of Proceedings, CPWIA v GIC (AAT, 6 March 2001) 785.
Wetherby, AAT Witness Statement, above n 86, 3, 7–9.
(2006) 27 Adelaide Law Review
117
not quite as special as those defending the GIC’s Final Determination were
contending.121
D. Climate, harvest dates and frost
Coonawarra is a cool climate wine region. It might come as a surprise, given the
previous focus on soils, but there was almost universal agreement that climate is the
single most important attribute for successful viticulture. According to Smart:
Climate is the most important factor affecting the yield and composition of
grapes. This in turn affects wine style and quality. The concept of climate has
several components, namely temperature, rainfall, sunshine, humidity,
evaporation, wind speed and atmospheric pressure. In the Australian
viticultural context climatic factors should in my opinion be ranked in the
order of importance I have identified. Temperature is the principal climate
component affecting grapevines development/phenology and to a lesser extent
their growth. In my opinion, the cool temperature conditions are the primary
factor responsible for the quality and reputation of the wines from the area in,
around and outside the GIC area. Climate gradients of relevance to viticulture
are small in a flat (plain) region not immediately adjacent to the coast. Such is
the case for viticultural Coonawarra. …The other components of climate and
their variation within this region are of much less significance than
temperature for defining the boundary of Coonawarra. To the extent that these
other components have relevance, there is no valid basis to distinguish the
GIC area from viticultural Coonawarra by reason of these components.122
Climate, especially temperature, was not only presented as the most important
viticultural condition, but it was also the factor least susceptible to manipulation by
humans or management techniques: ‘Soil properties are subject to manipulation by
humans, generally to a greater extent than climate components such as temperature.
This is a reason why climate is much more important than soils in defining a
121
122
Dean Lanyon, Alfred Cass and David Hansen, The effect of soil properties on vine
performance, CSIRO Land and Water Technical Report No.34/04 (October 2004) 22: ‘There is
no one ideal soil for wine grape production per se but rather an ideal set of soil properties for a
given climate, with possible further refinement based on consideration of target wine style and
variety. … Although Cass et al (2002) and Cass and Maschmedt (1998) have suggested a range
of benchmark values for soil physical properties in relation to vineyard establishment and yield
for irrigated vines, benchmarks aligned to grape quality currently do not exist and divergent
views are held on what these values should be.’ See also Alfred Cass, David Hansen and
Andrew Dowley, ‘Grape performance and soil conditions’ in A. Cass (ed), Sustainable
Viticultural Production (2002) and Alfred Cass and David Maschmedt, ‘Understanding soils –
for optimum yield’ (1998) 411 Australian Grapegrower and Winemaker 13. This last
collaboration is interesting because Cass and Maschmedt were retained by different parties in
the dispute.
Smart, AAT Witness Statement, above n 109, 5–8.
118
EDMOND – COONAWARRA WINE REGION
viticultural region.’123 Smart’s testimony, supported by evidence from many
Applicants, indicated that temperatures, rainfall, sunshine, evaporation, wind and
atmospheric pressure were all highly uniform throughout the Coonawarra district
(Table 2). Slight differences in rainfall throughout the district could be overcome
through irrigation. Climatic variation caused by the local topography was trivial.
Though, the GIC had excluded the Naracoorte Ranges at their base, around the 60
metre contour line, on the basis of topography. Ever colourful, Smart ridiculed the
GIC’s rationale, suggesting that a person did not need ‘to put on a jumper’ when
they went ‘up three floors in a building’.124
Harvest dates did not assist with the provision of a boundary. Variations could be
caused by grape and clonal varieties, the weather forecast, the desired sugar levels
or fruit characteristics, the availability of harvest equipment and ability to process
grapes at the winery, as well as climatic variations across a region, particularly
north to south. In its Application the Joint Committee acknowledged that:
It is impossible to state a “usual date of harvest” for Coonawarra. Winemakers
interviewed agreed that soil type, winery needs, trellis systems, canopy
management and intended wine style as well as climate affect harvest time.125
On the subject of frost it was argued that the slightly elevated platform was less
susceptible than vineyards to the east and especially to the west. While there may
have been some truth in this claim, frost was not uncommon on the platform. Many
of the vineyards beyond the Final Determination, like Riddoch Estate, Koppamurra,
St Mary’s, the Provis, Castine and Skeer vineyards, were on gentle rises and
elevated outcrops which appear to have been less susceptible to frost than the
platform and the surrounding plains.
During the months leading to the AAT Smart undertook phenological studies which
involved monitoring the growth of vines and comparing bud burst, flowering and
veraison (softening of berries as they begin to ripen) inside and outside of the Final
Determination. According to Smart, these studies demonstrated a remarkable
consistency, or homogeneity, in climate and viticultural outcomes beyond the GIC
boundary and throughout the district.
123
124
125
Ibid 30.
Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 508–9.
Joint Committee, Australian Geographic Indication: Application, above n 39, 21.
(2006) 27 Adelaide Law Review
Table 2 Climate comparisons. Thanks to Chris Dearden, Daedalus (SA) Pty Ltd.
119
120
EDMOND – COONAWARRA WINE REGION
‘Viticultural Coonawarra’, introduced in the first extract in this sub-section,
represented Smart’s solution to the Coonawarra boundary dispute. Uniformity in
climate led Smart to propose a wine region whose homogeneity was based
primarily on temperature. Smart’s definition of ‘viticultural Coonawarra’ provides a
good example of the strategic imbrication of evidence, expertise and law:
This phrase [viticultural Coonawarra] is used to refer to the land that in my
opinion, based on Regulations 24 and 25 (and in particular subparagraphs (a)
and (i)) made under the Australian Wine and Brandy Corporation Act 1980, is
Coonawarra solely from a viticultural perspective. In my opinion, it is the area
of land that extends approximately 37 kms in any direction from the central
location of Coonawarra based on a MJT [mean January temperature] gradient
of 0.16C per 10km allowing for an elevation difference of 200 metre greater
than the central elevation using a lapse rate of 0.6 C per 100m.126
This 37 km radius circle would eventually become known as ‘Smart’s
Coonawarra’.127 It was based on the relatively minor variation of plus or minus
0.6ºC in the Mean January Temperature (MJT) — a common index of temperature
amongst viticulturists — in all directions from the Coonawarra Post Office. This
would produce a region, based on the gradient of 0.16ºC per 10 km, with a
maximum temperature difference of approximately 1.2ºC MJT. Smart had
expended considerable effort analysing local climate data for the district to produce
his ‘Coonawarra’. This approach, based on significant homogeneity in temperature,
produced a more principled and much larger wine region than the GIC and those
relying primarily on soils and proximity to soils.
The very small climatic variations encountered across quite a large area meant that
climate was not widely perceived as a particularly useful discriminator. But this
raises important questions. Should uniformity of climate and ‘homogeneity in grape
growing attributes’ (Regulation 25) be used as the basis for establishing a large
Coonawarra wine region? Or, should the considerable homogeneity encountered
across the entire Coonawarra district be used to denigrate the significance of
climate in the determination of a regional boundary? Most of the decision makers,
and we might also include many of the parties, found it difficult to accept the
viticultural consensus around climate. The boundaries afforded by soils — really
126
127
Smart, AAT Witness Statement, above n 109, 4. See David Mercer, ‘Hyper-experts and the
vertical integration of expertise in EMF/RF litigation’ in Gary Edmond (ed), Expertise in
regulation and law (2004) 85.
If your turn to Figure 11 and consider that each of the hundred squares is about 10 miles by ten
miles then the magnitude of a circle with a radius of 37 km (or 23 miles) is brought into
sharper relief. This would be a distance of 37 km radiating in every direction from Coonawarra
township.
(2006) 27 Adelaide Law Review
121
soil landscapes and antiquated classifications like ‘terra rossa’ — seemed not only
more tangible, but more consistent with their experiences and expectations.128
E. Water
Much of the South East was amply supplied with ground water. In some parts the
available water had not been completely allocated. The Joint Committee and GIC
relied on the existence of separate Prescribed Wells Areas — the local water
management schemes — to support their boundaries even though these were not
consistent with the hundreds. While the Hundred of Comaum and the ComaumCaroline Proclaimed Wells Area shared a northern boundary, the boundary with the
Lacepede-Kongorong Proclaimed Wells Area to the west was not coincident with
the Comaum-Killanoola Hundred boundary. Several properties, including Pat and
Des Castine’s vineyard, were in both the Hundred of Killanoola and the ComaumCaroline Proclaimed Wells Area. All of the Proclaimed Wells Areas were in
centrally co-ordinated government schemes. Those adjacent to the border were
jointly administered by South Australia and Victoria as part of their wider water
management programs. As the hydrologist Donald Armstrong explained, and Dr
Peter Woods acknowledged, the boundaries of the Prescribed Wells Areas did not
‘correspond to a natural resource boundary’.129
All of the growers throughout the district were drawing groundwater from the same
aquifer. Every party seeking inclusion in the Coonawarra wine region had licensed
access to groundwater with salt concentrations well within the range required to
grow quality grapes.
F. Marketing
The major issue for the wine marketing experts concerned the implications of a
large as opposed to a small wine region. For the Applicants, Associate Professor
Larry Lockshin maintained that a larger region could lift the profile of Coonawarra
wines and enable them to produce the volume required to sustain a credible
presence on the international market. As it stood, with only 1.8 per cent of the
Australian wine grape production, the proposed Coonawarra wine region would
experience difficulty meeting demand as its profile improved. Dr Lockshin also
drew on evidence from wine regions, such as Bordeaux in France, the Napa Valley
and Sonoma in California, and the Barossa in Australia, where the quantity of
grapes and wine produced did not have a strict correlation with the price of grapes
and wines. These regions produced large amounts of grapes but their relatively high
128
129
Contrast Theodore Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public
Life (1995).
Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 502–3.
122
EDMOND – COONAWARRA WINE REGION
‘price is related to wine quality, not to production amount.’130 Coonawarra,
Lockshin noted, produced more than two times as much Cabernet Sauvignon as the
Barossa and yet its Cabernet grapes commanded a higher price.
In contrast, Associate Professor Pascale Quester emphasised the marketing value of
commodities with restricted supply. For Dr Quester small quantities of an object
could add to its allure and value as well as make it easier to regulate quality.131
Neither of the marketing experts was familiar with any empirical research on the
marketing effects of wine region size.132
G. Comparisons with other wine regions
As part of their attempt to assess the meaning of the Regulations and present a
favourable case for the Applicants, lawyers (like Stephen Stern and Peter Westley),
Foale and Smith (the geographers) and Smart (a viticulturist) thought it instructive
to compare the Coonawarra GI with other determinations which had already been
finalised.133 As the Coonawarra process stalled those involved could look to other
wine regions to ascertain their size and the degree of discreteness and homogeneity
in grape growing attributes actually required under the Regulations.
If we examine the cross-section of the McLaren Vale wine region and the variety of
soil landscapes included within its boundaries we can observe ‘dramatic internal
variations’ (see Figures 19 and 21a).134 Also compare the topography of the
McLaren Vale GI (its altitude amplified eight times) with the cross-section of the
Coonawarra district and proposed wine region (amplified twenty-five times) (see
Figures 20a and 21b). Rainfall in the McLaren Vale wine region varies from 400
mm to 800 mm across the region, and altitude ranges from sea level to 408 metres.
Temperatures are dramatically affected by altitude and proximity to the coast. By
comparison relief amplitude in the Coonawarra district is only 60 metres over 30
kilometres and rainfall varies by only 150 mm.
130
131
132
133
134
Larry Lockshin, AAT Witness statement, 15 December 2006, 6.
Pascale Quester, AAT Replying Statement, 2 February 2001, 6–9; Transcript of Proceedings,
CPWIA v GIC (AAT, 12 March 2001) 1194–1239.
Research was subsequently undertaken by Lockshin. See Bith-Hong Ling and Larry Lockshin,
‘Components of Wine Prices for Australian Wine: How Winery Reputation, Wine Quality,
Region, Vintage, and Winery Size Contribute to the Price of Varietal Wines’ (2003) 11(3)
Australasian Marketing Journal 19.
Those on the inside were less likely to develop arguments based on comparisons with other
Australian wine regions.
Foale and Smith, AAT Witness Statement, above n 91, 20.
(2006) 27 Adelaide Law Review
123
Figure 21 a. Sample of McLaren Vale soil associations.
b. Foale and Smith, Cross-section of McLaren Vale (vertical amplification 8 times)
124
EDMOND – COONAWARRA WINE REGION
References to the Barossa and Padthaway wine regions also suggested
inconsistencies in the GIC’s approach to determinations. The relief amplitude in the
Barossa approached 500 metres, the soil varieties are diverse and rainfall across the
region fluctuates up to 255 mm. The Naracoorte Ranges were excised from the
Coonawarra wine region at their base — the 60 metre contour line. In the Barossa
the slopes of hills were included within the region. The boundaries of the
Padthaway wine region generally ignore the cadastre. Its regional borders follow
grid references ‘with no relation to physical or environmental factors. Over much of
its length the Padthaway boundary appears to be arbitrary and pay no heed to soil,
landscape, drainage or other factors.’135 The linear boundaries around the
Padthaway wine region cut indiscriminately through properties, reflecting the
influence of large corporate producers.
Comparison with other prominent Australian wine regions brings the modest size of
the GIC’s Final Determination for Coonawarra into sharper relief. The following
areas are in square kilometres: Adelaide Hills (1440); Barossa Valley (580); Clare
Valley (670); Coonawarra (158); Great Southern (16 720); Hunter Valley (19 550);
Margaret River (2110); McLaren Vale (430); Mornington Peninsula (710) and the
Yarra Valley (2860).
In comparison to other Australian wine regions the Final Determination for the
Coonawarra GI exhibits a very high degree of homogeneity. Of course, these other
wine regions were frequently based on unchallenged and generally inclusive
applications by their local wine industry associations rather than strict adherence to
the Regulations.
The comparative exercise led Foale and Smith to the following conclusion:
The Coonawarra region, even if defined to include all of the Applicants,
would still be much smaller in size than [many of] these other regions and
would exhibit a degree of uniformity in its soils, topography, altitude,
drainage and climate not matched by them.136
H. Supplementary issues
In this sub-section, it is my intention to succinctly introduce a few supplementary
arguments and circumstances relied upon by the Applicants (and those who made
submissions to the GIC). Some of these provide persuasive support, though not all
are easily reconciled with the criteria for determining wine regions enumerated in
the Regulations.
135
136
Ibid. Foale noted that grid references are not surveyed and only accurate to about 100 m, which
makes them poorly suited to precise or legally defensible boundaries.
Ibid 23.
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125
Wines marketed as Coonawarra wine (‘prior use’). John Pendrigh was adamant, on
the basis of consultations with the wine industry leading to the Treaty negotiations,
that there was never an intention to exclude grape growers and winemakers who
had legally used a particular GI.137 This was referred to as the protection of ‘prior
use’.138 Several excluded wine producers, such as Riddoch Estate, Koppamurra,
Petaluma (Sharefarmers) and St Mary’s, had marketed or exported at least some of
their wines using the ascription ‘Coonawarra’. Some of these usages could be dated
back to the 1970s.
Grapes included in Coonawarra wines. There was an apparent willingness, before
the GI was finalised, for established wine producers to enter contracts to purchase
grapes grown outside the two hundreds for use in their ‘Coonawarra’ wines. By
way of example, Southcorp had an agreement with Heathfield Ridge and Akeringa
Plains, Normans purchased grapes grown by the Castines and Gary Skeer for their
‘Coonawarra Cabernet Sauvignon’, St Mary’s had sold grapes to Mildara, Tyrrells
and Elderton, Naradina sold grapes to Orlando, the Berkins sold grapes to Hardys,
Douglas and Kitchen sold grapes to Mildara Blass, Michael Palm had a grape
supply contract with Katnook and Steven Skeer sold his grapes to Kopparossa.
Riddoch Estate and Koppamurra had sold their grapes for use in Coonawarra wines
for decades. Riddoch Estate, for example, had sold fruit to Leconfield, Wynns,
Laira, Mildara and Bowen Estate.139
Grape growers contracted and paid average Coonawarra prices. Prior to the Final
Determination, many of the Applicants who were already engaged in viticulture,
such as the Kidmans, Riddoch Estate, Koppamurra, St Mary’s, the Castines, the
Skeers, the Coppings and the Provis family, had signed contracts which specified
that they would receive ‘average Coonawarra prices’ for their grapes. Several
received bonuses for very high quality grapes. This fruit was used in super premium
wines. The Kidman’s grapes had been included in Penfolds’ St Henri Shiraz and
Brendan Provis’ fruit was used in Jamiesons Run Reserve produced by Mildara
Blass.140 Notwithstanding the written agreements, the controversy over the regional
boundary put a cloud of uncertainty over many fruit supply contracts, some of
which extended for up to a decade and had provided the security for vineyard
development. This uncertainty was accentuated by the LIP which required a
137
138
139
140
Pendrigh, AAT Witness Statement, above n 13, [51–8]. After corresponding with
representatives from the Department of Primary Industries and Energy and the Office of
Legislative Drafting Attorney-General’s Department, Pendrigh was ‘satisfied that the
legislation and Regulations would give adequate protection to prior use.’ This was primarily
based on his understanding of reg 25(i)(ix).
Letter from John Pendrigh to John Keniry, Chairman AWBC, 6 May 1997.
The 1986 Riddoch Estate Coonawarra Cabernet Shiraz won the 1987 Jimmy Watson Memorial
Trophy.
Fax from Toni Stockhausen, Mildara Blass, to Brendan Provis, Coonawarra Vineyard Office,
19 February 1999, 1–2; Tim Kidman, AAT Witness Statement, 15 December 2000, [5.5].
126
EDMOND – COONAWARRA WINE REGION
minimum of 850ml/L of grapes from the specified wine region.141 This meant that
wine producers using the Coonawarra GI on their labels could only use up to 15 per
cent of fruit from beyond its boundaries (once determined by the GIC). Copping,
like numerous others, wondered whether wine producers would honour or renew
contracts for fruit which they could no longer use in a Coonawarra label.142
Several Applicants owned vineyards inside and just beyond the Final
Determination. Owning vineyards within the Final Determination provided
Applicants like the Kidmans, Rymill, Petaluma and Mildara Blass, and by
association (eventually) all Applicants, with several strategic and evidentiary
advantages. First, individuals and companies with vineyards inside the two
hundreds had access to the two Associations and the Joint Committee. This meant
that they had a clearer picture about the GI process and the position of the local
industry. Some of the Applicants, such as Tim Kidman (not closely related to Sid)
and Brendan Provis had been members of the executive of the ‘Coonawarra’
Associations during the late 1990s.143 Peter Rymill had been a member of the Joint
Committee. Second, though excluded from the region these producers had access to
detailed data from vineyards inside its boundaries. Those with vineyards within the
region could compare the soils and climatic conditions on their vineyards outside of
the Final Determination.144 Rymill, Petaluma and Mildara Blass each produced
voluminous climate and topographical data, soil profiles, phenological comparisons
and frost records which suggested considerable isomorphism across the district.
Their evidence, which was invariably favourable to the case for inclusion, implied
that the Final Determination was not ‘discrete’. These Applicants also explained —
perhaps with the exception of Croser (of Petaluma) whose expressed abhorrence to
mechanical viticulture actually accentuated local tensions — that they employed the
same viticultural techniques on their vineyards inside and outside of the region.
Third, owning vineyards in two adjacent wine regions, such as Coonawarra and
Wrattonbully or Coonawarra and Penola, would impose logistical and marketing
burdens on producers, like Rymill, who would be forced to process separately and
distinguish their ‘Coonawarra’ and ‘Penola’ grapes and wines.
141
142
143
144
Australian Wine and Brandy Corporation Act 1980 (Cth) pt VIA.
Peter Copping, AAT Witness Statement, 18 December 2000, 6.
For example, Brendan Provis was President of the CGGA in 1999 and Tim Kidman was
Secretary.
Rymill owned the Riddoch Run vineyard and Petaluma owned the Evans Vineyard, both of
which were within the proposed boundary. See Rymill, AAT Witness Statement, above n 67,
17–18; Letter from Peter Rymill to Guy Darling, GIC, 26 April 2000, 5; Dr Richard Smart,
AAT Witness Statement, 19 December 2000, 3–9; Richard Smart, AAT Individual Statement
Regarding Robertson’s Well, 19 December 2000; M.A. Cann, Petaluma soil descriptions:
Sharefarmers and Evans Block (May 1997). See also the study for Dunkeld Pastoral Co Pty by
R. Gourlay et al (Environmental Research and Information Consortium Pty Ltd), A
Comparison of Riddoch Terra Rossa and the soils of the Coonawarra-Penola Area (July
1997).
(2006) 27 Adelaide Law Review
127
Applicants who worked inside the Final Determination. In addition to vineyard
owners, many of the Applicants had gained valuable experience working for grape
growers and wine producers included within the Final Determination. This meant
that excluded grape growers, like Greg Koch (a viticultural consultant who owned
vineyards in the Hundreds of Penola and Joanna), Copping (viticultural manager for
Rosemount) and Brendan Provis (viticultural manager for Mildara Blass), were
highly conversant with conditions within the Coonawarra wine region. Responding
to claims about the platform’s purported resistance to frost, Copping explained that
when the alarms sounded on the Rosemount vineyards (within the Final
Determination) he assumed the need to mitigate frost on his own vineyards to the
south of Penola.
The implications of (non-)expansion. Those defending the GIC’s Final
Determination argued that a larger wine region would encourage viticultural
development on inferior soils; like the black cracking clays in the Hundreds of
Killanoola and Monbulla. This, they feared, would inevitably lead to the production
of inferior wines and a diminution in the Coonawarra reputation.145
The Applicants stressed the importance of establishing a wine region capable of
future expansion. This was presented as consistent with the objects of the AWBC
Act and the export orientation of the Australian wine industry, more generally.146 In
a letter to the VCSESA written in August 1990 Croser expressed his concern: ‘The
more inward looking, restrictive and self-serving this regional definition becomes,
the more the region of Coonawarra and the Australian wine industry will miss out
on the rewards of the future.’ Croser suggested that the wine region should
incorporate the land ‘within a 30 or so km radius of Coonawarra’. For him, those
concerned with more ‘subtle variations’ ought to ‘consider a subregion system’.147
For the Applicants, one of the benefits of a larger Coonawarra region was that
developers could seek out the best sites in the district and plant them to vines, even
if they were substantially displaced from the platform. Many of the Applicants, like
St Marys, Riddoch Estate and Koppamurra, had established vineyards on remote
outcrops of red and brown soils. The Applicants argued that a very small GI would
constrain the scope of future expansion while encouraging viticultural development
on the least suitable soils inside the prestigious, though diminutive, Coonawarra
wine region.
145
146
147
Such sentiments had even been published, see Halliday, Wine Atlas, above n 77, 217.
In 2000 the Australian wine industry launched a 10 year marketing strategy, the 2010 Vision, to
increase annual sales to A$5 billion by 2010.
Letter from Brian Croser to the President, above n 33.
128
EDMOND – COONAWARRA WINE REGION
As we have seen, consultant viticulturist Di Davidson thought there was ‘very little
risk of any of the unsuitable soils being planted to vineyard.’148 While apprehension
about future plantings might have been exaggerated, we should not forget that
commentators writing even in the 1970s, like Benwell, had not envisaged extensive
viticultural development beyond the central platform. Moreover, the rapid
expansion in the wine industry from the late 1980s in combination with the capital
available through investment (and tax) schemes, historically high grape prices and a
decade of drought meant that the risk of such plantings was certainly higher than
ever before.149
Region and subregion. Several Applicants, like Croser, proposed a region and
subregion. Those beyond the two hundreds were generally eager to attract the
Coonawarra regional ascription in some guise. Typically they did not care whether
it was ‘Greater Coonawarra’, ‘Coonawarra District’ or something similar. They
were also open to those on the platform defining a subregion, using the ascription
‘Coonawarra’, ‘Coonawarra Classic’, or ‘Coonawarra Terra Rossa’. The
organization of the original Application through the Associations meant that many
members, particularly those who were not on the central platform or on distinctively
red soils, were reluctant to embrace the subregion concept. With the Associations
divided on the subject, the possibility of a region and a subregion was not afforded
serious consideration. Uncertainty over the actual boundaries of the soils, the lack
of soil maps, and the question of whether soils ought to provide the more
homogeneous character required for a subregion only complicated the situation. In
effect, many of those on the platform would have preferred a smaller boundary and
most of those beyond the two hundreds would have preferred inclusion in a
‘Coonawarra’ region, even if it was distinguished from a more prestigious
subregion.
Inspections and support from (corporate) insiders. One of the common experiences
among Applicants who established vineyards during the 1980s and 1990s was of
receiving assistance from some of the viticulturists working for the larger wine
producers. David Murdock (Southcorp) and Vic Patrick (Mildara Blass) frequently
offered their opinions about the prospects of vineyard developments on sites
throughout the district. They also arranged or negotiated grape purchase
agreements, subsequently advising on the varieties and occasionally organising the
supply of clones for planting. While their assistance was genuinely appreciated,
those from beyond the two hundreds alleged that during these, often protracted,
exchanges they were never informed about the existence of the 1984 resolution and
the fact that their vineyards would not be considered (at least by the CVA and
CGGA) to be part of ‘Coonawarra’. The failure to disclose this information was
148
149
Di Davidson, AAT Witness Statement, 20 December 2000, 4.
Those participating, from afar, through investment schemes or exploiting tax breaks were
pejoratively known as Collins St (Melbourne) and Pitt Street (Sydney) farmers.
(2006) 27 Adelaide Law Review
129
generally interpreted as bad faith, and perhaps even an indirect acknowledgment of
the social weakness of the 1984 resolution. Furthermore, the willingness of some
large wine producers to purchase grapes for use in their ‘Coonawarra’ wines while
involved in a process designed to exclude those very suppliers from the Coonawarra
wine region was widely perceived as duplicitous.
Natural (in)justice. Many of the Applicants, and those who only made submissions
like the Hinzes, the Eckermanns and Tania Shaw, complained that they had not
been able to participate in the process until submissions were accepted in response
to the first Interim Determination in 1997.150 Even then some thought that their
treatment by the GIC was unsympathetic. Several Applicants, including Riddoch
Estate and St Mary’s, complained that the process was actually unfair.151 Others,
like Copping, were surprised that the GIC could remove a vineyard from the
Second Interim Determination at short notice, without having ever inspected it.152
Stephen Mann made a similar point. Referring to what he pejoratively described as
a ‘desk top decision’, Mann explained that no one had ever asked permission to
enter his property and inspect his land and yet the boundary for the Final
Determination bisected it.153
Applicants with children who were studying or acquiring wine related skills. In an
early letter to the AWBC the Hinzes explained that exclusion from the wine region
might jeopardise their plans to establish a vineyard when their son returned from his
viticultural study and employment in the Barossa.154 Contractual uncertainty and
doubts about the viability of their vineyard led the Coppings to wonder whether
their son could stay on their land and continue to perform viticultural labour.155
V.
MAPPING THE REGION: YOU DECIDE
At this stage I would encourage the reader to take a few minutes to develop their
own GI for the Coonawarra wine region. On the basis of Regulations 24 and 25 and
the summary of the evidence presented thus far, how do you think the Coonawarra
wine region should have been mapped? Not only will this compel the reader to
engage with the legislation and this incarnation of the evidence, but it will provide a
useful comparator for evaluating the performance of the AAT and the shape of the
region after the appeal to the Federal Court.
150
151
152
153
154
155
Letter from J.E. & M.R. Hinze to The Chairperson, AWBC, 27 July 1994.
St Mary’s, Submission in relation to Interim Determination, above n 108; Dunkel Pastoral Pty
Ltd (Riddoch Estate), Submission Re Proposed Boundaries of the Coonawarra Region, 28 July
1997.
Letter from Peter Copping to Guy Darling, GIC, 20 April 2000.
Transcript of Proceedings, CPWIA v GIC (AAT, 22 March 2001) 1974.
Letter from Hinze to The Chairperson, above n 150.
Letter from Peter Copping to Guy Darling, above n 152.
130
EDMOND – COONAWARRA WINE REGION
VI.
APPEALS TO THE AAT AND THE FEDERAL COURT
Dissatisfied with the Final Determination, forty six Applicants appealed to the
Administrative Appeals Tribunal (AAT) for a review of the GIC’s decision. The
AAT is a federal institution established ‘to provide independent merits review of
administrative decisions’ that are ‘fair, just, economical and quick’.156 Unlike a
court, the Tribunal is not bound by the normal rules of evidence and procedure and
is supposed to be more informal, more flexible and far less expensive. The Tribunal
which heard the appeal over the Coonawarra wine region was composed of the
President of the AAT, Justice Deirdre O’Connor, and two lay members, Associate
Professor Bruce Davis and Graham Stanford.
Initially, the GIC intended to defend its Final Determination before the AAT.
Recent case law, however, went against it. After an interlocutory appeal to the
Federal Court the GIC was prevented from defending its determination and adopted
a supporting role throughout the hearing.157 With the GIC marginalised the burden
of defending the region fell upon Southcorp and the Gang of 25. Southcorp was the
largest landowner on the platform.158 The ‘Gang’ was composed of members of the
‘Coonawarra’ Associations who were committed to a small wine region which
incorporated their vineyards.
Most of the Applicants and Respondents combined their resources for the
proceedings. The Applicants embraced the model of the Coonawarra wine region
specifically developed by the geographers Foale and Smith (see Figure 11). Several
other parties, including Mark Hamilton — on behalf of Hamilton Ewell, a wine
producer with a vineyard located closer to Naracoorte than Penola — joined the
proceedings in the hope of persuading the AAT to develop a Coonawarra wine
region far more expansive than the one envisaged by the bulk of the Applicants.
156
157
158
AAT, About the AAT <http://www.aat.gov.au/AboutTheAAT/IntroductionToTheAAT.htm>.
At the time the AAT heard the case there was a proposal, from the conservative coalition
Government, to abolish the Tribunal.
Penola High School v Geographical Indications Committee [2000] AATA 922; Geographical
Indications Committee v Justice O’Connor [2000] FCA 1877. The judges hearing the
interlocutory appeal relied on the following case law: R v Australian Broadcasting Tribunal;
ex parte Hardiman (1980) 144 CLR 13; New Broadcasting Ltd v Australian Broadcasting
Tribunal (1987) 73 ALR 420; BTR plc v Westinghouse Brake and Signal Co (Australia) Ltd
(1992) 34 FCR 246.
Letter from Andrew Pike, Vineyard Operations Manager Penfolds to ‘To whom it may
concern’, 20 May 1993 endorsed by Peter Yunghanns (Coonawarra Machinery) the second
largest owner and operator of vineyards in the Coonawarra area: Letter from Peter Yunghanns
to General Manager, AWBC, 3 June 1993. In 1993, according to the CGGA records, Penfolds
(later Southcorp) owned 40.6 per cent, Coonawarra Machinery Co owned 13.1 per cent and
Mildara Blass owned 11.2 per cent of the Associations’ total plantings.
(2006) 27 Adelaide Law Review
131
The hearing before the AAT went for about five weeks. It was dominated by expert
evidence, a surprising amount of technical legal argument, and included a bus trip
to the Coonawarra district to inspect the various properties and vineyards.159
A. The AAT decision: Coonawarra Penola Wine Industry Association Inc v
Geographical Indications Committee [2001]
On the basis of historical evidence and the 1984 resolution the AAT extended the
Coonawarra boundary to accommodate twenty six of the Applicants. With the
exception of Petaluma’s Sharefarmers vineyard, all of the properties added to the
region were located within the Hundreds of Comaum and Penola.
The AAT recounted much of the expert and scientific evidence outlined in the
previous sections. The written judgment summarised the findings on the expert
evidence as follows:
Conclusions on scientific evidence
80. Our conclusions drawn from the scientific evidence presented to us are as
follows:
(a) there appears to be a consensus that climate is the primary factor
governing grape production, and climate is generally uniform across a
wide tract of this region, at least between the Cave Range in the west to
Naracoorte Range to the east and from near Naracoorte in the north to
Nangwarry in the south. Therefore climate does not provide a very useful
basis for boundary determination under Regulation 25 unless one adopts
the approach of the Fifth Respondents and disregards other criteria, in
particular historical criteria.160
(b) while there is general agreement that soil types and characteristics are an
important consideration in this area, it was agreed that mapping is not
precise and although dominant soil types can be identified for a given
locality, considerable variations occur in practice. Evidence about
localities was contested, with three points emerging:
(i) the cigar is probably the most substantial area of terra rossa in
Australia, but little evidence exists that it is absolutely unique or has
special properties other than perhaps higher clay content and good
drainage;
(ii) a number of areas exist outside the GIC determination which are
already proven or have prospects for premium grape production; and
159
160
Many technical legal points relating to admissibility were taken or reserved. The scale of the
litigation and the number of senior and very experienced solicitors and barristers made it
difficult to take advantage of the informality and economy purportedly afforded by the AAT.
‘Fifth Respondent’, it seems, should read ‘Second Joined Applicants’ – namely Hamilton
Ewell and others. The Fifth Respondents were the Gang of 25, who promoted the use of
historical criteria and the 1984 resolution.
132
EDMOND – COONAWARRA WINE REGION
(iii) there are substantial areas within the Applicants’ proposed boundary
where viticultural prospects are low, given the nature of the soil and
evidence of water-logging and poor drainage.
(c) viticultural management practice can be used to modify initial soil
characteristics, by ripping, drainage and/or irrigation. The establishment
of vineyards is capital intensive, thus market forces govern the
identification and development of areas of production within a climatic
zone. There are some areas within the Applicants’ proposed region which
are unlikely to be utilised, but the industry is still in an “expanding” phase
and new areas within that Coonawarra region, if adopted, may be opened
up subject to the availability of capital.
(d) although salinity exists in Coonawarra ground-water it is unlikely to be
the determining factor in establishing a region, as generally high quality
ground-water is available throughout most of the region. There are
however cost factors in licensing and extraction which affect the
establishment of vineyards.
81. None of the experts, despite voluminous scientific data from which to base
their opinion, concluded that their particular area of expertise could provide
the key to defining the Coonawarra region. For example Dr Smart could not
conclude that the climate outside the Main Applicant’s proposed region was
discrete from the climate within it. All experts rejected soil as a discriminator
for this region unless one reduced the regional boundary to the outskirts of the
cigar of terra rossa soil which no party agreed was feasible. We accept that
soil types within and without all the proposed boundaries had similarities.
82. We have, however, concluded on the basis of Mr Maschmedt’s evidence
that an extension of the cigar to an area south of the township of Penola could
be substantiated, and create homogeneity for those vineyards south of the
town of Penola.
83. We have also concluded, based on the opinion of the expert Geographers
that a number of boundaries were “feasible” in scientific terms and that this
process will depend on the weight given to other, non-scientific criteria. The
search was really for “geographical logic” and integrity of the area which
involved “judgement and compromise”.161
The Tribunal found ‘there was, not surprisingly, much common ground about the
basic geology, topography, natural features and climate of Coonawarra and adjacent
regions.’162 Even though the Tribunal accepted that ‘climate is a key, and some
argue the key to identifying a wine region’ and found that there was ‘no real dispute
as to the evidence on the climate of the area’ it reasoned that climate was
161
162
CPWIA v GIC, above n 48, [80–83] (emphasis added).
Ibid [48].
(2006) 27 Adelaide Law Review
133
insufficiently discriminatory to draw the required boundary.163 Notwithstanding the
regions proposed by Smart and Foale and Smith, the AAT expressed the need to
refer to non-scientific considerations in order to determine the boundaries for the
Coonawarra wine region. This meant that expert consensus around viticultural
characteristics — ‘grape growing attributes’ — was effectively trivialised.
Instead, the AAT decision placed emphasis on the criteria which related to ‘the
history and traditional divisions within the area’.
146. In establishing this particular region the criteria which relate to the
history and traditional divisions within the area have been more useful as a
means of determining the boundary of a reasonably homogenous tract of land.
Further geographical features, consistent with this historical and traditional
division have been used to establish a region reasonably discrete from its
surrounding areas.
While none of the historians ‘suggested a particular boundary’ — though Bell
testified that ‘Coonawarra’ had always been limited to the town and immediate
surrounds — the 1984 resolution was afforded ‘great significance’ by the AAT.
115. We agree with the submissions of the Respondents as to the historical
relevance of the 1984 resolution. As the first attempt of the Viticultural
Council [VCSESA] to define the boundary of the Coonawarra region, it has
had great significance, including an effect on boundaries within and outside
the Hundreds specified thereafter. This significance continues to the present
day.164
The traditional divisions were also presented as particularly significant:
143. We have had particular regard in relation to homogeneity to the “relevant
traditional divisions” within the area ie. the Hundred lines and to the extensive
history of grape and wine production in the area.
Reluctantly accepting that soil could not be ‘the primary determinant’, because ‘it
varied both within and outside the cigar’, the AAT nevertheless embraced the
platform and the terra rossa soil as the defining feature(s) of the Coonawarra wine
region.165 ‘Proximity’ to the platform was central to its assessment.
137. Whether one characterises it as a “marketing tool” or even challenges the
homogeneity of the cigar itself, it is historically and scientifically the signature
163
164
165
See also Ibid [63], [133], [148]. This claim is curious because wine regions, according to the
Regulations, are required to be ‘discrete’.
See also Ibid [134–136].
Ibid [64].
134
EDMOND – COONAWARRA WINE REGION
of the Coonawarra Wine Region. Proximity to this strip of arable soil would
be in our view, an important factor in the determination of the boundary.
Because of this, we do not consider, at this time, unless an overwhelming
countervailing reason was demonstrated that land outside the two Hundreds
and not proximate to the topography of the cigar could justify inclusion in a
Coonawarra Wine Region (emphasis added).
The AAT extended the GIC’s region primarily to the north, south and east.
Vineyards owned by Petaluma, Rymill, the Kidmans (Clytha and Kidman
Comaum) and the Coppings and more than twenty others were incorporated within
the expanded region. The following lists indicate the successful and unsuccessful
Applicants (see Figure 11).
Included (successful Applicants)
Baltersan Investments Pty Ltd (Stephen Mann)
(Hundred of Comaum)
J Davidson (Penola)
BW Davis (Comaum)
PG Douglas and JM Kitchen (Comaum)
Garrison Park Nominees Pty Ltd (IW and J
Hetherington) (Penola)
Greg Gartner Pty Ltd (Comaum)
MJ and AW Gartner (Comaum)
GH and SC Giles (Comaum)
Glenbrook Estate Pty Ltd and Peter Copping
(Penola)
Kidman Comaum Clytha (Comaum)
JD Kidman (Penola)
GC Koch (Penola)
DB Marks (Penola)
H and VJ McLean and Son (Penola)
KJ and DM Merrett (Penola)
Old Penola Pastoral Co Ltd (Peter Rymill – Three
Mile vineyard) (Penola)
Olen Pty Ltd (Penola)
Penola High School (Penola)166
Petaluma Limited (Brian Croser – Sharefarmer’s
vineyard) (Joanna)
BJ and BJ Provis (Comaum)
T Rymill (Penola)
Schoolhouse Projects Pty Ltd (Comaum)
Venado Pty Ltd (Penola)
166
Excluded (unsuccessful Applicants)
AW Lillecrapp Nominees Pty Ltd and CK
Lillecrapp (Hundred of Joanna)
GW, DJ and KD Berkin (Comaum)
DM and PJ Castine (Killanoola)*
Castine Kanawinka Family Trust (Lee Castine)
(Monbulla)
A Childs (Grey)
Dunkeld Pastoral Co Pty Ltd (Riddoch Estate)
(Joanna)
MJ and AW Gartner (Joanna)
JD and PG Kidman (Monbulla)*
GC Koch (Joanna)
Koppamurra Wines Pty Ltd (Joanna)
RD MacLeod (Joanna)*
Mildara Blass (Robertson’s Well vineyard)
(Joanna)*
BF Mulligan and Topway Developments (St
Mary’s) (Killanoola)
Naradina Pty Ltd (A MacLeod)*
MJ and RE Palm (Joanna)
GN Skeer (Monbulla)
SJ Skeer (Monbulla)
KGM and GJ Skene (Grey)
Skyron Pty Ltd (Killanoola)
B Tidswell (Heathfield Ridge Pty Ltd)
(Spence)
MB Tyrrell (Killanoola)
Penola High School has its own vineyard and viticultural education program.
(2006) 27 Adelaide Law Review
Included (successful Applicants)
EF and DM Williams (Penola)
RE and MJ Wittwer (Penola)
135
Excluded (unsuccessful Applicants)
All of the first joined Applicants: Hamilton Ewell
York Consultants and a few others.
*appealed to Federal Court
Among the most curious aspects of the AAT decision, given the existence of the
Regulations and the large number of Applicants who remained excluded from the
wine region, was the following acknowledgment:
124. A great deal of the evidence presented by Applicants, particularly those
not proximate to the cigar or even the two Hundreds of Comaum and Penola is
based on similarity of soil types, climate and grape produce. We accept that
the vineyards of the Applicants within the boundary proposed by the
Applicants grow fruit suitable for use in “Coonawarra – style” wine. This was
not challenged. The expert viticulturists explained this in great detail. The key
to this outcome is a combination of climate and viticultural practices
associated with the climate of the area.
This concession was combined with the explicit recognition that while the Hundred
lines might have ‘a great deal of historical integrity’ they ‘have less geographical or
scientific integrity.’167 They were, as the Tribunal conceded, ‘not it seems, chosen
to emphasise homogeneity or discreteness or with consideration of the natural
features of the area but for reasons of utility.’168
The AAT’s textual description of the Coonawarra wine region proved difficult (for
the GIC) to map. For that reason, along with an impending appeal to the Federal
Court, there are few detailed maps of the AAT decision. These cartographic
difficulties were not resolved until the settlement negotiated in the wake of the
Federal Court appeal.
B. The Federal Court decision: Beringer Blass Wine Estates Limited v
Geographical Indications Committee (2002)
Five of the unsuccessful Applicants appealed from the GIC to the full Federal
Court. Three federal judges heard the appeal because the President of the AAT,
Justice O’Connor, was a judge of the Federal Court.169 The decision to appeal from
the AAT represented a serious degree of escalation and risk. Whereas at the AAT
parties pay their own costs, in the Federal Court costs usually ‘follow the event’.
167
168
169
CPWIA v GIC, above n 48, [128]; see also Jonathan Potter, Representing Reality: Discourse,
rhetoric and social construction (1996) 122–149.
CPWIA v GIC, above n 48, [128].
von Doussa, O’Loughlin and Mansfield JJ.
136
EDMOND – COONAWARRA WINE REGION
This means that the loser pays a significant proportion of the successful party’s
expenditure on legal fees. An unsuccessful appellant would have to pay their own
costs as well as contribute to the costs generated by their corporate opponents.170 At
this stage the ‘Gang of 25’ withdrew. They were reluctant to commit more time and
resources to the dispute or expose themselves to further financial risk. Their
decision was facilitated by the small number of appellants, all situated on the
fringes of the AAT’s relatively modest expansion of the Coonawarra wine region.
The Applicants who had been unsuccessful at the AAT were generally disappointed
and dissatisfied with both the outcome and their options. The costs and risks
associated with an appeal, combined with a lack of confidence in the legal
institutions, reinforced by their recent disappointment at the AAT, led most of them
to reluctantly vacate the legal process.171
In the appeal to the Federal Court Beringer Blass (previously Mildara Blass, an
appellant) and Southcorp (the defendant) were the protagonists.172 Beringer Blass, a
major landholder on the platform, was seeking to have its recently developed
Robertson’s Well vineyard included in the Coonawarra wine region. There were
four other smaller appellants, Pat and Des Castine, James and Phillip Kidman,
Robert MacLeod, and Naradina Pty Ltd (Andrew MacLeod). The decision to appeal
and defend the appeal should be understood as primarily commercial. The parties
were making calculated assessments about the value of their land and viticultural
prospects if they were included/excluded from the Coonawarra GI.173
In a joint decision the Federal Court was highly critical of the AAT decision. All
three judges agreed that the Regulations had been interpreted and applied
incorrectly. The relevant criteria for determining the boundary of a wine region,
namely the degree of discreteness and homogeneity in grape growing attributes, had
not been afforded proper consideration. Instead the AAT and the GIC had
privileged historical evidence, particularly the 1984 resolution and the two
hundreds, which had little to do with ‘grape growing attributes’. The Federal Court
found that all five appellants had been improperly excluded from the Coonawarra
wine region.
The Federal Court ruled that the GIC and AAT had misconstrued the AWBC Act
and Regulations. According to its reasoning, the GIC had two obligations under
170
171
172
173
By way of example, Beringer Blass engaged the firm of Corrs Chambers Westgarth
(Melbourne), led by Stephen Stern, and retained N.J. Young QC with P. Jopling QC as
counsel.
On the basis of my interviews, the decision to abandon the litigation was never conceived as
some kind of admission or recognition of the propriety or fairness of exclusion.
In mid 2000 Mildara Blass acquired the Napa Valley-based Beringer wines. During the course
of the AAT hearing the Corporation’s name changed from Mildara Blass to Beringer Blass.
Lynn LoPucki, Legal culture, legal strategy and the law in lawyers’ heads’ (1996) 90
Northwestern University Law Review 1498.
(2006) 27 Adelaide Law Review
137
s 40T. First, ‘to identify the boundary of the area or areas to which the
determination relates’. Second, ‘to determine the word or expression (i.e. the name)
to be used to indicate that area or those areas.’ In the case of ‘Coonawarra’,
however, the operation of the GIC and AAT was qualified by the EC-Australia
Wine Agreement which ‘specified that a geographical indication protected by it
would be the “Coonawarra” region in the South East Zone of South Australia.’ The
role of the GIC and AAT was, therefore, ‘to determine the boundaries of a region
already designated as the Coonawarra’ and the purpose of determining the
boundaries is to advance the objects of the AWBC Act. The Regulations were,
according to the Court, subservient to the AWBC Act and must be ‘interpreted and
administered accordingly’.174
The Court found that the GIC and AAT had conflated the criteria set out in the
Regulations. They had mixed those criteria intended to assist with identification of
the name of a wine region — which were not relevant in this case — with those
intended to assist with the determination of the boundaries of the wine region —
which were. The Court explained that it is important to consider how the criteria in
Regulation 25 are relevant to the task of determining boundaries or determining the
word or expression used to indicate an area.
66. 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 regs 24 and
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
174
Beringer Blass Wine Estates Limited v Geographical Indications Committee (2002) 125 FCR
155 [57] (‘Beringer Blass Wine Estates Limited v GIC’).
138
EDMOND – COONAWARRA WINE REGION
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.
This passage reinforces an important distinction. Not all of the criteria listed in
reg 25 are relevant to the determination of the boundary of a wine region.
Moreover, the Federal Court had imported into reg 25(i) the terms of reg 24.
Accordingly, reg 25(i) should be read as though the phrase ‘in its grape growing
attributes’ was incorporated. This meant that the criteria enumerated in reg 25(i) are
particularly important for determining the boundaries of a wine region. In contrast,
in the case of ‘Coonawarra’, where the name was already specified in the Treaty,
reg 25(h) would be of limited value. Some criteria, such as those in reg 25 (b), (c),
(f) and (g), might have relevance to both the determination of a boundary and the
name of a region. The Court thought that reg 25(b), namely the history of the
founding and development of an area, was most likely to be relevant ‘in
determining the word or expression to be used to indicate the region otherwise
determined.’ However, it recognised that in some circumstances this information
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’. 175
Furthermore, the Court indicated that ‘any relevant traditional divisions’ (reg
25(i)(viii) and the ‘history of grape and wine production in the area’ (reg 25(i)(ix))
will be relevant to show ‘where grapes have traditionally been grown, to identify
the extent of an 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.’176
A misinterpretation of the Regulations contributed to the prominence attached to the
1984 resolution by the GIC and AAT.
68. 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.
175
176
Ibid [67].
Ibid [66].
(2006) 27 Adelaide Law Review
With renewed emphasis on ‘grape growing attributes’ the judges explained:
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.
The Federal Court was also unimpressed with recourse to ‘proximity’.
72. … 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 [to the north]. On the contrary, the AAT held…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
139
140
EDMOND – COONAWARRA WINE REGION
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.
The Federal Court found that the AAT ‘fell into error of law in its construction of
regs 24 and 25’.177 Interestingly, the full bench of the Federal Court implied that
other Applicants proffering evidence of an historical association with Coonawarra,
presumably those like Riddoch Estate, Koppamurra and St Mary’s, might also have
held ‘overwhelming countervailing reasons’ for inclusion. The Federal Court
decision implies that the Coonawarra wine region should be larger than it is and
based on a consistent or principled application of the relevant criteria. Moreover,
given the viticultural significance of climate the Coonawarra wine region might
well have resembled the Applicants’ proposed boundary or the 30 km and 37 km
circles proposed, respectively, by Croser and Smart. This would also seem to be the
implication of para. 80(a) from the AAT decision (see Section 6.A) once the
historical evidence was depreciated.
Unfortunately, because Justice O’Connor and another member had retired from the
AAT, the case could not be returned to the original Tribunal for redetermination in
line with the authoritative interpretation of the Regulations by the Federal Court.
Instead, returning the case to the AAT would require a fresh (or de novo) hearing.
Because the parties involved in the appeal were keen to avoid this added expense,
delay and perhaps the possibility of considerable expansion, a negotiated
settlement, which involved only a tiny extension to the Coonawarra wine region,
was effectively imposed on the AAT, the parties and the district by the Federal
Court.178
Early in his tenure, the new President of the AAT, Justice Gary Downes, was
presented with a fait accompli for ratification. The Federal Court ordered that:
The case be remitted to the Administrative Appeals Tribunal without the
hearing of any further evidence for the purpose of the Administrative Appeals
Tribunal making an order that directs the Geographical Indications Committee
to prepare and enter into the Register of Protected Names a textual description
177
178
Ibid [74].
Perhaps unremarkably, once the five appellants were included there were few incentives (for
them, at least) to continue the argument for a large wine region. Indeed, once included,
extending the region actually went against their new private interests — if not their prior use of
the law or the argument about the need for a fair and principled outcome. The question of the
corporate interest in a larger or smaller wine region, like the objects of the AWBC, shrunk into
the background.
(2006) 27 Adelaide Law Review
141
of the Coonawarra region which defines the boundaries of the Coonawarra
region:
a.
b.
so as to include the land the subject of the application to this Court within
the Coonawarra region in accordance with the boundary map and
description that forms Annexure A; and
otherwise accords with the boundaries indicated in the reasons for
decision of the Administrative Appeals Tribunal.179
Notwithstanding extensive criticism of the approaches adopted by the GIC and
AAT and the resulting shape of the wine region, only the parties who had appealed
to the Federal Court (a, above) were added to the Coonawarra wine region
determined by the AAT (b, above). Other parties, with similar or even stronger
claims than the few who had successfully appealed, remained (perhaps
permanently) excluded.180
The determination of the Coonawarra wine region (or GI) was now complete
(Figure 22). The final boundary betrays the persistence of arbitrary and irrelevant
criteria, like the hundred lines and property boundaries, in the determinations
produced by the GIC, the AAT and, indirectly, the Federal Court. Because the
Federal Court was formally restricted to considering matters of law it was not
empowered to redress the final configuration.181 Ironically, the very process
intended to clarify the meaning of the AWBC Act and Regulations in order to
produce a more principled outcome contributed to the capricious shape of the
region. The final map, incongruous with the implications of the Federal Court
judgment and its focus on ‘grape growing attributes’, illustrates the meagre
expansion of the region as five extra vineyards and a tiny area of intervening land
were added to the GI as a result of the Federal Court appeal.
179
180
181
Beringer Blass Wine Estates Limited v GIC, Court Order, 4 November 2002.
Regionalisation seems to be enduring. The Australian Wine and Brandy Corporation Act 1980 (Cth)
div 4A states that registered GIs can be ‘omitted’ from the Register if they are ‘not in use’ or
‘no longer required’.
Section 44, Administrative Appeals Tribunal Act 1975 (Cth). See also Beringer Blass Wine
Estates Limited v GIC (2002) 125 FCR 155 [104–114].
142
EDMOND – COONAWARRA WINE REGION
Figure 22 The Final version of the Coonawarra wine region after the appeal to the Federal
Court. The AAT’s determination is substantially similar. The AAT’s Coonawarra
wine region featured no protrusions to the west and only extended into the Hundred
of Joanna in the north to accommodate Petaluma’s Sharefarmers vineyard (directly
below Naradina Pty Ltd). Thanks to Chris Dearden, Daedalus (SA) Pty Ltd.
(2006) 27 Adelaide Law Review
VII.
143
COMMENTARY: A LEGAL FAILURE?
The Coonawarra wine region is smaller and more homogenous than other
Australian wine regions. Though ‘homogeneous’, it is not ‘discrete’ from the
surrounding district or the properties and vineyards owned by the excluded parties.
The final boundary is not drawn according to any overarching principle, relevant
evidentiary basis or real world geography. Administrative lines drawn in Adelaide
in the nineteenth century, wire fences, contour lines, drains, property boundaries,
dirt roads, along with the fact that a particular party (or neighbour) appealed, rather
than viticultural characteristics such as climate, soil, water and topography,
influenced its final form. The final boundary is unprincipled, irrational and
consequently unfair. It is intelligible to the casual observer only when the process is
considered diachronically.
What was intended as a simple means of entering European markets became a
contentious decade long dispute on the ground in the South East of South
Australia.182 The following analysis endeavours to explain why things developed as
they did. It suggests, perhaps with the exception of the performance of the AAT,
that in the particular statutory, institutional and social milieu the sequence of events
was (to a considerable extent) inexorable. Locals strived to protect or promote their
interests with the resources available to them.183 We can understand, and possibly
sympathise with, established grape growers and wine producers wanting to restrict
the size of the region and in the process increase (or protect) the value of their
historic labours, land and hard-won reputation. In the same way, we can understand
why those excluded from the various determinations, whether they were in the two
hundreds or beyond, and whether they were an established producer or not, might
try to get inside the prestigious Coonawarra wine region. Inclusion would mean
higher land values, easier grape sales, contractual continuity and in good times
premium grape prices. The Coonawarra name would also help with marketing or
the creation of a wine label. We can also appreciate how viticultural expansion and
the spread of Applicants made the 1984 resolution a particularly valuable prelitigation resource from which it was difficult for the CVA and CGGA (and GIC) to
derogate. Those in the Associations were apprehensive lest a compromise to include
a property like Petaluma’s Sharefarmers vineyard, adjacent to the Hundred of
Comaum, might lead to the inclusion of St Marys, Heathfield Ridge, the black
182
183
Scott, above n 12.
Barry Barnes, Interests and the Growth of Knowledge (1977); Steven Yearley, ‘The
relationship between epistemological and sociological cognitive interests’ (1982) 13 Studies in
History and Philosophy of Science 353; Michel Callon and John Law, ‘Of interests and their
transformation: enrolment and counter-enrolment’ (1982) 12 Social Studies of Science 615.
144
EDMOND – COONAWARRA WINE REGION
plains in between, and even the vineyards of Hamilton Ewell on the outskirts of
Naracoorte to the north.184
During the regionalisation process there was no formal need, and certainly few
incentives, for members of the original ‘Coonawarra’ Associations to surrender the
very substantial advantages conferred by statute and the practices of the GIC. Their
decision to form the CGGA in 1993 and use the CVA and CGGA, rather than the
VCSESA, to informally restrict the region on the basis of membership
qualifications linked to the 1984 resolution proved to be a fairly successful tactical
manoeuvre. Commitment to a Coonawarra wine region centred on the platform and
limited to the two hundreds dominated every version of the boundaries produced by
the GIC and AAT. This was a pre-commitment or framing choice which structured
all of the substantial boundary drawing. So powerful was this prejudice that not
even the text of the Regulations could overcome it.185 Indeed, its persistence may
have even contributed to the decision by the majority of the unsuccessful
Applicants not to pursue their entitlements (or ‘rights’) in a potentially risky appeal
to the Federal Court.186
One of the problems, which has endured beyond the appeal to the Federal Court, is
the inability of parties and decision makers to extricate ‘the Coonawarra wine
region’ from the many meanings — historical, spatial, commercial and
emotional — traditionally associated with ‘Coonawarra’.187 While those inside the
wine region, especially on or adjacent to the platform, may have considered
themselves as the exclusive heirs of Riddoch and the Fruit Colony — that is, the
real Coonawarra — many of those on the outside of the Final Determination had
long considered themselves to be part of ‘Coonawarra’ (and inseparably its wine
industry). Consequently, serious business decisions concerning the future of the
184
185
186
187
Mark Hamilton acknowledged that his vineyard had never been considered part of any
‘Coonawarra’. Rather, he was somewhat opportunistically endeavouring to encourage
expansion, based on a literal reading of the Regulations.
Hans Gadamer, Truth and Method (1975).
Many people who were interested in the GIC’s determination, and may have written letters or
even produced submissions, did not pursue their interests to the AAT. These decisions were
sometimes based on the anticipated costs and occasionally they were more strategic. Some,
like the Butlers (in the Hundred of Penola), who were not engaged in viticulture but had grapes
growing on most sides of their property, thought that they would probably be included as
others further from Coonawarra town and the platform challenged the GIC’s determinations.
Such principled cost-shifting (sometimes described as the ‘free-rider’ problem) may actually
disguise the number of people aggrieved by the various decisions. In contrast, Stephen Mann
(Baltersan Investments), for example, actively pursued his interests notwithstanding that there
was not a single vine on his property and his property stood in the Hundred of Comaum
between Petaluma and the boundary of the Final Determination. Still others, including some
employed by members of the Gang of 25, seem to have been reluctant to enter the fray and risk
antagonising their employers.
For an informative theoretical discussion, see Robert Sack, ‘Human Territoriality: A Theory’
(1983) 73 Annals of the Association of American Geographers 55.
(2006) 27 Adelaide Law Review
145
local wine industry and whether to expend tens of thousands of dollars on legal
costs were inextricably linked with peoples’ sense of identity, place, community
and fairness. These impressions, interests and postures were influenced by and ran
alongside cost constraints, expert evidence, the perceived seriousness of particular
decisions, impressions of the value of the Coonawarra label, risks associated with
losing appeals, the (in)ability to participate at particular stages, the (im)possibility
of compromise, personal animosities, the fatigue and dissonance produced by such
a protracted process, in combination with the statutory framework and Regulations.
The predominance afforded to history and tradition along with subjective
impressions of what counted historically and culturally as ‘Coonawarra’ led the
GIC and AAT to combine incommensurable evidence and attempt to arbitrate on a
range of rather nebulous issues. Unfortunately, several longstanding friendships and
community concord could not withstand these, unnecessarily artificial,
impositions.188
A. Problems with the statutory framework
While some of the following comments are critical of the performance of the GIC
and AAT it is not my intention to impute bad faith or impropriety.189 It is important
to recognise that the various actors were to some extent constrained by institutional
structures and a commitment to the kind of Coonawarra wine region promoted by
the VCSESA, CVA and CGGA, that came to be understood — after all the
substantial decisions had been delivered — as an improper interpretation of the
Regulations. We should not forget that the following analysis is privileged by
hindsight.
i. Plain meanings: Poorly drafted legislation
The first point to make is that the Regulations are poorly drafted. The difference
between ‘region’ and ‘subregion’ is imprecise and the relevance and weight of the
various criteria, especially when applied to nomenclature as opposed to boundaries,
were not immediately obvious (see also 6.A.vii ‘Indeterminate Regulations’).
However, limitations with the Regulations were compounded by a range of
additional problems.
188
189
It is not my intention to be overly nostalgic, but the dispute evidently had quite a disruptive
influence on a relatively small and generally cooperative ‘community’. See Benedict
Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism
(1983).
I am particularly indebted to Ernie Sullivan, Secretary to the GIC and Registrar of Protected
Names. Sullivan’s prodigious efforts are conspicuous in the voluminous documentation
associated with the dispute.
146
EDMOND – COONAWARRA WINE REGION
ii. The relation between the objects of the AWBC Act and the Regulations
The objects of the AWBC Act are not commensurate with the criteria in the
Regulations. The objects are intended to enhance the production of Australian wine
and promote exports. Unfortunately, the criteria say nothing about what types of
attributes or regions might enhance the production, marketing and sales of
Australian wines. Moreover, the marketing evidence was inconclusive and
according to the AAT’s interpretations of the Regulations, strictly irrelevant.190 The
background evidence provided by Pendrigh, who led the Australian team in the
Treaty negotiations, was treated as subservient to the plain meaning of the
Regulations.191 There was no objective, or obviously proper, way of approaching or
ordering the criteria.192 Instead, pre-commitments and the evidence structured
interpretations. The objects, therefore, afforded limited practical guidance for those
administering the Regulations.
Even after the Federal Court clarified the difference between criteria pertaining to
name and those pertaining to the boundary of a wine region, by modifying the
weight attached to the relevant criteria, or particular proffers of expertise (more
below), a decision maker would be capable of producing and defending a variety of
substantially different boundaries.193
iii. An independent GIC?
The GIC, the putatively independent body responsible for determining geographical
indications, was staffed by wine industry insiders. It was constituted — in more
gender-sensitive language ‘manned’ — by winemakers, grape growers and wine
industry bureaucrats. The GIC achieved its purported independence by assembling a
group of grape growers and wine makers with no direct connection or obvious
interest in the region subject to determination.194 However, the GIC was not
genuinely independent from the domestic wine industry and its bureaucracy.195 For
190
191
192
193
194
195
CPWIA v GIC, above n 48, [110].
Ibid [131]. See also Keith Whittington, Constitutional Interpretation: Textual meaning,
Original Intent and Judicial Review (Lawrence KS: University of Kansas Press, 1999).
Yearley, ‘Bog Standards’, above n 2; Martin Rudwick, The Great Devonian Controversy: The
Shaping of Scientific Knowledge among Gentlemanly Specialists (1985).
This point, made by the geographers to explain (or excuse) their own work, was appropriated
by the AAT: CPWIA v GIC, above n 48, [57], [60] and [83]; and the Federal Court: Beringer
Blass Wine Estates Ltd v GIC (2002) 125 FCR 155 [40].
While the exclusion of Petaluma’s Sharefarmers vineyard — closely associated with Croser,
President of the Australian Winemakers Federation on several occasions throughout the
1990s — might be interpreted in a way that suggests a healthy independent process, it might
equally be claimed to represent petty personal politics and industry jealousies perpetuated
through the local industry Application.
There is no intention to suggest that senior people in the AWBC were directly manipulating the
GIC. There were, after all, many senior members of the Australian wine industry and
(2006) 27 Adelaide Law Review
147
all the trappings of independence and transparency the GIC was functionally an inhouse body.196 The upshot was that the GIC maintained an orientation and
interpretation of the AWBC Act and Regulations which privileged the established
wine industry.197
For example, when the CVA and CGGA were invited to make a joint application
the GIC was aware of grape growers and winemakers beyond the two hundreds and
of entrenched antipathies toward the CVA and CGGA. Nevertheless, there was no
attempt to include marginalised producers in the preliminary development of an
application for the Coonawarra wine region. The GIC was ideologically closest to
those — the established ‘Coonawarra’ wine industry representatives — invited to
make the Application. Throughout the entire process members of the ‘Coonawarra’
Associations had privileged access to the Joint Committee and, more importantly,
the GIC. When, for instance, the period for submissions to the first Interim
Determination closed, the GIC forwarded copies of all the submissions to the Joint
Committee of the CVA and CGGA soliciting their comments and assistance.198
While it might make sense for a process designed to determine Australia’s wine
regions to be influenced and even dominated by the Australian wine industry, the
Australian Wine and Brandy Corporation Act 1980 (Cth) and the individuals
responsible for administering it proved particularly insensitive to the often
considerable interests and substantial arguments of smaller producers and nonproducers with extensive property holdings in the Coonawarra district. Large
landholders like Stephen Mann, Bruce Davis, the Skenes, the Skeers, the Castines,
the Childs and the Giles’ had obvious interests in the outcome of any determination.
Yet they had no means of entering the process or participating before an Interim
Determination was declared. Even then the expressed concerns of those without
vines or beyond the two hundreds seem to have exerted little influence. While the
196
197
198
bureaucracy — like Pendrigh, Mackley and Croser — who were displeased with the GIC’s
performance in relation to Coonawarra. Rather, the GIC was largely subservient to an industry
ideology which privileged the perspectives of established local grape growers and wine
makers. Indeed, the AWBC website describes its principle ‘stakeholders’ and ‘clients’ as the
Commonwealth of Australia, wine and brandy producers who pay the Wine Grapes Levy and
those who export wine and brandy and pay the Wine Export Charge. AWBC, About Us
<http://www,awbc.com.au/Content.aspx?p=2> at 12 January 2006.
‘Regulatory capture’ is not particularly apposite in this instance because there was not a clear
line between the Australian wine industry and the GIC. In a way, the GIC was never
sufficiently independent to be ‘captured’. See Jean-Jacques Laffont and Jean Tirole, The
politics of government decision making: A theory of regulatory capture (1988); Toni Makkai
and John Braithwaite, ‘In and out of the regulatory door: Making sense of regulatory capture’
(1995) 12 Journal of Public Policy 61.
The geographers, Foale and Smith, expressed surprise at the absence of geographers on the
GIC, Foale and Smith, AAT Witness Statement, above n 91, 48.
Joint Committee, Response to Submissions Opposing the Boundary established by the Interim
Determination of the GIC (9 February 1998).
148
EDMOND – COONAWARRA WINE REGION
GIC encouraged interested parties to make submissions or contact the Associations,
those without wine industry connections were unlikely to obtain a clear indication
of the local industry position or its close working relations with the GIC until a
small Coonawarra wine region was effectively entrenched.
Typically, those who were not members of the CVA and CGGA were unaware of
the Associations’ restrictive orientation. Some, like Maria Myers, of Dunkeld
Pastoral Company (owner of Riddoch Estate, est. 1970) in the Hundred of Joanna,
were never formally disabused. In September 1995, at the suggestion of the GIC,
Myers wrote to the CGGA reminding them of her interest in the determination of
the Coonawarra wine region. This letter was forwarded to the Joint Committee.199
Rather than explain to Myers that the Associations were limiting their terms of
reference to the Hundreds of Comaum and Penola, thereby excluding Riddoch
Estate by default, she only found out about the Joint Committee’s restrictive
Application after the first Interim Determination was advertised almost two years
later. In the interim Myers believed the interests of Dunkeld Pastoral were being
considered. Many of those excluded from the (proposed) Coonawarra wine region
by the CVA, CGGA and GIC had repeatedly asked for information and an
opportunity to participate in the process prior to their (‘interim’) exclusion.
The AWBC and the GIC were aware of impending difficulties in relation to the
Coonawarra determination. Cognisant that the two Associations were not entirely
representative, it is difficult to understand why the GIC did not request additional
information and broader participation in the GI process from the very beginning. At
a relatively late stage, after the receipt of dozens of critical submissions responding
to the GIC’s Interim Determinations as well as its administration of the process, the
Committee began to engage with a broader range of stakeholders. Unfortunately,
these meetings seem to have been motivated as much by a desire to ascertain
critical evidence and insulate the Committee from adverse review as to
accommodate substantial concerns or evidence raised by aggrieved parties. The
GIC, it seems, maintained an exaggerated faith in the value of procedural
formalism.200
Significantly, the lack of independence made it difficult for the GIC to interpret or
rigorously apply the Regulations in ways that did not directly support the interests
of those conceived as its primary constituency. Though, it is worth noting that the
199
200
Letter from Maria Myers, Riddoch Estate, to Jim Brand, Secretary CGGA, 25 September 1995.
Subsequently Myers wrote to the GIC requesting a copy of the Joint Committee’s Application,
Letter from Maria Myers to Ernie Sullivan, Secretary GIC, 2 May 1997.
One example of the ideological alliance, and faith in process, was expressed in a letter from the
Chief Executive, Winemakers Federation of Australia, to the Chairman, GIC Committee, 3
May 2000: ‘The Executive Council has not identified any way in which the process of
establishing the Geographical Indication (GI) of Coonawarra has not been appropriately
followed.’
(2006) 27 Adelaide Law Review
149
GIC probably perceived itself as genuinely independent, open and fair. By
following the stipulated procedures, taking submissions, making an extra interim
determination and taking additional submissions, the GIC believed it was going to
great effort to accommodate a range of perspectives and produce an appropriate
wine region.201 These activities, however, provided little solace for those who
believed that they were improperly and unreasonably excluded from the
Coonawarra wine region.
iv. Application versus Submissions (that were really objections)
The Joint Committee’s original Application for a GI, undertaken in consultation
with the GIC, seems to have profoundly influenced the shape and size of the
Coonawarra wine region in all subsequent incarnations. In this way the original
Application formed part of a conceptual frame or trajectory which proved
incredibly resilient, even in the appeal to the AAT.202
While the AWBC Act requires the GIC to advertise an interim decision and accept
submissions in response, in practice the receipt of submissions does not seem to
have exerted much positive influence on the determination process. In part this
seems to be a result of the main conceptual frame being supplied by the
ideologically-‘twinned’ local wine industry Associations. Composed of wine
industry insiders, the GIC adopted the boundary proposed by the members of the
CVA and CGGA. Because the GIC was not genuinely independent — composed of
grape growers and vignerons from other local associations — it was practically
incapable of producing a substantially larger wine region (against the wishes of the
CVA and CGGA). The persistence of the initial frame — centred around the
platform — suggests the importance of wide participation from the beginning of
decision making processes. Here, submissions, and even the Regulations, were
subservient to the regional conceptualisation presented by the CVA, CGGA and
accepted (or represented) as non-problematic by the GIC.
The GIC accepted submissions and was, ostensibly, open to revision. The various
interim determinations indicate some ‘tinkering’ on the margins. Although, apart
from some refinements, in response to expert evidence — particularly expert
opinion obtained after disparaging responses to its interim determinations — the
GIC seems to have made few attempts to incorporate the chorus of substantial
claims in submissions forwarded by parties seeking inclusion. This was
201
202
For a discussion of ‘accommodation’ consider Gary Edmond and David Mercer, ‘The invisible
branch: The authority of science studies in expert evidence jurisprudence’ in Edmond (ed),
Expertise in regulation and law, above n 126, 197.
The terms ‘trajectory’ and ‘frame’ are commonly employed in the sociology of technology, see
W Bijker, T Hughes and T Pinch (eds), The Social Construction of Technological Systems:
New Directions in the Sociology and History of Technology (1987).
150
EDMOND – COONAWARRA WINE REGION
disappointing because some of the submissions, especially those produced by
Petaluma, Rymill, Riddoch Estate, St Mary’s, the Kidmans, Koppamurra and
parties represented by Peter Westley, were large and impressive, featuring expert
reports tailored to the Regulations.
Instead, the GIC operated as though the mere act of accepting submissions was
capable of curing flaws and limitations in the overall process. However, the receipt
of submissions was only the preliminary part of a more important and more
exacting process. It is, after all, incumbent on decision makers to engage with the
substance of submissions. The many submissions seem to have exerted limited
influence on the GIC or the dominant trajectory shaped by the CVA and CGGA.
This example illustrates how provision for submissions, review and appeals
provided few practical benefits for those excluded from the wine region. Rather
than facilitate meaningful participation it actually contributed to the sense of delay,
expense and frustration experienced by virtually all of the Applicants (and many of
the Respondents).203
Perfunctory participation, it seems, is likely to produce scepticism and apathy. Of
even greater concern, it may lead to a loss of confidence in legal and regulatory
institutions and recourse to what are frequently undesirable forms of self help.
v. An unnecessarily protracted process during a period of rapid viticultural
expansion
The GIC took a remarkably long time (1994–2000) to produce a final determination
for the Coonawarra GI. This delay was unfortunate for a number of reasons.204 First,
and most obviously, justice delayed is justice denied.205 There were serious and
continuing tensions in the district exacerbated by the years taken to draw the final
203
204
205
Alan Irwin, ‘Expertise and experience in the governance of science: What is public
participation for? in G. Edmond (ed), Expertise in Regulation and Law (2004) 32. For
example: Letter from Nick Zema to the Presiding Member, GIC, 25 October 1999; Letter from
Max Arney, Southcorp, to the Presiding Member, GIC, 26 October 1999; Letter from John
Innes (Rymill) to the Presiding Member, 29 October 1999; Letter from Robert Hill Smith
(Yalumba) to the Presiding Member, GIC, 2 November 1999.
The long process also saw the composition of the GIC and its secretariat change. Such changes
undoubtedly disrupted administrative continuity. At this juncture we might also note that one
of the GIC members filed a dissenting opinion. Tony Smith, a vigneron from Western
Australia, thought the Final Determination was ‘more akin to a sub-region’ and that the
Coonawarra GI should have incorporated the Interim Determination for Penola. GIC,
Statement of Findings on Material Questions of Fact and Reasons for Decision, (2000) 31–2.
Parties from all sides were incredibly frustrated with the process. Many wrote to Warren Truss,
Federal Minister for Agriculture, Fisheries and Forestry; Patrick Secker, Member for the
Federal seat of Barker; Rob Kerin, Deputy Premier and Minister for Primary Industries &
Resources (SA); the Australian Wine & Brandy Corporation, and state grape and wine
organizations, complaining about the process and the delay.
(2006) 27 Adelaide Law Review
151
boundary. Second, the GIC seems to have vacillated while, superficially at least,
manifesting the appearance of transparency and inclusiveness.206 Apart from
operating according to the stipulated procedures — accepting submissions and even
producing a variation to the Interim Determination and receiving further
submissions — the reasons for the delay and the impact or value of submissions in
relation to either the process or outcome are not immediately obvious. Third, during
the regionalisation process, the Australian wine industry, exports and land under
vine in the Coonawarra district all expanded at unprecedented levels. This meant
that delay created new problems as more vines were planted and new grape and
wine producers emerged seeking inclusion in the wine region. Some of those behind
these new vineyards seem to have been, whether intentionally or not, oblivious to
their position relative to the impending determination of the Coonawarra GI.207
Fourth, as the industry and exports to Europe and the US rapidly expanded, those
from the Coonawarra district were compelled to use a GI. Before final
determinations were made the AWBC advised wine producers to use ‘the actual
location of the vineyard (e.g. nearest town).’208 Subject to the Trade Practices Act
1974 (Cth) (‘TPA’) and State Fair Trading Acts, producers like St Mary’s, Riddoch
Estate, and Petaluma were actually encouraged to use the ascription ‘Coonawarra’
on their wines and export documentation.209 This advice seems to have infuriated
some of the members of the CVA and CGGA. Interestingly, no one inside the two
hundreds was sufficiently emboldened to formally challenge St Mary’s use of
‘Coonawarra’ under the TPA.210 Conversely, anxiety about threatened civil action
along with its potentially ruinous financial implications — regardless of whether
such action was justified — led St Mary’s to abandon its use of ‘Coonawarra’ and
simultaneously impair the strength of its claims to ‘prior use’.211
206
207
208
209
210
211
Stephen Hilgartner, Science on Stage: Expert Advice as Public Drama (2000).
Wilbert Moore and Melvin Tumin, ‘Some Social Functions of Ignorance’ (1949) 14 American
Sociological Review 787, 788; Mike Michael, ‘Ignoring science: Discourses of ignorance in
the public understanding of science’ in A. Irwin and B. Wynne (eds), Misunderstanding
Science? The Public Reconstruction of Science and Technology (1996) 105.
For example: LIP Audit Guide (AWBC), ‘Notice to All Australian Wine Manufacturers’ 17
October 1994 and 31 December 1995.
Letter from Allan Russell, AWBC, to Barry Mulligan, 31 March 1994. St Mary’s interpreted
the AWBC’s clarification as permissive. Those on the platform did not.
Harry Todd, ‘Litigious Marginals: Character and Disputing in a Bavarian Village’ in Laura
Nader and Harry Todd (eds), The Disputing Process — Law in Ten Societies (1978) 86.
During the protracted process St Mary’s used several regional ascriptions: ‘Coonawarra’,
‘Penola’ and ‘via Coonawarra’. Mulligan, AAT Witness statement, 8–10. Croser also modified
the regional ascription on wines produced from the Sharefarmers vineyard. For a brief period
in the early 1990s the wine from Sharefarmers was sold under the Bridgewater Mill label or in
bulk to Mildara Blass. Throughout the controversy Petaluma continued to market its premium
Cabernet Merlot blend, which incorporated Sharefarmers grapes, as ‘Coonawarra’. This was
not just a regional ascription but the name of the actual wine. This was another source of
irritation to several of the ‘locals’.
152
EDMOND – COONAWARRA WINE REGION
By way of contrast, whereas the CVA and CGGA protested St Mary’s use of
‘Coonawarra’ on its labels and advertising, and actually intervened by threatening
to boycott retail outlets and prevent the printing of its labels, no one from these
Associations uttered a public word about Mildara Blass’ continuing use of
‘Coonawarra’ for wines made from its Robertson’s Well vineyard located in the
Hundred of Joanna.212
vi. Legal escalation and the eventual emergence of the AWBC Act and Regulations
An interesting aspect of the dispute is the temporal emergence of the AWBC Act
and Regulations. While the process adhered to the formal course of action stipulated
by the AWBC Act, the criteria for determining the geographical indication became
more prominent as the dispute escalated. Before the publication of the first Interim
Determination the actual text of the Regulations seems to have exerted an extremely
tenuous influence on the shape of the proposed region. Recall how the GIC’s first
Interim Determination effectively ratified the CVA and CGGA members’ map. If
anything, the Regulations seem to have merely provided a framework guiding the
retrospective rationalisation of the wine region proposed in the original Application.
The receipt of critical submissions, based around the Regulations, may provide
some explanation for the delay as well as the refinement of the region — back
toward the platform — as the GIC became increasingly apprehensive of impending
review. After the publication of the first Interim Determination and the realisation
that the GIC seemed intent on producing a very small wine region the question of
the Coonawarra GI became more contentious and more conspicuously legal(istic).
As lawyers and experts were consulted, those challenging the GIC’s determinations
became increasingly attentive to the text of the AWBC Act, the Regulations and
procedural propriety.
Had there been no controversy and few submissions in response to the Interim
Determination, as in Clare Valley for example, the Regulations may have
superficially guided the industry Application and the final determination. They
would not, however, have been responsible for determining the shape of the wine
region. If there had been fewer submissions in relation to the Coonawarra Interim
Determination then today the Coonawarra wine region might be bounded by a line
surrounding vineyards and land owned by members of the CVA and CGGA — the
first Interim Determination.
212
Grapes for Mildara’s Robertson’s Well wines were sourced from inside the Hundred of
Comaum until late in the 1990s when the grapes from the vineyard in the Hundred of Joanna
were ready for harvesting.
(2006) 27 Adelaide Law Review
153
vii. Indeterminate Regulations
This study illustrates degrees of textual indeterminacy, or perhaps more precisely
how the Regulations were interpreted strategically and applied in different ways by
the various parties as well as the GIC, AAT and Federal Court. For those on the
inside of the wine region the Regulations were conceived as a formal means of
registering (or reifying) what they (at least privately) understood as their
‘inheritance’. For this group the earlier moves by the VCSESA, the negotiations
with the AWBC during the early 1990s, and the request for an application were
designed to give the CVA and CGGA a privileged role in the determination of the
Coonawarra wine region.213 As we have seen, while the AWBC Act and
Regulations may have governed the formal process they do not appear to have
played a determinative role in the shaping of the region proposed by the Joint
Committee. This kind of statutory indifference seems to be typical of consensus
regulation (more below).214
Whereas the (more) established Coonawarra wine industry interpreted the
Regulations in a way that promoted their version of the Coonawarra wine region,
textual literalism gave encouragement to those on the ‘outer’. For those excluded
the plain text of the Regulations provided one of the few available resources.215 The
interpretative openness of the objects and Regulations, their emphasis on ‘a single
tract of land that is discrete and homogenous in its grape growing attributes’
combined with the fact that other wine regions had been much larger and more
diversified than the proposed Coonawarra GI all gave the Applicants confidence (at
least initially). On the basis of the legislation, can we blame Petaluma
(Sharefarmers), St Mary’s, Riddoch Estate, Koppamurra, Rymill (Three Mile
vineyard), Beringer Blass (Robertson’s Well) or even Hamilton Ewell for seeking
inclusion in the Coonawarra wine region? In saying this it is not my intention to
suggest that particular parties considered themselves part of the wine region
(distinct from, but often conflated with the Coonawarra township and district), but
rather that on the face of the Regulations inclusion became a serious possibility.
Together, the failure to focus on ‘grape growing attributes’ and the indeterminacy
of the text actually contributed to the problems. This frustrated those seeking to
have the determination made according to (their understanding of the) law — here a
213
214
215
Robert Seidman, ‘Why Do People Obey the Law? The Case of Corruption in Developing
Countries’ (1978) 5 British Journal of Law & Society 45; David Sugarman, ‘Introduction:
Histories of Law and Society’ in D. Sugarman (ed.) Law in History, Vol. 1 (1995) xiv.
John Braithwaite and Peter Drahos, Global Business Regulation (2000); John Abraham,
Science, politics and the pharmaceutical industry: Controversy and bias in drug regulation
(1995); John Abraham and Graham Lewis, Regulating medicines in Europe: Competition,
expertise and public health (2000).
Michel Callon, ‘Some elements of a sociology of translation: domestication of the scallops and
the fishermen of St Brieuc Bay’ in John Law (ed), Power, action and belief: A new sociology
of knowledge? (1986) 196; Bruno Latour, The Pasteurization of France (1983).
154
EDMOND – COONAWARRA WINE REGION
more literal reading of the statutory scheme — rather than what they perceived as
an insider’s agreement between the CVA, CGGA and the GIC. According to the
Federal Court the AAT (and the GIC) made a serious error of law: ‘The finding of
the AAT … 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.’216 Unfortunately, the practical implications of these legal errors were never
substantially corrected.
The different parties seem to have interpreted the Regulations in ways that accorded
with their own interests. All of the participants made recourse to the Regulations
and the processes specified in the AWBC Act, but what they understood them to
mean (or require) varied considerably. Before the Federal Court decision the
Regulations were a kind of boundary object. They facilitated the GI discourse while
retaining their different meanings for the disparate groups.217 They did not,
however, bring clarity or facilitate resolution. The different meanings attributed to
the Regulations actually contributed to the uncertainty, conflict and delay.
viii. Respondents obliged to defend the GIC’s boundary
While there may be strong reasons for discouraging statutory decision makers, like
the GIC, from defending their own decisions before a review tribunal like the AAT,
in this case shifting the onus onto those in support of the Final Determination may
have produced a range of expensive, socially divisive and generally undesirable
consequences.218 As we have seen, the Final Determination was a slightly smaller
version of the Coonawarra wine region than the one proposed in the original
Application by the Joint Committee of the CVA and CGGA. The original
Application was a compromise which incorporated the members of the Associations
and developments they were aware of within the two hundreds as of 1995.219 Many
of those among the Gang of 25 would have preferred an even smaller Coonawarra
wine region. The boundary associated with the Application represented their
‘inclusive’ compromise. Requiring those on the inside to create a coalition to
216
217
218
219
Beringer Blass Wine Estates Limited v GIC (2002) 125 FCR 155, [69].
Joan Fujimura, ‘Crafting Science: Standardized packages, Boundary objects, and
“translations”‘ in A. Pickering, Science as Practice and Culture (1992) 168; Susan Star and
James Griesemer, ‘Institutional ecology, “Translations” and Boundary Objects: Amateurs and
Professionals in Berkeley’s Museum of Vertebrate Zoology, 1907–39’ (1989) 19 Social
Studies of Science 387.
One reason for the reluctance is the possibility that the case might (need to) be remitted to the
primary decision maker. However, if the AAT allowed the GIC to defend its case then in those
circumstance it might be expected to make the decision itself. For analysis see Enid Campbell,
‘The choice between judicial and administrative tribunals and the separation of powers’ (1981)
12 Federal Law Review 24.
Transcript of Proceedings, CPWIA v GIC (AAT, 13 March 2001) 1425.
(2006) 27 Adelaide Law Review
155
defend the Final Determination, like the invitation to the CVA and CGGA to make
an application, limited other possibilities and decreased the likelihood of
settlement.220 Rather than abandon or qualify the GIC’s Final Determination, or
introduce the possibility of a region and a subregion, Southcorp and the Gang of 25
were obliged to present the GIC’s arbitrary boundary as cogent and compelling.
B. Consensus regulation
Consensus regulation, like that between the CVA, CGGA and GIC, can produce
inconsistent outcomes and lead to perceptions of unfairness. A cursory examination
of Australia’s other wine regions reveals discrepancies and significant internal
heterogeneity. Because many of the regional boundaries were not particularly
controversial, as many local wine industry groups adopted a very inclusive
orientation, the actual variation in climate, topography, soils and size tends to be
considerable. In the vast majority of instances, the local producers have simply
drawn lines around their properties. Often they followed dominant geographical
features and many have allowed for future expansion. What this means is that the
statutory apparatus, particularly the Regulations, have exerted a limited or
inconsistent role in the determination of Australia’s wine regions. They have tended
to shape the process rather than the regions. While consensus regulation may have
been a relatively efficient means of managing regionalisation, for those in the
Coonawarra the inconsistency produced through consensual regulation merely
added to perceptions of inequality and injustice. It is important to recognise that
consensus regulation looks like conspiracy to those excluded from (even parts of)
the process. Similarly, the final outcome, where only those who appealed were
successfully incorporated into one of Australia’s smallest wine regions, reinforces
the appearance of arbitrariness. Some of these problems could have been minimized
by endeavouring to incorporate a broader range of perspectives and interests from
220
Intriguingly, during the hearing before the AAT, Justice O’Connor was open to a private
settlement between the parties. Consider the following comment: ‘Justice O’Connor: Could I
ask the parties while the witness is just coming to the witness-box, whether there is any interest
in any form of informal discussion in respect of this matter? I haven’t raised it until now, but I
know that when the case started that was completely rejected, that there should be any form of
conciliation or dealing with the matter, but I just wanted to make sure everybody understood
that the mere fact that this hearing has started does not preclude that if it were the wishes of
parties to talk about any aspect of the case and any form of agreement. One of the reasons I
raise it is that what seems to be pretty obvious from the material and some of the witness
remarks on the last occasion, that the process of having - if I could call it “winners” and
“losers” in the Coonawarra area, does not appear to be of great benefit to the region itself. I
know that the GIC tried to get agreement, but one never knows. Just don’t take the view that it
is cut off if there is any basis on which you would like to discuss any matter and we will offer
someone to facilitate that from the Tribunal itself.’ Transcript of Proceedings, CPWIA v GIC
(AAT, 19 March 2001) 1825. Here again, any private negotiation or consensus might have
been made in a way that was effectively indifferent to the Regulations and the interests of
those not participating.
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EDMOND – COONAWARRA WINE REGION
the beginning of the regionalisation process, especially when many of these were
well known to the VCSESA, CVA, CGGA, Joint Committee, AWBC and the GIC.
In circumstances where particular interest groups are privileged, their interests will
tend to pre-dominate in regulatory negotiations notwithstanding the actual text of
any statute or regulations. As we have seen, vested interests, institutional traditions
and ideological alignments will shape the situated meanings attributed to legislation
and practice.221 Those who do not share the orientations held by privileged groups
or insiders may have very different impressions of the fairness of any process, the
credibility of regulatory and legal institutions and the legitimacy of the outcome.
C. Experts
i. Lay expertise
The dispute over the Coonawarra wine region brought together parties with a wide
range of knowledge, skills and experiences.222 The GIC was composed of
individuals with viticultural experience and knowledge of the Australian wine
industry. Most of the Applicants and all of the Respondents were grape growers,
vignerons, wine producers, graziers and/or croppers. The parties were, therefore,
generally in a good position to critically appraise decisions on the ground.223 Where
boundary decisions are made in the absence of clear principle, are inattentive to
palpable similarities and differences across a district, or treat parties inconsistently,
those excluded tended to interpret the dispute in terms of unfairness and injustice.
Some of the normal divisions between ‘lay’ person and ‘expert’ were not
particularly clear cut in this case.224 Members of the GIC, but not the AAT or
Federal Court, held experience and occasionally qualifications relevant to the wine
industry. The Respondents relied upon the experience and expertise of locals. Brian
Lynn and Doug Balnaves testified about their impressions of the region and local
viticulture. David Murdock, Chairman of the Joint Committee and a production
manager for Southcorp, participated in the concurrent expert evidence sessions. The
Applicants engaged more formally qualified and eminent viticultural experts like
Smart, with a PhD from Cornell University, and Di Davidson of Davidson
221
222
223
224
Brian Wynne, ‘Unruly Technology: Practical Rules, Impractical Discourse and Public
Understanding’ (1988) 18 Social Studies of Science 147; Michael Mulkay, ‘Interpretation and
the use of rules: The case of the Norms of Science’ in T. Gieryn (ed), Science and Social
Structure (A Festschrift for RK Merton) (1980) 111; William Twining and David Miers, How
to do things with rules: A primer of interpretation (3rd ed., 1982).
Alan Irwin, Citizen Science (1995); Alan Irwin and Brian Wynne (eds), Misunderstanding
Science: The Public Reconstruction of Science and Technology (1996).
Though poorly drafted, Regulations 24 and 25 are neither particularly technical nor prolix.
Harry Collins and Robert Evans, ‘The Third Wave of Science Studies: Studies of Expertise and
Experience’ (2002) 32 Social Studies of Science 235; Irwin, above n 203.
(2006) 27 Adelaide Law Review
157
Consulting.225 Smart and Davidson participated on the panel with Murdock. Peter
Rymill was an accomplished and productive local historian.226 In addition, several
of the parties held formal qualifications in viticulture, oenology and a variety of
other professions such as accounting (e.g. Mann) and medicine (e.g. Dr Kitchen).
Many of those involved in the proceedings — like Lynn, Balnaves, Rymill and
Mulligan — were from families who had lived in the district for generations.
Notwithstanding Lynn’s reticence during cross-examination, the various
protagonists held tremendous depth of knowledge about who held the best parcels
of land, which land stayed dry in the very wettest years, which areas were most
susceptible to frost, who had been trying to buy or sell different blocks and who
possessed water licences.227 Many had equally detailed knowledge of soil
distributions. Ian McNeil provided some sense of this familiarity: ‘we currently
farm about 6000 acres in the area and have spent numerous hours on tractors and
harvesters and I believe I have a good knowledge of paddock conditions and
soils.’228 Locals knew that Penley Estate — included within the Coonawarra wine
region at every stage — had been forced to remove vines and trellises from a low
area after heavy inundation (Figure 15). The Childs family had sold this property
and retained better-drained land away from the platform (in the Hundred of Grey)
for the purposes of one day establishing a vineyard. This, arguably, superior
viticultural land was not included within the Coonawarra GI. Added to their
extensive experience and often considerable lay expertise, many of the participants
had commissioned soil surveys of their properties and climate studies for the
purposes of vineyard development or submissions in the GI process. This meant
that decision makers were making determinations before interested parties
provisioned with a considerable amount of informal and formal expertise, evidence
and experience.
225
226
227
228
It is arguable that Dr Smart and Davidson were more disinterested than Lynn, Balnaves and
Murdock. However, this only introduces questions about what that means (or should mean)
and whether local knowledge and experience should be considered more or less valuable (or
relevant) than apparently more remote and more generalised forms of knowledge and
expertise. Even this simple example is complicated by the fact that Davidson, in particular, was
very familiar with the Coonawarra district and had considerable practical experience as a
viticulturist. See Collins and Evans, ‘The Third Wave’, above n 224 and Irwin, above n 203.
For example, Peter Rymill, Penola Commemorative Biographies: Alexander Cameron, John
Riddoch (1998).
Undoubtedly some of this was merely speculation, rumour, innuendo, gossip and hearsay.
Transcript of Proceedings, CPWIA v GIC (AAT, 14 March 2001) 1472. On the same day Peter
Rymill was asked, during cross-examination, whether he had obtained soil tests for his
property. He answered with a question: ‘In the hundred years that we have owned the
property?’ See also Brian Wynne, ‘Misunderstood Misunderstandings: Social Identities and
Public Uptake of Science’ in A. Irwin and B. Wynne (eds), Misunderstanding Science (1996)
19; Harry Collins and Trevor Pinch, The Golem: What everyone should know about science
(1993).
158
EDMOND – COONAWARRA WINE REGION
ii. The late introduction of expert evidence
One of the more interesting dimensions of this study concerns the stage at which
formally qualified experts were introduced into the emerging controversy. Apart
from lawyers, few, if any, experts were engaged at the beginning of the process.229
The early boundaries were drawn using local experience, personal interest,
historical developments and compromises. It was not until the boundaries presented
by the Associations and endorsed by the GIC threatened to exclude several
vineyards and properties that those facing exclusion sought expert assistance. It is
important to recognise that experts entered the controversy after the early
boundaries had already been drawn. Retrospectively, the GIC obtained expert
advice to support (and refine) its determinations. Indeed, it was because of the
controversial nature of the process and the existing boundaries that lawyers and
later experts were actually engaged. Recourse to experts, and lawyers and later
judges, represented a degree of escalation which, as we have seen, increased
sensitivity to the statutory framework after the preliminary decisions had already
been made.
Ironically, given the pejorative insinuations frequently levelled at expert witnesses,
if the relevant kinds of (mainly viticultural) expert had been introduced into the
process at the beginning there might not have been such a small or irregular
Coonawarra wine region. After all, the viticulturists emphasised the primacy of
climate and agreed with the soil scientists and geographers on the manipulability of
soils and the desirability of a larger region.230 The difficulty, however, is
determining what the law means and (simultaneously) what kind of expertise would
be appropriate in the specific circumstances.231
iii. Concurrent evidence (or the ‘hot tub’)
The initial estimate of hearing time at the AAT, due to the large number of expert
witnesses, was six months. The hearing, which employed a novel procedure
enabling several experts to give evidence and responses as part of an expert panel,
was completed in five weeks. The procedure used to expedite the presentation of
229
230
231
Some of the evidence from Section 4 was not readily available, nor assembled, for the first
Interim Determination (1997) but most was available by the time of the Final Determination
(2000).
Of course, with more expert viticulturists there may have been more disagreement, and even
more detailed (and contentious) evidence about the effects of climate and temperature.
Issues of efficiency and affordability also arise.
(2006) 27 Adelaide Law Review
159
expert opinion evidence was described, colloquially, as a hot tub, but is now known
as concurrent evidence.232 The process was outlined in the AAT decision.
28. At the hearing of this matter, the oral evidence of the experts (to
supplement their voluminous written statements) was given and their views
tested by way of a panel session called a “hot tub”. Each of the experts was
invited to make a presentation addressing their statements and identifying the
important issues. The experts were able to consult, be challenged and discuss
their views with the other experts on the panel. The Tribunal asked questions
of the experts as necessary. Finally, counsel for the parties were given the
opportunity to ask questions of the experts in relation to any matters raised
during the “hot tub” interchange and from the written material. We found this
method of dealing with such a large volume of expert material very helpful.
Panels of expert witnesses with similar or related qualifications, skills or experience
were sworn and provided their evidence in a series of joint sessions. One of the
panels, for example, addressed the subject of cartography, soil science and land
systems and included the following participants:
65. Mr David Maschmedt, Soil Scientist (PIRSA);
Mr Kenneth Wetherby, Soil Scientist;
Dr Robert Fitzpatrick, Senior Principal Research Scientist (CSIRO Land
and Water Division);
Dr Alfred Cass, International Consultant Soil Scientist;
Dr Richard Smart, Consultant Viticulturist;
Dr Dianne Davidson, Consultant Viticulturist;
Dr Derek Smith, Geographer; and
Mr Max Foale, Cartographer.233
Unlike court-appointed experts or joint experts agreed to by the parties, concurrent
evidence offers many of the features of the traditional adversarial trial. Parties retain
the freedom to select expert witnesses and cross-examine the expert witnesses
selected by their opponents. And, most importantly, there is no artificial reduction
in the extent of disagreement produced by simply reducing the number and range of
perspectives.234 If the early estimates — of six months for the hearing — were
realistic, then the adoption of concurrent evidence in large or protracted disputes
232
233
234
Gary Downes, ‘Concurrent expert evidence in the Administrative Appeals Tribunal: The New
South Wales Experience’ (Speech delivered at the Australasian Conference of Planning and
Environment Courts and Tribunals, Hobart, 27 February 2004); Justice Peter McClellan,
‘Problems with evidence’ (Speech to the NSW Parliament House, Sydney, 7 September 2004);
Justice Peter Heerey, ‘Expert Evidence: The Australian Experience’ (Jan-Feb 2002) Bar
Review 166.
The correct titles are listed in Appendix 1.
Gary Edmond, ‘After objectivity: Expert evidence and procedural reform’ (2003) 25 Sydney
Law Review 131; Joe Cecil and Thomas Willging, Court-appointed experts (1993).
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EDMOND – COONAWARRA WINE REGION
may produce considerable time and cost savings to experts, lawyers, parties as well
as tribunal members and judges. And, if peer presence exerts any disciplining
influence or accountability then it should occur when experts testify together with
the opportunity to ask each other questions and comment on evidence and
answers.235
While the concurrent evidence procedure enabled the AAT to hear the experts’
testimony in thematic clusters, it does not seem to have improved the Tribunal’s
ability to assess evidence or identify (what became) evidence relevant to the
Regulations. This example suggests that the use of court-appointed experts, joint
experts and even techniques like concurrent evidence will not resolve many of the
complexities associated with the use of expert evidence in ordinary litigation. In this
case the major difficulty was ascertaining what was relevant evidence according to
the Regulations. This study suggests that the use of alternative procedures might
merely have produced different if not necessarily more appropriate outcomes. For
example, had the Tribunal (or a court) been responsible for selecting expert
witnesses they might have focused on historical evidence and produced a region
even further removed from ‘grape growing attributes’.
iv. Marginalising ‘consensual’ evidence
One of the more surprising, and perhaps disconcerting, aspects of the Coonawarra
dispute concerns the apparent reluctance, by the GIC and AAT, to accept and act
upon the frequently consensual evidence of experts. Overwhelmingly the expert
evidence from historians, marketers, soil scientists, geographers and viticulturists
suggested that claims about the unique properties of the terra rossa soils were
exaggerated. Again, overwhelmingly, experts testified about the primacy of climate,
particularly temperature, for viticultural homogeneity. Unfortunately, this relevant
and largely uncontested evidence was discounted by fact-finders because it did not
provide an obvious boundary nor conform with their preconceived impressions of
what the Coonawarra wine region should be like.236 While a ‘legal error’ might be
used to explain the mis-evaluation of the relevant evidence, an alternative
interpretation is that notwithstanding the Regulations the GIC and AAT found it
235
236
This does not mean that the panel removes the advantages accruing to good communicators
and performers or those more experienced with legal forums and cross-examination. Perhaps
more importantly it does little to address power dynamics within disciplines or prevent
specialists from similar disciplines agreeing in ways that limit their professional exposure. On
the limits of peer review, see Sheila Jasanoff, The fifth branch: Science advisers as policymakers (1990); Daryl Chubin and Edward Hackett, Peerless Science: Peer Review and US
Science Policy (1990); Hilgartner, Science on Stage, above n 206.
Murdock and Balnaves contested the Applicants’ evidence from their experience rather than by
reference to published academic studies. Moreover, because they were not championing just
the platform or terra rossa they had few bases other than historical developments to support the
boundaries proposed by the Joint Committee and the GIC.
(2006) 27 Adelaide Law Review
161
difficult to overcome the framing of the issues and the region proposed by the CVA
and CGGA.237 Having embraced the centrality of the platform and a small wine
region it was virtually impossible to incorporate the evidence most relevant to
viticulture or interpret the Regulations with a strong viticultural focus. This is why
the historical evidence and 1984 resolution assumed such prominence.238 Here we
can observe an example of legal capture as the independence of the AAT was
compromised by ideological pre-commitments and what might be described as a
pragmatic deference to the dominant industry grouping. There are dangers
associated with the ‘capture’ of legal institutions by particular interest groups. In
recent years there has been a disturbing trend among decision makers to
superficially dismiss or trivialise expertise in order to impose their own sense of
order on disputes, especially where they are perceived as part of a larger social
problem.239
This study also demonstrates the close and complex interconnections between law,
fact, pre-commitments and process.240 Where the decision maker is committed to or
favours a particular interpretation of an issue — in this case a relatively small
Coonawarra wine region — law and evidence may be rendered subservient to that
orientation. Those privileged in the process, therefore, may exert considerable, or
disproportionate, influence. Presumably, the strength of what was conceived as ‘the
historical Coonawarra’ actually helped to shape the way the Regulations were
237
238
239
240
Charles Goodwin, ‘Professional vision’ (1994) 96 American Anthropology 606.
Frequently, decision makers explain their rejection of proffers of expertise on the basis of bias,
incompetence and impropriety. Often their judgments are written as though unbiased sources
were readily available and bias was easy to detect. Bias is easy to insinuate but its effects are
more difficult to demonstrate. It is particularly difficult to demonstrate how the many biases
and interests influencing all modern expert practice actually detrimentally influence an expert’s
opinion. Helga Nowotny, Peter Scott and Michael Gibbons, Rethinking Science: Knowledge
and the Public in an Age of Uncertainty (2001); Steven Yearley, Making Sense of Science:
Understanding the Social Study of Science (2005); Alan Irwin and Mike Michael, Science,
Social Theory and Public Knowledge (2003). After all, the meaning and significance attached
to biases can be situationally complex. Lorraine Daston and Peter Galison, ‘The image of
objectivity’ (1992) 40 Representations 81; Steven Shapin, ‘Cordelia’s Love: Credibility and
the Social Studies of Science’ (1995) 3 Perspectives on Science 255.
An instructive example is the alleged tort crisis in the US (and Australia). For an overview, see
William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation
Crisis (2004). For the impact of public problems on adjectival law consider: Gary Edmond and
David Mercer, ‘Daubert and the exclusionary ethos: The convergence of corporate and
judicial attitudes towards the admissibility of expert evidence in tort litigation’ (2004) 26 Law
& Policy 231; Gary Edmond, ‘Engineering Knowledge: Contested Representations of Law,
Science (and non-Science) and Society’ (2002) 32 Social Studies of Science 371 and Stephen
Yeazell, ‘The misunderstood Consequences of Modern Civil Procedure’ (1994) Wisconsin Law
Review 631.
Duncan Kennedy, ‘Freedom and constraint in adjudication: A critical phenomenology’ (1986)
36 Journal of Legal Education 518; Gary Edmond, ‘Judging facts: Managing expert
knowledges in legal decision-making’ in G. Edmond (ed), Expertise in regulation and law
(2004) 136.
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EDMOND – COONAWARRA WINE REGION
understood and the evidence selected. Here we can see that law and evidence are
inextricably linked to broader ideological and cultural commitments: what was
really ‘Coonawarra’; the (real) purpose of regionalisation; which groups were
entitled to contribute and at what stage; the standing of different experts; the
likelihood of appeals; as well as the strength of evidence and the meaning of the
Regulations. None of these, or a range of other considerations, are really
independent. We can’t say that the Regulations came before (or structured)
particular commitments to what counted as evidence, because social assumptions,
rules and procedures, the evidence and the statutory scheme all shaped how the
Regulations were understood, especially by the GIC, the AAT and even the Federal
Court.241
v. The difficulty of getting beyond clichés pertaining to experts
The response to two of the expert witnesses, the Applicants’ geographers Foale and
Smith, illustrates the ease with which decision makers can manipulate the value and
meaning of evidence and expertise.242 In the AAT decision their work was
discounted primarily because they produced two different maps of the proposed
Coonawarra wine region. Unfortunately, in this antagonistic setting the tremendous
amount of work undertaken by these geographers and their possible contribution to
the complicated decision facing the Tribunal passed largely unappreciated.243 While
the ostensible reason for dismissing their evidence was imputed bias and purported
inconsistency exposed during cross-examination, a more likely explanation seems
to be that pre-commitment to a small Coonawarra region made their considered
position difficult for the AAT to address more directly. Here, allegations of bias and
inconsistency disguise an inability or unwillingness to engage with the geographers’
evidence, conclusions or assumptions.
The following extract is drawn from the AAT decision.
57. Dr Derek Smith and Mr Maxwell Foale expressed the opinion, as expert
geographers, that it was feasible to identify a wine region considerably larger
than the GIC determination, which they criticised as having some boundary
flaws and inconsistencies. Their proposed boundary, involving both cadastral
and natural features, was based primarily upon PIRSA maps and land systems,
a land system being defined as “ … a major area of land having broadly
related soil types, surface hydrology and terrain.”… They tendered a map
241
242
243
Even the Federal Court placed considerable focus on the soil in its limited discussion of the
evidence, see Beringer Blass Wine Estates Limited v GIC (2002) 125 FCR 155 [72].
Gary Edmond & David Mercer, ‘Experts and expertise in legal and regulatory settings’ in G.
Edmond (ed), Expertise in regulation and law (2004) 1.
Pierre Bourdieu, ‘The force of law: Toward a sociology of the juridical field’ (1987) 38
Hastings Law Journal 805.
(2006) 27 Adelaide Law Review
163
based upon their report to the Applicants, which the Applicants had adopted in
submissions as their preferred boundary.
58. In brief outline, they described their boundary as follows:
The western boundary runs along the western margin of the Cave Range. The
northern boundary follows the inlet and outlet drains for the Bool Lagoon and
the southern boundary of the Bool Lagoon. The boundary passes through a
gap in the West Naracoorte Range and then follows the southern margin of the
Jessie and Apsley land systems and their border with the Wrattonbully land
system in a south-easterly direction until it meets the Victorian border. In the
south-east the border follows the boundary between the Nangwarry and
Kalangadoo land systems. In the south the boundary follows the division
between the Krongart and KLN land systems.
59. The Tribunal noted that this proposal encompassed the Main Applicants
and virtually all the Applicants in the case, other than a few outlier Applicants
considerably further north and south.
60. It was established, in cross-examination, that Messrs Smith and Foale had
supplied an alternative and smaller proposed wine region boundary to the GIC
in July 1999. When questioned about this, they maintained it was “feasible” to
identify a variety of boundaries in this area, dependent upon the weight given
to various criteria and the “specific needs of clients”. It was always necessary
to have regard to “geographical logic” and to maintain integrity of the area
enclosed, but this inevitably involved judgements and some compromise
because of the number of factors to be assessed. They maintained that both
these boundaries were justified on geographic criteria. (underlining added)
This extract will help us to understand how fact-finders manage expertise through
strategic representation.244
Whatever its merits, the second boundary developed by Foale and Smith and
advanced by the main body of Applicants represented a sustained attempt to engage
with the Regulations and a range of criteria in order to produce an inclusive region
with some integrity — what the geographers described as ‘geographical logic’. Yet
the AAT version of the geographers’ evidence imputes bad faith and concludes with
sarcasm. The AAT decision focuses on alleged inconsistency, implying that Foale
and Smith were ‘hired guns’, subservient to the ‘specific needs of clients’. The
suggestion that the ‘alternative and smaller proposed wine region’ was ‘established,
in cross-examination’ implies that Foale and Smith were reluctant or unwilling to
disclose their earlier proposal. However, their original boundary, which was
244
Mike Lynch, ‘The Discursive Production of Uncertainty: The OJ Simpson “Dream Team” and
the Sociology of Knowledge Machine’ (1998) 28 Social Studies of Science 829; Gary Edmond,
‘Judicial Representations of Scientific Evidence’ (2000) 63 Modern Law Review 216.
164
EDMOND – COONAWARRA WINE REGION
considerably smaller than the version promoted by the Applicants, was never a
secret. It was produced in 1999 for the Kidmans (James, Tim, Phillip and Mardi) in
response to the exclusion of some of their land from the second Interim
Determination. This first map responded to preliminary information supplied by the
Kidmans and represented an attempt to develop a principled boundary. The
boundary was drawn on the basis of soil landscapes (from PIRSA), topography, the
presence of viticulture and the cadastre. At that stage Foale and Smith were not
aware of many of the vineyards and wineries seeking inclusion in the Coonawarra
wine region and did not have access to the final PIRSA maps of the terrain to the
west of the platform. However, even their earlier map extended north and west
beyond the Hundred of Comaum. And, more significantly, given the imputation of
bias and impropriety, actually excluded part of the Kidmans’ property in the
Hundred of Monbulla and part of their property in the Hundred of Comaum. The
Mobulla property was subsequently part of the successful appeal to the Federal
Court. When, eventually, the geographers were engaged by all of the Applicants to
develop the inclusive boundary for the impending review by the AAT, they
produced a different and much larger region that was sensitive to the location of the
dispersed Applicants, the criteria and the greater array of information and expert
evidence.245 Whatever the merits of this revision, the example indicates how the
AAT invoked ad hominem considerations and inconsistency to marginalise the
region(s) proposed by the geographers rather than address the substantive reasoning
guiding each of their products more directly.
That approach was unfortunate for a number of reasons. First, Foale and Smith
possessed skills of particular value to this boundary drawing exercise. Foale was a
cartographic librarian and Smith a social geographer. Together, they had an
excellent grasp of the kinds of factors that might be used to determine a region.
Moreover, as geographers they offered a kind of meta-expertise.246 Familiar with
geography, geology, soils, agriculture and land uses, hydrology, demography,
economics and historical development, they offered a potential bridge between the
evidence and the Regulations. They openly conceded that their second map was not
the only possible map and that by re-ordering the weight attached to the various
criteria other ‘feasible’ maps could be drawn. Further, while there is a strong
insinuation of bias there is no hint in the AAT decision that Foale and Smith were
academic geographers who had never previously appeared in a trial or hearing. The
marginalisation of the geographers and their evidence benefited from these partial
representations.247
245
246
247
Transcript of Proceedings, CPWIA v GIC (AAT, 8 March 2001) 998–1001.
Mercer, ‘Hyper-experts’, above n 126.
Potter, Representing reality, above n 167; Edmond, ‘Judicial representations of scientific
evidence’, above n 244 and ‘Judging Facts’, above n 240.
(2006) 27 Adelaide Law Review
165
The extract from the AAT decision also veils Foale and Smith’s criticism of the
Final Determination. Rather than identify ‘some boundary flaws and
inconsistencies’, Foale and Smith were excoriating. They found the GIC’s region to
be completely devoid of principle or underlying rationale. More importantly, they
explained their concerns in a series of comprehensive reports. Extensive use of the
60 metre contour line was characterised as arbitrary and recourse to ‘proximity’ to
the platform dismissed as meaningless. They wondered: ‘Is it possible that winds
could blow some of the grape growing goodness of the “cigar” onto adjacent
areas?’ In a later commentary they explained: ‘The [Final] Determination was
especially illogical since the town of Penola, which was excluded from
“Coonawarra”, is the main service centre for the whole part of the South East. A
Coonawarra Region which does not include the main service centre makes no
sense.’248 As this second quote suggests, the geographers were interested in
considerations which reflected their professional understanding of a ‘region’ but,
like the AAT, went beyond the criteria strictly relevant to ‘grape growing
attributes’.249
Smart’s proposal for ‘viticultural Coonawarra’ was the only attempt to establish a
region relying exclusively on ‘grape growing attributes’. It encountered a similar
fate. Though, Smart was not subjected to vigorous cross-examination and his
credibility was not directly impugned. Rather, commitment to a small Coonawarra
GI meant that a large region, however principled or consistent with the Regulations,
was never seriously contemplated. Commitment to a small region led the AAT, like
the GIC before it, to search for evidence that could be used to rationalise a small
and exclusive wine region which extended just beyond the platform. Here, a priori
commitments, as much as expert evidence or the Regulations, guided the
determination.
vi. Where were the wine critics?
As an aside, there was a general aversion toward the use of wine experts — like
Masters of Wine — to provide evidence or contribute to the definition of the
Coonawarra region and its wines.250 This may be explicable on the basis of the
serious stakes involved along with the subjectivity, unpredictability and intrinsic
248
249
250
Foale and Smith, AAT Witness Statement: The Coonawarra Region, 15 December 2000, 58.
Foale and Smith, AAT Witness Statement: The Coonawarra Region, 15 December 2000, 1–2.
Foale and Smith actually applied a technical geographical interpretation of ‘region’ to their
task and this more socially oriented reading led them to incorporate a range of attributes which
extended beyond those most closely related to ‘grape growing attributes’. For their own
account, see Max Foale and Derek Smith, ‘The Coonawarra: A viticultural frontier or just a
case of sour grapes?’ (2004) 55 The Globe 43.
The influence of wine commentators and critics has been very controversial in recent years,
especially with the ascendency of US wine critique Robert Parker. For a recent account see
William Echikson, Noble Rot: A Bordeaux Wine Revolution (2004).
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EDMOND – COONAWARRA WINE REGION
limitations involved in any tasting exercise. In a blind tasting the parties would
potentially lose control over the experts, their palates and most importantly their
conclusions.251 There were, in consequence, few incentives to use such experts.
Those excluded from the region had a strong case without the introduction of wine
experts and, unless clear and consistent distinctions were made, those inside the
wine region could only be embarrassed by attributions of essential ‘Coonawarra’
characteristics to wines produced beyond the two hundreds or from predominantly
dark soils.
In his testimony before the AAT, Babidge noted that the terra rossa soils and the
location of the vines had not featured prominently in the responses to a vertical
tasting of wines organised for Len Evans, James Halliday, and some thirty eight
Masters of Wine.252
MR I. ROBERTSON: As I understand it, the only comment you are making
about that in paragraph 35 is that none of the wine masters commented about
regional origin in respect of those wines, is that the comment you are making
about them?
MR BABIDGE: The comment I’m making is that masters of wine are
supposedly the doyens of the wine tasters and wine making or organoleptic
expertise in the World and they had a vertical tasting of [Wynns] Coonawarra
Cabernet Sauvignon and also [Wynns] Coonawarra Hermitage from the
Cabernet from 1953 to ‘83 and the Hermitage from ‘55 to ‘83 and there was
no comment on, “this is terra rossa, this is this, this is whatever”. So having
read a lot of the other depositions from respondents who were claiming
specific characters, then here was a group of World renowned people who had
not identified that.253
In addition, many of the locals had good palates and a few witnesses, like ‘Prof’
Lynn, accepted that producers beyond the two hundreds could make ‘very good
wine’.
JUSTICE O’CONNOR: Mr Lynn, how can you compare wine within the
current GIC determination with Mr Mulligan [St Mary’s] to discriminate it as
not being Coonawarra wine because you have just said you don’t know
anything about the wine within the Coonawarra area, other than your own?
251
252
253
Mary Douglas (ed), Constructive Drinking: Perspectives on Drink from Anthropology (1987);
Pierre Bourdieu, Distinction: A Social Critique of the Judgment (Richard Nice trans, first
published 1984). For a discussion of the connoisseur and expertise, see: Simon Cole, “Jackson
Pollock, Judge Pollack, and the Dilemma of Fingerprint Expertise,” in G. Edmond (ed),
Expertise in Regulation and Law (2004) 98.
Babidge, AAT Witness Statement, 14–5.
Transcript of Proceedings, CPWIA v GIC (AAT, 7 March 2001) 820–1.
(2006) 27 Adelaide Law Review
167
MR LYNN: In that I was mistaken, it is very good wine. Whether it is of
Coonawarra style, I really shouldn’t comment on, so I would have to go back but it is very good wine. My comment was: I personally don’t think that Mr
Mulligan’s property is in Coonawarra, yes, per se - but it is very good wine.254
Even the AAT recognised that the proposition ‘vineyards … within the boundary
proposed by the Applicants grow fruit suitable for use in “Coonawarra-style” wine’
was ‘not challenged’.255
Given the orientation of the Regulations it is perhaps not surprising to find that
tasting, quality, style and character were marginalised. After all, the statutory
framework was not designed to reproduce European-style appellations with their
more distinctive focus on regional character. Consequently, the character and the
quality of the local wines were considered beyond the scope of the regionalisation
process. The subject of quality and character were often implicit, however.
Especially in the concerns about plantings on the black earth and the potential risks
to the Coonawarra ‘brand’. This was yet another tension between the objects and
Regulations. Self evidently, quality, regional character and reputation are related to
marketability and export potential.
D. Personality (and) politics
Personal antagonisms seem to have infected the process from the early 1980s.
These were most conspicuous in the strained relations between those on the
platform and two wine producers with vineyards beyond the two hundreds, namely
Petaluma and St Mary’s.
Brian Croser seems to have infuriated some in the local wine industry by
purchasing relatively cheap land on the outskirts of ‘Coonawarra’ in 1983 to
establish Petaluma’s Sharefarmers vineyard in the Hundred of Joanna. The 1984
resolution, passed by the VCSESA within months of the purchase of the
Sharefarmers land was proposed by the vendor and may have been, at least in part,
a response to what was conceived by the local wine industry as a kind of betrayal.256
The fact that Croser made disparaging comments, about wanting to establish a
vineyard on ‘the tip of the cigar’, displaced from the other ‘Coonawarra’ vineyards,
free of the botrytis and mechanical viticulture (allegedly) contaminating the
254
255
256
Transcript of Proceedings, CPWIA v GIC (AAT, 14 March 2001) 1551.
CPWIA v GIC, [124].
Sid Kidman recollected Tony Jordan, who bought the Kidman land on behalf of the
Sharefarmers syndicate, saying at the auction: ‘We know its not part of Coonawarra and that
doesn’t worry us.’ Letter from Sid Kidman to Brian Lynn, Secretary Joint Committee, 9
February 1998. This version of events was vigorously contested. See also Brian Croser,
‘Sharefarmers’ (13 March 1992).
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EDMOND – COONAWARRA WINE REGION
platform, did not help relations.257 Moreover, Croser was an absentee landlord.
Based in the Adelaide Hills, as the dispute escalated he intervened from afar with
forthright contributions: accusations of parochialism, criticism and an indication of
his willingness to make recourse to law.
Croser’s comments and uncompromising attitude seems to have caused sufficient
umbrage to strain relations and, notwithstanding his status and influence in the
Australian wine industry, render negotiations challenging. Nevertheless,
Sharefarmer’s vineyard was eventually included in the Coonawarra wine region.
Croser’s influence and interventions may not have prevailed over the Joint
Committee or the GIC but the AAT accepted his evidence — in particular, the
legitimacy of the Sharefarmers vineyard’s historical claim.
In addition, there were serious tensions evolving between some of those on the
platform and St Mary’s (est. 1986). St Mary’s had complicated the geographical
indication process through the submission of several different applications — both
individually and under the auspices of the CPWIA — pertaining to both the
‘Penola’ and ‘Coonawarra’ wine regions (see Figures 5, 6 and 9). St Mary’s was
harassed and intimidated by some of those within the boundary through a variety of
activities ranging from social ostracism to threats based on alleged infringements of
the TPA.258 Perhaps the most creative, if somewhat sectarian, intervention came in
the form of a fax on company stationery signed by the chief viticulturist for Mildara
Blass. Playing on the regional association with Mary McKillop and Mulligan’s
Catholicism, its short text read: ‘Local gossip has it that St Mary’s is as close to
Coonawarra as beatification is to canonisation. Doesn’t that take a miracle to
257
258
Many of those on the ‘inside’ would have been happy to have Petaluma’s Sharefarmers
vineyard included in the Coonawarra wine region. After all, Petaluma already owned the Evans
vineyard on the platform and Croser’s experience, reputation, influence and cooperation would
have been useful for promoting the region and planning for the future. However, as we have
seen, it was difficult for those in the CVA and CGGA to credibly extend the region beyond the
two hundreds while simultaneously claiming that this was the absolute historical limit of the
Coonawarra wine region. Moreover, potential business advantages were complicated by
personal animosities directed toward Croser. Some of these animosities emerged in a heated
exchange over Petaluma’s participation on the ‘Coonawarra’ stand at Wine Australia in 1996.
For example, Letter from Ian Sutton, Winemakers Federation of Australia to Jim Brand,
President CVA, 11 June 1996. When Evan Hiscock collected the Petaluma sign, after the
exposition, the word ‘not’ had been written above ‘Coonawarra’.
For example: Letter from Ralph Fowler, President CVA to Barry Mulligan, 28 July 1994;
Letter from Ian Hollick to Barry Mulligan, 29 July 1994; Letter from Jim Brand, President
CVA to Ian Mackley, Presiding Member GIC, 4 July 1996; Letter from David Murdock,
President CGGA to Ian Mackley, Presiding Member GIC, 4 July 1996. And, before the Three
Mile vineyard was excluded: Letter from Peter Rymill, Old Penola Pastoral Company to
General Manager, AWBC, 7 June 1993.
(2006) 27 Adelaide Law Review
169
happen?’259 In this volatile (litigious) environment, these kinds of informal
interventions eroded relations of trust and polarised alignments, making community
life, compromises and settlement negotiations difficult (for those on all sides).
E. The GI process encouraged strategic action
While the determination of the Coonawarra wine region was under way, some of
the participants engaged in strategic (or instrumental) action apparently encouraged
by the process. In the early 1990s Mildara Blass (subsequently Beringer Blass), for
example, entered a partnership agreement with the Lillecrapp family on land in the
Hundred of Joanna, just north of the border with the Hundred of Comaum. This
became the Robertson’s Well vineyard. With extensive land holdings on the
platform, initially Mildara Blass favoured a relatively small Coonawarra wine
region. However, the Company hedged its bets with Robertson’s Well. Early in the
process Mildara Blass informed the AWBC that if the boundaries were extended
beyond the two Hundreds then it reserved the right to seek inclusion for its
Robertson’s Well vineyard.260 This is an example of the kind of speculation made
possible by the regionalisation process.261 Excluded by the AAT, Beringer Blass
successfully appealed to the Federal Court on behalf of its Robertson’s Well
vineyard. Adjacent land retained by the Lillecrapps and the Palm’s vineyard, across
the Riddoch Highway from Robertson’s Well, do not form part of the final region.
On one of my visits to the South East, in May 2005, the Robertson’s Well vineyard,
now surplus to the needs of Beringer Blass, was for sale. Indeed, in one interview it
was even offered to me. Many of the locals see the endeavours to include this
vineyard in the Coonawarra wine region, along with the subsequent sale, as a
cynical act of profiteering by a large multinational corporation. Like Southcorp’s
efforts to restrict the size of the region to inflate the value of its extensive holdings
on the platform, this example reinforces the prevalent impression that individuals
259
260
261
Fax from Vic Patrick, Mildara Blass, to Barry Mulligan, St Mary’s, 5 April 1995. This
intervention pre-dated Mildara Blass’ attempts to have its Robertson’s Well vineyard included
within the Coonawarra GI.
Letter from Vic Patrick, Mildara Blass, to General Manager, AWBC, 14 May 1993.
Vic Patrick had been a strong proponent of a small wine region since his employment with
Wynns. Patrick moved to Mildara in the late 1980s. Because Mildara Blass (and later Beringer
Blass) changed its position over time, as it sought to have Robertson’s Well included in a
larger region, Patrick was not called as a witness by Mildara Blass. Coincidentally, he was
overseas during the AAT hearing. Though, his absence did not pass unnoticed. Transcript of
Proceedings, CPWIA v GIC (AAT, 12 March 2001) 1264: ‘Justice O’Connor: I suppose I
might say where is Mr Patrick? It is just a question I would make.’
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EDMOND – COONAWARRA WINE REGION
and entities with resources are able to manipulate regulatory and legal processes to
their advantage.262
On 1 July 2005 the Foster’s Group — owner of Beringer Blass and subsidiaries
including Saltram, Wolf Blass, Jamiesons Run and Robertson’s Well — acquired
Southcorp and created Foster’s Wine Estates. To some extent the shape of today’s
Coonawarra wine region is a relic of former corporate rivalries. Had Southcorp and
Mildara/Beringer Blass been part of the same corporate group during the
regionalisation process it is highly unlikely they would have litigated. Rather, senior
management would have promoted a wine region in the Group’s overall interests. In
combination, such a Group would have concentrated, and potentially exerted,
considerable influence in the CVA and CGGA and over the mindset of the GIC
(and perhaps the AAT). Individuals may have challenged any region supported by
such a dominant actor, but there might not have been appeals to the AAT or Federal
Court. If a handful of small producers had been obliged to challenge one of the
largest international wine and spirits conglomerates, and risk bearing its legal costs
among themselves, would the Castines, the MacLeods and the Kidmans have
appealed to the Federal Court?
Here we can observe yet another indication of the contingency and inequality of
legal processes. If the timing of the acquisition had been different, if it had occurred
in the year 2000 rather than July 2005, there may have been no appeal from the
AAT’s determination. And, without an appeal to the Federal Court that decision
would have remained as precedent (or legal authority) for the continuing GI
process.
F. Public confidence in the rule of law and legal institutions
i. Unsatisfactory outcomes: The demise of three region solution
Not only is the existing Coonawarra wine region devoid of statutory integrity, but
the AAT and Federal Court decisions eviscerated the three region solution proposed
by the GIC (Figure 10). In its Final Determination the GIC excised the town of
Penola and the vineyards to its south from the Coonawarra wine region placing
them in the interim determination for the Penola GI. By re-incorporating the
vineyards of Rymill (and others) to the south of Penola back into the Coonawarra
wine region, the AAT removed a very large and established producer from the
Interim Determination for the Penola wine region. Even more significantly, this
southerly expansion re-incorporated the town of Penola in the Coonawarra wine
262
Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change’ (1974) 9 Law & Society Review 95; Laura Nader, ‘Choices in Legal Procedure: Shia
Moslem and Mexican Zapotec’ (1965) 67 American Anthropologist 394.
(2006) 27 Adelaide Law Review
171
region. This meant that, notwithstanding the presence of the expression ‘Penola’ in
the Annex to the Treaty, the town of Penola was now located in a separate wine
region. Would the Penola wine region be without the town of Penola?
In the aftermath of the appeal to the Federal Court the GIC appears paralysed and
the proposed three region solution in tatters. Notwithstanding a current application
for the Penola wine region, the GIC has understandably vacillated.263 Grape and
wine producers to the west of the Coonawarra wine region are now in marketing
purgatory. Smaller grape growers, like the Skenes and Skeers, and wine producers,
like St Mary’s, have spent scarce resources trying to enter the Coonawarra wine
region only to be placed in an interim Penola determination. The proposed Penola
wine region is substantially homogeneous with the grape growing attributes
associated with the adjacent, and non-discrete, Coonawarra wine region. The good
faith efforts, of those in the interim Penola wine region, to find markets for their
grapes and promote their wines using the Penola GI have been seriously
compromised. Of course, those in the interim Penola wine region are entitled to
label their wines ‘Limestone Coast’ or ‘South Eastern Australia’. Unfortunately for
them, these kinds of ascriptions tend to be associated with generic wines and carry a
pejorative connotation among the wine consumers prepared to pay a premium for
wines associated with ‘Coonawarra’.
In response to these difficulties the GIC is considering the possibility of making a
determination for a Penola zone.264 The requirements for a ‘zone’, according to
Reg 24, are not demanding. A zone is ‘an area of land’ that ‘may reasonably be
regarded as a zone’. At a minimum the Penola zone would incorporate both the
town of Penola — including some of the Coonawarra wine region — and the
growers to the west of the Coonawarra GI. This would give them a GI that is
smaller and more marketable than the generic ‘Limestone Coast’. A majority of the
CVA and CGGA recently voted against this proposal, however.265 Perhaps the real
difficulty with this solution is the loss of principle involved in subsuming a Penola
zone inside the existing Limestone Coast zone.
263
264
265
The difficulties were initially compounded by the existence of objections based on Trade
Marks, concerning the use of ‘Penola’. Rymill Wines, for example, trades as the Old Penola
Pastoral Company. See Ernie Sullivan, ‘Final Determinations for Manjimup and Pemberton’
(July-August 2005) 1 Wine Australia 15 and more generally Stephen Stern, ‘The conflict
between geographical indications and trade marks or Australia once again heads off down the
garden path’ (11 September 2004); Will Taylor, ‘Trade marks and the overlap with
geographical indications’ (2000) 5 Flinders Journal of Law Reform 53.
St Mary’s now markets its wine as ‘Penola’ whereas Heathfield Ridge, also excluded from the
Coonawarra GI, attributes its wines to Limestone Coast and Wrattonbully.
There is ongoing resistance to the use of ‘Penola’ and the creation of a Penola zone. Rymill
Nominees, however, recently dropped their objection to the use of Penola as a GI based on the
Old Penola Pastoral Company. Email from Barry Mulligan to Gary Edmond, 21 November
2005.
172
EDMOND – COONAWARRA WINE REGION
The Wrattonbully wine region, in contrast, has been finally determined and wine
producers have begun marketing its grapes and wines. A number of larger
corporations, including Yalumba and Beringer Blass, purchased land and developed
vineyards on the extensive outcrops of reddish and brown soils covering its gently
undulating hills. More recently the ubiquitous Croser purchased land in the district,
namely the Koppamurra vineyard (est. 1975) and Riddoch Estate (est. 1970). Once
again Croser may have acquired prime ‘Coonawarra’ land without paying the
premium prices associated with the platform.
ii. Institutional conservatism
So far, one of the main explanatory heuristics has been the use of ideological precommitments or a shared conceptual frame. There are, however, other related
considerations. One important constraint simultaneously acting on decision makers
and institutions of review is the tendency to avoid controversy. There are strong
normative constraints operating on tribunals and appellate courts which encourage
conservatism in decision making. Judges are typically reluctant to appear pro-active
or possessed of too much agency.266 Cases, we are routinely told, are determined
according to rules and evidence.267 This study, which suggests that (pre-)
commitments, traditions, processes and institutional values all contribute to the way
people understand and apply law and evidence, illustrates some of the limitations
with popular versions of legal practice and judicial agency.268 It may also help us to
recognise that tribunal members and judges, as well as the GIC, had few incentives
to substantially re-draw a Coonawarra wine region that was substantially
inconsistent with the Coonawarra envisaged by the CVA and CGGA (and GIC).
Notwithstanding the Regulations or the existence of the CPWIA, there were few
incentives for the GIC or AAT to produce a wine region at odds with what the
major producers in the district were proposing and what they seemed to genuinely
believe constituted ‘Coonawarra’.269 Though comprehensible, this legal inertia
contributed to the peculiar shape of the Coonawarra wine region and fuelled
widespread dissatisfaction and eventual incredulity.
266
267
268
269
This is one of the reasons judges encourage settlement. On agency, see: Barry Barnes,
Understanding Agency: Social theory and responsible action (2000); Gary Edmond,
‘Misunderstanding the Uses of Scientific Evidence in High Profile Criminal Appeals: The
Social Construction of Miscarriages of Justice’ (2002) 22 Oxford Journal of Legal Studies 53.
Jerome Frank, Courts on trial: Myth and reality in American justice (1949); Gary Edmond,
‘Judging Facts’, above n 240.
For an important study of judicial policy development in relation to US prisons, consider
Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How the
courts reformed America’s prisons (1999).
Doug Balnaves, AAT Witness Statement, 15 December 2000, 2: ‘In the heart of every
grapegrower and vigneron who has ever lived and worked in “Coonawarra”, each of us knows
that the region defines itself by reference to the terra rossa soils of “the Cigar”. The written
and anecdotal evidence of this is overwhelming.’
(2006) 27 Adelaide Law Review
173
Unfortunately, institutional conservatism often sits awkwardly with the need to
produce decisions which may prove unpopular. Decision makers are, however,
required to bring independence to their role and approach their tasks impartially.
Independence, in theory, is supposed to make difficult decisions easier. The
difficulty created by alignments and interests is the very reason for the existence of
independent bodies and facility for review. As independent bodies the GIC and
AAT were required to stand above local tensions and ‘parish pump’ politics.270
They were supposed to correct the limitations created by the sectarian interests
expressed in the application and submission processes. Moreover, there was scope
for appeal to the Federal Court if these mechanisms proved inadequate.
Practical constraints and political expediency made anything but an ‘inclusive’ wine
region difficult for the Joint Committee. The Associations could not agree on the
boundaries of a region and subregion so they embarked on a more pragmatic
regional proposal which included every member.271 Most of the members were
alarmed at the possibility of a wine region which extended well beyond the two
hundreds. In response they made compromises, abandoning the possibility of a
subregion, in order to confront what was considered to be a greater threat.
Lamentably, neither the GIC nor the AAT intervened to substantially correct the
compromises constraining the CVA and CGGA. That is, they did not do what was
practically impossible for the members of the CVA and CGGA and by default the
Joint Committee. The GIC and AAT — where it stood in the place of the GIC as
primary decision maker — were required to draw a region on the basis of the
(somewhat indeterminate) Regulations. They were, especially the AAT, freed from
the local politics, constraints and social conventions (like continuing business
relations and community social life) operating on the democratically-oriented local
Associations and the domestic wine industry more generally. Controversial as it
may have been, the GIC and AAT could afford to take difficult decisions and
impose boundaries that were consonant with the Regulations, even if not (all of the)
local expectations. The GIC and AAT could always have defended a controversial
decision by reference to the Regulations. The production of a principled boundary
would have provided the AAT with some insulation from criticism even if it
disappointed particular groups. Instead, the AAT produced a decision which
expanded the region in ways that were not always consistent nor fully transparent.
Apart from the dominance of the two hundreds it is not always obvious why a
particular Applicant failed or succeeded. Proximity to the platform, history, soils,
270
271
Barbara Yngvesson, Legal Ideology and Community Justice in the Clerk’s Office (1985) 9
Legal Studies Forum 71, 86.
June Starr and Barbara Yngvesson, ‘Scarcity and Disputing: Zeroing-in on Compromise
Decisions’ (1975) 2 American Ethnologist 553.
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EDMOND – COONAWARRA WINE REGION
grape purchase agreements, age of vineyard and prior use of ‘Coonawarra’ were all
used to include and exclude Applicants.272
If the decisions by the GIC and AAT are considered to be disappointing, obviously
they were not made without reference to the Regulations. Returning to the issue of
textual indeterminacy, we can appreciate how in the context of the dispute over the
Coonawarra wine region some interpretations of the Regulations were easier to
sustain and apply than others. Pre-commitments and the implications of any
decision appear to have taken precedence or, at the very least, shaped how the GIC
and AAT approached the Regulations and the evidence. It was, after all, much
easier for the AAT to simply add properties (within the two hundreds) than to
substantially re-draw the entire boundary according to some overarching
principle(s).
While some parties may have been satisfied, or more accurately relieved, by the
final shape of the Coonawarra wine region, no one thinks that the Final
Determination makes geographical sense. In this way interventions by the AAT and
the Federal Court have not imposed order nor produced a wine region determined
according to what we now know to be the law.273 Rather, the final outcome and the
inclusion of particular parties seems to reinforce the prevalent idea that the law
supports or reproduces social and economic hierarchy. Those who persisted through
the protracted, expensive and unpredictable process were eventually included. Some
with even stronger claims withdrew and remain excluded.274
iii. Public confidence
From both practical and legal perspectives the outcome of the dispute over the
Coonawarra wine region is unsatisfactory.275 The AAT’s attempt to ‘stand in the
shoes’ of the primary decision maker and produce an independent judgment was
inadequate. These errors were not repaired through judicial review. In consequence,
the case is a legal failure.276 Even without the benefit of the Federal Court’s
272
273
274
275
276
CPWIA v GIC, [150] – [313].
Stephen Wasby, The impact of United States Supreme Court: Some perspectives (1970) 27–56;
Theodore Becker and Malcom Feeley, The Impact of Supreme Court Decisions (1971).
Alan Myers QC is reputedly one of Australia’s wealthiest lawyers. Through Dunkeld Pastoral
Co, Myers and his wife Maria owned Riddoch Estate. They sold Riddoch Estate to Croser
before the AAT decision was announced expecting that it would be included in an expanded
Coonawarra region. Croser did not appeal its exclusion to the Federal Court. Interview with
Maria Myers, 10 May 2006, Sydney.
Tom Tyler and Yuen Huo, Trust in the Law: Encouraging Public Cooperation with the Police
and Courts (2002). For some of the more general sociological literature on trust, see: Steven
Shapin, A social history of truth: Civility and science in seventeenth-century England (1995)
and Niklas Luhmann, Trust (1979).
It is arguable that the statutory scheme, regulatory and legal institutions did not fail. After all,
the Federal Court eventually clarified the meaning of the Regulations. In addition, it might be
(2006) 27 Adelaide Law Review
175
interpretation of the Regulations, the AAT had the first opportunity to introduce
genuine independence to the process. Rather than focus on the extensive evidence
about viticultural attributes or the near consensus among a range of experts the
Tribunal extended the region using proximity to the platform and the 1984
resolution as the major parameters. While the Federal Court could enunciate legal
principle, thereby clarifying the way to approach the Regulations, it was not
empowered to go further. All the Court could do was apply the correct law to the
circumstances of each of the appellants, remit the matter to the AAT or encourage a
negotiated settlement among the remaining parties. The final option was the
minimalist solution imposed on the AAT. Unfortunately, for those who had
unsuccessfully appealed to the AAT but not pursued the matter, the Federal Court
was unable to remedy the very errors of law which (seem to have) improperly
excluded their properties from the Coonawarra GI. After the various reviews and
appeals the resulting Coonawarra wine region is a geographical monster.277 No one
ever proposed such a region and no one could have predicted such an unintelligible
boundary.
Because those involved in and affected by this process were generally graziers,
croppers and/or grape growers, they were particularly well positioned to critically
evaluate the (legal) outcomes. Alternatively, by inspecting a map, almost anyone
can appreciate just how unprincipled — on any criteria — the final boundary is.
They can also recognise its intrinsic unfairness. The final boundaries have almost
no relevance to ‘grape growing attributes’ or real world geography. Rather, the
shape reflects the dominance of the two hundreds, property boundaries and
persistence in the appeals process. Here the law appears arbitrary and capricious.
Those with resources and determination — sometimes characterised as ‘rights’ —
appear to have ‘bought’ their way in. The final Coonawarra GI and the lack of
principle guiding its formation exposes legal institutions to criticism and
depreciatory insinuation. Unfortunately, the most salutary lessons from this episode
277
argued that the parties themselves were to blame, especially those who did not appeal to the
Federal Court or encourage a re-hearing before the AAT. For the reasons which emerge in this
analysis, however, these approaches tend to be unconvincing and place unrealistic expectations
on ordinary citizens and even corporations. They place a tremendous burden on parties;
expecting them to be willing to continue litigation in the interests of having the entire region
determined according to principle even after their properties were included. They also fail to
take into account the very different impressions of the region and the practical meaning of the
Regulations even after the Federal Court’s decision. Realistically, could we expect those who
appealed to the Federal Court to bear the additional cost of a de novo hearing before a
reconstituted AAT. Even managers like Owen Malone at Beringer Blass were taking
professional (and career) risks pursuing the inclusion of the Robertson’s Well vineyard.
Overall, the rate of attrition was high. More than eighty parties appeared before the AAT but
only six appeared in the Federal Court. Could Beringer Blass, Southcorp and smaller parties,
like Mulligan and the Skenes, be expected to continue to litigate — or even have confidence in
legal institutions — after more than a decade of controversy and socio-economic disruption?
Lorraine Daston and Katharine Parks, Wonders and the Order of Nature (2001).
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EDMOND – COONAWARRA WINE REGION
might be the very real limits of legal processes and the practical difficulty of
rectifying mistakes. While Southcorp (and the Gang of 25) may not have won in a
direct sense, it did manage to keep the region relatively small. As the largest
property owner within the Coonawarra GI, the value of its assets remains high,
perhaps artificially inflated by its strategic use of the legal process.278
How did local knowledge inform perceptions of the case? Most of those involved
seem to have been satisfied with the orderliness and apparent propriety of the
appeal processes, if dissatisfied with the considerable monetary and time costs
involved. All of the parties were unimpressed with the outcome.279 It may be that in
some circumstances — such as where the parties are knowledgeable about the
evidence, and/or the legislation, and/or the context in which the decision will be
made — merely affording an opportunity for a fair process will be insufficient to
restore public confidence in legal institutions or overcome impressions of injustice
if the outcome is inconsistent with lived expectations.280 In this case almost all of
the parties seemed to think the proceedings, at least before the AAT and Federal
Court, were fairly conducted. But even those who were successful in the AAT and
Federal Court were unimpressed by the overall process and the need to appeal.281
Parties were obviously pleased to be included or to have a smaller rather than a
larger Coonawarra, but that was a kind of pragmatism that did not cure the
dissonance created by the legal result. In contrast to findings by Tyler and
colleagues, in this case being presented with a fair hearing was insufficiently
remedial to overcome the participants’ sense of grievance and unfairness at being
excluded.282 And, disappointment was not limited to the unsuccessful Applicants.283
278
279
280
281
282
283
Sally Engle Merry, ‘Coming to Court: Strategies of Dispute Management in an American
Urban Neighborhood’ (1979)13 Law & Society Review 891; Sally Engle Merry, Getting justice
and getting even (1990).
This was certainly the response from all of those interviewed, including Applicants and
Respondents.
Brian Wynne, ‘May The Sheep Safely Graze? A Reflexive View of the Expert–Lay
Knowledge Divide’ in S. Lash, B. Szerszynski and B. Wynne (eds), Risk, Environment and
Modernity: Towards a New Ecology (1996) 44. See also Sally Engle Merry, ‘Concepts of Law
and Justice Among Working-Class Americans: Ideology as Culture’ (1985) 9 Legal Studies
Forum 59 and Sally Engle Merry, Getting justice and getting even (1990).
In contrast to the popular Australian film, The Castle (1997), not all of these ‘battlers’ had their
legal entitlements fully vindicated.
Compare Tom Tyler, ‘What is procedural justice? Criteria used by citizens to assess the
fairness of legal procedures’ (1988) 22 Law & Society Review 483; Tom Tyler, Why People
obey the law: Procedural justice, legitimacy and compliance (1990).
This is not entirely consistent with the findings of Tyler in ‘What is procedural justice?’ Many
of the parties, especially those like Stephen Mann (Baltersan Investments) who represented
themselves and/or attended proceedings, were disappointed with the formality and technicality
associated with the process. Mann, as a senior partner with an international accounting firm,
was not a stranger to law or technicality. While the hearings at the AAT were designed to be
informal, during the hearings many of the formal rules of evidence were discussed, and the
large number of parties and lawyers meant that the Tribunal became a de facto court. The
lawyers spent a considerable amount of time engaged in technical challenges to the
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In this case the participants were acutely attentive to the outcomes and could assess
them against their local knowledge, sense of fairness and ability to read the
Regulations. Inconsistent and unprincipled outcomes may make legal processes
appear to be empty formalities and legal institutions subservient to the interests of
industry and/or the affluent and influential. Moreover, an orderly legal process
cannot compensate for an irrational or inconsistent result; even if that outcome is
the culmination of a variety of unanticipated developments.
One of the difficulties with such an unprincipled and irrational wine region is that it
undermines public confidence in legal institutions and the possibility of resolving
disputes according to the rule of law. In effect, small business people outlayed tens
of thousands of dollars to have the meaning of the Regulations clarified toward the
end of the domestic regionalisation process. This provides little consolation for
those excluded from the Region because of a mistake of law.284 Not only are the
locals, on all sides of the dispute, frustrated by the duration, cost and a final result
which makes little sense, but wine consumers have been let down and export
potential compromised by the erection of a regional boundary which has little to do
with viticulture and, against international trends, contributes to the proliferation of
Australian wine regions.285
G. An alternative ‘solution’
While the platform (PNL) may not have been a particularly defensible boundary,
once the GIC and the AAT extended the wine region beyond the platform few
viticultural reasons were offered to restrict the Coonawarra region below the 37 km
284
285
admissibility of evidence. There was also surprise and disappointment at the length of time
taken to produce the AAT’s decision.
Here we encounter a strange metaphysics where the temporal order and involvement in appeals
means that earlier decisions are legally sacrosanct unless challenged or formally repaired. This
means that many people are legally excluded from the region even though that exclusion is
based on what is subsequently understood as an improper interpretation and application of the
relevant law. See Gary Peller, ‘The metaphysics of American law’ (1985) 73 California Law
Review 1151 and consider Harry Collins, Changing Order (1985) for the discussion of the
metaphysics of emerging ontologies.
In his article, ‘Wine Appellation as Territory’, Moran notes that the publicity of court cases
‘enhances the territorial exclusivity of the appellation and is itself valuable advertising’, 705.
In my interviews nobody seemed to think that the publicity associated with the dispute was
positive. While people recognised that the name ‘Coonawarra’ was in the news media, virtual
all of the participants thought the publicity was adverse. Consider the following comments by
Huon Hooke, ‘Coonawarra’ (September 2000) 26 Decanter 35: ‘Meanwhile, wine drinkers,
retailers and writers in the major export destinations like the UK are still asking difficult
questions. ‘Is this a Coonawarra wine?’ ‘Which vineyards are in Coonawarra and which are
not?’ And, at the heart of the matter, ‘Where exactly is the region of Coonawarra?’ for the
place that is arguably Australia’s most famous wine region, these are fairly pertinent questions.
That nobody can answer them precisely is extraordinary.’ Indeed, this negative publicity was
frequently referred to in complaints to politicians and the AWBC.
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EDMOND – COONAWARRA WINE REGION
climatic threshold proposed by Smart. However, even this apparently rigid technical
boundary, predicated upon viticultural attributes incorporates, and possibly elides, a
range of assumptions which could be contested. For example, why not combine soil
and drainage characteristics with temperature? Alternatively, why select 1.2ºC MJT
rather than 1ºC or 2ºC or use MJT in preference to average hours of sunshine?286
There are many possibilities. Notably, there was also general agreement,
independent of any requirement in the AWBC Act and Regulations, that the
Coonawarra wine region could not extend beyond the South Australian state border
(the eastern boundaries of the Hundreds of Comaum and Penola) into Victoria.
Regardless of the degree of homogeneity in grape growing attributes across the
state border, Coonawarra, it seems, would always be an exclusively South
Australian wine region.287
Nevertheless, on the basis of this analysis and the actual evidence presented here
and in the various settings I would accept Smart’s 37 km radius for the Coonawarra
wine region.288 This was the only proposal predicated exclusively on ‘grape
growing attributes’.289 For logistical and political reasons I would terminate the
region at the Victorian border.290 There would, in this version, be no Penola or
Wrattonbully wine regions. In addition, I would attempt to develop a subregion
using the PNL soil landscape determined by the PIRSA mapping project. While soil
might have been given too much prominence in the overall boundary determination
process the PNL profile identified by PIRSA provided greater homogeneity than the
rest of the region and the majority of historical development and the red wines for
which the region is justly famous had predominantly come from the reddish soils on
the platform. Obviously, the difficulty is tailoring the PIRSA map, which was not a
simple soil boundary, to the cadastre. Accepting that a subregion might have been
controversial, a genuinely independent decision maker could, if necessary, impose
such a boundary without the same kind of divisive repercussions that might result
from local attempts to determine a subregion. Significantly, many of those on the
platform would have welcomed such an imposition.
286
287
288
289
290
Mayo, The wines of Australia, 26–27.
Greg Bowker and Susan Star, Sorting things out: Classification and its consequences (1999).
This is not meant to be the final word or deny the existence of problems or other possibilities.
It is, however, an attempt to discipline myself, vis-à-vis the role of the decision maker, albeit
after the evidence is in and the law has been clarified. One of the unfortunate consequences of
the way this dispute turned out is that there was no attempt to apply what became the law to
what was simultaneously understood as the most important evidence.
Moreover, a region based on ‘grape growing attributes’ has the potential to articulate with the
export orientation of the AWBC Act by acknowledging the historical production which might
incorporate character, quality and style. Stern (with Léger) has identified and discussed some
of the problems associated with the current system and its relations with appellations, see
‘Geographical Indications: “What’s in a name?”‘, above n 16.
This would make the region about 4 000 km2 and the subregion less than 100 km2; At around
4000 km2 ‘Smart’s Coonawarra’ would be smaller than many other important Australian wine
regions and about one fifth of the size of the Hunter Valley wine region.
(2006) 27 Adelaide Law Review
179
H. Order without law: The Red Strip Club
To some extent my proposed solution is vindicated by recent developments within
the Coonawarra wine region. Notwithstanding the existence of a statutory scheme
designed to determine wine regions and subregions, some of the smaller wine
producers are now considering establishing an informal ‘subregion’. One of the
proposed names is The Red Strip Club. In an increasingly competitive wine
industry, beset by an international oversupply of grapes and wine, ‘The Red Strip
Club’ is intended as a marketing collective to advance the interests of its
members — mostly those from the Gang of 25 based along the central platform.
This version of ‘self help’ reflects widespread dissatisfaction with the expense,
delay and unpredictability of the regulatory and legal processes.291 In the end, some
of the people in the Coonawarra district have recognised their ability to create order
without law.292 In the wake of the dispute over the Coonawarra wine region and the
social and economic disruption caused by litigation, an unofficial subregion
provides an understandable, if unfortunate, way of avoiding the difficulties and the
protections supposedly built into the existing statutory framework.
291
292
For examples of informality, pluralism and autonomous ‘lawmaking’, consider: Walter
Wayrauch, ‘Romaniya: An Introduction to Gypsy Law’ (1997) 45 American Journal of
Comparative Law 225; Susan Caffrey and Gary Mundy, ‘Informal Systems of Justice: The
Formation of Law within Gypsy Communities’ (1997) 45 American Journal of Comparative
Law 251, 254, 259; Leigh-Wai Doo, ‘Dispute Settlement in Chinese-American Communities’
(1973) 21 American Journal of Comparative Law 627; Peter King, ‘Gleaners, Farmers and the
failure of legal sanctions in England 1750–1850’ (1985) 125 Past & Present 116; John Sharpe,
‘The people and the law’ in B Reay (ed), Popular Culture in Seventeenth-Century England
(1985) 244; Edward Thompson, Whigs and Hunters: The Origin of the Black Act (1975) 258–
269; Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century
(1992); Craig Horle, The Quakers and the English Legal System 1660–1688 (1988); Marcus
Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates and the AngloAmerican Maritime World 1700–1750 (1987); Steven Reinhardt, Justice in Sarladais 1770–
1790 (1991).
Malcolm Feeley, The process is the punishment: handling cases in a lower court (1979).
180
EDMOND – COONAWARRA WINE REGION
Appendix 1 – Witnesses mentioned in the text
Donald Armstrong, hydrologist (A)
Doug Balnaves, grape grower and long term resident (R)(P)
Dr Peter Bell, historian (R)
Dr Alfred Cass, soil scientist (consultant to GIC)
Peter Copping, Rosemount viticulturist (A)(P)
Brian Croser, wine maker (A)(P)
Di Davidson, consultant viticulturist (A)
Dr David Dunstan, historian (A)
Dr Robert Fitzpatrick, soil scientist (R)
Max Foale, geographer (A)
Rob Linn, historian (A)
Associate Professor Larry Lockshin, marketing academic (A)
Brian ‘Prof’ Lynn, grape grower and long term resident (R)(P)
David Maschmedt, soil scientist and cartographer (A)
Barry Mulligan, grape grower, wine maker and long term resident (A)(P)
David Murdock, production manager with Southcorp (R)
Vic Patrick, Mildara Blass/Beringer Blass viticulturist (A)
John Pendrigh AM, Chair ITTAC, EC-Australia Wine Treaty Negotiator, Chair AWBC (A)
Brendan Provis, Mildara Blass/Berringer Blass viticulturist (A)(P)
Associate Professor Pascale Quester, marketing academic (R)
Peter Rymill, local historian, wine maker and long term resident (A)(P)
Dr Richard Smart, consultant viticulturist (A)
Derek Smith, geographer (A)
Ken Wetherby, soil scientist (A)
Dr Peter Woods, hydrogeologist (R)
(A) – appeared for Applicants
(R) – appeared for Respondents
(P) – party to the proceedings
Applicants: those who challenged the GIC’s Final Determination before the AAT
Appellants: those who appealed the AAT’s decision to the Federal Court
Respondents: those defending the GIC’s Final Determination before the AAT: the ‘Gang of 25’
and Southcorp
Defendant: Only Southcorp defended the AAT’s decision before the Federal Court.
(2006) 27 Adelaide Law Review
Appendix 2:
181
Modern soil classifications for ‘Coonawarra’: Blackburn/CSIRO,
PIRSA, Isbell and Northcote
The Blackburn/CSIRO and PIRSA soil landscapes and land systems. The
Isbell soil type is in brackets
CRG:
Linear to irregular low dunes (PO1, TE2).
GLR:
Stony plains (HY4, DE1, VE2); swamps (HY1).
KLN:
Plains (SO1, SO2); Small swamps (HY1); Low rises (TE1).
MAO:
Plains (HY4, DE1, CH1); Many swamps (HY2, HY1).
NGW:
Gently undulating sand plain (PO1, CH5, PO2); Swamps (HY1).
NRC:
High old coastal range with extensive sand spreads (TE2, SO1);
Between ranges (=SRN), flats (SO1); swamps (HY1). Calcarenite.
PNL:
Low broad ridge (remnant calcarenite) (TE1, DE1, CH1).
SHO:
Plains (SO1, SO2, PO2, CH2); Parallel dunes (TE2); Calcerenite rises
(TE1); Swamps (HY1).
WRT:
Gently undulating plains and valleys (SO1, VE1, TE1, CH2);
Sinkholes and swamps (HY1).
Isbell’s soil types
CH1:
Red Chromosol. Medium thickness red brown loam overlying a dark
red brown well structured clay grading to soft carbonate or calcarenite
at 50 –100 cm.
CH2:
Brown Chromosol. Thin to medium thickness sand overlying a brown
mottled clay which may have minor soft carbonate at depth.
CH5:
Yellow Chromosol. Medium to thick sand overlying yellow and red
friable clay.
DE1:
Petrocalcic, Black Dermosol. Shallow, black, well structured loam to
clay overlying limestone or, less commonly, soft carbonate.
HY1:
Hydrosol. Variable wet swamp soil.
HY2:
Salic Hydrosol. Moderately to highly saline swamp soil.
HY4:
Dermosolic Hydrosol. Shallow well structured black clay loam to clay
over limestone, saturated for more than a few months annually.
PO1:
Podosol. Deep bleached sand over iron and organic matter cemented
sand (coffee rock).
PO2:
Aquic Podosol. Very deep bleached sand overlying coffee rock
grading to grey and yellow mottled clay.
SO1:
Brown Sodosol. Shallow to medium thickness sandy surface soil
overlying a brown and yellow or grey mottled clay with strong
columnar structure, calcareous with depth.
SO2:
Brown Sodosol. Deep sandy surface soil overlying a brown and yellow
or grey mottled clay with strong columnar structure, calcareous with
depth.
TE1:
Petrocalcic, Leptic Tenosol. Stony sand to sandy loam overlying
calcarenite usually shallower than 50 cm.
TE2:
Bleached Tenosol. Deep bleached sand over yellow sand.
VE1:
Grey Vertosol. Grey, cracking clay.
VE2:
Black Vertosol. Black, self mulching cracking clay.
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EDMOND – COONAWARRA WINE REGION
Alternatively, in ‘Soils and Australian Viticulture’ (1988), Northcote, described Coonawarra
in the following terms:
Coonawarra
Most common soils
Non-cracking subplastic clays, Uf5.31 (‘the celebrated Coonawarra loam’)
Shallow friable loams with smooth-ped fabric, Um6.41
Cracking clays, Ug6.42
Shallow friable loams with Smooth-ped fabric, Um6.43
Other soils
Hard red duplex soils, Dr2.23
Abbreviations
AAT:
Administrative Appeals Tribunal
AGM:
Annual General Meeting
AWBC:
Australian Wine and Brandy Corporation
AWBC Act: Australian Wine and Brandy Corporation Act 1980 (Cth)
CGGA:
Coonawarra Grapegrowers Association (1993)
CSIRO:
Commonwealth Scientific and Industrial Research Organisation
CVA:
Coonawarra Vignerons Association (1985)
CPWIA:
Coonawarra Penola Wine Industry Association (1999)
EC:
European Community
GI:
geographical indication
GIC:
Geographical Indications Committee
JC:
Joint Committee of the CVA and CGGA (for purpose of application for GI)
ITTAC:
International Trade and Technical Advisory Committee
LIP:
Label Integrity Program
OPPC:
Old Penola Pastoral Co (Rymill Wines)
PIRSA:
Primary Industry and Resources South Australia
QC:
Queen’s Counsel
Regulations: Australian Wine and Brandy Corporation Regulations 1981 (Cth)
TPA:
Trade Practices Act 1974 (Cth)
Treaty:
Agreement between Australia and the European Community on Trade in Wine,
Protocol 1994
VCSESA:
Viticultural Council of the South East of South Australia