DISORDER WITH LAW: DETERMINING THE GEOGRAPHICAL …Gary Edmond* DISORDER WITH LAW: DETERMINING THE GEOGRAPHICAL INDICATION FOR THE COONAWARRA WINE REGION Coonawarra, historic, if much-disputed,

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

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

* 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.

1 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).

T

EDMOND – COONAWARRA WINE REGION 60

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 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.

3 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.

4 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

associated with some of the more taken-for-granted features of ordinary legal and regulatory processes.

5 Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic against the System (2004).

6 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).


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 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.

8 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.

9 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).

10 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).


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 Australian wine producers indicated that they would follow the approach to GIs associated

with TRIPS. 12 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).

13 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.

14 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).


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 wine-

trading 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 Amended by the Australian Wine and Brandy Corporation Amendment Act 1993 (Cth). 16 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


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 Australia State South Australia Zone Barossa Region Eden Valley Sub-region 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 EC-Australia Wine Agreement in the following manner:

Zone South East [later changed to Limestone Coast] Regions 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 in-house.17 However, the power to determine GIs was eventually vested in an

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).

17 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.’


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 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.

19 AWBC Act, sch 2. 20 The GIC produced a guide to assist with applications: GIC, Details of Proposed Australian

Geographical Indications (29 November 1994).


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.


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


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 Act1974 (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 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. 22 John Beeston, A Concise History of Australian Wine (3rd revised ed, 2001) 262–263.


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).


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 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.

24 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.

25 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.


technological innovation. More recent attempts to define, and occasionally defend, a boundary were constrained by the geographical uncertainties confronting pre-cursors 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.


Figure 3 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.

27 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.


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 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.

29 The hundreds were actually surveyed progressively and vary somewhat in shape and size. 30 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


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.

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.’

31 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.

32 CGGA, “Coonawarra” Regional Ascription, submission to AWBC (November 1993). 33 Letter from Brian Croser to the President, VCSESA, 20 August 1990, 5; Brian Croser, AAT

Witness Statement, 16 December 2000. 34 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.


Figure 4 CGGA map of Coonawarra with ‘islands’ (1994).


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 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).

35 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.


‘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 St Mary’s Application for a Coonawarra wine region which included the six Hundreds of Killanoola, Comaum, Monbulla, Penola, Grey and Nangwarry (1996).

36 Letter from Barry Mulligan to Margaret Mountford, AWBC, 27 August 1993.


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 The GIC dismissed the CGGA’s initial application in 1993 because, without the participation

of the CVA, it was considered insufficiently representative. 38 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).


* 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 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.’

40 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.

41 Ibid 18–19.


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 Ibid 30. Given the membership requirements stipulated by the constitutions of the CVA and

CGGA it was unlikely that their members would complain. 43 Ibid 31. In this extract ‘approximate’ should read ‘proximate’. Generally, I have refrained from

trying to correct errors and misspellings. 44 Ibid 31. 45 Ibid. 46 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


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

use of maps in court, see George Cho, ‘Maps and the Law: How far can you go in Court?’ (2001) 51 Globe 1.

47 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.

48 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.


Figure 7 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.


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 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.

50 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)

51 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.


Figure 8 The GIC’s Second Interim Determination (1999). Note the additions and excisions.


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 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.

53 Coonawarra Penola Wine Industry Association Inc, Application: Coonawarra Region (June 1999).

54 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.


Figure 9 CPWIA Application for the Coonawarra wine region (1999).


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 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.

56 Coonawarra Grape Growers’ Association, (Press Release, 29 May 2000). 57 Geographical Indications Committee, Statement of Findings on Material Questions of Fact and

Reasons for Decision – (Section 37 of the Administrative Appeals Tribunal Act) (2000).


Figure 10 The GIC’s Final Determination (2000) and three region solution.


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 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.

59 The area, rather than the town, is generally referred to as ‘Coonawarra’ or ‘the Coonawarra’. Locals are more inclined to use ‘Coonawarra’.

60 ‘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.

61 Appendix 1 contains a list of the expert witnesses referred to in this paper.


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).


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 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.

63 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.


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 W. Catton Grasby, The Coonawarra Fruit Colony and Yallum Estate near Penola, South

Australia (1899) 38. 65 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. 66 Mayo, above n 21, 249; Dr Peter Bell, AAT Witness Statement, 15 December 2000, 5. Bell

includes ‘to light a fire’ among the definitions.


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.


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 wine-making.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 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.

69 Les Hinton, Redman Wine: Story of a winemaker (1971).


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 Dunstan, above n 67, [43]; Halliday, Coonawarra, above n 51, 35–8. 71 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.

72 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.


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).


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.


Table 1 provides an indication of the rapid growth in planting, production and export trade over the last two decades, especially since 1990:74

0

200

400

600

800

1000

1200

1400

1985

1987

1989

1991

1993

1995

1997

1999

2001

Litres (Millions)

Dollars (Millions)

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).


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 Bell, above n 66, 8. 76 Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors and

Geographical Indications Committee (Administrative Appeals Tribunal, 8 March 2001), 1061–83.

77 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.

78 Dunstan, above n 67, [39].


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 Linn, above n 67, 32–3. 80 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.

81 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.

82 Transcript of Proceedings, Coonawarra Penola Wine Industry Association Inc & Ors and Geographical Indications Committee (Administrative Appeals Tribunal, 8 March 2001), 1038.


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 Ibid 1012–1013, 1049, 1110–1111. 84 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.

85 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’.


i. Geological formation

The geology of the Coonawarra district has been shaped by marine incursionswhich occurred millions of years ago. The retreating sea left a series of paralleldunes which formed the Naracoorte Ranges to the east and the Cave and StewartRanges 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 alineament, the Kanawinka Fault, on the Naracoorte Ranges which has altered theirorientation relative to the other dunes. The sediment deposited by the ancient seasled to the formation of layers of limestone (or calcrete). Overlying the tertiary-ageGambier Limestone is the younger Bridgewater Formation which is between 650000 and 800 000 years old. The terra rossa soils on the ranges and the platformseem to have formed through the weathering of these calcretes.86

Figure 16 Map from Homes and Waterhouse. Rises (and ranges) and plains. Drain C bisectsthe platform.

86 Kenneth Wetherby, AAT Witness Statement, 18 December 2000, 9.


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 rossaremains 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 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.

88 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.


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 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.

90 Ronald McDonald et al (eds), Australian Soil and Land Survey Field Handbook (2nd ed, 1998). 91 Foale and Smith, AAT Witness Statement: The Coonawarra Region, 15 December 2000, 10. 92 Ibid.


Figure 17 Soil Map of Robertson’s Well vineyard (Hundred of Joanna). Thanks to PIRSA.



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.


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.


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 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.

95 Wetherby, above n 86, 8. 96 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).

97 Blackburn, The Soils of Counties Macdonnell and Robe, above n 88, 46. 98 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.


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 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.

100 Joint Committee, Application, above n 39, 18. 101 Foale and Smith, AAT Witness Statement, above n 91, 19.


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 north-eastern 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 See also Blackburn, above n 88, 7. 103 Foale and Smith, AAT Witness Statement, above n 91, 21. 104 Ibid 22.


iv. Proximity

In the reasoning of the Joint Committee, the GIC and the AAT the idea of proximityto 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 CPWIA v GIC, above n 48, [137]; GIC, Statement of Findings on Material Questions of Fact

and Reasons for Decision, above n 57. 106 Maschmedt, Witness Statement, above n 99, 22. 107 Foale and Smith, AAT Witness Statement, above n 91, 23. 108 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.

109 Smart, AAT General Witness Statement, 19 December 2000, 27–35.


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 P.G. John, ‘Wine making expectations for Coonawarra dry red styles’ (1989). 111 Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 512–514. 112 Transcript of Proceedings, CPWIA v GIC (AAT, 7 March 2001) 838. 113 Ibid 844.


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 Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 540. 115 Transcript of Proceedings, CPWIA v GIC (AAT, 6 March 2001) 788–789. 116 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.


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 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.’

118 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).’

119 Transcript of Proceedings, CPWIA v GIC (AAT, 6 March 2001) 785. 120 Wetherby, AAT Witness Statement, above n 86, 3, 7–9.


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 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.

122 Smart, AAT Witness Statement, above n 109, 5–8.


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 Ibid 30. 124 Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 508–9. 125 Joint Committee, Australian Geographic Indication: Application, above n 39, 21.


Table 2 Climate comparisons. Thanks to Chris Dearden, Daedalus (SA) Pty Ltd.


‘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 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.

127 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.


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 Comaum-Caroline 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 Comaum-Caroline 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 Contrast Theodore Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public

Life (1995). 129 Transcript of Proceedings, CPWIA v GIC (AAT, 22 February 2001) 502–3.


‘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 Larry Lockshin, AAT Witness statement, 15 December 2006, 6. 131 Pascale Quester, AAT Replying Statement, 2 February 2001, 6–9; Transcript of Proceedings,

CPWIA v GIC (AAT, 12 March 2001) 1194–1239. 132 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.

133 Those on the inside were less likely to develop arguments based on comparisons with other Australian wine regions.

134 Foale and Smith, AAT Witness Statement, above n 91, 20.


Figure 21 a. Sample of McLaren Vale soil associations. b. Foale and Smith, Cross-section of McLaren Vale (vertical amplification 8 times)


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 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. 136 Ibid 23.


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 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).

138 Letter from John Pendrigh to John Keniry, Chairman AWBC, 6 May 1997. 139 The 1986 Riddoch Estate Coonawarra Cabernet Shiraz won the 1987 Jimmy Watson Memorial

Trophy. 140 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].


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 Australian Wine and Brandy Corporation Act 1980 (Cth) pt VIA. 142 Peter Copping, AAT Witness Statement, 18 December 2000, 6. 143 For example, Brendan Provis was President of the CGGA in 1999 and Tim Kidman was

Secretary. 144 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).


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 Such sentiments had even been published, see Halliday, Wine Atlas, above n 77, 217. 146 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. 147 Letter from Brian Croser to the President, above n 33.


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 Di Davidson, AAT Witness Statement, 20 December 2000, 4. 149 Those participating, from afar, through investment schemes or exploiting tax breaks were

pejoratively known as Collins St (Melbourne) and Pitt Street (Sydney) farmers.


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 responseto 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 Letter from J.E. & M.R. Hinze to The Chairperson, AWBC, 27 July 1994. 151 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.

152 Letter from Peter Copping to Guy Darling, GIC, 20 April 2000. 153 Transcript of Proceedings, CPWIA v GIC (AAT, 22 March 2001) 1974. 154 Letter from Hinze to The Chairperson, above n 150. 155 Letter from Peter Copping to Guy Darling, above n 152.


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 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.

157 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.

158 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.


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 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.

160 ‘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.


(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 CPWIA v GIC, above n 48, [80–83] (emphasis added). 162 Ibid [48].


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 See also Ibid [63], [133], [148]. This claim is curious because wine regions, according to the

Regulations, are required to be ‘discrete’. 164 See also Ibid [134–136]. 165 Ibid [64].


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) Excluded (unsuccessful Applicants)Baltersan Investments Pty Ltd (Stephen Mann) (Hundred of Comaum)

AW Lillecrapp Nominees Pty Ltd and CK Lillecrapp (Hundred of Joanna)

J Davidson (Penola) GW, DJ and KD Berkin (Comaum) BW Davis (Comaum) DM and PJ Castine (Killanoola)* PG Douglas and JM Kitchen (Comaum) Castine Kanawinka Family Trust (Lee Castine)

(Monbulla) Garrison Park Nominees Pty Ltd (IW and J Hetherington) (Penola)

A Childs (Grey)

Greg Gartner Pty Ltd (Comaum) Dunkeld Pastoral Co Pty Ltd (Riddoch Estate) (Joanna)

MJ and AW Gartner (Comaum) MJ and AW Gartner (Joanna) GH and SC Giles (Comaum) JD and PG Kidman (Monbulla)*Glenbrook Estate Pty Ltd and Peter Copping (Penola)

GC Koch (Joanna)

Kidman Comaum Clytha (Comaum) Koppamurra Wines Pty Ltd (Joanna) JD Kidman (Penola) RD MacLeod (Joanna)* GC Koch (Penola) Mildara Blass (Robertson’s Well vineyard)

(Joanna)* DB Marks (Penola) BF Mulligan and Topway Developments (St

Mary’s) (Killanoola) H and VJ McLean and Son (Penola) Naradina Pty Ltd (A MacLeod)* KJ and DM Merrett (Penola) MJ and RE Palm (Joanna) Old Penola Pastoral Co Ltd (Peter Rymill – Three Mile vineyard) (Penola)

GN Skeer (Monbulla)

Olen Pty Ltd (Penola) SJ Skeer (Monbulla) Penola High School (Penola)166 KGM and GJ Skene (Grey) Petaluma Limited (Brian Croser – Sharefarmer’s vineyard) (Joanna)

Skyron Pty Ltd (Killanoola)

BJ and BJ Provis (Comaum) B Tidswell (Heathfield Ridge Pty Ltd) (Spence)

T Rymill (Penola) MB Tyrrell (Killanoola) Schoolhouse Projects Pty Ltd (Comaum) Venado Pty Ltd (Penola)

166 Penola High School has its own vineyard and viticultural education program.


Included (successful Applicants) Excluded (unsuccessful Applicants)EF and DM Williams (Penola) RE and MJ Wittwer (Penola)

All of the first joined Applicants: Hamilton EwellYork 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 CPWIA v GIC, above n 48, [128]; see also Jonathan Potter, Representing Reality: Discourse,

rhetoric and social construction (1996) 122–149. 168 CPWIA v GIC, above n 48, [128]. 169 von Doussa, O’Loughlin and Mansfield JJ.


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 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.

171 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.

172 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.

173 Lynn LoPucki, Legal culture, legal strategy and the law in lawyers’ heads’ (1996) 90 Northwestern University Law Review 1498.


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’).


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 Ibid [67]. 176 Ibid [66].


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


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 Ibid [74]. 178 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.


of the Coonawarra region which defines the boundaries of the Coonawarra region:

a. 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

b. 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 Beringer Blass Wine Estates Limited v GIC, Court Order, 4 November 2002. 180 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’.

181 Section 44, Administrative Appeals Tribunal Act 1975 (Cth). See also Beringer Blass Wine Estates Limited v GIC (2002) 125 FCR 155 [104–114].


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.


VII. 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 pre-litigation 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 Scott, above n 12. 183 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.


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 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.

185 Hans Gadamer, Truth and Method (1975). 186 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.

187 For an informative theoretical discussion, see Robert Sack, ‘Human Territoriality: A Theory’ (1983) 73 Annals of the Association of American Geographers 55.


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 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).

189 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.


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 CPWIA v GIC, above n 48, [110]. 191 Ibid [131]. See also Keith Whittington, Constitutional Interpretation: Textual meaning,

Original Intent and Judicial Review (Lawrence KS: University of Kansas Press, 1999). 192 Yearley, ‘Bog Standards’, above n 2; Martin Rudwick, The Great Devonian Controversy: The

Shaping of Scientific Knowledge among Gentlemanly Specialists (1985). 193 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].

194 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.

195 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


all the trappings of independence and transparency the GIC was functionally an in-house 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 non-producers 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

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.

196 ‘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.

197 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.

198 Joint Committee, Response to Submissions Opposing the Boundary established by the Interim Determination of the GIC (9 February 1998).


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 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.

200 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.’


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 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.

202 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).


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 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.

204 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.

205 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.


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 Stephen Hilgartner, Science on Stage: Expert Advice as Public Drama (2000). 207 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.

208 For example: LIP Audit Guide (AWBC), ‘Notice to All Australian Wine Manufacturers’ 17 October 1994 and 31 December 1995.

209 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.

210 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.

211 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’.


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 becamemore 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.


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 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.

214 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).

215 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).


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 Beringer Blass Wine Estates Limited v GIC (2002) 125 FCR 155, [69]. 217 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.

218 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.

219 Transcript of Proceedings, CPWIA v GIC (AAT, 13 March 2001) 1425.


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.


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 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).

222 Alan Irwin, Citizen Science (1995); Alan Irwin and Brian Wynne (eds), Misunderstanding Science: The Public Reconstruction of Science and Technology (1996).

223 Though poorly drafted, Regulations 24 and 25 are neither particularly technical nor prolix. 224 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.


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 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.

226 For example, Peter Rymill, Penola Commemorative Biographies: Alexander Cameron, John Riddoch (1998).

227 Undoubtedly some of this was merely speculation, rumour, innuendo, gossip and hearsay. 228 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).


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 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).

230 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.

231 Issues of efficiency and affordability also arise.


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 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.

233 The correct titles are listed in Appendix 1. 234 Gary Edmond, ‘After objectivity: Expert evidence and procedural reform’ (2003) 25 Sydney

Law Review 131; Joe Cecil and Thomas Willging, Court-appointed experts (1993).


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 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 policy-makers (1990); Daryl Chubin and Edward Hackett, Peerless Science: Peer Review and US Science Policy (1990); Hilgartner, Science on Stage, above n 206.

236 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.


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 Charles Goodwin, ‘Professional vision’ (1994) 96 American Anthropology 606. 238 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.

239 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 andjudicial 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.

240 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.


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 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]. 242 Gary Edmond & David Mercer, ‘Experts and expertise in legal and regulatory settings’ in G.

Edmond (ed), Expertise in regulation and law (2004) 1. 243 Pierre Bourdieu, ‘The force of law: Toward a sociology of the juridical field’ (1987) 38

Hastings Law Journal 805.


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.


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 Transcript of Proceedings, CPWIA v GIC (AAT, 8 March 2001) 998–1001. 246 Mercer, ‘Hyper-experts’, above n 126. 247 Potter, Representing reality, above n 167; Edmond, ‘Judicial representations of scientific

evidence’, above n 244 and ‘Judging Facts’, above n 240.


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 prioricommitments, 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 Foale and Smith, AAT Witness Statement: The Coonawarra Region, 15 December 2000, 58. 249 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.

250 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).


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 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.

252 Babidge, AAT Witness Statement, 14–5. 253 Transcript of Proceedings, CPWIA v GIC (AAT, 7 March 2001) 820–1.


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 Transcript of Proceedings, CPWIA v GIC (AAT, 14 March 2001) 1551. 255 CPWIA v GIC, [124]. 256 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).


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 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’.

258 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.


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 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.

260 Letter from Vic Patrick, Mildara Blass, to General Manager, AWBC, 14 May 1993. 261 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.’


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.


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 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.

264 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.

265 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.


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 pre-commitments 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 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.

267 Jerome Frank, Courts on trial: Myth and reality in American justice (1949); Gary Edmond, ‘Judging Facts’, above n 240.

268 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).

269 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.’


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 boundarywould 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 Barbara Yngvesson, Legal Ideology and Community Justice in the Clerk’s Office (1985) 9

Legal Studies Forum 71, 86. 271 June Starr and Barbara Yngvesson, ‘Scarcity and Disputing: Zeroing-in on Compromise

Decisions’ (1975) 2 American Ethnologist 553.


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 CPWIA v GIC, [150] – [313]. 273 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). 274 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.

275 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).

276 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


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

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?

277 Lorraine Daston and Katharine Parks, Wonders and the Order of Nature (2001).


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 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).

279 This was certainly the response from all of those interviewed, including Applicants andRespondents.

280 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).

281 In contrast to the popular Australian film, The Castle (1997), not all of these ‘battlers’ had their legal entitlements fully vindicated.

282 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).

283 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


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

admissibility of evidence. There was also surprise and disappointment at the length of time taken to produce the AAT’s decision.

284 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.

285 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.


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 Mayo, The wines of Australia, 26–27. 287 Greg Bowker and Susan Star, Sorting things out: Classification and its consequences (1999). 288 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.

289 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.

290 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.


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 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 Anglo-American Maritime World 1700–1750 (1987); Steven Reinhardt, Justice in Sarladais 1770–1790 (1991).

292 Malcolm Feeley, The process is the punishment: handling cases in a lower court (1979).


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.


Appendix 2: 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.


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

AbbreviationsAAT: 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

Documents

DISORDER WITH LAW: DETERMINING THE GEOGRAPHICAL …Gary Edmond* DISORDER WITH LAW: DETERMINING THE GEOGRAPHICAL INDICATION FOR THE COONAWARRA WINE REGION Coonawarra, historic, if much-disputed,