Coonawarra Penola Wine Industry Association Inc & Others and Geographical Indications Committee

[2001] AATA 844

DECISION AND REASONS FOR DECISION [2001] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )    Nos S2000/182,,

)    183, 186-227,

GENERAL ADMINISTRATIVE  DIVISION       )   305 and 313     
           Re      PENOLA HIGH SCHOOL BALTERSAN INVESTMENTS PTY LTD GC KOCH RE & MJ WITTWER GARRISON PARK NOMINEES PTY LTD DB MARKS GW, DJ & KD BERKIN RD MACLEOD NARADINA PTY LTD CASTINE KANAWINKA FAMILY TRUST MJ & KE PALM AKERINGA PLAINS PTY LTD DM & PJ CASTINE SJ SKEER GN SKEER BW DAVIS GH & SC GILES COONAWARRA PENOLA WINE INDUSTRY ASSOCIATION INC KGM & GJ SKENE B TIDSWELL t/as HEATHFIELD RIDGE PTY LTD H & VJ MCLEAN & SON OLD PENOLA PASTORAL t/as RYMILL WINERY GREG GARTNER PTY LTD SCHOOLHOUSE PROJECTS PTY LTD SKYRON PTY LTD KJ & DM MERRETT MJ & AW GARTNER PG DOUGLAS & JM KITCHEN BJ & BJ PROVIS T RYMILL OLEN PTY LTD VENADO PTY LTD J DAVIDSON AW LILLECRAP NOMINEES PTY LTD A CHILDS JD KIDMAN GLENBROOK ESTATE PTY LTD & PR COPPING MULLIGAN & TOPWAY DEVELOPMENTS PTY LTD PETALUMA LTD MB TYRRELL EF & DM WILLIAMS JD & PG KIDMAN KIDMAN COMAUM & CLYTHA KOPPAMURRA WINES PTY LTD MILDARA BLASS LIMITED DUNKELD PASTORAL CO LTD           
  Main Applicants

And    HAMILTON'S EWELL VINEYARDS (comprising: MD & DA HAMILTON EWELL INVESTMENTS PTY LTD)            First Joined Applicants
           And    YORK CONSULTANTS PTY LTD & ORS  (comprising: YORK CONSULTANTS PTY LTD YORK MANAGED INVESTMENTS PTY LTD N AVELING FROFED PTY LTD B & C GALEA PTY LTD MALLARD ENTERPRISES PTY LTD MERIT HOMES PTY LTD B MCMANAMEY T MCNAMARA NORSKA HOME PRODUCTS PTY LTD G TIER MECHA ENGINEERING PTY LTD W GOEDECKE FOREST AIR HELICOPTERS PTY LTD LANYON CONSTRUCTION PTY LTD G THOMPSON WEBB CONTRACTORS PTY LTD BRAMPTONLEIGH INVESTMENTS PTY LTD M EWINGS MEADS/ROSIER/GAMBLE/SHARPE RP GRECO)          Second Joined Applicants
           And    GEOGRAPHICAL INDICATIONS COMMITTEE         
  First Respondent
           And    SOUTHCORP GROUP (comprising: SOUTHCORP WINES PTY LTD LINDEMANS WINES PTY LTD ROUGE - HOMME WINES PTY LTD B SEPPELT & SONS LTD WYNNS COONAWARRA ESTATE PTY LTD)    
  Second Respondents

And    COONAWARRA GRAPE GROWERS ASSOCIATION INC  
  Third Respondent
           And    COONAWARRA VIGNERONS ASSOCIATION INC  
  Fourth Respondent
           And    COONAWARRA RESPONDENTS (comprising: RD, PR & DD EY SKYJADE PTY LTD ML, B. & RJ CORNISH t/as BOOLARA PROPRIETORS MAJELLA WINES PTY LTD ZEMA ESTATE PTY LTD WR BRAND NOMINEES PTY LTD JEROWEN MANAGEMENT PTY LTD SJ & SA KIDMAN HA, BT, GM & JB KIDMAN t/as BT & GM KIDMAN & SON BALNAVES VINEYARD SERVICES PTY LTD PUNTERS CORNER WINES PTY LTD VINCORP PTY LTD PARKER ESTATES PTY LTD P, S & C SKINNER LV DOHNT & CO PTY LTD MJ, EW & HR HETHERINGTON t/as PEMBROKE PASTORAL CO DL & SJ FLINT BM, MM, EM & DM REDMAN t/as  REDMAN WINES BUNDALONG PTY LTD            
                      BOWEN ESTATE PTY LTD JI BRAND NOMINEES PTY LTD COONAWARRA VINEYARD MANAGEMENT SERVICES PTY LTD COONAWARRA VINEYARDS PTY LTD COONAWARRA PREMIUM VINEYARDS LTD) PENLEY ESTATE PTY LTD      
  Fifth Respondents

DECISION

Tribunal       Justice O'Connor, President Associate Professor B Davis, Member            

Date5 October 2001

PlaceAdelaide

Decision      We set aside the decision under review and direct that the matter be referred to the GIC for implementation of the Coonawarra Region boundary in accordance with our description of the boundary.          

CATCHWORDS
Review of final determination of geographical indications committee - determination of names and boundaries of a geographical indication in relation to the "Coonawarra" wine growing region – consideration of history, geography/science, harvest dates, development plans, boundary definitions – revised boundary determination – whether inclusive or exclusive approach – the relevance of marketing wine to the determination of the boundary – degree of discreteness and homogeneity of the proposed regional boundary 

Australian Wine and Brandy Corporation Act 1980; ss 40Y, 3, 4, 40A, 40T,
Administrative Appeals Tribunal Act 1975
Australian Wine and Brandy Regulations 1981;  Regulations 23, 24, 25
Agreement between Australia and the European Community on Trade in Wine, and Protocol (Brussels-Canberra, 26-31 January 1994;  effective from 1 March 1994);  Articles 3, 6, 7

Reid, Moss, Gregg, Simpson, Aroney, Chun Wong, Schiavone & Pillai v Vocational Registration Appeal Committee (1997) 46 ALD 593
Re BHP Petroleum Pty Ltd and Minister for Resources (1993) 30 ALD 173
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552
R v Toohey: Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

Len Evans, Australian Complete Book of Wine (1973, revised 1976),  p 141

REASONS FOR DECISION

5 October 2001                   Justice O'Connor, President         Associate Professor B Davis, Member           

Introduction

1. In this matter the Main Applicants, have filed 46 applications in which they seek to have reviewed, pursuant to s 40Y of the Australian Wine and Brandy Corporation Act 1980 (Cth) (the AWBC Act), a decision of the Geographical Indications Committee (GIC), the First Respondent, determining a geographical indication called "Coonawarra". The GIC's determination was made on 10 May 2000.

2. All of the Applicants have vineyards that fall outside the boundary drawn by the GIC's determination (the GIC boundary).  Some Applicants have vineyards both inside and outside the GIC boundary.

3. The following parties and/or groups of parties were joined as parties to these proceedings pursuant to s 30 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act):
   -          Southcorp Group (joined as Second Respondents on 22 August 2000);

-Coonawarra Grape Growers Association Inc and Coonawarra Vignerons Association Inc (joined as Third and Fourth Respondents on 22 August 2000);

-Coonawarra Respondents (joined as Fifth Respondents on 16 November 2000);

-Hamilton Ewing Vineyards (joined as First Joined Applicants on 14 February 2000); and

-York Consultants Pty Ltd & Ors (joined as Second Joined Applicants).

Background

1. An Agreement between Australia and the European Community on Trade in Wine, and Protocol, took effect on 1 March 1994 (the EEC Wine Agreement).

2. In 1993 the Commonwealth government amended the AWBC Act to establish the GIC for the purpose of determining geographical indications in relation to wine in Australia.

3. On 12 December 1995, pursuant to s 40R of the AWBC Act, the Joint Committee of the Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc lodged an application to the GIC to have determined a region called "Coonawarra" pursuant to s 40Q.
   Thereafter, the GIC:

(a)pursuant to s 40U of the AWBC Act made an interim determination of the Coonawarra region on 30 April 1997 (the interim determination);

(b)received submissions between May 1997 and October 1998 pursuant to the invitation by notice made in accordance with s 40V(2);

(c)proposed a variation to the interim determination on 3 February 1999;

(d)received further submissions between February 1999 and July 1999 pursuant to the further invitation by notice in accordance with its publication of 3 February 1999; and

(e)made the (GIC) determination.

1. Applications for a review of this determination were then made to the Administrative Appeals Tribunal (the AAT).

2. On or about 2 June 2000 the GIC published a Statement of Reasons for Decision in compliance with a request made pursuant to s 28 of the AAT Act.
   Legislative Framework

3. The AWBC Act contains the following relevant provisions:

   "3  Objects

   (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 fulfil 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 varieties of grapes that may be used in the manufacture of wine in Australia;

   and this Act shall be construed and administered accordingly."

1. Section 4 provides that:

   A "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."

A "prescribed wine-trading agreement" means:

"(a)an agreement relating to trade in wine that is in force between the European Economic Community and Australia; or

(b)an agreement relating to the trade in wine that is in force between a foreign country (other than an EC country) and Australia and is declared by the regulations to be a prescribed wine-trading agreement."

1. The relevant provisions of the EEC Wine Agreement include:

   Article 3, that provides:
   "…
   The Contracting Parties shall take all general and specific measures necessary to ensure that the obligations laid down by this Agreement are fulfilled.  They shall ensure that the objectives set out in this Agreement are attained."

Article 6, that provides, inter alia:

"[Australia] shall take all measures necessary, in accordance with this Agreement, for the reciprocal protection of the names referred to in Article 7 which are used for the description and presentation of wines originating in the territory of the Contracting Parties.  [Australia] shall provide the legal means for interested parties to prevent use of a traditional expression or a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question
..."

Article 7 protects names set out in Annex II.  Annex II relevantly provides:

"ZONE
South East
Regions
…
Coonawarra
…".

1. The obligations imposed on Australia as a party to the EEC Wine Agreement and signatory to the Protocol are reflected in Part VIB (ss 40, 40A – 40ZF) of the AWBC Act, relating to the "Protection of Certain Names and Expressions".

2. The procedure for the making of determinations of geographical indications is set out in Part VIB of the AWBC Act. Section 40A sets out the objects of the Part:

   "The object of this part is to regulate the sale, export and import of wine:

   (a)for the purpose of enabling Australia to fulfil its obligations under prescribed wine-trading agreements; and

   (b)for certain other purposes for which the Parliament has power to make laws;

   and this Part is to be interpreted and administered accordingly."

1. Section 40T of the AWBC Act is headed "Making of Determinations" and, relevantly, provides:

   "(1)     In determining a geographical indication, the Committee 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."

1. The Australian Wine and Brandy Regulations 1981 (Cth) (the Regulations) concerning Part VIB of the AWBC Act provide as follows:

   "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".

   "25   Criteria for determining geographical indications
   For the purposes of subsection 40T(2) of the Act, the Committee is to have regard to the following criteria:

   (a)whether an 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 s 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 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 … the Committee is not prohibited under the Act from having regard to any other relevant matters."

1. Regulation 24 defines the following terms for the purposes of Part 5 of the Regulations:

   "Region" means "an area of land that:
   (a)       may comprise one or more subregions; and

   (b)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;

(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."

1. Submissions were made by parties as to the interpretation of the statutory scheme and in particular to the criteria specified in Regulation 25.  Most of these submissions are uncontentious.  All parties agree that the decision-maker is bound to have regard to all of the criteria, but is not prohibited from having regard to other relevant matters not expressly referred to in the criteria.  Soil and pedology are examples of other relevant matters.  The criteria do not require, however, that more weight be given to any one criteria compared to another.  Because the criteria are generic and are intended to have general application to the whole of Australia, it will, in particular circumstances, be necessary to regard some criteria as having greater significance.  As was pointed out by O'Loughlin J in Reid v VRAC (1997) 46 ALD 593 at 601:

"…
The expression "must have regard to", which is found in statutory instruments from time to time, will always take its meaning from the context in which it appears.  Thus the matters to which a decision-maker, such as the appeal committee, "must have regard to" might be exhaustively listed: see, for example, Re BHP Petroleum Pty Ltd and Minister for Resources (1993) 30 ALD 173 at 180.  Alternatively, the relevant provisions might be "so generally expressed that it is not possible to say that he is confined to these … considerations": R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552 at 554 per Mason J.  But whether the listed subject matters are or are not exhaustive, they are matters to which regard must be had by the decision-maker.  It is essential that the decision-maker, to adopt the words of Gibbs CJ in R v Toohey Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, "give weight to them as a fundamental element" in coming to a conclusion.
…"

1. Applying these principles, provided we as decision-makers have real regard for all of the criteria, the final determination in this matter, as an administrative act is, (if lawful and within the bounds of procedural fairness), a matter of judgement or balance – one party described our determination as a "discretionary" decision.

2. There are, numerically, 20 criteria but the GIC, in our view correctly, submits that they are usefully grouped into five categories:
   (a)      History;
   (b)      Geography;
   (c)       Harvest dates;
   (d)      Development plans; and
   (e)      Boundary definitions.

3. The predominant number of criteria fall into the first two categories ie. history and geography.  Set out below is the framework of the Regulation suggested to us by the GIC and which we have used to consider the evidence.

(a)      History

Founding and development of the area (Regulation 25(b));

History of the word/expression to indicate the area, (Regulation 25(h)), including:

(i)whether and to what extent it is known to wine retailers beyond the boundary       (Regulation 25(h)(ii));

(ii)traditional use of the word or expression in the area or elsewhere (Regulation      25(h)(iii));

(iii)the appropriateness of the word/expression (Regulation 25(h)(iv));

Traditional divisions (Regulation 25(i)(viii)(linked to homogeneity/discreteness));

History of grape and wine production in the area (Regulation 25(i)(ix)(linked to homogeneity/discreteness)).

(b)Geography / Science

Natural features such as rivers, contour lines and other topographical features (Regulation 25(c));

Geographical formation (Regulation 25(i)(i)(linked to homogeneity/discreteness));

Climate as constituted by temperature, atmospheric pressure, humidity, rainfall, sunshine and other weather conditions (Regulation 25(i)(ii) (linked to homogeneity/discreteness));

Natural drainage basin (Regulation 25(i)(iv)(linked to homogeneity/discreteness));

Water/irrigation scheme (Regulation 25(i)(v)(linked to homogeneity/discreteness)); and

Elevation (Regulation 25(i)(iii)(linked to homogeneity/discreteness));

(c)       Harvest dates (Regulation 25(i)(iii)(linked to homogeneity/discreteness));
(d)      Development plans (Regulation 25(i)(vii)(linked to homogeneity/discreteness));
(e)      Boundary Definitions
           The boundary suggested in the application (Regulation 25(e));
           Constructed features (Regulation 25(d));
           Ordinance survey map grid references (Regulation 25(f)); and
           Local government boundary maps (Regulation 25(g)).
Is there a policy context in which the criteria must be considered?

1. The Applicants argue that a fundamental objective of the Act in relation to the establishment of regions was to ascertain a Geographic Indications (GI) map which did not depend on the operation of appellation control, (a system which is used in European Countries).  The aim of the scheme was to avoid heavy and ongoing regulation and to promote inclusiveness when defining a wine region boundary.  This they argue was an integral part of the historical and political background to the legislation.

2. The evidence of Mr John Pendrigh was relied on to support this submission.  Mr Pendrigh led the team which negotiated the GI regime in the context of renegotiating the International Wine Agreement between Australia and the European Community (referred to above).  The GIC, in this hearing, accepted that a policy of inclusiveness was important to the process and they also recognised that Mr Pendrigh played a leadership role in establishing the scheme.

3. The Second Respondent however, criticises this submission as to a policy context as generally vague and unhelpful.  While agreeing that the GI system was not intended as an indicator of the style and quality of the wine in the particular region, they argue that Mr Pendrigh's evidence is irrelevant to the task of the decision maker, which is to interpret the Regulations and apply the stated criteria.  These criteria, it submits are not ambiguous and require no intrinsic aids in their interpretation.  Further they say that even if policy were needed to interpret the Regulations, Mr Pendrigh's evidence does not and could not express government policy but reflects his own opinions and recollections and as such, is of little value to any decision-maker.

4. In spite of this fundamental disagreement all parties contend that the boundary they support has been created with an "inclusionary" approach to the task of interpreting the criteria.
   The two-fold test – must it be applied?

5. The GIC also submitted that the Tribunal must, to define a region, use a "two fold" test which they describe as follows:
   Firstly, it must look at the entire area within any proposed boundary and satisfy itself that the land included is homogenous to a measurable degree in some grape growing attributes and then it must look at the areas outside or beyond the proposed boundary to be satisfied that the proposed region is discrete to a measurable degree from the outside areas in relation to some of the grape growing attributes.

Role of the GIC in the review proceedings

1. The GIC (the decision-maker) is a party to these proceedings but did not, contrary to its initial wishes, present fresh evidence to the Tribunal or challenge the new evidence presented.  The Tribunal considered that the issues before it could be addressed by the other parties who had opposing views and wanted to avoid unnecessary duplication and expense.  However, the GIC did participate in other aspects of the proceedings.  Particularly, it assisted at our view of the area, made useful opening and closing submissions and, when requested by the Tribunal, made a presentation of the history of the "boundaries" which had been presented to it in the course of its determination process which had been conducted over a number of years.  We were assisted greatly by this role.
   Evidence before the Tribunal

2. The parties (excluding the GIC) have filed numerous statements in support of their respective positions.  The statements can be generally described as follows:
   (a)      Statements of the parties or their authorised representatives;
   (b)      Expert evidence within the following general classifications:

   (i)        History – relevant to Regulation 25(b), 25(h) and (i)(ix);

   (ii)Geography, geology and cartography – relevant to Regulation 25(c), (d), (f), (g), (i)(i) and (i)(vi);

   (iii)Viticulture – relevant to Regulation 25(i) and Regulation 24; and

   (iv)Soil science – relevant to Regulation 25(c) and (i) and Regulation 24.

(c)       Other statements concerned with miscellaneous matters such as:

(i)        Broad policy issues; and

(ii)       Marketing.

1. 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 (including the T documents).  We found this method of dealing with such a large volume of expert material very helpful.
   Submissions of the Parties
   Summary of the Applicants' submissions:

2. Submissions on behalf of the majority of the Main Applicants were made Mr Anderson QC, Mr Anastassiou, Mr Jopling QC and Mr A Robertson SC.  In summary, Counsel for the Main Applicants submit that the GIC determination was wrong because:

(a)the GIC ignored or discounted the material about climate in the majority decision.  They urged the Tribunal to give it proper consideration and weight;

(b)in relation to soil, (which as stated above is not mentioned expressly in the criteria) the GIC proceeded on the basis that soil was the key to the region, but even within its own terms, only 25 per cent or so of the soil within the GIC boundary as defined is terra rossa soil.  Part of the Main Applicant's complaint is that the GIC used the terra rossa criteria to exclude other areas of terra rossa soil on the basis that they were not predominantly terra rossa;

(c)the GIC determination was a combination of a "false precision" in the science that it used and was based on a philosophy of exclusion.  As an example they identified vineyards within the area which were cut in half by the GIC boundary;

(d)in relation to soil drainage, some sites within the area include undrained and slowly drained land and so do they outside the area.  The Main Applicants submit that if you permit (as they contend the GIC did) considerable soil variation inside the area you cannot then apply the same criterion without more explanation and say: no, there is some soil variation in some other area and you are therefore excluded;

(e)in relation to proximity, many of the vineyards owned by the Main Applicants are very proximate to the low limestone ridge overlain with terra rossa soil, commonly known as the "cigar".  If proximity was an important factor on which the GIC made its determination it must be applied consistently unless there is some supervening reason to exclude the vineyard(s).  The Main Applicants submit that there has been no consistent use of this central concept of proximity by the GIC;

(f)the GIC in its decision embarked on considerable discussion and decision making by reference to the 60-metre contour line.  However, the Main Applicants submit that if the 60-metre contour line was accurately applied to the area in question it would actually cut right through the heartland of the GIC determined area;

(g)the GIC determination inexplicably cuts across several geographical formations.  The Main Applicants referred to the report prepared by geographers Messrs Foale and Smith [Exhibit A8];

(h)the Tribunal should not have regard to the GIC's proposal for a three region model (ie.  Coonawarra, Wrattonbully and Penola).  The Main Applicants contend that the Tribunal should make this decision in relation to Coonawarra without regard to what the impact might be on the viability or otherwise of other proposed areas;

1. the GIC incorrectly applied the Regulations in excluding the township of Penola because it was a town and had a town boundary;

(j)the GIC ignored or down played the significance of the historic and community perceptions and in particular the Penola Coonawarra historical development; and

(k)generally the GIC adopted an exclusive rather than inclusive approach.  Counsel for the Main Applicants referred to the statement of Mr John Pendrigh [Exhibit A5], who says that the choice of words (in the Regulations) leaves a variety of options open.  This means that the Tribunal is able to have regard to the policy background referred to above in coming to a conclusion as to the appropriate boundary.

1. Submissions were also made by the representatives of other parties included as Main Applicants who, in general, adopted the submissions made by counsel for the majority of the Main Applicants.

2. Mr Mann, the representative for Baltersan Investments Pty Ltd also made a submission in respect of his property.

3. Counsel for the First and Second Joined Applicants, Mr Hamilton, submitted that his clients "in a broad sense" adopted the submissions of the Main Applicants.  However, Mr Hamilton also argued that the GIC boundary be extended as far as Naracoorte to the north and then on a west to east line out to the Victorian/South Australian border.  This area is considerably larger than that provided by the Main Applicants but includes other vineyards.  He argued that such a boundary would best reflect the objects of the Act, which are, among others, to promote and control the export of grape products.  The setting of the boundary according to the criteria must have, these parties submit, the effect of promoting the export of Australian wine.  Therefore, because the determination to be made here is "once and for all" they argued that the use of the name Coonawarra (recognised by all as a valuable asset in terms of the export of Australian wine) should be applied expansively even if areas claiming coverage such as these Applicants, have little or no historical association with the traditional core of the Coonawarra area at the present time.  It was, they argued, important not to lose this "once and for all" opportunity.

4. Further they submitted that when considering historical factors weight should be given to the existing pattern of vineyard development at present in a homogenous climatic zone.  If approached this way one can then infer the pattern of future vineyard development and take it into account as well.  Such an approach they argue is "truly inclusive" and provides for immediate and long term growth of the Coonawarra regional area properly consistent with this important policy objective of the Act.

1. These parties consider that, but for the intervention of this GI system, the dynamic evolution of grape growing and wine making would have happened over time and naturally expanded the Coonawarra region.  Therefore the statutory task of defining the boundary should not cut across this potential development.  They say that the 1984 resolution of the Viticultural Council (considered later in these reasons), while factually relevant, should be discounted because it was not widely understood, the area defined does not comply with the current criteria under the Act and was exclusionary in nature.  Further, the history relating to word or expression, while highly significant to the areas traditionally associated with the word or expressed through label claims, should not exclude the use of the name for an area which can, on the "preferred" application of the criteria, be properly regarded as a wine region.

1. The important matters, these parties argue, in the context of the criteria, are the climatic zone, the existence and location of the cigar, historical considerations, the lack of any defining geographical features in the climatic zone, the diversity of soil types throughout the climatic zone, the need for potential growth in the context of the Policy objectives of the Act and the value of this name for marketing purposes with consequent economic benefits for the industry and Australia's economic interests.
   First Respondent – the GIC

2. The representative for the GIC, Mr Gretsas, submitted that the three interpretational issues which would attract the greatest attention in this review were the following:

(a)whether, in determining a region, one looks inside and outside the region to determine whether the region is measurably discrete and homogeneous. (The two fold test referred to above).

(b)what weight, if any, should be given to the style and quality of wine in determining the region.

In relation to this issue the GIC submits it should be minimal because these factors are not mentioned in the criteria and the wine industry rejected such considerations in the period before the legislation was enacted.  Particularly, it pointed out that the issue of what happens after the grape vine is planted, in terms of vine performance or resulting grape characteristics or wine characteristics as a means of measuring the homogeneity of a region are not matters referred to in the Regulations and are of little assistance because they are subject to human intervention; and

(c)The weight or significance to be accorded to the particular express criteria, on the evidence before the Tribunal, in relation to this particular and unique area.

Second Respondent - Southcorp

1. Counsel for Southcorp (the Second Respondent), submits that the criteria set out in Regulation 25 all contribute (albeit in varying degrees) to the determination of the boundary and the name of geographical indications.  Accordingly, the approach taken by the Applicants, which is to focus merely on grape growing attributes, and, in particular, climate/temperature is incorrect both:

(a)insofar as it purports to be justified by the interpretation of Regulations 24 and 26; and

(b)insofar as it purports to be an application of the criteria set out in Regulation 25.

1. The degree of discreteness and homogeneity of the various attributes (including some grape growing attributes) in Regulation 25(i) is one of the criteria to which regard must be had by the decision-maker.  However, it is not the only criterion to which regard must be had to identify the boundary and name of the area.  Southcorp contends that the degree of discreteness and homogeneity of the grape growing attributes of the land referred to in Regulation 24 determine the characterisation of the land encompassed within the boundary – ie  relevantly, is it a "region" or a "subregion".

2. Southcorp submits that, in effect, the Applicants' case seeks, impermissibly, to elevate the definition of "region" to the status of criterion in its own right.  They seek to uplift and apply the definition of "region" and in doing so supplant Regulation 25(a).  However, "region" is a definition, not a criterion.  Further, Southcorp submit, this transposition fundamentally upsets the sense of Regulation 25(a).  Regulation 25(a) requires the GIC to have regard to and compare different geographic descriptors.  The descriptors are defined in Regulation 24.  To only look at the definition of "region" defeats any comparison with the appropriate descriptor.

3. In summary, Southcorp submits that the Applicants' case is misconceived for the following reasons:

(a)the Applicants ignore the relevance of the other criteria set out in Regulation 25 or, alternatively, derogate those other criteria to mere formality, without substance;

(b)the Applicants import into Regulation 25 criteria that are:

(i)not expressly included;

(ii)subjective, not objective;

(iii)not relevant to the drawing of a boundary or the naming of the area; and

(c)the objects of the AWBC Act are set out, inter alia, in ss 3 and 40A. The Applicants seek to elevate the opinions of an individual (Mr Pendrigh) in a way that is not only impermissible from the viewpoint of statutory interpretation, but also in a way that is not consistent with the express language of the AWBC Act.

Third and Fourth Respondents – the Associations

1. Counsel for the Third and Fourth Respondents, Mr Lane, appeared at the commencement of the hearing of this matter, at which stage he informed the Tribunal that his clients did not seek to make formal submissions at that time.  Counsel sought and was granted leave to make final submissions if he deemed it necessary.  He did not ultimately regard it as necessary to do so.
   Fifth Respondents – Coonawarra Respondents

2. Counsel for the Fifth Respondents, Mr O'Callaghan, submitted that his clients supported and adopted the case made by the Second Respondent.

3. Mr O'Callaghan also made the following additional submissions:

(a)historically, the Coonawarra has always been defined by reference to the cigar-shaped limestone ridge on which can be found an abundance of terra rossa.  The importance of the 1984 [Viticultural Council] resolution (discussed below) was that it made a concession to the boundary which necessarily extended it "a bit" beyond the boundary of the cigar; and

(b)the Fifth Respondents support the GIC determination because it acknowledges the significance of the limestone ridge on which can be found terra rossa in abundance.  They say the determination is correct and preferable because it gives prominence to what has always made Coonawarra famous.

Role of Science in Establishing the Boundary

1. For the purposes of subsection 40T(2) of the AWBC Act the GIC is required to have regard to the following scientific criteria specified under Regulation 25:

   "…

   (c)…natural features, including rivers, contour lines and other topographical features;

   (d)…constructed features, including roads, railways, towns and buildings;

   …

   (f)ordinance survey map grid references in relation to the area;

   (g)local government boundary maps in relation to the area;

   …

   (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 is uniform having regard to the temperature, atmosphere 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 date on which harvesting of the same variety is expected to begin in neighbouring areas;

   (iv)whether part or all of the area is within a single drainage basin;

   (v)the availability of water from an irrigation scheme;

   (vi)the elevation of the area;

   …

   (ix)the history of the grape and wine production in the area."

1. Under subsection 40Q(1) of the AWBC Act, there is no prohibition from having regard to any other relevant scientific matters.

2. The parties have submitted that wine quality and style are not included in these Regulations as criteria and there is no specific mention of soils.  Nonetheless witnesses before the Tribunal commented frequently and specifically upon soil attributes.  All regarded soil as an integral aspect of geology and viticulture, drainage and other natural features.  Some parties submitted that soil is a key feature of this particular region.  We have concluded that it is in relation to this region, of relevance to this application.

1. A great deal of evidence was provided to the Tribunal about natural phenomena and scientific aspects of areas called Coonawarra, Penola and Wrattonbully and the Limestone Coast Zone of South East South Australia.  A number of scientific experts gave oral evidence and made submissions, as well as engaging in the "hot tubs" within the fields of geography and geomorphology, soil science, hydrology, viticulture and mapping.  Apart from oral and written submissions, other material in the form of maps, charts, diagrams, tables and other exhibits were also provided to the Tribunal.  They have all been useful in considering the application of the criteria.

2. Although descriptions varied, there was, not surprisingly, much common ground about the basic geology, topography, natural features and climate of Coonawarra and adjacent regions.  There was considerable disagreement, however, about soil and viticultural prospects in some localities and the implications of this for boundary determination.

3. Coonawarra, the town and surrounding area is located some 430km south-east of Adelaide, near the Victorian border and between the towns of Naracoorte and Mt Gambier and adjacent to the small town of Penola.  A dominant feature is a low limestone ridge which is approximately 12 to 14 kilometres long by 2 to 4 kilometres wide.  The ridge (or "cigar") is overlain by terra rossa together with other soils and runs approximately north-south, virtually parallel to the coast which is some 65 kilometres to the west.  Coonawarra has a predominantly winter rainfall with a long cool ripening period for grapes and there is a good supply of high quality groundwater which is used for establishing new vines, for frost control and for supplementary irrigation when needed.  The area has a reputation for consistent production of high quality grapes, which had lead to premium wine production.

4. In more scientific terms the area can be described as follows:

   The Coonawarra region is a relatively low flat plain lying between the Cave Range some 25 kilometres to the west of the Limestone Ridge and the Naracoorte Range some 10 kilometres to the east.
   "The Naracoorte Range is the eastern most and the first shoreline of a series of dune ranges running parallel to one another, each located to the west and associated with the inter glacial periods...  The shoreline to the west of Coonawarra is Cave Range and the elevation here is less than 10 metres above the adjacent plain.  As water receded from these ranges during each ice age, the next parallel range was formed during the next glacial period, as a result of slow tectonic uplift and ecstatic sea level changes.  The Naracoorte Range is dated approximately 750,000 years ago, whereas the Cave Range to the west of Coonawarra is dated about 650,000 years ago, putting Coonawarra somewhere in between, approximately 700,000 years ago.

   Unlike the Limestone Ridge which runs north-south, the Naracoorte Range runs NW-SE and rises some 40 to 70 metres above the Coonawarra plain, originally the seabed between the Naracoorte Range and Stewarts and Cave Ranges dunal systems."  (T47, p251)

1. The western edge of the Naracoorte Range is a scarp associated with the Kanawinka Fault, so that to the east, the land is undulating with an easterly aspect.  Apart from distinctiveness due to its sand content, the terra rossa here is generally associated with the Gambier Limestone coming to the surface, resulting from the east-side up displacement along the Kanawinka Fault.

2. To the west of the Naracoorte Range, the Gambier Limestone is at depths of about 18 to 24 metres and is overlain by the Coomandook, Bridgewater and Padthaway formations, which represent a sequence of marine and lagoonal sediments.  These formations contain much calcareous material and the general view is that the Coonawarra terra rossa soils formed in site from parent material formed from marine limestone deposits, by weathering of carbonates.

3. The terra rossa soils on the Limestone Ridge are red brown in colour, have a higher clay content and less sand than those in neighbouring areas and overlay what is believed to be marine limestone developed on elevated areas of Bridgewater formation.  These terra rossa soils are formed as a result of weathering due to exposure to sun and air and are not uncommon, generally as isolated outcrops, in the wine zone, the Limestone Coast of the south-east of South Australia.

4. In the case of Coonawarra, the Limestone Ridge is located at an historic shoal not recently subject to inundation.  The Coonawarra contains more clay than others in the area and some including parties to these proceedings claim it to be unique as an extensive and continuous ridge of terra rossa of marine origin.  Terra rossa soils throughout Australia are generally well drained and subject to climate very suited to viticulture, the composition of the soils varying according to location and due to differing geological sources.

5. The extensive areas of plain away from the ridge are believed to have been lagoons for long periods in the past and are located on the marine and lagoonal sediments of the Padthaway formation.  There are still numerous swamps, lakes and low-lying areas where the soils are described as ground water rendzina.  Even the higher ground may be inundated at times and the soils are very heavy, grey or black in colour and have good water-holding capacity, but are prone to severe cracking when dry.  These soils are described as rendzina and are well suited to cropping but according to the viticultural experts not horticulture.  Planting of vines on these soils is problematical, as they tend to be highly vigorous and in all but the driest years, there is difficulty in ripening grapes.  Generally these plantings if made at all are restricted to early ripening white varieties.

6. Adjacent to the Limestone Ridge and also found throughout the area as isolated small "islands" or outcrops, are reddish to dark brown soils which have similarities with Coonawarra terra rossa, but often contain higher proportions of sand or may be terra rossa "transitional" soils.  These "islands" are slightly higher than the surrounding land, are generally associated with a high water table and were prone to flooding, so the soils have been less subject to oxidation.
   Scientific opinion

7. 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."..[Exhibit A8, p9].  They tendered a map based upon their report to the Applicants, which the Applicants had adopted in submissions as their preferred boundary.

8. 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 Wrattonbuly 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 Krongat and KLN land systems".

1. 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.

2. 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.

3. The first panel of experts (in a "hot tub") included experts in the fields of viticulture, horticulture, hydrology and wine production.
   These were:
   -          Mr David Murdoch, Wine Production Manager;
   -          Dr Richard Smart, Consultant Viticulturist;
   -          Dr Dianne Davidson, Consultant Viticulturist;
   -          Mr James Robinson, Consultant Horticulturalist;
   -          Mr Donald Armstrong, Consultant Hydrologist; and
   -          Dr Peter Woods, Consultant Hydrologist.

4. Mr David Murdoch (for the Respondents) claimed that the core area of the Coonawarra cigar provided a "unique footprint" with subtle but discernible grape-growing attributes different from surrounding areas.  This was challenged particularly by Dr Smart and Dr Davidson (for the Applicants).  Dr Smart stated that the climate of the area was the major determination of grape-growing characteristics, with soil being important but to a lesser degree.  He had conducted extensive climate monitoring programs across the region, correlated to Bureau of Meteorology readings, which demonstrated a relatively uniform climate over an extensive area from the Cave Range in the west to the Naracoorte Range in the east and between Naracoorte in the north to near Nangwarry in the south.  A report of this research was provided to the Tribunal.  In his view this implied a broad wine region, or at least good grape-growing prospects, over a far wider area than the GIC determination.  Dr Davidson support this contention, stating that soil variations occurred both within and outside the GIC area and there were several outlier areas which could be brought into production.  In the modern wine industry she said it was the capital investment available, as well as market prospects, which governed where vineyard areas were selected and planted.  Soil was important, but management practices existed to facilitate viticulture on most soils, subject to cost considerations.

5. The others in the panel agreed that climate was a key factor in grape-growing attributes, with soil perhaps the next most important factor.  The consulting hydrologists (Messrs Wood and Armstrong) pointed out that high quality ground water was available in the Coonawarra area and despite some variation in salinity, appropriate for vine and grape production in virtually all of the Hundreds of Robertson, Joanna, Killanoola, Comaum, Monbulla and Penola.  Mr Armstrong cautioned that administrative boundaries did not reflect variations in ground water systems and not all areas had been systematically investigated or sampled.  Dr Woods noted that issues of licensing and costs of extraction were involved if irrigation was contemplated.  Mr Robinson stated that minor climate variations between Coonawarra and Wrattonbully had earlier been noted, but this was a matter of data interpretation and whether material had been quoted out of context.  There was, we concluded, no real dispute as to the evidence on the climate of the area.

6. Dr Smart noted the distinction between micro-climate, meso-climate and macro-climate in viticulture and criticised the adoption of a 60 metre contour elevation line by the GIC in its determination.  Participants agreed that if climate was relatively uniform across the region, it did not provide a useful basis for boundary determinations;  other criteria would also have to be used.  But soil was not the primary determinant either, since it varied both within and outside the cigar.  While terra rossa might be the predominant soil type here, it probably did not constitute more than about 25-33 per cent of the GIC Coonawarra area and "islands" of terra rossa existed elsewhere.

7. The second panel of experts (in a "hot tub") traversed somewhat the same subject matter as the first, but with more emphasis on cartography, soil science and land systems.  Participants were:
   -          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 David Smith, Geographer; and
   -          Mr Max Foale, Cartographer.

8. Mr Maschmedt drew attention to some aspects of mapping land systems, noting that four such systems existed in the area under examination.  Current assessments were based on a range of data, some going back to the 1950's, usually involving broadscale office mapping, followed by field proofing.  Within each land system a number of soil landscape units were identified and classified.  He expressed the opinion that the defined GIC Coonawarra region is far from homogenous and in a general sense the degree of variability is no less and no more than within the GIC boundary.  He considered it would be difficult to exclude some existing vineyards outside the GIC area, on the basis of a soils criteria, when the soil range was not more than within the GIC boundary.

9. He disagreed with exclusion of the Limestone Ridge area south of Penola from the region, arguing that this land system extended at least six kilometres south of the town.  He considered that the data used by the GIC to exclude this area, was information that had been taken out of context.  He agreed there were distinctions even within the class of terra rossa soils, but his expertise did not extend to making viticultural comment about the implication of such distinctions.

10. Mr Wetherby outlined his considerable experience of relating soil types to land use, but stated he had largely applied this to individual vineyards rather than broad regions.  He considered it necessary to distinguish between calcrete and limestone as base, note the impacts of ripping and drainage, consider the water holding capacities of some soils and other factors, rather than dealing in broad generalities about soil types.  Dr Fitzpatrick agreed, but noted that the Coonawarra ridge was fairly unique in terms of its scale and that the sub-plastic properties of its high clay content soils were particularly favourable for grape production.

11. Dr Cass queried some aspects of these opinions and did not accept PIRSA's approach to mapping the region, saying he preferred the earlier Blackburn surveys of the 1950's and 1960's.  He also queried whether there was, even in these proceedings, sufficient evidence to confirm extension of the cigar south of Penola, and if it was accepted, it could only be based upon isolated islands of terra rossa and related soils which were there.  Mr Maschmedt refuted this, saying that although Dr Cass had access to PIRSA data, he thought this had been misconstrued and perhaps used out of context, with inappropriate scaling.  He considered PIRSA had better data than that used in the earlier Blackburn map.

12. Dr Smart stated that one should not confuse soil properties and soil classification;  he believed we should focus on the former in terms of grape-growing attributes and recognise there were substantial tracts, both within and outside the GIC area and cigar, where favourable grape production was feasible.  Dr Davidson agreed, stating that although soil properties were important, at the end of the day it was vine performance and fruit quality which counted.

13. Dr Fitzpatrick referred to the value of Blackburn's work, but stated that one needed to understand the underlying geology as much as soil properties;  the two were entwined and dynamic processes were at work through time.

14. The situation was, in summary, one where the unique or particular characteristics of soil, although significant, were now being modified by human intervention.  In this sense soils alone, or even climate and soils, did not constitute a rigorous basis for boundary determination.

15. The third panel of experts (in a "hot tub") was concerned with further elaboration of some points already made and summarised above.  Participants were:
    -          Mr David Maschmedt, Soil Scientist (PIRSA);
    -          Mr Kenneth Wetherby, Soil Scientist;
    -          Dr Alfred Cass, International Consultant Soil Scientist;
    -          Dr Robert Fitzpatrick, Senior Principal Research Scientist (CSIRO);
    -          Dr David Smith, Geographer;
    -          Mr Max Foale, Cartographer; and
    -          Dr Dianne Davidson, Consultant Viticulturist.

16. Mr Maschmedt repeated his earlier opinion that he considered Dr Cass had misinterpreted some data for the area south of Penola and he believed an extension of the cigar could be substantiated, through the mapping and ground proofing PIRSA had carried out.  Dr Davidson however made a more general observation that even if the boundary submitted by the Applicants was adopted, it would only constitute about 1,000 square kilometres which she said was considerably less than some wine regions in Australia and overseas.  (It was later indicated that the area encompassed by the Applicants' claim was 1,030 square kilometres compared with the GIC area of 157.7 square kilometres).

17. Mr Wetherby repeated the observation that areas capable of high quality grape production existed both within and outside the GIC area, nonetheless it was essential to focus on ground proofing of localities and individual vineyards and avoid "sweeping generalisations".  Dr Cass disputed the use of words such as "heterogeneity", "homogeneous" and "proximate", in describing soils, but argued there were areas where particular soil types were predominant.  In this sense the cigar was the largest continuous and contiguous mass of terra rossa in Australia.  This was the reason it was first developed and remained the focus of large-scale production.  One should not criticise the GIC he said for using soil types as an initial guide; thereafter other factors had been incorporated in trying to resolve the boundary.

18. Dr Fitzpatrick urged caution in treating red soils as if they were all terra rossa.  Islands of the latter did exist outside the GIC area, but other kinds of soils too, such as reddish-brown, sandy loam and black rendzinas.  They were different indeed, and some not conducive to grape production of the Coonawarra type and consistency.

19. Dr Cass was cross-examined about his failure to use some PIRSA information in his reports; contradictions being noted between his strong defence of the GIC's focus on terra rossa and the cigar, while subsequently admitting that diverse soil types might be found in various localities, including some outside the GIC area which closely resembled terra rossa.  Dr Cass also conceded that some of his criticisms of Mr Wetherby's submissions may have been incorrect.

20. Two subsequent groups of experts ("in hot tubs") dealt with the history of the region and development of the wine industry, and the marketing of the produce from the region.

21. Apart from submissions made by participants in these scientific hot-tubs, expert evidence and a range of other submissions were made by various individual experts such as Drs Cass, Smart and Davidson.  Dr Cass and Dr Smart accompanied us on a view of the area and provided oral commentary and debate on site from time to time.
    Conclusions on scientific evidence

22. 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.

1. The boundary then turns north-east, following the eastern boundary of Sections 420 to 429 inclusive, Hundred of Penola, then skirts the southern and eastern limits of Section 449 (McLean and Son, H and VJ), southern boundary of Rymill (Section 405).

2. From here the boundary line proceeds north-east eliminating swampy and unsuitable ground as well as tracts of Penola Forest and associated plantations.

3. From the Rymill property (Section 405) the line turns east to meet the edge of Penola Forest, then turns north following the eastern limits of Sections 442, 444, 530 before turning east once more at the southern edge of Section 458.  From here it turns north to skirt the forest edge along Sections 100, 101, 131 and 132, then north-east once more at the southern boundary of Sections 218, 211, 210 (adjacent to the Penola Reserve Plantation) to the South Australia/Victoria boarder.

4. The line continues north along the South Australia/Victoria border (ie the eastern limits of the Hundreds of Penola and Comaum) until the property of Douglas PG and Kitchen JM is reached (Section 309, Hundred of Comaum) in north-east Comaum).

5. The north-east boundary of the revised determination includes most existing vineyards, but excludes considerable areas of Comaum Forest and the Glen Roy Conservation Park.

6. The line skirts the northern extremity of the Douglas and Kitchen property (Section 309, Hundred of Comaum) along Neales Road, turns briefly south along Wrattonbully Road to the northern limit of the Kidman Comaum Clytha property (Sections 270, 258, 315, 325 and 363, Hundred Comaum), adjoining Comaum Forest, then west at the forest edge until the Schoolhouse Projects Pty Ltd property is reached (Allotment 1, DP43219, Hundred of Comaum).

7. The entire Schoolhouse Projects Property is included.  It was inadvertently split during the GIC determination, due to some earlier boundary amendments.

8. The eastern and northern boundaries of Schoolhouse Projects Pty Ltd and then Provis BJ and BJ (Section 272, Allotment 749 FP1911311) as followed, then the line turns north-west, along the western edge of Section 358 (pine plantation) to meet the southern boundary of the Glen Roy Conservation Park.  The western boundary of the Park is then following north to meet the Hundred line Comaum - Joanna (now Wrattonbully).

9. The Hundreds line is then followed west to the initial starting point (north-west limit of Hundred of Comaum), apart from inclusion of the Sharefarmers property (Petaluma, Sections PT4, PT5 and PT8, Hundred of Joanna).  Here the eastern, northern and western limits of the property are followed.

10. We set aside the decision under review and direct that the matter be remitted to the GIC for implementation of the Coonawarra Region boundary to be drawn in accordance with the above description of the boundary determination.

    I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of the Tribunal

    [Signed]:       Rachael Quinn
      Associate

    Date/s of Hearing  20 February 2001 to 26 March 2001

    Date of Decision  5 October 2001

Counsel for the following Main Applicants: -  Petaluma Limited -  BJ & BJ Provis -  PG Douglas and JM Kitchen -  Greg Gartner Pty Ltd -  BF Mulligan -  JD & PG Kidman -  Kidman Comaum & Clythe -  Coonawarra Penola Wine Industry Assn -  G & S Giles -  B Davis -  D Marks -  Garrison Nominees Pty Ltd -  RE Wittwer & Family -  R Macleod -  G Koch -  A Macleod (Naradina Pty Ltd) -  D & P Castine -  GW Berkin & Family -  GN Skeer (estate) -  SJ Skeer -  Castine Kanawinka Family Trust -  MJ & KE Palm -  CK Lillecrapp -  Akeringa Plains Pty Ltd and McNeil -  KGM & GJ Skene -  AR Childs -  Koppamurra Wines Pty Ltd                  T R Anderson, QC          

Counsel for the following Main Applicants: -  The Old Penola Pastoral Company -  H & VJ McLean -  T Rymill -  Venado Pty Ltd -  Olen Pty Ltd -  J Davidson                A Robertson, SC          
Counsel for Dunkeld Pastoral Company: P Anastassiou         
Counsel for Beringer Blass Limited:        P Jopling QC
Representative for B Tidswell (Heathfield Ridge):        A Collett        
Representative for Glenbrook Estates Pty Ltd & PR Copping:           G Coppola    
Representative for Baltersan Investments Pty Ltd:       S Mann         
Counsel appearing for the First and Second Joined Applicants:       M Hamilton  
Representative for the First Respondent:          G Gretsas     
Counsel for the Second Respondents:    I Robertson  
Counsel for the Third and Fourth Respondents: S Lane          
Counsel for the Fifth Respondents:         T J O'Callaghan