FEDERAL COURT OF AUSTRALIA

Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877

Administrative Law – Administrative Appeals Tribunal – practice and procedure – procedures of the Tribunal within the discretion of the Tribunal – Tribunal giving directions restricting role at hearing of original decision-maker – decision-maker named as a respondent – other respondents before the Tribunal likely to fulfil the role of contradictor – whether as a party the decision-maker is entitled as of right to cross-examine at large and call witnesses – appropriate role of decision-maker on a merits review – whether the Court should interfere with interlocutory directions on matters of practice and procedure.

Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 39, 44

Administrative Decisions (Judicial Review) Act 1997 (Cth), ss 3, 6

Federal Court of Australia Act 1977 (Cth), ss 19-21

Judiciary Act 1903 (Cth), s 39B

Australian Wine and Brandy Corporation Act 1980 (Cth), Part VIB

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 applied

Director General of Social Services v Chaney (1980) 47 FLR 80 referred to

Commissioner of Taxation v Beddoe (1996) 68 FCR 446 referred to

Tuite v Administrative Appeals Tribunal and Another (1993) 40 FCR 483 distinguished

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 referred to

Australian Postal Commission v Hayes (1989) 23 FCR 320 distinguished

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

David Jones Finance and Investment Pty Ltd and Another v Commissioner of Taxation (1991) 28 FCR 484 distinguished

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied

In Re the Will of F B Gilbert (dec.) (1946) 46 SR (NSW) 318 cited

Lamb v Moss (1983) 49 ALR 533 referred to

New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 distinguished

Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 referred to

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182 referred to

BTR plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 applied

Matter No. S 118 of 2000

GEOGRAPHICAL INDICATIONS COMMITTEE v THE HONOURABLE JUSTICE O’CONNOR & OTHERS

von DOUSSA, O’LOUGHLIN & MANSFIELD JJ

ADELAIDE

20 DECEMBER 2000

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

REASONS FOR JUDGMENT

THE COURT:

1                     The applicant, the Geographical Indications Committee (the GIC), seeks judicial review of directions contained in an interlocutory decision made by the President of the Administrative Appeals Tribunal (the Tribunal) in relation to the role of the GIC in a forthcoming hearing before the Tribunal.  At the hearing the Tribunal will review a decision made by the GIC in relation to the Geographical Indication of the Coonawarra wine region under Part VIB of the Australian Wine and Brandy Corporation Act 1980 (Cth) (the AWBC Act).  Part VIB was inserted in the AWBC Act to meet Australia’s obligations under the Agreement between Australia and the European Community on Trade in Wine which regulates and permits the export of Australian wine into the European Community (now the European Union), and provides for the mutual recognition and protection of each party’s geographical indications.

2                     The GIC is the first respondent named in the proceedings before the Tribunal.  The directions the subject of the present application have the effect of confining the role which the GIC would have as a party at the Tribunal hearing.  The directions, given on 19 October 2000, are as follows:

“The Tribunal orders that the role of the GIC in the substantive hearing of this matter shall be limited in the following manner:

·               to provide assistance to this Tribunal when called upon;

·               to make opening submissions if the GIC thinks fit;

·               to make submissions as to the public interest at the conclusion of the hearing; and

·               to provide this Tribunal any further material at its disposal which may be necessary for the AAT to reach the correct or preferable decision.”

3                     As the directions were made by the President of the Tribunal, the application to this Court comes on for hearing before a Full Court: s 20(2) of the Federal Court of Australia Act 1976 (Cth).

4                     The application to this Court seeks prohibition and injunctive relief under s 39B of the Judiciary Act 1903 (Cth), a declaration as to the rights of the GIC at the Tribunal hearing under s 21 of the Federal Court of Australia Act 1976, and an order pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) setting aside or quashing the directions.  The application contends that the GIC has been denied natural justice by virtue of the fact that the directions have denied the GIC the right before the Tribunal to

(a)        call evidence in chief and in reply to any evidence called by any other party;

(b)        to object to any evidence called by any other party;

(c)        to cross-examine any party or any witness called by any party.

The grounds of the application are that the directions, in limiting the role of the GIC, involve an error of law, that the directions are not authorised by and are contrary to the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and that the directions are a breach of the rules of natural justice.

the gic and its determination

5                     The GIC is established by s 40N of the AWBC Act.  The GIC consists of three members each appointed by the chairperson of the Australian Wine and Brandy Corporation, the presiding member being appointed in accordance with a resolution of the Corporation, one member being appointed on the nomination of a declared winemaker’s organisation, and one member being appointed on the nomination of a declared wine grape grower’s organisation.  The appointments are on a part-time basis for a period of three years: the Schedule to the AWBC Act, pars 2 and 5.  Section 40P of the AWBC Act provides that the function of the GIC is to make determinations of geographical indications for wine in relation to regions and localities in Australia, and it has the power to do all things that are necessary or convenient in the performance of its function.  The GIC may act either on its own initiative or in accordance with an application made by one of the organisations or persons specified in s 40R.  The GIC is required by s 40S in determining a geographical indication to consult any declared winemaker’s organisation and any declared wine grape grower’s organisation, and is empowered to consult any other organisation or persons it thinks appropriate.  The Australian Wine and Brandy Corporation must make staff available to provide administrative assistance for the GIC, and the presiding member is empowered on behalf of the Corporation to engage suitably qualified consultants.  Section 40U requires the GIC to make an interim determination, and under s 40V the presiding member must cause the interim determination to be published and invite persons to make written submissions to the GIC in relation to the determination within a specified period.  Section 40W provides that, after considering any submission made to it, the GIC may make a final determination.  Section 40T requires that the GIC in making a determination must have regard to prescribed criteria.  Criteria are prescribed in the Australian Wine and Brandy Corporation Regulations (the Regulations).  Regulation 25 provides:

“25.     For the purposes of subsection 40T(2) of the Act, the Committee 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.)”

6                     In relation to the Coonawarra region, on 12 December 1995 a joint committee of the Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc made a written application to the GIC for a determination of a geographical indication in the region for “Coonawarra”.  On 30 April 1997 the GIC published an interim determination of the geographical indication of the Coonawarra wine region.  Many dozens of submissions were thereafter received together with information and expert opinions in relation to the proposed boundary of the Coonawarra region.  On 10 May 2000 the GIC published a final determination.

7                     By early June 2000, forty-six applications for review of the final determination had been lodged with the Tribunal seeking an expansion of the geographical boundaries of the Coonawarra wine region to include the properties and vineyards of each of the applicants.

8                     On 22 August 2000 the Tribunal directed that five wine producing companies comprising the Southcorp Group, the Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc be joined as respondents to the proceedings.  Properties and vineyards of the Southcorp Group are located within the boundaries fixed for the Coonawarra wine region by the final determination, and in their Statement of Issues and Contentions filed in the Tribunal they seek to maintain the final determination.  The two Associations have indicated to the Tribunal that they will take a neutral stance in the proceedings. 

9                     Since the directions were made, but before the application to this Court was filed, the Tribunal received an application by twenty-five companies and individuals seeking an order joining them as parties to the review.  These twenty-five companies and individuals have land or vineyards within the boundaries fixed by the final determination, and seek to uphold it.  On 16 November 2000 the Tribunal directed that these companies and individuals be joined as further respondents to the proceedings.

Reasons for decision of the tribunal for directions made 19 october 2000

10                  The Tribunal recognised that the GIC is a party to the proceedings, a status acquired by s 30(1)(b) of the AAT Act.  However the Tribunal noted that the conduct of proceedings before it is within the discretion of the Tribunal: s 33(1)(a) of the AAT Act.  Relevantly, s 33 provides as follows:

“Procedure of Tribunal

33(1)   In a proceeding before the Tribunal:

(a)       the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)       the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)        the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

The Tribunal also had regard to s 39 of the AAT Act which provides:

“Opportunity to make submissions concerning evidence

39(1)   Subject to sections 35, 36 and 36B the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

11                  The Tribunal noted the assertion of counsel for the GIC that as the applicants and joined parties will be motivated by commercial self interest there is a role for the GIC in representing the public interest which will not be addressed by the other parties.  In particular the GIC claimed that the public interest is constituted by:

·               protection of the interests of consumers;

·               ensuring the viability of the wine export industry;

·               ensuring the integrity and reputation of the Coonawarra region is maintained;

·               maintaining the integrity of the system of establishing geographical indications under the Act; and

·               meeting Australia’s treaty obligations.

12                  The Tribunal however held that the principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman) at 35-36 was relevant to the GIC, and that the role of the GIC before the Tribunal was not to be distinguished from the role of the Australian Broadcasting Tribunal before the Court.  In Hardiman, the High Court said:

“There is one final matter.  Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument.  In cases of this kind the usual course is for a tribunal to submit to such order as the court may make.  The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage.  If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.  The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”

13                  The Tribunal considered that the presence of the joined parties with interests in opposition to those of the applicants would indicate, at least at the pre-trial stage when the directions were made, that there would be a thorough testing of the evidence to be led before the Tribunal, and that the presence of the Southcorp Group and the industry associations provided the proceedings with a contradictor.  The Tribunal noted that the GIC conceded that it had no interest in the proceedings in the sense that it, as an entity, will not be affected by the outcome.  The Tribunal considered that for the GIC to adopt the role that it proposed, it would endanger the impartiality which it is expected to maintain.  The GIC has a continuing potential role as relief could be granted in the decision-making process by the Tribunal in the form of a remittal: see s 43(1)(c)(ii) of the AAT Act.  Nevertheless the Tribunal considered that the GIC should be permitted at the least to exercise the limited role outlined in the directions.  The Tribunal said:

“The Tribunal accepts that there is a value in the GIC making submissions as to the public interest elements involved in the determination of this case.  The GIC has filed with the Tribunal a quantity of documentation, including maps.  It is anticipated that the assistance of the GIC will be sought to explain the significance of these documents.

…

Further, at any time it deems it fit the GIC will be able to make a particular application to participate more actively if future circumstances, presently unknown, arise.  At that time the principles enunciated in Hardiman and the other relevant cases will be addressed in exercising the ongoing discretion available to the AAT under its legislation to control its procedures.”

Submissions of the GIC

14                  Substantially the same arguments have been put to this Court as were put to the President of the Tribunal.  The GIC emphasises that it has a role under the AAT Act as a party to the proceedings.  It is submitted that this role entitles the GIC to the full rights of a party including “proper natural justice”.  It is submitted that Hardiman should be distinguished on the ground that the remarks of the High Court should be confined to appeals to judicial bodies and not applied to a merits review before the AAT so as to limit the decision-maker’s statutory right to be heard.  Further, it is submitted that Hardiman should be distinguished because the GIC does not conduct inter partes hearings where evidence is received and tested by an opposing party, and that the requirement to maintain impartiality does not arise in the present case.  It is submitted that the content of natural justice requires that the GIC be permitted to fully exercise its right as “a guardian of public interest and policy issues”, to ensure that the criteria in regulation 25 are interpreted and applied in a principled manner so as not to jeopardise the integrity of the Geographical Indications system, and to assist the Tribunal to come to the best decision bearing in mind the public interest and policy considerations together with the interests of the wine industry, the export industry and consumers generally.  The submission is maintained that the applicants and the parties joined are likely to be motivated only by commercial and personal interests.

Respondents’ submissions

15                  The President of the Tribunal who is named as the first respondent submits to the order of the Court.

16                  The parties joined, namely the Southcorp Group, the Coonawarra Grape Growers Association Inc and the Coonawarra Vignerons Association Inc have not appeared, and have taken no part in these proceedings.

17                  The respondents who are the forty-six applicants before the Tribunal have appeared by common counsel, and seek to uphold the impugned directions.  It is convenient to refer to that group of respondents simply as the respondents.

18                  The respondents contend that the GIC has misconceived the directions and the reasons for decision of the Tribunal which accompanied them; has misconceived the content of the principles of natural justice, and has misconceived the true nature of the role of the GIC as an administrative decision-maker.  It is submitted that the reasons for decision of the Tribunal do not preclude the GIC from making submissions on matters of policy or, if appropriate circumstances arise, from seeking to cross-examine or even conceivably adducing evidence on those issues, or issues relating to the construction of the relevant statutes.  It is contended that the requirements of natural justice do not entitle a person to an unfettered right to adduce evidence and to be heard, and go no further than entitling a party to fairness in the presentation of their “case”.  In the present instance the GIC does not have a “case” to present as it has no interest in the proceedings in a sense that it is not an entity affected by the outcome.  The role of the GIC is not “the guardian” of anything before the AAT, and its role was, so it is submitted, correctly confined to that of assisting the AAT to understand policy issues and matters of construction.  Further, it is contended that the application for review is premature and, the directions being a discretionary order on a matter of practice and procedure, this Court should not in any event interfere at this stage even if some error of legal principle in the making of the directions can be identified.

reasons and decision

19                  At the outset we should briefly mention the basis upon which we consider this Court has jurisdiction to entertain the present application.  It will be noted that the application is not brought by way of appeal from a decision of the AAT under s 44 of the AAT Act.  Section 44(1) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.  The application is not so based as “decision” in s 44(1) has a restricted meaning.  The meaning is confined to a final decision or determination: see Director General of Social Services v Chaney (1980) 47 FLR 80 per Deane J, with whom Fisher J agreed, at 100, 103 and Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 447.  As no right of appeal arises under s 44 of the AAT Act, the respondents to this appeal are not correct in asserting on the authority of Tuite v Administrative Appeals Tribunal and Another (Tuite) (1993) 40 FCR 483 that the applicant’s reliance upon the ADJR Act is misconceived.  In Tuite Davies J held that as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Federal Court in respect of decisions of the AAT, that procedure should be adopted, and the applications brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course.  The decision in Tuite was based on the principle that as the AAT Act made special provision for relief against an error of law in a particular kind of proceeding, the more general provisions for relief in the ADJR Act give way to the special provision.  This is apparent from Davies J’s reliance on Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483-484, 488-489, 505.

20                  As there is no right of appeal under s 44 of the AAT Act, the provisions of the ADJR Act are not for that reason displaced.  However in our opinion the applicant’s reliance upon the ADJR Act fails as the directions given pursuant to s 33 of the AAT Act do not constitute the making of a decision within the meaning of s 3 of the ADJR Act nor does the making of the directions under s 33 constitute engaging in conduct for the purpose of making a decision to which the ADJR Act applies within the meaning of s 6(1) of the ADJR Act: see Commissioner of Taxation v Beddoe at 452-453.  In the course of giving his reasons for a like conclusion in Commissioner of Taxation v Beddoe, Spender J said that the position may be different where compliance with directions of the Tribunal would amount to a denial of natural justice, citing Australian Postal Commission v Hayes (1989) 23 FCR 320.  Australian Postal Commission v Hayes was decided before the High Court delivered judgment in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 upon which the decision in Commissioner of Taxation v Beddoe is based.  Moreover, in Australian Postal Commission v Hayes it was not argued that the decision sought to be reviewed did not constitute either a decision within the meaning of s 3 or engaging in conduct for the purposes of making a decision within the meaning of s 6 of the ADJR Act.  Although the matter has not been argued before us, we are inclined to think that Australian Postal Commission v Hayes cannot be supported on the ground that directions which deny natural justice come within the purview of the ADJR Act, if directions that do not amount to such a denial do not come within it.  However, we think the jurisdiction of the Court in Australian Postal Commission v Hayes can be supported under s 39B of the Judiciary Act.

21                  The history of the jurisdiction of this Court under s 39B of the Judiciary Act was considered in David Jones Finance and Investment Pty Ltd and Another v Commissioner of Taxation (1991) 28 FCR 484.  In the present case there is no privative provision that could arguably restrict the exercise of the s 39B jurisdiction as there was in David Jones Finance.  In our opinion this Court has jurisdiction under s 39B which provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

22                  In the present case relief in the nature of a writ of prohibition and an injunction is sought against the President of the AAT who in that capacity is acting as an officer of the Commonwealth.  The Court therefore has jurisdiction in the “matter”, and in the exercise of that jurisdiction the Court has the general powers vested in it under ss 19-21 of the Federal Court of Australia Act 1976 to make such orders as the Court thinks appropriate, including a declaration of right.  The Court therefore has jurisdiction to entertain the present application, and if the errors of law alleged are identified the Court has power to grant relief.  However the granting of either prohibition, an injunction or a declaration is discretionary and the identification of an error of law does not necessarily lead to the grant of the relief.

23                  It is convenient to start first with the respondents’ submission that the GIC’s application is premature, and in any event in the exercise of the Court’s discretion the application should be dismissed. 

24                  The reasons for decision of the Tribunal emphasise that the directions were given having regard to the Tribunal’s assessment at that time of the likely course of the proceedings, and the anticipated role of the applicants before the Tribunal, and the joined parties with interests in opposition to the applicants.  The reasons expressly reserve liberty to the GIC to make a further application to participate more fully in the hearing if circumstances change.  The directions were made against the background that all material gathered by the GIC in the course of its inquiry and deliberation since 1995 were before the Tribunal in the “T documents” filed pursuant to s 37 of the AAT Act.  Written statements of the proposed witnesses of the applicants before the Tribunal and the Southcorp Group were still to be filed.  The extent, if at all, that the evidence of the applicants, and the joined parties would supplement, or depart from, information gathered by the GIC was not known.  Further, the Tribunal was given no information by the GIC as to the issues of public interest or otherwise on which it could assist the Tribunal by adopting the unlimited role which it asserted.  Indeed, at a subsequent directions hearing on 16 November 2000, in answer to an inquiry from the Tribunal as to the ability of the GIC to be ready to proceed on 19 February 2000, the proposed date for the Tribunal hearing, counsel for the GIC informed the Tribunal that the GIC had not formulated its final position, was still to identify experts in anticipation of the several categories of evidence that the applicants had spoken about at a previous directions hearing, and to decide what evidence would be called.  That was still the position when the application to this Court was argued before us.

25                  Until those matters are made clear by the GIC it is not possible to know whether there is any real issue involved in the GIC’s complaint about the directions.  This was a difficulty which confronted the Tribunal at the time when the directions were made.  Section 33 of the AAT Act, whilst expressly stating that the procedure of the Tribunal is within the Tribunal’s discretion, directs that in fulfilling its function the Tribunal will proceed with as little formality and technicality and with as much expedition as relevant legislation and a proper consideration of the matter before it permits.  The Tribunal had received arguments from the applicants that an unrestricted participation of the GIC was likely to prolong the hearing, delay the resolution of the proceedings, and interfere with the presentation of the cases of the other parties.  In this situation we think the Tribunal not only proceeded reasonably, but took the only sensible course available to it, namely to limit the role of the GIC unless and until circumstances arose which indicated an issue upon which the GIC should have a greater participation than the directions envisaged.

26                  In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings.  The most frequently cited authority for this proposition comes from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177.  Their Honours repeated with approval the following statement of Sir Frederick Jordan in In Re the Will of F B Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323:

“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

Their Honours added that it is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.  At this stage, as we have just observed, it is not possible to know if there is any real issue in the GIC’s complaint about the directions.  Until that is possible the GIC is unable to demonstrate that any injustice could flow from the directions.

27                  In an analogous situation a Full Court of this Court in Lamb v Moss (1983) 49 ALR 533 at 564 said that the power to make an order of review under the ADJR Act in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision made in the course of those proceedings.

28                  In Commissioner of Taxation v Beddoe, which concerned an application under the ADJR Act to review directions made by the AAT under s 33 of the AAT Act for the filing and exchanging of answers to questions prior to a hearing Spender J, said at 453:

“It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the Tribunal, in the same way that this Court should be reluctant to fragment the criminal process by entertaining applications under the ADJR Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit.”

Whilst that observation was not necessary for the determination of the case, we respectfully endorse his Honour’s observations.

29                  The matter before the Tribunal raises issues of immense commercial importance to the parties, other than the GIC, and more generally to the wine industry at large.  Without suggesting any criticism of the GIC, the difficult question of fixing the original boundaries for the Coonawarra wine region has now been in train for five years.  The Tribunal hearing is anticipated to take some weeks.  Special arrangements have been made for the Tribunal hearing to commence on 19 February 2001.  Directions made from time to time by the Tribunal have been intended to ensure that the case will be ready to proceed on that day without further delay.

30                  If the hearing does not proceed in the time that has been set aside commencing on 19 February 2001, the President has indicated to the parties that the matter could be delayed for up to twelve months or longer before it would be possible for the review to be heard.  A particular difficulty from the Tribunal’s viewpoint in making administrative arrangements is that the proposed Administrative Review Tribunal is scheduled to replace the AAT on 1 July 2001, and the President is anxious to complete the review before that date.

31                  All these matters point to the undesirability of this Court interfering with the procedural directions which have been made in the Tribunal.

32                  Even if it were the case that the impugned directions appeared to this Court to unduly restrict the role which the GIC as a party is entitled as of right to exercise in the course of the Tribunal hearing, we do not think that it would be appropriate for this Court at this stage to interfere.  To do so would create a risk that this Court’s order would establish a springboard for the GIC to seek an adjournment in circumstances where it is not demonstrated that at the end of the day the directions are likely to restrict the ability of the GIC to make whatever meaningful submissions and contributions it wishes to make in the course of the hearing.  For these reasons we consider the present application should be dismissed.

33                  However as the parties have addressed argument on the proper role of the GIC in the forthcoming hearing in the Tribunal, we think it appropriate that we briefly address that question.

34                  The role of a decision-maker as a party in review proceedings before the Tribunal was considered by Davies J in New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 at 430-431.  His Honour, after referring to Hardiman, said:

“However, in a proceeding before the Administrative Appeals Tribunal (the AAT), it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments.  That is indeed the normal and desirable course.  It is also the course which is intended by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth).  Section 30(1) of that Act provides that the person who made the decision will be a party to the proceedings before the AAT.  The AAT proceeds by way of a hearing or re-hearing at which the parties attend.  The function of the AAT is review on the merits of a matter.  It considers for itself both the facts and the law.  Seldom does the AAT refer a matter back to the decision-maker to be fully re-considered.  In the overwhelming proportion of cases, the AAT considers for itself what decision, in the exercise of the primary decision-making power, is the correct or preferable decision.  That is the function which the AAT exercised in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 39 ALR 281; 3 ALD 88, and in this present case.

In the exercise of this function, the AAT is assisted if the representative for the decision-maker fulfils the role of adducing evidence, of questioning evidence and of presenting substantive submissions.  If the representative for the decision-maker does not do this and there is no other party present to undertake that role, it could become necessary for the AAT itself to take an active role in questioning witnesses and even in adducing evidence.  Such a role does not stand well with the AAT’s function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions.

In some cases, it could well be appropriate for counsel for the ABT to exercise a limited role.  Such a case probably was Re Control Investment, supra, in which several parties were represented before the AAT and all relevant points of view were put.  In that case, the ABT limited its role to assisting clarification of the practices and policy of the ABT and to assisting the AAT as requested.  But that was a very different case from the present for all the evidence was properly tested.

I would, therefore, encourage representatives of the ABT in future cases to play a more active role than was played in the present case and I would emphasise that, in a review of a decision of the ABT, the AAT is required to be constituted by a presidential member of the AAT who is a judge of the Federal Court of Australia.  In a case in which the parties are only the applicant for review and the ABT, it is preferable that the ABT should undertake by its representative the task of testing evidence, than that the AAT as so constituted should engage extensively in the examination and cross-examination of witnesses.  And because the AAT as so constituted does not have specialist knowledge of the broadcasting and television industry and of the persons involved in it, the AAT would obviously be assisted with substantive submissions from the representative of the ABT, a body which does have that expertise.”

35                  Whilst his Honour encouraged representatives of a decision-maker in future cases to play an active role as a party in cases where the only parties before the Tribunal were the applicant for review and the decision-maker, it is plain from his Honour’s observations, read in their entirety, that the situation would be different where there were other parties before the Tribunal who it could be expected would adopt the role of contradictor, and who could be expected to add whatever evidence was necessary to the “T documents” to fully inform the Tribunal on relevant matters.  That distinction was drawn by Brennan J in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682.  Mansfield J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182 at 207 said that the role to be fulfilled by a decision-maker where that decision is under review is a question to be decided in the circumstances of each case and in the context of the legislation then under consideration.

36                  In BTR plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 (Westinghouse) a Full Court of this Court addressed the proper role of the Australian Securities Commission (the ASC) where its decision was under review in the AAT.  Lockhart and Hill JJ at 265 in a joint judgment approved the role of the ASC in advancing arguments relating to the Court’s jurisdiction and powers, as to the proper construction of certain sections of the Corporations Law (the Law), and as to the powers of the ASC under particular sections of the Law.  The Court noted the national significance of the ASC, its responsibility for the enforcement of the Law and its entitlement under s 1330 to intervene in proceedings relating to a matter arising under the Law. Their Honours said at 265:

The court expressed the view to counsel for the Commission that, where proceedings under the Law involve issues of a purely commercial nature and where the other parties are well able properly to adduce evidence and make submissions on all relevant facts to the court, the Commission should not assume the role of an active party and present substantive arguments with respect to those issues.  The position is different where a commercial issue arises but is not fully or properly canvassed by the other parties.  The position is also different where cases raise issues of national significance, questions of construction of the Law or the procedures the Commission should follow under the Law.  Plainly the Commission has a vital role to play with respect to those questions.  This is not intended to be an exhaustive statement of the circumstances in which the Commission should or should not assume the role of an active party …”

37                  The ASC was a large statutory authority charged with a wide range of responsibilities designed to protect the public interest.  Part of the functions of the ASC included the function of monitoring commercial activity in the market place.  In the course of doing so it has accumulated a wealth of information, and played important roles in formulating and administering policy and legal principles designed to further the objects of the legislation under which it was established.

38                  The status of the ASC stands in contrast with the GIC.  As noted in par 5 above, GIC comprises three members, of whom one is appointed on the nomination of a declared winemakers’ organisation and one appointed on the nomination of a declared wine grape growers’ organisation.  The members are appointed on a part time basis.  The GIC has the sole function of making determinations of geographical indications for wine in relation to regions and localities in Australia:  s 40P.  By way of contrast are the extensive functions of the Australian Wine and Brandy Corporation itself under s 7 of the AWBC Act.  The GIC operates only with staff provided, as required, by the Australian Wine and Brandy Corporation, and in performing its function the AWBC Act contemplates that it will engage consultants with appropriate qualifications and experience to advise it:  Schedule to the AWBC Act.

39                  Regulation 25 spells out in great detail matters to which the GIC is to have regard in making a determination of a geographical indication.  Those matters largely concern matters of fact, being matters upon which the GIC is likely to be assisted by experts’ reports from historians, geographers, geologists, agronomists and others.  Armed with reports on issues of this kind, and other documentary information gathered by the GIC in the course of its inquiries, it is not readily apparent why the Tribunal, constituted by a person with extensive legal training and judicial experience would not be able to fully, fairly and appropriately discharge the merits review function required of the Tribunal under the AAT Act.

40                  The public interests asserted by the GIC in respect of which it seeks this Court to determine that it is entitled are to adduce evidence, including expert evidence (if the GIC wishes to do so), to lay the factual foundation for any submissions on the interpretation of the AWBC Act and the Regulations, to ensure the proper application of the criteria in regulation 25 to the particular region, to preserve the integrity of the Australian wine industry including ensuring that any treaty obligations are properly recognised, and protecting consumers by ensuring “truth” in labelling.  Those claimed aspects of the public interest are likely to be fully explored by the other parties to the application before the Tribunal.  As noted in pars 8 and 9 of these reasons, there are a number of contradictors to the application who seek to uphold the GIC’s determination.  Review of the criteria which regulation 25 requires the GIC, and on review the Tribunal, to have regard to indicates that those contradictors are very likely to address each of them.  There is little point in reciting those factors in detail.  Although the GIC suggested that the contradictors’ commercial focus would confine their perspective in addressing those factors, it is very likely even then that the pursuance of those commercial objectives would lead the contradictors to address the matters, largely historical and geographical, to which regulation 25 directs attention.  The GIC also expressed concern that those contradictors may not properly identify “any other relevant matters”, which by the note to regulation 25 may be addressed.  There is no reason to expect that the contradictors would not do so, and the GIC has leave to make submissions to the Tribunal which could include submissions on that topic.  Any evidentiary hiatus could, in accordance with the present directions, be the subject of an application to the Tribunal to adduce evidence by the GIC beyond that which will be received by the Tribunal from the GIC pursuant to s 37 of the AAT Act in any event.

41                  At this stage, there is no reason to expect that the elements of the public interest which the GIC has referred to require the GIC to have a greater role before the Tribunal than the present directions contemplate.  It is free to make submissions on the meaning of the AWBC Act and the Regulations.  The evidentiary foundation for its own conclusions, after its consultation, its interim determination, its consideration of submissions, and its final determination, will essentially be included in the documents produced to the Tribunal under s 37 of the AAT Act.  That material will include the material directly relevant to each of the criteria specified by regulation 25, and if the GIC had regard to “any other relevant matters” it will indicate what those other relevant matters are and will include the material the GIC considered was directly relevant to its consideration of them.  The features of the public interest which the GIC identifies as requiring an evidentiary base will, no doubt, be largely if not entirely encompassed in that material.  If the evidence before the Tribunal from the applicants seeks to present a significant new or different complexion on that evidentiary base, the contradictors who are now parties to the application are likely to undertake the task of testing and challenging that further material and of addressing their own material in opposition.

42                  Moreover, the Tribunal now is empowered to determine the geographical indications for wine in relation to the Coonawarra region:  s 43 of the AAT Act.  It will no doubt address the public interest considerations identified by the GIC.  If it perceives that, on an important matter, there is relevant material which has not been presented to it, it may seek the assistance of the GIC in procuring and presenting that material.  Its directions also reserve to the GIC the right to apply to adduce such further evidence, if for some reason the contradictors do not do so.

43                  In those circumstances, in our judgment, there is clearly no reason to ascribe to the GIC a role such as that which, at least putatively, it wishes to adopt.  The nature of the application, and the parties before the Tribunal, are likely to lead to relevant evidentiary material being presented to the Tribunal.  By the directions, the GIC has the right to make submissions to the Tribunal and to seek leave to adduce further evidentiary material if, for some good reason, that becomes desirable.

44                  Indeed, the directions provide for the GIC to adopt a role in the proceedings before the Tribunal which is greater than that which the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ) in Hardiman envisaged: see par 12 above.

45                  The directions provide for the GIC to make submissions more generally, and also to provide assistance to the Tribunal when called upon, and to provide to the Tribunal further material at its disposal which the Tribunal is satisfied is necessary for the Tribunal to reach a correct or preferable decision.  Its role, as contemplated by the directions, is consistent with that contemplated by Lockhart and Hill JJ in Westinghouse referred to in par 36 above.  It might be considered that the Tribunal has been somewhat liberal in ascribing that role to the GIC.  The particular consideration which moved the High Court in Hardiman to make the observations which it did is one which is more than a theoretical possibility.  Under s 43(1)(c)(ii) of the AAT Act, the Tribunal may remit the matter for reconsideration by the GIC in accordance with any directions or recommendations of the Tribunal.  It may, of course, also affirm or vary the decision of the GIC, or set it aside and make a decision in substitution for the GIC decision.  Ultimately, the decision must be recorded in the Registrar of Protected Names:  s 40ZC of the AWBC Act.  If the Tribunal were to set aside the decision of the GIC and to remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal, that may involve the GIC having to perform more than simply an administrative function.  The participation in the proceedings before the Tribunal which the GIC wishes to adopt would, in that event, endanger the impartiality which it is clearly expected to maintain in carrying out its function under Div 4 of Pt VIB of the AWBC Act.

46                  The contention of the GIC that, because it is a party to the proceeding before the Tribunal, it is entitled to adduce all such relevant evidence as it wishes and to cross-examine at large, in our view, fails to have regard to the nature of its “case”.  The High Court in Hardiman indicated in general terms the role of an administrative decision-maker in circumstances such as the present.  Their Honours’ observations must be particularly apt where there is a clear contradictor before the Tribunal.  The particular circumstances in Hardiman do not gainsay that conclusion.  The order absolute for a writ of mandamus was made, inter alia, because an interested party before the Australian Broadcasting Tribunal was not given a proper opportunity to cross-examine; it was not a case where the decision-maker whose decision was under review sought to undertake extensive cross-examination.  Indeed, the concluding remarks of the High Court indicate that it did not contemplate a body in the position of the GIC undertaking any such role.

47                  Similarly, in Australian Postal Commission v Hayes the vice detected by the Court (Wilcox J), was that the Tribunal unduly fettered the cross-examination of the contradictor in proceedings before the Tribunal.  That decision does not provide any foundation for the wide role now sought by the GIC as the decision-maker whose decision is under review before the Tribunal.

48                  For those additional reasons, in our judgment, the Tribunal has not been shown to have fallen into error in making the directions.  The Tribunal’s directions reflect its desire to proceed with what will undoubtedly be a complex and lengthy hearing in accordance with s 33 of the AAT Act.  The directions have not been shown to prevent the GIC from taking part in the hearing or from fulfilling the role which Lockhart and Hill JJ in Westinghouse contemplated.  If, in the proper pursuit of its role before the Tribunal as the decision-maker whose decision is under review, it seeks to extend its functions before the Tribunal beyond that which the directions presently contemplate, the Tribunal’s reasons make it clear that it may apply to the Tribunal for that purpose.

49                  Accordingly, the application should be dismissed with costs.

Associate:

Dated:              20 December 2000