EU considerations don't govern Australian GIs, court rules

In Baxendale's Vineyard Pty Ltd v Geographical Indications Committee (Corrigendum) ([2007] FCAFC 122, August 21 2007), the Federal Court of Australia has upheld a decision finding that the King Valley region should include the proposed 'Whitlands High Plateaux' region and other areas.

The dispute concerned the determination by the Geographical Indications Committee of a geographical indication (GI) to be known as 'King Valley'. Following a decision by the Administrative Appeals Tribunal on appeal, King Valley Vignerons applied to the Federal Court, seeking to have a larger area included in the region than the area that was the subject of the committee's final determination. Whitlands Vignerons, on the other hand, sought to have a 'Whitlands High Plateaux' area (which was included in the King Valley region) classified as a different region.

The Australian Wine and Brandy Act, which deals with the determination of GIs, gives effect to the Agreement between Australia and the European Union on Trade in Wine. It also lists numerous criteria that must be taken into account when determining the boundaries of a particular region. Justice Dowsett of the Federal Court pointed out that the relevant legislation must be construed in accordance with Australian law by reference to the provisions of the relevant acts, and not by reference to the agreement. There are significant differences between the EU and Australian approaches to characterizing GIs. In particular, the controlled appellation system used in the European Union, which can involve many controls and restrictions on viticultural practices, is not consistent with Australian requirements. Unlike certain EU laws, Australian laws on the origin of wines do not seek to create a specific nexus between origin and quality. Factors considered in determining what defines a region generally have regard to grape growing attributes; however, viticultural practices are not prescribed.

As outlined by the court, a 'region' is a tract of land that is "discrete and homogeneous in its grape growing attributes". An issue on appeal was whether the recognition of differences means that a region is insufficiently homogeneous.

In its decision, the committee had accepted that there are identifiable geographical differences between the Whitlands Plateaux area on the one hand, and the balance of the area on the other. Moreover, there are differences in grapes grown, growing techniques, climate and soils between the two areas, although such distinctions would be difficult to draw at the margins. Nevertheless, taking into account all relevant factors, the committee considered that the relevant area comprised a single region; on appeal, the Federal Court accepted that the degree of homogeneity required was a matter for determination by the committee.

On the issue of whether adequate reasons for the decision had been provided, the court held that:

• there is a degree of subjective assessment involved in determining relevant geographical boundaries;
  
  
• the relevant criteria had been considered; and
  
  
• the ultimate decision may rest on a combination of factors and inferences.

The court noted that, in criminal law, it has been said that "a circumstantial case is not composed of links in a chain, one following the other. It is more like the strands of a rope, each supporting the others". The court stated that the tribunal's decision was not the final link in a chain, but "the inductive outcome of a consideration of all relevant matters".

There was a lack of support for certain arguments made on appeal in the evidence originally submitted, which demonstrates the need to present a strong and complete case in relation to the initial interim determination or the alteration of an interim determination. There is a significant degree of subjective assessment in making a geographical determination, which is likely to make it difficult to overturn such decisions on appeal.

Sean McManis, Shelston IP, Sydney