Gary Edmond* DISORDER WITH LAW: DETERMINING THE GEOGRAPHICAL INDICATION FOR THE COONAWARRA WINE REGION Coonawarra, historic, if much-disputed, wine region in South Australia’s Limestone Coast Zone and the most popularly revered wine region in AUSTRALIA for Cabernet Sauvignon, grown on its famous strip of TERRA ROSSA soil. Jancis Robinson (ed), The Oxford Companion to Wine (2nd ed, 1999). I. INTRODUCTION his empirical study follows a protracted dispute over one of Australia’s premier wine regions. Surveying the introduction of a regulatory scheme in a small rural community it demonstrates the potentially disruptive impact of law and explores some of the limitations of legal and Tregulatory processes.1 In this instance, the domestic ramifications of an international trade agreement between Australia and Europe generated frustration, animosity and eventually litigation. Attempts to repair the situation through ordinary legal mechanisms seem to have merely superimposed considerable * BA(Hons) University of Wollongong, LLB(Hons) University of Sydney, PhD University of Cambridge. Faculty of Law, The University of New South Wales, Sydney 2052, [email protected]. This project was made possible by a Goldstar Award in conjunction with a Faculty Research Grant. The author would like to thank the many people who gave generously of their time, opinions and materials. I am particularly appreciative of contributions from: Doug Balnaves, Joy Bowen, Lita and Tony Brady, Johan Bruwer, Sue and W.G. Butler, Pat and Des Castine, Andrew Childs, Peter Copping, Kent Cowley, Bruce Davis, Chris Dearden, Nancy and Michael Detmold, Sandy Donaldson, Bruce Drinkwater, Grant Feary, Max Foale, Michael Gartner, David Gaszner, John Gava, Shirley and Graham Giles, George Gretsas, James Halliday, Mark Hamilton, Meredith and John Hinze, Evan Hiscock, Wendy and Ian Hollick, John Innes, James and Tim Kidman, John Kidman, Sid Kidman, David Lear, Ginny and Andrew Ligertwood, Brian Lynn, Owen Malone, Nan and Stephen Mann, David Maschmedt, Oliver Mayo, Barry Mulligan, David Murdock, Maria Myers, Vic Patrick, Leo Pech, John Pendrigh, Brendan Provis, Bruce Redman, Peter Rymill, Thomas Rymill, Ken Skene, Steven Skeer, Richard Smart, Derek Smith, Wayne Stehbens, Stephen Stern, Ernie Sullivan, Ben Tidswell, Vicki Waye, Peter Weinberg, Peter Westley and a few who preferred anonymity. I would also like to express my thanks to the School of Law, University of Adelaide, for hospitably accommodating my numerous trips to Adelaide and the South East. 1 Unlike the justly famous study by Ellickson, this project focuses on recourse to law and its implications. Cf Robert Ellickson, ‘Of Coase and Cattle: Dispute Resolution Among Neighbours in Shasta County’ (1986) 38 Stanford Law Review 623; Robert Ellickson, Order Without Law: How Neighbours Settle Disputes (1991). 60 EDMOND – COONAWARRA WINE REGION expense and delay on the existing difficulties. Significantly, the move to law amplified uncertainty and contributed, though not always directly, to unprincipled and unsatisfactory outcomes. The following study provides a detailed account of what might be described as law on the ground.2 This applies in three senses. First, and most conspicuously, the study documents one of the most controversial and acrimonious episodes in the history of the Australian wine industry — the dispute over the boundary for the Coonawarra wine region. The second sense introduces the local impressions of a regulatory scheme and local attempts to influence its determinations. In this way it traces the way disputes are understood and conducted in practice. It also brings the implications and aftermath of disputes into focus. The third and most abstract allusion introduces the question of why legal processes and legal institutions were practically incapable of resolving a protracted dispute which disrupted a celebrated community in the South East of South Australia. In relation to this third sense, the study might suggest that law and legal processes were not firmly grounded. That is, regulatory bodies and legal institutions experienced considerable difficulty administering a regulatory scheme and evaluating evidence in a way that produced a fair, principled and credible solution to the boundary dispute. Even though the proper legal principles were eventually clarified through an appeal to the Federal Court, in practice there was no way of applying the relevant law to all the parties involved, or implicated, in the controversy. In consequence, the inconsistent application of law produced a series of regional boundaries with little relevance to the statutory framework. In this way it directly contributed to the legal alienation of many participants and attentive members of the public. The study, then, illustrates how recourse to law effectively failed a highly successful and prestigious segment of the Australian wine industry. In this particular instance the move to law contributed to social and economic disorder.3 Through a detailed overview of the history of the dispute, the statutory framework and some of the evidence, this essay endeavours to expose some of the contextual dimensions of what appears to have been a routine legal process.4 Rather than 2 Susan Silbey and Austin Sarat, ‘Critical traditions in law and society research’ (1987) 21 Law & Society Review 165; David Engel, ‘The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community’ (1984) 18 Law and Society Review 551; Steven Yearley, ‘Bog Standards: Science and Conservation at a Public Inquiry’ (1989) 19 Social Studies of Science 421. 3 Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (1998). See also Stewart Macaulay, ‘Non-Contractual Relations in Business: A preliminary study’ (1963) 28 American Sociological Review 55. 4 None of the lawyers or judges described the case as aberrant or suggested that it was characterised by impropriety and irregularity. Even if the subject matter is considered unusual, the institutions and processes are not. While it is not intended to suggest that the following circumstances are representative — whatever that might mean — the study is nevertheless exemplary. Indeed, focussing on a novel dispute can help us to appreciate the complexity (2006) 27 Adelaide Law Review 61 merely recriminate, it adopts a more elucidatory posture — endeavouring to identify some of the difficulties confronting parties, experts, decision makers and a small agricultural community. It even encourages the reader to take the opportunity to assume the challenging role of primary decision maker and attempt to produce their own regional solution. Unfortunately, the most salient aspects of this study seem to be: the benefits of avoiding litigation; the unpredictability of legal and regulatory processes; and to some extent the legal reproduction of hierarchy.5 As we shall see, these kinds of ‘lessons’ may encourage strategic action and recourse to informal remedies. They contribute little to public confidence in our laws and legal institutions. What follows is, therefore, an attempt to understand some of the implications of an ordinary legal process widely perceived as a legal failure. II. WINE TREATIES,GEOGRAPHICAL INDICATIONS AND DOMESTIC LAW A. EC-Australia Wine Agreement 1994 (or Treaty) From the late 1980s the Australian wine industry was confronted with the question of how to increase wine exports. One of the main constraints on trade was its continuing use of European terms like Champagne, Claret, Burgundy and Bordeaux.6 In order to access the European Community (‘the EC’) Australian wine producers were told they would need to abandon these terms and develop their own associated with some of the more taken-for-granted features of ordinary legal and regulatory processes. 5 Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic against the System (2004). 6 There have been several famous suits over the use of French wine terms. For one literary account, from the UK, see ‘Champagne on Trial’, Wines and Vines (June 1961) reprinted (December 2003) 42 discussing J Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 All ER 561. Even in Australia there have been several prominent wine industry trials and appeals. Henschke, for example, unsuccessfully alleged that Rosemount’s ‘Hill of Gold’ infringed its registered ‘Hill of Grace’ trade mark, see CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 (Unreported, Ryan, Branson and Lehane JJ, 31 October 2000). See also Thomson and Ors v B Seppelt & Sons Ltd (1925) 37 CLR 305; Comite Interprofessionel du Vin de Champagne v NL Burton Pty Ltd (1981) 38 ALR 664; Comite Interprofessionnel des Vins Cotes de Provence v Stuart Alexander Bryce and Anor [1996] 742 FCA 1 (Unreported, Heerey J, 23 August 1996); Koppamurra Wines Pty Ltd v Mildara Blass Ltd [1998] 226 FCA (Unreported, Von Doussa J, 3 March 1998); Gartner v Carter; In the matter of Gartner Wines Pty Ltd [2004] FCA 258 (Unreported, Lander J, 17 March 2004); Gartner v Ernst & Young (No 3) [2003] FCA 1437 (Unreported, Mansfield J, 8 December 2003). More recently another boundary dispute associated with the King Valley in Victoria has been appealed to the AAT: Whitlands High Plateaux and Anor v Geographical Indications Committee [2005] AATA 292 (Unreported, Downes J, 30 March 2005). 62 EDMOND – COONAWARRA WINE REGION appellation-style system.7 In Europe wine production tends to be highly regulated. For example, under the system appellation d'origine contrôllée