Anderson Holdings (Qld) Pty Ltd and Department of Transport and R Egional Services

[2004] AATA 237

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 237

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/807

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANDERSON HOLDINGS (QLD) PTY LTD

Applicant

And

DEPARTMENT OF TRANSPORT

AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date9 March 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.....................(Sgd).....................

O Rinaudo
  Member

CATCHWORDS

Transport – importation of vehicles – application for approval to place an identification plate on vehicle -  compliance plate approval refused – vehicle has not been supplied to market or sold to another person – vehicle not used in normal transport – Minister not required to issue compliance plate – decision affirmed

Motor Vehicle Standards Act 1989 s 10A

REASONS FOR DECISION

9 March 2004 Mr O Rinaudo, Member    

1.      This is an application for review of a decision of the Department of Transport and Regional Services made on 20 August 2002 confirming a determination of 26 July 2002 refusing approval to affix an identification plate to vehicle VIN: 2FTRX07LRX07l8YCB04369 under authority CPA26967. 

2.      At the hearing of the application evidence was given by Mr Ross Anderson, Mr Walter Rodney Sumner and Mr Brian Greg.  Documentary evidence consisted of the following documents:

§  Exhibit 1              T documents

§  Exhibit 2              Bundle of documents from Applicant

§  Exhibit 3              Affidavit of Douglas Bain

§  Exhibit 4              Circular 0-4-8 (marked T29)

§  Exhibit 5              Email from Roger Payne

§  Exhibit 6              Application in Import (marked T21)

§  Exhibit 7              Statement of Walter Sumner

§  Exhibit 8              Extract from Log Book

Factual History

3.      The following factual history was given in oral evidence and in the documentation.  The Tribunal therefore finds as fact:

4.      Mr Sumner is the Manager and Director of Yatala Plastics Pty Ltd which is located at Beenleigh in Queensland.

5.      Mr Sumner who has an interest in Ford motor vehicles and Harley Davidson motorcycles developed an interest in a particular type of motor vehicle described as a special F150/Harley Davidson vehicle manufactured in the United States. 

6.      Mr Sumner made enquiries as to whether this vehicle would be imported into Australia.  He was informed that it would not be.

7.      In about December 2000 Mr Sumner sourced a F150/Harley Davidson vehicle in the US for purchase and import to Australia at a purchase price of $31,500.  Mr Sumner intended to purchase the vehicle as a “limited edition collector’s item” which he intended to keep for many years.  He intended to use the vehicle for promotional purposes associated with his business. 

8.      Whilst investigating the possibility of purchasing and importing the vehicle Mr Sumner became aware that Anderson Holding Qld Pty Ltd trading as Maracoonda Automotive were well regarded as importers and converters of motor vehicles particularly from the United States.

9.      Mr Sumner contacted Maracoonda and discussed the possibility of importing a Ford F150/Harley Davidson motor vehicle with the Managing Director Ross Anderson.

10.     He was informed that Maracoonda had not imported a Ford F150/Harley Davidson motor vehicle and that the vehicle would be required to undergo extensive testing in Australia to gain full compliance with the law and in particular the Motor Vehicle Standards Act (“the Act”).

11.     Mr Sumner told Maracoonda he had sourced a vehicle through a relative in the United States at a cost of $31,500 and he intended to purchase it and bring it to Australia.  Maracoonda agreed to assist him with this and the conversion of the vehicle.  Shortly after, Maracoonda discovered another vehicle for a lesser purchase price and Mr Sumner agreed to buy this vehicle.

12.     Mr Sumner agreed and authorised Maracoonda to take such steps as were necessary to obtain approval for the importation of the vehicle, its conversion and eventual registration and approval as a vehicle in Australia. 

13.     Maracoonda sought approval and after some discussion and clarification approval was granted on 22 March 2001 for the importation of the vehicle on conditions. 

14.     The vehicle import approval which is at T3 page 14 notes as follows:

“I approve the importation of the vehicle(s) described in the Schedule below under Regulation 9G(a) of the Motor Vehicle Standards Regulations and Section 20(1)(b) of the Motor Vehicle Standards Act 1989 (the Act) on the basis that the vehicle(s) are intended for engineering evaluation purposes pending consideration of your application for Compliance Plate Approval.”

The approval went on to confirm that the vehicle should eventually comply with national standards for vehicle safety and emissions (Australian Design Rules) and that:

“To sell the vehicle(s) or to use them in transport in Australia before the Compliance Plate is attached could be an offence under the Act that may attract penalty of a fine of $12,000.”

15.     The vehicle was purchased in the name of Yatala Plastics Pty Ltd and transported to Maracoonda’s premises on 5 April 2001.  The vehicle then underwent testing and conversion in the Maracoonda workshop from the date of delivery 5 April 2001 until the 17 July 2001 when the vehicle obtained registration under the Transport Operations (Road Use Management – Vehicle Standards and Safety) Act Queensland 1995.  The exempt permit having been issued on 3 July 2001.  The permit noted that “to sell a vehicle or to use it in transportation in Australia for any purpose other than testing and evaluation is a breach of the conditions under which this permit is issued”.  (T4 page 15). 

16.     Mr Sumner was appointed as the nominated national test driver for Maracoonda and he was told that no other person was allowed to drive the vehicle.  Mr Sumner had no difficulty with this as he intended to be the only driver for test purposes and the vehicle was to be located at a property in Caboolture with access to a test track and various items for towing including  boat, trailer and horse float.  Mr Sumner maintained a logbook which was tendered into evidence as Exhibit 8. 

17.     Over the next months the vehicle underwent extensive testing and as necessary modification.

18.     Approval was granted to Maracoonda on 9 July 2002 (approval number 26967 [T10 page 27]) which approved the affixing of identification plates up to twenty-five vehicles per annum on the basis that:

“the licensee shall not without the prior approval of the administrator affix the identification plate to a vehicle which is in any way different from the vehicle described in the final form of the application for this approval….”.

19.     Application for approval to affix the identification plate was forwarded from Maracoonda on 12 July 2002 on the required Form 0-4-5 inspection certificate.

“the licensee shall not without the prior approval of the administrator affix the identification plate to a vehicle which is in any way different from the vehicle described in the final form of the application for this approval….”. 

20.     On 26 July 2002 the application was refused (T14, page 41) and Maracoonda was advised that:

“Apparently however, this vehicle has been supplied to the Australian market and was registered in the State of Queensland on 17 July 2001 in the name of Yatala Plastics.  Accordingly this vehicle cannot be considered to be within the scope of your compliance plate approval CPA 26967, which is for new vehicles only. 

Your application for a Compliance Plate under your authority CPA26967 for vehicle VIN: 2FTRX07L8YCB04369 is refused.”

Legislative Framework

21. Section 10A of the Motor Vehicle Standards Act 1989 is relevant to this application.  Prior to 1 April 2002 that section said:

“10A approval for the placement of identification plates

(1)       If road vehicles of a particular type, or vehicle components of a particular type, comply with the national standards, the Minister must give written approval for identification plates to be placed on vehicles or components of that type.”

After 1 April 2002 the section was amended to read as follows:

“10A approval for the placement of identification plates

(1)       If new vehicles of a particular type, or vehicle components of a particular type, comply with the national standards, the Minister must give written approval for identification plates to be placed on vehicles or components of that type.”

22. New vehicles are defined in section 1 of the Act as follows:

“New vehicle means a locally made vehicle, or a new imported vehicle, that has been neither:

(a)       supplied to the market; nor

(b)       used in transport in Australia by its manufacturer or importer;

and includes a locally made vehicle or a new imported vehicle, that has been supplied to the market but not yet used in transport in Australia. 

23.     The term “used in transport” is defined as follows:

“Used in transport, in relation to a road vehicle means use the vehicle on a public road otherwise than:

(a)     to move it in order to

(i)        to have work done on it; or

(ii)       have it registered under a law; or

(iii)      protect it; or

(b)       for a prescribed purpose”

24. A prescribed purpose is one to which section 42 of the Act applies. That section says:

“The Governor-General may make regulations not inconsistent with this Act, prescribing matters:

(a)     required or permitted by this Act to be prescribed; or

(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act…”

25.     There are no regulations which prescribe any purpose for the definition of “use in transport”.

26. Accordingly the issue for the Tribunal in this application is to determine whether the vehicle is a new vehicle within the meaning of the Act or the amended Act. 

Discussion

27.     The Applicant in these proceedings is Mr Ross Anderson.  Mr Anderson is the Managing Director of Anderson Holdings Qld Pty Ltd which trades as Maracoonda Automotive at Morayfield in Queensland.  A preliminary issue was raised as to whether Mr Anderson is the correct Applicant in these proceedings.  The motor vehicle in question is owned by Yatala Plastics Pty Ltd and Mr Sumner who is the Manager and a Director of that Company attended the hearing to speak on behalf of the Company.  It is a little difficult to establish whether Yatala Plastics Pty Ltd should be the Applicant or Anderson Holdings Qld Pty Ltd trading as Maracoonda Automotive or both.  As stated Yatala Plastics Pty Ltd is the owner of the vehicle but Anderson Holdings Qld Pty Ltd trading as Maracoonda Automotive was the entity to which the approval number 26967 was issued on the 9 July 2002.  It was Maracoonda Automotive that made application on 12 July 2002 to the Department of Transport and Regional Services for the affixing of the compliance plate approval. 

28.     In any event the Tribunal is satisfied that Mr Ross Anderson had authority as Managing Director to pursue the application on behalf of Anderson Holdings Qld Pty Ltd and Maracoonda Automotive and that Mr Sumner had authority to pursue the application on behalf of Yatala Plastics Pty Ltd. 

29.     Accordingly, to the extent it is necessary, the Tribunal accepts Mr Anderson as the Applicant and that he represents Anderson Holdings Qld Pty Ltd trading as Maracoonda Automotive and Yatala Plastics Pty Ltd insofar as it is necessary to formalise the application. 

30.     A further difficulty arises because although the motor vehicle was imported by Yatala Plastics Pty Ltd the obligation to make the vehicle ready for compliance plate approval belonged to Anderson Holdings Qld Pty Ltd trading as Maracoonda Automotive. 

31.     As far as the Tribunal is concerned, once the vehicle was imported, the dealings with the Respondent were the responsibility of Maracoonda.  Maracoonda made an application on 10 March 2001 for compliance approval for full volume compliance.  This application applied to new vehicles.  This was subsequently changed to a low volume application which was also for new vehicles.  To some extent this is irrelevant except to the extent that the applications were for new vehicles but in any event an approval No 26967 issued on 9 July 2002. 

32.     So, not withstanding that the vehicle was imported into Australia under an approval which was dated 22 March 2001 and which was imported on the basis that the vehicle was “intended for engineering evaluation purposes pending consideration of your application for compliance plate approval” no application for compliance plate approval was made on that vehicle until after receipt of the approval on 9 July 2002. The actual application for compliance plate approval being lodged on 12 July 2002 on the appropriate form, which is a 0-4-5 inspection certificate. 

33.     The Respondent submits that it is this application for approval which is the relevant application for approval to place an identification plate on the vehicle pursuant to section 10A of the Act. As the application was made after 1 April 2002 the provisions of the new Act apply and accordingly prior to granting of approval the legislation had changed to include the word “new vehicle” in section 10A.

34.     The Act provides for a scheme whereby motor vehicles which meet the appropriate standards are issued with an identification plate sometimes called a compliance plate (the Tribunal was advised that they are the same thing) which effectively confirms that the vehicle meets the relevant standards and is safe.

35.     In this case the motor vehicle being imported from the United States had to be converted to left hand drive.

36.     It is assumed that once the vehicle was converted to left hand drive and was otherwise brought into conformity with the relevant standards, a compliance plate could have been applied for without the vehicle undergoing extensive testing. 

37.     What appears to have happened here is that Maracoonda confused the issue by using the vehicle as some form of test vehicle for a commercial enterprise which Maracoonda intended to undertake. 

38.     The testing therefore enabled Maracoonda to ensure that vehicles of the same type would be built to the specification to ensure that there would be no problems with the vehicles.  In other words the Yatala Plastics Pty Ltd vehicle became a test vehicle for Maracoonda purposes.  There is no suggestion in the approval given on 22 March 2001 that the vehicle was being imported for some wider purpose.  The vehicle was imported “on the basis that the vehicle(s) are intended for engineering evaluation purposes pending consideration for your application for compliance plate approval”. 

39.     Clearly at that point in time it was considered that the vehicle would have engineering evaluation carried out on it and then compliance plate approval would be sought and subject to the vehicle meeting the requisite standards would be issued.  The issue became further confused when the Queensland Department of Transport issued a permit for the vehicle to be driven on roads.  This permit provided that “to sell the vehicle or to use it in transport in Australia for any purpose other than testing and evaluation is a breach of the conditions under which this permit is issued”.  It should be noted that the Queensland Permit Conditions differed from the Commonwealth Legislation in as much as the State Legislation allows for transportation in Australia which is testing and evaluation.  Use in transport in the Commonwealth Legislation means that the vehicle can only be moved to have work done on it or to have it registered under a law or to protect it.

40.     The vehicle was driven extensively by Mr Sumner. Although he has documented each kilometre travelled in the log book and on many occasions reported back to Maracoonda advice about the vehicle, there are substantial distances he has travelled without any report being made back to Maracoonda about the condition of the vehicle.  (Exhibit 7).

41.     Mr Young travelled more than 15,000 kilometres in the vehicle.

42.     So after receiving approval on 9 July 2002 Maracoonda made application for a compliance plate on 12 July 2002.

43.     The Respondent refused the issue of a compliance plate and on 26 July 2002 wrote to Maracoonda in the following terms:

“…

Apparently however, this vehicle has been supplied to the Australian market and was registered in the State of Queensland on 17 July 2001 in the name of Yatala Plastics.  Accordingly this vehicle cannot be considered to be within the scope of your Compliance Plate Approval CPA26967, which is for new vehicles only.”

44.     The Respondent conceded that the vehicle had not been supplied to the Australian market but it was registered and used on a public road. 

45.     On 1 August 2002 Maracoonda replied as follows:

“-The vehicle was imported in the name of Yatala Plastics as the owner, using our address for delivery of both the import approval and the vehicle to enable our organization to control the vehicle until it had been modified in accordance with the Australian Design Rules as per our Low Volume CPA Application.

-A letter of undertaking was provided by us at that time confirming the vehicle would be used on a test and evaluation basis for normal volume (your office was already aware at that time that we had lodged an application for normal volume approval)

-An Import Approval (#51541/1) was subsequently issued on 22/3/01 for a ‘Conditional – Test Vehicle’

-The vehicle was imported and delivered to our premises as arranged

-The vehicle was modified to meet the ADR’s as required, including conversion to right hand drive

-The vehicle was used for a variety of test procedures and suitability of various components etc

-On 5/6/01 we responded to a request from your office for additional information regarding our request to import further test and evaluation vehicles, listing the subject vehicle on that response as being required for ‘component testing on highway cycle’

-Under arrangements available with Queensland Transport at that time, we requested the vehicle be permitted to be registered with an exemption from the requirement to fit a compliance plate in June 2001

-There were no restrictions recorded on the Import Approval to limit registration (unlike the current version which specifically restricts registration)

-An exemption was subsequently granted by Queensland Transport, and a copy is attached for your information

-This exemption restricts the use of the vehicle to engineering evaluation purposes only, and can only be driven by personnel involved in the evaluation, as outlined in AMVCB Circular 0-4-8

-The vehicle was subsequently registered on 17 July 2001 in the name of the vehicle owner (Yatala Plastics) who was also recorded on the Import Approval

-The vehicle was also used for a formal noise test (report #MATF-01-009A) for ADR 28/01, and supported our SE Document referenced FV1-25A (subsequently withdrawn)

-This test was conducted on 11/4/01

-In August 2001 we contacted your office seeking advices on changing the basis of our application from normal volume to low volume

-The vehicle was subsequently retested on 13/3/02  (report # MATF-02-011A) for ADR 28/01, and supported our SE Document referenced FV1-25C.  This document has subsequently been examined and approved by your office

-This latter test was conducted while the vehicle was still registered under the engineering evaluation restriction

-The owner of the vehicle is still providing continual feedback of the components used in the conversion to right hand drive, as a nominated national representative for such purposes.”

46.     Maracoonda concluded in that letter “the vehicle has not been supplied to the market, sold to another party or used in normal transport in Australia.  Accordingly, the provisions and requirements of the import approval have not been breached”.

47.     Whilst it is correct to say that the vehicle has not been supplied to the market or sold to another person the Tribunal cannot accept it has not been used in normal transport in Australia. 

48.     Once again the definition says that “used in transport” will be anything that is not moving the vehicle to have work done on it, have it registered under a law or to protect it.

49. Accordingly application for approval for compliance plate was not made until 12 July 2002 after the amendment to the Act.

50. The Act requires that the Minister must give approval for the placement of an identification plate on new vehicles of a particular type which comply with the national standards.

51.     The definition of new vehicle requires that it not be used in transport in Australia by its manufacturer or importer.

52.     Used in transport has been considered previously in this decision.  On the basis of the definition, the vehicle has been used in transport.  Accordingly the Minister is not required to issue a compliance plate for this vehicle.

53.     Accordingly the decision under review is affirmed.  

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Nicca Grant  
  Associate

Date/s of Hearing  30 April 2003
Date of Decision  9 March 2004

The Applicant was assisted by his wife Mrs Anderson
Counsel for the Respondent     Mr D Rangiah
Solicitor for the Respondent     Mrs A Bishop, Australian Government Solicitor