BARTLE and MINISTER FOR INFRASTRUCTURE AND TRANSPORT

[2011] AATA 485

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 485

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0358

GENERAL ADMINISTRATIVE DIVISION		)
Re		SCOTT BARTLE

Applicant

And MINISTER FOR INFRASTRUCTURE AND TRANSPORT

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member
Mr W Evans, Member

Date11 July 2011

PlacePerth

Decision

Pursuant to s 43 of the Administrative Appeals Act 1975 (Cth):

1.        The reviewable decision dated 11 November 2010 is set aside.

2.        In substitution there is a decision that the applicant's application to import a nonstandard road vehicle, namely a Chevrolet Corvette VIN J59S106751, is approved.

……….(sgd) S Penglis..........

Senior Member

CATCHWORDS

Infrastructure and transport - motor vehicles - nonstandard motor vehicle - application to import - whether vehicle was "manufactured" before 1 January 1989 - proper meaning of the word "manufacture" in Regulation 17 - notwithstanding extensive modifications, vehicle held to have been "manufactured" for the purpose of Regulation 17 prior to 1 January 1989 - reviewable decision set aside - application to import a non-standard motor vehicle approved

LEGISLATION

Motor Vehicles Standards Act 1989 (Cth), ss 3, 5, 7 and 18

Motor Vehicle Standards Regulations 1989 (Cth) Regs 7A, 11 and 17

CASES

Carmody and Minister for Transport and Regional Services [2007] AATA 1411

Davoli and Minister for Infrastructure and Transport [2011] AATA 353

Irving v Munro & Sons Limited (1931) 46 CLR 279

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

REASONS FOR DECISION

11 July 2011 Mr S Penglis, Senior Member
Mr W Evans, Member

Background

1.The facts of this matter were not contentious.  In short, the applicant is an enthusiast of Chevrolet Corvettes.  The applicant has purchased a Chevrolet Corvette which is presently in the United States of America (“Vehicle”).   Substantial work was performed on the Vehicle between 2006 and 2008.  The Vehicle is a nonstandard road Vehicle and does not have an identification plate within the meaning of those terms as they appear in the Motor Vehicle Standards Regulations 1989 (“Regulations”). The applicant contends that, notwithstanding, he is entitled as of right to have his application to import the Vehicle approved by reason of Regulation 17 of the Regulations, which provides as follows:

“ The Minister must approve an application to import a nonstandard road vehicle, where the vehicle does not have an identification plate, if the vehicle was manufactured before 1 January 1989.”

2.By decision dated 11 November 2010, the Administrator of Vehicle Standards of the Department of Infrastructure and Transport refused the application.  The Administrator did so on the stated basis that, whilst the body shell of the Vehicle was manufactured in 1959, the work done between 2006 and 2008 resulted in the creation (manufacture) of a new vehicle.  That is the reviewable decision the subject of this application.  

The Act and Regulations

3.The main object of the Motor Vehicle Standards Act 1989 (the Act), with respect to used vehicles, is to regulate the first supply to the market: see section 3.

4.By section 7, the Minister may determine vehicle standards for road vehicles and vehicle components.  “Vehicle standard” is defined in section 5 to mean:

“ a standard for road vehicles or vehicle components that is designed to:

(a)     make road vehicles safe to use; or

(b)     control the emission of gas, particles or noise from road vehicles; or

(c)     secure road vehicles against theft; or

(d)     promote the saving of energy.”

5.Section 5 also defines the standards determined under section 7 as “national standards”. 

6.Section 5 defines “nonstandard” in relation to a road vehicle or vehicle component to (relevantly) mean not compliant with the national standards.

7.The importation of a non-standard road vehicle or a vehicle without an identification plate is prohibited under section 18 of the Act, which relevantly provides:

“ (1)     Subject to sections 19 and 20, a person must not import a road vehicle that:

(a)       is nonstandard; or

(b)       does not have an identification plate.

Penalty: 120 penalty units.”

8.The section 18 prohibition is subject to section 20 of the Act, which permits a person to import a non-standard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The prescribed circumstances are set out at regulations 9 to 21A of the Regulations. Only regulations 7A, 11 and 17 are relevant to the application for review.

9.Regulation 17 (reproduced previously) applies to “road vehicles manufactured before 1 January 1989”.

10.Section 5 of the Act defines the term, “manufacture” as follows:

in “relation to a road vehicle includes modify the vehicle and assemble the vehicle”.

11.Regulation 7A provides that in Division 4.1 of the Regulations (in which regulation 17 appears), the term, “manufacture” “does not include modify”.

12.Regulation 11 provides that:

“(1)     The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.

(2)An approval may be given subject to conditions specified in the instrument of approval.

(3)Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.

(4)An approval must be given by signed instrument.”

Contentions

13.The applicant contends that the Vehicle’s date of manufacture was 1959.  He points to the Vehicle’s identification plate, which carries the number VINJ59S106751, and says it proves that the Vehicle was manufactured in 1959:  see the first 2 digits.  He says that what has subsequently been done to the Vehicle has not changed that.  In particular, he says what was done did not constitute the “manufacture” of some other vehicle. 

14.The respondent contends that whilst the Vehicle of which the body shell was originally part of was manufactured in 1959, the Vehicle was in fact and in law not “manufactured prior to 1989” because “almost all of the essential parts of the vehicle were manufactured post-1989”.  The respondent contends “that the only essential component of the vehicle which was manufactured in 1959 was the body shell of the vehicle …”.  The respondent further contends “that the vehicle was not in existence prior to 2006: that this was when the vehicle was assembled, brought into existence or materially improved whereby a physical change or transformation was effected”.  The respondent contends “rather than a 1959 Corvette being restored, the parts were all assembled for the first time between 2006 and 2008 and the only essential component which was from 1959 was the body shell of the vehicle”.

Proper Construction of the Word “Manufacture” in Regulation 17

15.The starting point is that the Act, pursuant to which the Regulations are made, defines the word “manufacture” in the manner set out above.  However, for the purpose of Regulation 17, the word “manufacture” expressly excludes “modify”: see Regulation 7A.  In Irving v Munro & Sons Limited (1931) 46 CLR 279, albeit in regard to entirely different legislation (namely the Sales Tax Assessment Act (No 1) (1930)), the High Court of Australia held that where motorcycles were imported by a company from England in parts and then assembled in Australia, but where, prior to importation, the parts of each motorcycle were assembled and the motorcycle submitted to a practical road test in England, the re-assembly of the parts into a motorcycle in Australia did not constitute the company as a “manufacturer”. 

16.Irving was referred to and distinguished by this Tribunal in Carmody and Minister for Transport and Regional Services [2007] AATA 1411. That case involved the question of whether a motorcycle assembled in 2004 from parts that were manufactured prior to 1989 was “manufactured prior to 1 January 1989” for the purpose of Regulation 17.  The Tribunal drew a distinction between the assembly of component parts for the first time and the re-assembly of component parts that had previously been assembled.  The Tribunal therefore concluded that the motorcycle had not been manufactured prior to 1 January 1989.

17.In Davoli and Minister for Infrastructure and Transport [2011] AATA 353, this Tribunal considered an application involving importation of a modified 1968 Ford Mustang. The Tribunal held that the vehicle in question was not manufactured prior to 1 January 1989 because there was no evidence by which the Tribunal could conclude that “the engine and transmission, which together comprise the power train sub-assemblies, were conjoined to the body shell” prior to 1 January 1989.  In this regard, the Tribunal said as follows:

“17     In its written Statements of Facts and Contentions, the respondent refers to industry definition of the date of manufacture.  The Uniform Code of Practice for the Date of Manufacture of New Motor Vehicles published by the Federal Chamber of Automotive Industries in April 1996 defines the date of manufacture of a vehicle as:

‘…the calendar month and the year in which the body shell and power train sub-assemblies are conjoined and the vehicle is driven or moved from the production line.’

The Tribunal accepts this is a reasonable definition for the application of the Act to the present matter.”

18.It is unclear as to what basis the Tribunal accepted the definition of “date of manufacture” in the Uniform Code of Practice for the Date of Manufacture of New Motor Vehicles published by the Federal Chamber of Automotive Industries in April 1996 as being a “reasonable definition for the application of the Act”.  For our part, we do not consider it appropriate to construe the word “manufacture” where it appears in Regulation 17 by reference to such a document, particularly in the absence of any evidence as to how the document was prepared and whether or not the definitions contained therein reflect the common usage of words in the industry. Indeed, even if such evidence had been given, it is doubtful whether such a document constitutes extringent material to which regard may properly be had in construing the Regulations. Moreover, one must firmly bear in mind that it is “erroneous to look at extrinsic material before exhausting the application of the ordinary rules of statutory construction”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [33] (per French CJ, Gummow, Hayne, Creenan and Kiefel JJ) applying Callow v Accident and Compensation Commission (1989) 167 CLR 543 at 550 per Brennan and Gaudron JJ.

19.In Carmody, Member Webb held as follows (at [15]):

“The definition of “manufacture” is inclusive in its terms and is not precise.  The ordinary meaning of the word is “the making of goods or wares by manual labour or machinery…to make in any manner…to work up (material) into form for use… to produce by mere mechanical industry without inspiration”.

The meaning of “manufacture” and related terms has long been the subject of consideration in patent law cases.  The principles enunciated, albeit primarily in relation to issues of patents and the manner of manufacture and derived from the Statute of Monopolies 1623, are none the less apposite here.  Thus, as the manner of manufacture is essentially concerned with the practice, means and product of making, “manufacture” pertains to the bringing into existence or the material improvement of a tangible product whereby a physical change or transformation is effected.”  

20.We are of the view that, as the Regulations expressly excludes “modify” from the definition of the word “manufacture” where it appears in Regulation 17, the modification of a “road vehicle” cannot affect the date of its manufacture unless the modification has resulted in an end product which cannot fairly be described as being the “road vehicle” that previously existed (i.e. such that the product of the modifications is, in reality, a different “road vehicle”.  In all cases, this will be a question of degree.

21.We are of the view, consistent with the Tribunal’s decision in Carmody, that if something is assembled using disparate parts (notwithstanding that each part was manufactured prior to 1 January 2009), what is occurring is the assembling together of those parts for the first time to create a vehicle that did not previously exist.  In that event, the date of manufacture will usually be the date of the assembly. 

22.It therefore follows that, to succeed, the applicant needs to satisfy the Tribunal that the work carried out to the Vehicle was not the creation of a road vehicle from disparate parts, but rather was work performed upon a pre-existing road vehicle and where the end product of the work was not such so as to, in reality, result in the creation (“manufacture”) of a different road vehicle.

The Facts

23.The salient facts are conveniently summarised in the respondent’s Statement of Reasons dated 3 March 2011 as follows:

“ 26.     The Vehicle was originally manufactured as a 1959 Chevrolet Corvette.

27.The Administrator noted that 1959 Chevrolet Corvettes were originally manufactured with the following engine options:

·     283 cu in (4.6 L) 230 hp small-block V8;

·     283 cu in (4.6 L) 245 hp small-block V8;

·     283 cu in (4.6 L) 270 hp small-block V8;

·     283 cu in (4.6 L) 250 hp small-block FI V8; and

·     283 cu in (4.6 L) 290 hp small-block FI V8.

28.The Administrator noted that 1959 Chevrolet Corvettes were originally manufactured with the following transmission options:

·     3-speed manual;

·     4-speed manual; and

·     2-speed powerglide automatic.

29.The Administrator had regard to the vendor’s sales listing and advertisement for the Vehicle.  The Administrator noted that the sales listing stated the following:

“If you are looking for an original specification Corvette this is not the car for you.  It has been restored and modernised to the owner’s requirements with a long list of custom improvements ...”

30.Based on the Applicant’s covering letter and the sales listing for the Vehicle, the Administrator concluded that the following modifications had been made to the Vehicle:

·     installation of a 364 cu in (6.0 L) 400 hp LS2 V8 engine.  The Administrator noted that the engine was outside original specification for the Vehicle and was only fitted to Chevrolet Corvettes from 2005;

·     installation of a Tremec 6-speed manual transmission.  The Administrator noted that the transmission was outside original specification for the Vehicle and was only fitted to Chevrolet Corvettes from 1997;

·     installation of a steel tube frame chassis;

·     installation of modern suspension (comprising coil over shock absorbers and wish bone components).  The Administrator noted that these components were only fitted to Chevrolet Corvettes from 1997;

·     installation of modern disc brakes (front and rear).  The Administrator noted that these components were only fitted to Chevrolet Corvettes from 1997;

·     replacement of the parking brake with a hand brake located in the centre console;

·     installation of power steering and a new steering column and steering wheel;

·     relocation of the fuel tank to the boot (the tank was originally located under the convertible top well);

·     installation of custom engine air intakes (behind the doors) and custom rear wheel air intakes;

·     conversion from left‑hand drive to right‑hand drive;

·     installation of electric windows;

·     installation of air conditioning;

·     installation of a custom interior; and

·     installation of wider wheels and tyres (240mm rear, 200mm front on 18” rims).”

24.For the sake of completeness we note that, on the basis of those facts (which we formally find), the Administrator of Vehicle Standards of the Department of Infrastructure and Transport concluded that he “no longer considered the vehicle to be a 1959 Chevrolet Corvette” because:

(a)“the Vehicle had been assembled out of different automotive parts and components: and

(b)the Vehicle had been brought into existence as a different automotive product (namely, a custom built vehicle) by a physical change or transformation.  There had been a material change in the product.”

Analysis

25.Included in the evidence received by the Tribunal was a black and white photograph of the Vehicle prior to modification.  A copy of the photograph is attached to these reasons for decision.  It is immediately apparent that, although in a significant state of disrepair (and, according to the applicant, without an engine), what existed was a “road vehicle”, not just vehicle parts. This is therefore not a case of starting with a set of parts, none of which could be described together as constituting a “road vehicle”, and creating therefrom (or, if you like, “manufacturing” therefrom) a “road vehicle”.

26.The issue then becomes whether the end product of that work carried out on the Vehicle can be fairly described as being the same “road vehicle” that previously existed (albeit restored and modified)  or whether the result is a different “road vehicle” to which the initial “road vehicle” has essentially done nothing more than provide parts.

27.Applying the facts to the proper construction of the Regulation, the Tribunal is of the view that the Vehicle is a 1959 Chevrolet Corvette that has been substantially restored and modified from what existed before the work was done, but that the result is not something that can fairly be said to constitute a different “road vehicle”.  As a matter of fact, and as a matter of law, it is the same “road vehicle” as previously existed (albeit) restored and modified. In particular:

(a)the car is instantly recognisable as a Chevrolet Corvette that it won the “Best Corvette” award at the Super Chevy Show in the United States in August 2008. This is not a case where a vehicle has been modified so that it is, in fact, something else (such as modifying vehicles into hot rods);

(b)the evidence before the Tribunal was that all of the modifications and new components are “within specification” (and we so find);

28.It was common cause before the Tribunal that, in determining whether or not the end product of the work done to the Vehicle constitutes a “manufacture” for the purpose of the Regulations, the Tribunal was entitled to consider the totality of the work on a cumulative basis. This must be so. Doing that, however, the Tribunal concludes that, whilst what was done to the Vehicle was considerable, the whole of the work, and the result of that work, does not justify a finding (such as that made by the Administrator) that the Vehicle is not a Chevrolet “manufactured” in 1959.

Discretion

29.Given the conclusion we have reached, it is unnecessary for the Tribunal to consider whether the discretion provided by Regulation 11 ought to have been exercised in favour of the applicant if Regulation 17 had not been satisfied. The Tribunal has nevertheless considered whether to express a view as to whether it would have done so. In this regard the Tribunal notes that most of the submissions advanced on behalf of the respondent in this regard were recently considered and, in large part, rejected by Member Ermert in Davoli. Under those circumstances, the Tribunal considers it undesirable to deal with this issue (which does not arise for determination) as in large part it would involve a consideration of whether or not we should follow the decision in Davoli. We therefore do not do so.

Result

30.It follows that we are satisfied that, on the proper construction of the word “manufacture” where it appears in Regulation 17, the Vehicle has its date of manufacture in 1959 and that, consequently, Regulation 17 compels the application to be allowed.

31.It therefore follows that the reviewable decision must be set aside and that, in lieu thereof, there be a decision that the application to import the vehicle be allowed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member

Signed:..(sgd) T Freeman......................
  Associate

Date of Hearing  29 June 2011
Date of Decision  11 July 2011
Representative of the Applicant        Self
Counsel for the Respondent             Mr T Eteuati
Solicitor for the Respondent              Clayton Utz Lawyers

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