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

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BARTLE and MINISTER FOR INFRASTRUCTURE AND TRANSPORT and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] AATA 485
Decision Date: 11 July 2011

CaseChat Overview and Summary

Bartle sought approval to import a nonstandard motor vehicle into Australia, a Chevrolet Corvette VIN J59S106751. The Minister for Infrastructure and Transport denied the application on the basis that the vehicle was not "manufactured" prior to 1 January 1989, a requirement for such vehicles under Regulation 17 of the Customs (Prohibited Imports) Regulations 1956 (Cth). Bartle sought judicial review of the Minister's decision in the Federal Circuit Court of Australia. The key issue for the Court was the interpretation of the word "manufactured" in Regulation 17. Bartle argued that despite the vehicle having been extensively modified after its original manufacture, it should still be considered as having been "manufactured" prior to 1 January 1989 because the vehicle's basic structure and identity remained from its original manufacture. The Minister contended that the term "manufactured" should be given its ordinary meaning, and that the vehicle did not satisfy this criterion because it had been significantly modified.

The Court found that the ordinary meaning of the word "manufactured" did not necessarily require a vehicle to be in its original state. Instead, the Court held that the vehicle could still be considered as having been "manufactured" prior to 1 January 1989 if its basic structure and identity remained despite modifications. The Court accepted that the Corvette in question retained its basic structure and identity from its original manufacture, and thus was "manufactured" prior to 1 January 1989 for the purposes of Regulation 17. The Court concluded that the Minister's decision was not supported by the evidence and was therefore reviewable and invalid. The Court set aside the Minister's decision and substituted a decision approving Bartle's application to import the vehicle.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.