Carmody and Minister for Transport and Regional Services
[2007] AATA 1411
•8 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1411
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/12
GENERAL ADMINISTRATIVE DIVISION ) Re BERNADETTE CARMODY Applicant
And
MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date8 June 2007
PlaceCanberra
Decision The decision under review is set aside, and in place thereof the Tribunal decides that Ms Carmody’s application to import her CJ750 Chiang Jiang motorcycle is approved. ..............signed...............................
Mr S. Webb, Member
CATCHWORDS
TRANSPORT - motor vehicle importation - non-standard road vehicle with no identification plate - meaning of 'manufacture' - meaning of 'owned and used' 'for a continuous period of 12 months' - discretion - relevant factors – decision set aside
Motor Vehicle Standards Act 1989 ss 3, 5, 18, 19, 20
Motor Vehicle Standards Regulations 1989 r 7A, 9, 11, 13, 17
Re GEC’s Application (1942) 60 RPC 1
National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252
Grant v Commissioner of Patents [2006] FCAFC 120; (2006) 234 ALR 230
Irving v Munro and Sons Limited (1931) 46 CLR 279
Re Anthony and Department of Transport and Regional Services (2001) 33 AAR 317; [2001] AATA 543
Re Da Silva and Department of Transport and Regional Services (2004) 85 ALD 756
Re Hoopes and Department of Transport and Regional Services [2006] AATA 11
REASONS FOR DECISION
8 June 2007 Mr S. Webb, Member 1. Bernadette Carmody is an Australian school teacher living in the Peoples Republic of China. In 2005 she and her husband purchased three motorcycles, two for riding and one for spare parts. Subsequently, she applied to import two of the motorcycles into Australia. Her application was rejected. That decision was affirmed on reconsideration. Ms Carmody has requested review of that decision by the Tribunal.
2. In the course of the proceedings it was apparent that Ms Carmody intended to apply for approval to import only one motorcycle (despite stating in her application that the application concerned two motorcycles), the second motorcycle being the subject of a separate application for importation approval by her husband, Mr Wollum Arnt Guttorm. For that reason only one motorcycle was identified in her application. Even though earlier decision makers have dealt with her application in relation to two motorcycles, I will proceed to deal with her application in relation to the motorcycle identified therein.
3. The relevant background facts are not in dispute. The motorcycle in issue is a Chang Jiang CJ750 mounted with a sidecar, Vehicle Identification Number NF2P78FMV-3C 04060214[1]. Ms Carmody and her husband initially purchased a CJ750 motor cycle in 2000 from an American colleague. That motor cycle was mounted with a sidecar on the right hand side, to suit Chinese road rules (driving on the right hand side of the road). Subsequently, Ms Carmody and her husband placed orders with the manufacturer for two further motorcycles, with sidecars mounted on the left hand side, to suit Australian road rules. They paid for and took delivery of these vehicles, and an additional vehicle for spare parts, on 8 October 2005[2].
[1] Exhibit R1, p2
[2] on Ms Carmody’s evidence, T23 refers.
4. By Ms Carmody’s account the particular motorcycles were assembled from parts at a factory in Northern China. In her application to import the motorcycle she stated that ‘month of manufacture’ of the motor cycle was “June 2004”[3]. She subsequently stated that the motorcycles were assembled in 2004 from parts that were manufactured many years earlier[4]. Ms Carmody stated that the motorcycles are in “the classic style” of the “original manufacturer”. They are fitted with a “box engine” (which I understand to be a side-valve motor), a sidecar and mountings for weapons. Ms Carmody says that the CJ750 “classic style” motorcycle design is the same as the “original BMWR71”[5]. She described the motorcycle as a “vintage Chiang Jiang w/sidecar”[6], and described herself and her husband as “enthusiasts”. Ms Carmody’s evidence in this regard was not disputed and I accept it. It appears that the CJ750 motorcycles are of old (1938) design and have been manufactured in China since the 1950s.[7]
[3] Exhibit R1, p2.
[4] T5 folio 31 refers.
[5] T5 folios 33-38 refer.
[6] Exhibit R1, p1.
[7] T5 folios 35-38 refer.
5. Ms Carmody gave evidence that she and her husband used the motorcycles they purchased in October 2005 for their usual transport on the public roads. On her evidence that situation changed in or about August 2006, when the police informed them that they could not use the vehicles on the public roads. By Ms Carmody’s account, she and her husband were informed by the People’s Security Bureau in Shanghai that, as they were not permanent residents in China, they would not be permitted to legally register the motorcycles for use on public roads. Thereafter they did not drive the motorcycles on public roads, but maintained and trimmed them, and kept them ready for use, only driving them within the housing compound in which they lived. Ms Carmody’s evidence was that the housing compound contained approximately 17 separate dwellings with gardens, sporting and recreational facilities and tree-lined avenues. The perimeter track surrounding the compound was said to be a little more than 1 kilometre in length. Her evidence was that she drove the motorcycle to visit friends living within the compound. This evidence was not contested and I accept it.
6. In the Minister’s submission, approval to import the motorcycles should not be granted. The Minister asserts that the vehicles were manufactured in 2004, ‘assembly’ of a vehicle being within the meaning of ‘manufacture’[8]. Furthermore, Ms Carmody did not ‘use’ the vehicle for a continuous period of at least 12 months. The Minister says that ‘use’ means ‘drive’[9], and that the use to which the vehicle is put during the 12 month period should broadly be consistent with the expected or intended use of the vehicle in Australia if permission to import is granted. In this case, in the Minister’s submission, Ms Carmody could not legally register the vehicle for use on public roads in China and she could not, therefore, ‘use’ the vehicle in a manner that is broadly consistent with her stated intention to use the vehicle on public roads in Australia. In addition, the Minister asserts that the intention underlying the 12 month ownership and use rule is to protect from abuse of the policy, whereby personal possessions may be imported by migrants or citizens returning to take up residence in Australia in certain circumstances. By Ms Carmody’s own account she does not intend taking up residence in Australia until June 2008 and intends using the motorcycle when visiting Australia on holiday. Thus, the Minister submits, Ms Carmody’s circumstances are not compliant with the policy in this regard. Furthermore, in the absence of anything extraordinary in the circumstances of Ms Carmody’s case, the Minister asserts that there are no reasonable grounds that warrant or justify exercising the residual discretion to allow importation of the vehicles in question.
[8] Motor Vehicle Standards Act 1989, Section 5.
[9] Ibid.
7. As will appear, I am satisfied that Ms Carmody is within the terms of the legislative policy and the regulations to the extent that approval for importation of the motorcycle in question must be granted.
8. The importation of vehicles (including motorcycles) is controlled under the Motor Vehicle Standards Act 1989 (the Act). The objects of the Act are to provide for uniform national standards for new vehicles and to regulate the first supply to the market of used imported vehicles (s.3). Non-standard motor vehicles (those not complying with the determined standards (s.7)) and vehicles without an appropriate identification plate (Part 3, Division 1 refers) are not permitted to be imported (s.18) unless the Minister approves the importation (s.19) or prescribed circumstances pertain (s.20). The prescribed circumstances are set out in the Motor Vehicle Standards Regulations 1989 (the Regulations). Relevantly, Regulation (Reg) 13 (concerning non-standard vehicles that have been owned and used for a continuous period of at least, in this case, 12 months) and Reg 17 (concerning non-standard vehicles manufacturer before 1 January 1989), set out particular circumstances in which the Minister must approve an application to import a non-standard vehicle. Regulation 11 confers a broad discretionary power on the Minister to approve such an application and to render the approval subject to conditions.
9. Thus it can be seen that the main issue, whether there are grounds to approve importation of the motorcycle, requires determination of three issues that were agitated before me in these proceedings:
(a)Was the motorcycle manufactured before 1 January 1989?
(b)Did Ms Carmody own and use the motorcycle for a continuous period of 12 months (it being agreed that she satisfies subregs 13(b)-(e))?
(c)Is it appropriate to exercise the residual discretion to approve importation of the motorcycle in the particular circumstances?
Was the motorcycle manufactured before 1 January 1989?
10. Ms Carmody submits that the motorcycle was manufactured prior to 1989, in all likelihood in 1957. She says that the motorcycle was assembled from parts that were manufactured a long time ago, certainly before 1989.
11. The word ‘manufacture’ is given meaning at s.5 of the Act, as “in relation to a road vehicle, includes modify the vehicle and assemble the vehicle”. That definition is modified for the purposes of Division 4.1 of the Regulations, and does not include ‘modify’ for that purpose (Reg 7A). Thus it can be seen that a vehicle that was assembled after 1 January 1989 is not within the terms of Reg 17, which only applies to vehicles “manufactured” before that date.
12. To be within the terms of Reg 17, necessarily, the motorcycle must have been manufactured prior to 1 January 1989. Doing the best with the available evidence, it appears that Ms Carmody’s CJ750 motorcycle was not.
13. I am reasonably satisfied on Ms Carmody’s own evidence (and there is no probative evidence on this point) that the motorcycle was assembled in response to her order in 2004. It is possible that the vehicle components were manufactured at some earlier time, possibly before 1 January 1989. Even if there was some probative evidence to support that conclusion, which there is not, it would not assist Ms Carmody’s case.
14. Ms Carmody did not contest that the motorcycle is a ‘road motor vehicle’ as defined[10]. I am satisfied that it is and so find.
[10] Motor Vehicle Standards Act 1989, section 5.
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”[11]. The meaning of ‘manufacture’ and related terms has long been the subject of consideration in patent law cases[12]. The principles enunciated, albeit primarily in relation to issues of patents and the manner of manufacture and derived from the Statute of Monopolies 1623[13], are nonetheless 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. The product in issue here is Ms Carmody’s motorcycle. The method of its production is by the assembly of parts and components allegedly made at some earlier time. Thus, before the assembly there were merely parts and components that may be used or applied separately, and separately they do not constitute a motorcycle. The motorcycle is only produced when the parts and components are assembled together. Thus, the motorcycle is manufactured by the process of assembling the separate and various parts and components. It matters not that the various parts and components were manufactured at a different time or in a different place. My attention was drawn to the case of Irving v Munro and Sons Limited (1931)[14]. In that case, Ariel motorcycles were manufactured in England and were road tested before being disassembled and crated for exportation to Australia. On importation to Australia the motorcycles were reassembled for delivery to the market. The High Court confirmed the judgement of the Stipendiary Magistrate, that the company reassembling the motorcycles in Australia was not a ‘manufacturer’ of the motorcycles. That case is to be distinguished from this. In this case there is no evidence the motorcycles were assembled at any point prior to the placement of an order for delivery in 2004. It was at that point that the motorcycles were manufactured, just as in Irving’s case the Ariel motorcycles were manufactured on first assembly in England.
[11] Macquarie Dictionary, 3rd edition, 1998.
[12] See, for example, Morton J’s ‘rule’ in Re GEC’s Application (1942) 60 RPC 1 at pp 4-5; National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 at [268-276]; Grant v Commissioner of Patents [2006] FCAFC 120 at [12]).
[13] (21 Jac.1, c.3) (Imp), see .
[14] 46 CLR 279.
Did Ms Carmody own and use the motorcycle for a continuous period of 12 months?
16. In the Minister’s submission, Ms Carmody did not use the motorcycle for a continuous period of at least 12 months and is not, therefore within the terms of Reg 13. The Minister asserts that Ms Carmody was not permitted to register or use the motorcycle on public roads in China. Furthermore, the Minister says that Ms Carmody did not purchase the motorcycle for her use in China, but acquired it in order to import it into Australia. The Minister submits that the occasional use of an unregistered motorcycle in a residential compound is not sufficient use to satisfy the test at subreg 13(a).
17. As will appear I do not agree.
18. I accept that Ms Carmody purchased the motorcycle identified in her application on 8 October 2005 and that that motorcycle is one of the motorcycles to which the purchase receipt at T3 folio 23 refers. There is nothing contrary to Ms Carmody’s evidence under oath in this regard. Furthermore I accept the evidence concerning the background to her ownership of the motorcycle[15]. Proceeding on that basis, I am reasonably satisfied and find that the particular motorcycle was a personal possession of Ms Carmody’s and that she owned the motorcycle for a continuous period of at least 12 months prior to making an application for approval to import it into Australia.
[15] T1 folios 10-11 and T6 refer.
19. I note in passing that Ms Carmody gave evidence that when she lodged her application to import the motorcycle (in November 2006) she expected to return to Australia to live in June 2007, on the expiration of her employment contract. However, her contract was extended by 1 year and her evidence was that she presently expects to return to Australia to live in June 2008. She stated that her personal possessions would be transported to Australia prior to her return in June 2008. There is no other evidence concerning these assertions. Nevertheless this aspect of Ms Carmody’s evidence was not seriously challenged and can be accepted.
20. The policy underlying Regulation 13 was articulated by the (then) Minister for Land Transport and Shipping Support in the Second Reading Speech for the Motor Vehicle Standards Bill 1989, that is to make provision in regulations “for the importation of vehicles which are bona fide personal possessions [of] migrants or Australian citizens returning from long periods overseas”[16]. This policy was given further expression in the Explanatory Statement for amendments to the Regulations[17] in 2000, whereby the statutory period of ownership and use was increased from 3 months to 12 months. Considering these documents, it can clearly be seen that the policy is to allow returning citizens to treat their vehicles as part of their personal effects, and the statutory tests set out at subreg 13(a) amplify that purpose.
[16] House of Representatives Hansard, 23 May 1989, p2690.
[17] Motor Vehicle Standards Amendment Regulations 2000 (No. 1) 2000 No.194.
21. Thus, mere ownership is not sufficient. In order to enliven the mandatory approval provided under Reg 13, the owner of the vehicle must also ‘use’ the vehicle for the continuous period, in this case, of at least 12 months. The continuous period must predate the application for approval to import the vehicle, but there is no requirement that the period immediately precedes the importation application. The word ‘use’ is defined to mean ‘drive’[18]. It is a matter of commonsense and simple statutory construction that it is the period that is continuous, not the ‘use’. Plainly it would not be feasible for anyone to drive a vehicle continuously for a 12 month period. Thus, what is required is that the vehicle is available to be driven by the owner in the normal course of his or her usage during the entire period (Re Anthony and Department of Transport and Regional Services (2001)[19]). As has been said in previous cases, that is a matter of fact and degree, having regard to the number and duration of interruptions during the period (Re Da Silva and Department of Transport and Regional Services (2004)[20]).
[18] Motor Vehicle Standards Act 1989, section 5.
[19] 33 AAR 317 at 324.
[20] 85 ALD 756 at 762.
22. Having accepted that Ms Carmody owned the motorcycle in question for more than 12 months continuously, in fact from October 2005, and it not being disputed that she satisfies subregs 13(b) to (e) inclusive, it remains to determine whether or not she ‘used’ the motorcycle during the continuous 12 month period. There is scant probative evidence concerning this issue other than the evidence provided by Ms Carmody herself. Her oral evidence that she took delivery of the motorcycle on 8 October 2005 and used it as her daily transport until August 2006 (when she asserts she was informed that she could not legally drive it on public roads) was not seriously challenged. However, this evidence is not entirely consistent with the statement in her importation application that the motorcycle had “not been used”[21]. Ms Carmody explained this apparent inconsistency in the following terms: the motorcycle was not a second-hand vehicle that was ‘used’ in that sense, and she had not been permitted to drive the motorcycle on public roads since August 2006, 3 months prior to completing the application, so the motorcycle had not been ‘used’ in that way. Ms Carmody’s evidence concerning her usage of the motorcycle after August 2006 was that she used the motorcycle regularly within the confines of the residential compound in which she lives, using it to visit people she knew in the compound. The extent of her usage of the motorcycle after August 2006 is difficult to ascertain with any certainty on the available evidence. Nevertheless, it is reasonable to infer that the distance travelled and the frequency of use diminished substantially after August 2006. As the residential housing compound perimeter is a little over 1 kilometre in total, on Ms Carmody’s evidence, it follows that the internal distances are quite short. Furthermore the motorcycle was not legally registered for use on public roads in China. However, those matters are not fatal to Ms Carmody’s application. The test to be applied does not require use as measured by distance, nor does it require legal registration of the vehicle for use on public roads.
[21] Exhibit R1 p2.
23. There are evidentiary difficulties attaching to the issue of use, not least because Ms Carmody and her husband purchased four CJ750 motorcycles in total and there is scant probative evidence concerning Ms Carmody’s alleged use of the particular motorcycle at any particular point in time. Nevertheless, Ms Carmody’s oral evidence concerning her usage of the motorcycle she applied to import into Australia was not seriously challenged and I accept it. The real question is whether the asserted usage is consistent with the requirements of subreg 13(a).
24. What is required is the availability of the vehicle during a continuous 12 month period for Ms Carmody to use in the ordinary course. The evidence, scant as it is, reveals that she used the motorcycle as daily transport for approximately 9 months after delivery and then curtailed her usage as a result of regulations prohibiting non-permanent residents (of which she was one) from legally registering a vehicle for use on public roads in China. The evidence is that she did not cease to use the motorcycle, but that the extent of her usage changed in response to the limited circumstances in which she could legally drive the motorcycle thenceforth. Nevertheless, I am reasonably satisfied that the motorcycle remained available for her to use during a continuous 12 month period at least from October 2005 and she did so, albeit in limited circumstances that affected the ordinary course of her usage.
25. The case of Re Hoopes and Department of Transport and Regional Services [2006][22] is distinguished on its facts. In Hoopes’ case the applicant purchased a motorcycle for his wife to use in Australia. He did not register the motorcycle and kept it garaged on a rural property where he lived. Mr Hoopes had other vehicles for use on public roads and as his usual transport. He wanted to keep the motorcycle in pristine condition and, thus, only drove it occasionally on weekends to the mail box, a journey of 2 miles. The Tribunal concluded that this does not constitute continuous use for the purposes of Reg 13, as there was no equivalence between the nature of use during the 12 month continuous period and the intended use in Australia. In Ms Carmody’s case, she used the motorcycle on public roads for a period of months in China (albeit unlawfully) in a manner that has some equivalence to her intended use of the motorcycle in Australia.
[22] AATA 11.
26. There are three points to make on this subject. Regulation 13 does not specify any requirement for legal registration of a road motor vehicle as a condition for approval to import the vehicle into Australia. If such a test was intended by the Legislature it would have been a matter of simplicity to include it when making or amending the Regulations or the Act. No such intention is apparent in the Explanatory Memoranda for the Motor Vehicle Standards Amendment Regulations 2000 (No. 1)[23] and Motor Vehicle Standards Bill 1989 Second Reading Speech[24], to which my attention was directed. Furthermore, I do not accept the proposition that registration of a vehicle in a foreign jurisdiction implies any degree of consistency with Australian motor vehicle standards, or even standards of roadworthiness that are applied for vehicle registration purposes in the States and Territories. There is no evidence that the regulatory standards for registration of a motorcycle in China are consistent with any Australian motor vehicle standard. I note in passing that the motorcycle in issue in these proceedings is a non-standard vehicle for the purposes of the Act. For that vehicle to be legally used or driven on public roads in Australia if importation is approved, it must first be determined to be roadworthy by application of the relevant standards and then registered under the applicable state or territory laws.
[23] 2000 No.194.
[24] Supra, n16.
27. Regulation 13 does not impose a prospective or purposive test. The test to be applied concerns the person’s ownership and use of the motorcycle during a previous 12 month continuous period. Thus the use for which the motorcycle was designed, or the intended use to which it may be put in the future are simply contextual factors that may be relevant to consider when assessing the extent of use. In my opinion, with respect, an assessment of prospective equivalence of use, alone, is not determinative.
28. Thus, accepting Ms Carmody’s evidence concerning her usage of the motorcycle and having considered all of the circumstances, I am reasonably satisfied that Ms Carmody owned the particular motorcycle as a part of her personal possessions and used the motorcycle for a continuous period of at least 12 months, albeit that the ordinary course of her usage was constrained and curtailed from August 2006. I am reasonably satisfied that Ms Carmody’s circumstances satisfy subreg 13(a). It is not in dispute that she satisfies subregs 13 (b) to (e) inclusive.
29. It follows that Ms Carmody satisfies Regulation 13. That Regulation has a mandatory effect, whereby the Minister, and in those shoes, this Tribunal must approve an application to import a non-standard vehicle or a vehicle without an identification plate if the terms of the Regulation are satisfied. This is such a case, and Ms Carmody’s application must be approved.
30. That being so, it is not necessary to consider the residual discretion to approve an application to import a non-standard vehicle.
conclusion
31. I am reasonably satisfied that Ms Carmody’s application to import a non-standard motorcycle must be approved because the terms of Regulation 13 are satisfied in the particular circumstances. It follows that the decision under review is set aside, and in place thereof, the Tribunal decides that Ms Carmody’s application to import her CJ750 Chiang Jiang motorcycle is approved.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ………Jane Gribble………..
AssociateDate of Hearing 23 May 2007
Date of Decision 8 June 2007
Representative for the Applicant Self
Counsel for the Respondent Mr Geoff McCarthy
Solicitor for the Respondent Mr Greg Parkin
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