DAVOLI and MINISTER FOR INFRASTRUCTURE AND TRANSPORT
[2011] AATA 353
•26 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 353
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° 2011/0466
GENERAL ADMINISTRATIVE DIVISION ) Re
ALAN DAVOLI
Applicant
And
MINISTER FOR INFRASTRUCTURE AND TRANSPORT
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date26 May 2011
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and exercises the discretion afforded in regulation 11 of the Motor Vehicles Standards Regulations 1989 to grant the application to import a non-standard motor vehicle.
…………[signed]………………
Member
INFRASTRUCTURE AND TRANSPORT – motor vehicles – non standard motor vehicle – application to import – vehicle manufactured after 1 January 1989 – discretion under Regulation 11 exercised – decision set aside
Motor Vehicle Standards Act 1989 ss 3, 18, 20
Motor Vehicles Standards Regulations 1989 regs 11, 17
Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43
Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 135
REASONS FOR DECISION
26 May 2011 Mr C. Ermert, Member
INTRODUCTION
1. Mr David Davoli, the applicant in this case, bought a motor vehicle located in the United States that he saw advertised on an internet site. He claims that, prior to buying the car, he and his wife contacted the office of the Administrator of Vehicle Standards (the Administrator) on three occasions to determine if he would be able to import the modified 1968 Ford Mustang (the vehicle). He claims that staff at the office of the Administrator told them there would be no problems with the importation of the vehicle. Based on this information, Mr Davoli proceeded with the purchase.
2. On 30 September 2010 Mr Davoli made an application for approval to import the vehicle. On 25 November 2010 the Administrator sought information about modifications performed on the vehicle. Mr Davoli replied that the only modification was a body kit. On 14 December 2010, after considering the sales description of the vehicle, which included Newly Built High Performance 351W V-8, New World Class Cobra 5 Speed Transmission (T-documents, p.117), the Administrator refused the application to import the vehicle.
3. Mr Davoli requested a review of that decision. On 11 January 2011 the Administrator upheld the refusal decision. Mr Davoli is now seeking a review of review decision by the Tribunal.
THE HEARING
4. At the hearing Mr Davoli was assisted by his wife, Mrs Susan Davoli. Mr Davoli gave evidence. He tendered a bundle of documents taken in as Exhibit A1. Mr Tigiilagi Eteuati of Clayton Utz represented the respondent. He was assisted by Mr Steve Pantalidis from the Department of Infrastructure and Transport. The Tribunal also had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
LEGISLATION
5. The law that applies to the present matter is contained in the Motor Vehicle Standards Act 1989 (the Act) and the Motor Vehicle Standards Regulations 1989 (the Regulations).
6. The objects of the Act are to achieve uniform standards for new vehicles used in Australia and to regulate the importation of used vehicles. Section 18 of the Act prohibits the importation of a vehicle that is non-standard. The Regulations provide some exceptions to this general rule, including regulation 17, which allows the Minister to approve the importation of vehicles manufactured before 1 January 1989. Regulation 11 provides a discretion for the Minister to approve an application to import a non-standard vehicle. However, it does not specify what matters the Minister should take into account when exercising that discretion.
THE ISSUES
7. The parties agree that the Vehicle is non-standard, being originally manufactured as a Ford Mustang and subsequently modified by the replacement of the engine and transmission and the fitting of a body kit.
8. Mr Davoli contends that the Vehicle was manufactured prior to 1 January 1989 and that it therefore complies with the provisions of regulation 17. The respondent contends that the vehicle was assembled with its new components sometime after 1 January 1989. The respondent also contends that the exercise of the discretion in regulation 11 would frustrate the policy and objectives of the Act and that there are no good reasons for exercising the discretion.
9. The issues before the Tribunal are whether the vehicle was manufactured prior to 1 January 1989 and, if not, whether the Tribunal should exercise the discretion in regulation 11.
THE EVIDENCE
10. In his oral evidence, Mr Davoli stated that the vehicle had not been substantially modified. He said the body shell was original. The body kit comprised spoilers, rear window louvres, and mudguard flares, which were added to the body, and modified front and rear bumpers that replaced the originals. Mr Davoli said that, although the body kit made his vehicle look like an Eleanor Mustang model car (which is the name of a car from a recent movie), it was not an Eleanor. He added that Eleanor cars are a modern car, whereas his was an old car. He referred to a number of photographs contained in Exhibit A1, pointing out particularly the original leaf spring rear suspension on his car compared with the coil spring suspension fitted to the Eleanor cars.
11. Mr Davoli agreed that the 351W engine fitted to the vehicle was not the original engine. He did not know when it had been fitted but opined that it was fitted when the original engine needed replacement. Mr Davoli stated that the 351W engine was made from the same block as the 200, 289 and 302 cubic inch engines fitted as standard to the Mustang models and that physically they were interchangeable with those other engines. He added that the larger capacity engines were bigger in size, more powerful and could not be fitted without modifications to the vehicle. Mr Davoli said that the 351W engines were manufactured from late 1968 and were fitted to production Mustang cars in 1969 but he did not know when his engine had been manufactured, or when it had been fitted to the Vehicle.
12. Mr Davoli said that the 5-speed transmission was not a high performance item, incorporating only an overdrive gear designed to save fuel on open roads. He did not dispute that the 5-speed transmission was not standard for that model Mustang and he did not know when it was fitted to his vehicle. He agreed that it was possible that the engine and transmission were fitted after 1 January 1989.
13. When asked why he did not write to the Administrator for an opinion about importing the vehicle, Mr Davoli said that he saw no reason to write as staff at the office of the Administrator assured him that there would be no problem.
SUBMISSIONS
14. Mr Davoli contended that his vehicle is not substantially modified. It has no modern parts. The body shell is original, manufactured in 1968, as evidenced by the photographs. He submits that the engine and transmission may have been fitted to effect repairs to the original vehicle. Therefore, it remained a pre-1989 car and was within the provisions of the Department’s advisory brochure.
15. Mr Eteuati accepts that the vehicle’s body was manufactured in 1968. However, he submits that the question for the Tribunal is when the vehicle was manufactured, that is, when the component parts were assembled. He contends that there is no evidence that the 351W engine and the 5-speed transmission were fitted before 1989 and therefore the vehicle cannot be considered to have been manufactured before 1 January 1989.
16. Mr Eteuati also contends that the Tribunal should not exercise the regulation 11 discretion without good reason. He said that its exercise in this case would frustrate the objectives of the Act by encouraging others to attempt to import non-complying cars through the provisions of the discretionary powers.
CONSIDERATION
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. In this case, it is not in dispute that the body shell is the original body shell, manufactured in 1968. While giving evidence, Mr Davoli agreed that he did not know when the 351W engine or the 5-speed transmission was fitted to the vehicle and that they could have been fitted after 1 January 1989. Without better evidence, it is not possible to determine when the engine and transmission, which together comprise the power train sub-assemblies, were conjoined to the body shell. The only evidence is that they may have been fitted after the requisite date.
19. As the power train sub-assemblies could have been fitted after 1 January 1989, the Tribunal does not accept that the vehicle was manufactured prior to 1 January 1989. Therefore, the vehicle does not meet the requirements of regulation 17.
20. The next issue is whether the Tribunal should exercise the discretion afforded by regulation 11 in favour of Mr Davoli. When pressed by the Tribunal for arguments against the use of the discretion in this matter, Mr Eteuati submitted that it would frustrate the objects of the Act, which he described as preventing the importation of non-standard vehicles except for those manufactured prior to 1989. He contended that the use of the discretion would encourage others to attempt to import non-complying cars in a similar manner as Mr Davoli, that is, through the provisions of the discretionary powers.
21. The only relevant object of the Act as shown in section 3 of the Act is:
…
(b) to regulate the first supply to the market of used imported vehicles.
22. The object is to regulate, not to prevent, disallow or any other such action. The exercise of the discretion does not disturb the general requirement to submit an application to import a used vehicle, which the Administrator then considers on its merits. The Tribunal considers the exercise of the discretion to be consistent with the objective of regulation and therefore rejects the contention of the respondent.
23. On the issue of encouragement of others, there is nothing to prevent any number of people making applications to import non-standard cars. The Act requires the regulation of the applications, not the restriction of the numbers of applications. The Tribunal rejects this contention as well.
24. Mr Eteuati also contended that there was no good reason for the Tribunal to exercise the regulation 11 discretion; and that there were no weighty counterveiling factors in favour of exercising the discretion. In its Statement of Facts and Contentions, the respondent supported this contention by reference to the matter of Zillin and Minister for Infrastructure, Transport, Regional Development and Local Government [2011] AATA 135 where, at [26], Deputy President Jarvis said:
Of course, considerations of the above kind may not in themselves be sufficient to constitute “weighty counterveiling factors” if the grant of approval would undermine or frustrate the policy and objectives of the legislative scheme.
25. In considering Mr Eteuati’s contention, the Tribunal had regard to the judgement of Mansfield J in Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43; in which his Honour held
37. It may well be that it will not be a common circumstance that a person seeking to import a non standard vehicle will have the discretion available under Reg 11 exercised in that person’s favour. In some circumstances, such an importation might undermine or frustrate the policy and objectives of the Act. Clearly, in such a circumstance, the favourable exercise of the discretion under Reg 11 would require there to be weighty counterveiling factors. The fulfilment of that policy or those objectives is clearly relevant to the exercise of the discretion under Reg 11. This is not a case where the Tribunal has found that the importation of the car would undermine or frustrate the policy objectives of the legislative scheme. In fact, it accepted the opposite.
38. However, beyond that consideration, the discretion under Reg 11 is, in its terms, unfettered. ...
39. In my view, it was an error of law for the Tribunal to construe the apparently unlimited discretion in Reg 11 so that, even where the policy objectives of the legislative scheme were not undermined, there had to be some exceptional or special or rare circumstances before the discretion could be exercised in favour of Mr Selway. I do not consider that Reg 11, in its context in the legislative scheme, implies that further fetter or gloss upon its operation…
[Tribunal’s emphasis]
26. In this case, the Tribunal has found that the objectives of the legislative scheme will not be frustrated by the exercise of the discretion. Therefore, following the reasoning of Mansfield J, it finds the exercise of the discretion in this case to be unfettered.
27. The Tribunal considers the following factors to be relevant to the exercise of the discretion:
(a)The vehicle is predominantly a pre-1989 vehicle, with a body shell manufactured in 1968 and an engine manufactured from 1968 onwards. The only component of unknown age is the transmission. The Tribunal cannot accept the vehicle as a pre-1989 vehicle because the date of the fitting of the engine and transmission cannot be identified.
(b)The modifications to the vehicle change its appearance but there is no evidence that they alter, to any degree, its performance from its original 1968 specification. The evidence is that the fitted engine has a performance capacity about the middle of the range of the standard production engines for the Mustang models. The evidence is that the 5-speed transmission is designed for fuel saving, not high performance.
(c)The vehicle predominantly complies with the Departmental brochure The pre-1989 scheme, dated October 2010, (Exhibit A1) which states on page 1:
The restoration, display and use of older vehicles is a recognised and long-standing recreational activity within Australia … Popular models imported under the scheme include the Ford Mustang...
While these types of vehicles are not required to meet Australian vehicle safety standards, the safety and emission costs to the Australian community are kept within practical limits…
In this case, the vehicle comprises a Ford Mustang body shell, albeit with some cosmetic additions. There is no evidence that the replacement engine and transmission adversely affect the safety and emission costs to the Australian community.
(d)The vehicle is not excluded by the examples shown in the same brochure. The vehicle in Example 2, on page 5 of the Departmental brochure, is an Eleanor Mustang, converted in 2008, in which the original 390 cubic inch engine has been replaced by a modern Chevrolet 427 cubic inch engine. The evidence in this case is that the vehicle is not an Eleanor Mustang but a standard Mustang, which has had some additions fitted to its body to make it look like an Eleanor. More importantly, the engine is an old Ford mid-sized engine, not a modern engine of significantly increased power.
28. From the evidence, it is clear that the vehicle meets the provisions of the Regulations, with the exception of the uncertainty over the date of replacement of the engine and transmission. The engine and transmission are not modern, high performance items that alter to any degree the performance of the vehicle from its original Mustang specification. Without that uncertainty, the vehicle would have complied with the provisions of the Act and the Regulations. Accordingly, the Tribunal finds that the exercise of the regulation 11 discretion in favour of Mr Davoli is appropriate.
DECISION
29. The Tribunal sets aside the decision under review and exercises the discretion in regulation 11 of the Motor Vehicles Standards Regulations 1989 to grant the application to import a non-standard motor vehicle.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, MemberSigned:.............................[signed].............................................
Associate Grace HorzitskiDate of Hearing 18 May 2011
Date of Decision 26 May 2011
Advocate for the Applicant Self-represented, assisted by Mrs DavoliSolicitor for the Respondent Mr Tigiilagi Eteuati, Clayton Utz
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