Seinor and Secretary, Department of Transport and Regional Services

[2006] AATA 625

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 625

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/303

GENERAL ADMINISTRATIVE DIVISION		)
Re		Grahame William Seinor

Applicant

And Secretary, Department of Transport and Regional Services

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date14 July 2006

PlaceSydney

Decision The decision of the respondent is affirmed. 

..............................................

Professor GD Walker
  Deputy President 

CATCHWORDS

REGISTER OF SPECIALIST AND ENTHUSIAST VEHICLES – Motor Vehicle Standards Regulations – Specialist and Enthusiast Vehicle Scheme (SEVS) – Toyota Caldina ST246W – whether vehicle meets eligibility criteria – meaning of “featured” – whether vehicle featured in at least one specialist motoring magazine – whether vehicle featured in High Performance Imports magazine issue No 51 – legislation “silent” on meaning of “featured” – vehicle not featured in the ordinary sense – vehicle only received four paragraph discussion which did not include comprehensive coverage of specifications or report of road test – decision of the respondent affirmed.

Re BHP Petroleum (Timor Sea) Pty Ltd and Others and Minister for Resources (1997) 46 ALD 117

REASONS FOR DECISION

14 July 2006	Professor GD Walker, Deputy President
Summary

1.      The applicant, Grahame Seinor, applied to the respondent, the Department of Transport and Regional Services, for Toyota Caldina GT-Ford, model code ST246W, to be entered on the Register of Specialist and Enthusiast Vehicles.  The respondent refused the application on the ground that the vehicle did not met the entry criteria specified in Regulation 24 of the Motor Vehicle Standards Regulations 1989 (“the Regulations”) including that it had not been featured in a specialist motoring magazine in “as manufactured” condition.  This is the decision to be reviewed by the tribunal.

Issue

2.      The issue before the tribunal is whether Toyota Caldina GT-Ford, model code ST246W, is eligible to be entered on the Register of Specialist and Enthusiast Vehicles (“the Register”) under regulation 24 of the Motor Vehicle Standards Regulations 1989.  At the hearing the only issue between the parties was whether the vehicle satisfied criterion D in Regulation 24(4)(c)(ii).

Background

3.      The applicant, Mr Seinor, was born on 23 November 1943, and is aged 62.  He is a director of Grahame Senior & Co Pty Ltd, Automotive Engineers and Consultants.  (For business purposes Mr Seinor spells his name “Senior” because so many people misspell his name that way.)  On 5 December 2005, he made an application to the respondent, received on 7 December 2005, for Toyota Caldina GT-Four, manufacturer’s model code ST246W, to be entered on the Register of Specialist and Enthusiast Vehicle (T3 p18).  The vehicle was built in Japan between September 2002 and to date.  Its design features include a 3S-GTE 2.0 litre turbo engine, 260 PS or 191.23 kw, weight 1490 kilograms, with a power to weight ratio of 128.40 kw per tonne.

4.       In completing the application, Mr Seinor provided the following information:

18.4     Featured in specialist motoring magazines in “as manufactured” condition:

FEATURED IN “HIGH PERFORMANCE IMPORTS” ISSUE No. 51, pages 91 & 92.

This vehicle is featured in High Performance Imports (HPI) in the same manner and format as the vehicle approved and listed as eligible and referenced in 19 below.

The vehicle is featured in HPI Magazine and in “as manufactured” condition at ATTACHMENT A. The editor confirms the latter.

…

19.      Further information which supports the claim:

The Toyota Caldina GT-FOUR (ST246W) model range was never supplied in full volume to the Australian market.

The vehicle model clearly has characteristics that would make it attractive to the genuine specialist and enthusiast market and meets two of the four specialist and enthusiast vehicle criteria as required.  Similar examples are listed below.

The basis for the eligibility claim is the same as that used for Entry No’s. 002/01 Toyota JZX100, 122/00 Toyota JZX90, 123/00 Toyota AE101, 124/00 Toyota AE111 & 340/00 Toyota S140 SER etc.

Regulation 24(4)(b)(ii)(A) and 24(4)(c)(ii). Model of vehicle has not been supplied in MA Category to the Australian market in Full Volume and meets 2 out of 4 criteria.

5.      Attachment A as referred to by Mr Seinor comprised pages 91 and 92 from Issue No 51 (January 2005) of High Performance Imports “Wacky Wagons”, story by Ben Ellis.  The article, in so far as it related to the vehicle in question, read:

CALDINA GT-FOUR

The current-shape ST246W Caldina (launched last year) is one of the most dramatic-looking cars on the road in Japan, which makes it exceptional for a wagon.  The razor-sharp styling would be reason enough for some to want one, but throw in a 191kw turbocharged engine and it’s irresistible.  The 3SGTE is the most modern of this engine series, using an air-to-air top-mount intercooler and producing peak power at 6200rpm, with 324Nm of torque at 4400rpm.  There is just one little catch:  like the Altezza Gita, it is four-speed auto only.

Even so, at 1480kg it should be a quick thing, substantially quicker than a Forester XT, for example, which is probably its closest competitor in Australia.  The two can hardly be compared in terms of styling, however, as inside and out the new Caldina is truly leading-edge.

The styling of the console is like a Nokia-phone, while the dash is laid back and sweeps around onto the doors.  The instrument cluster is almost a separate item, like on the 350Z.  The tacho is redlined at just 7000rpm, but with the torque four-cylinder there is no need to rev harder.  The dimensions of the body are also identical to the Altezza, at 4510mm long (+5mm), 1740mm wide (+15mm) and 1445mm high (+10mm).  It benefits from 15mm more track width, but has only struts at the front, compared to double wishbones front and rear in the Altezza.

All of the GT-Four models feature 17x7in rims with 215/45R17 tyres, while the top “N edition” has uprated suspension and Torsen LSD, not to mention Recaro sports seats and a flash stereo with six-disc stacker and MD.  The most important advantage of the Caldina, however, if a lower price tag of 2,667,000 to 2,910,000 yen in Japan, which should make them more realistic as an import option.

6.      On 11 January 2006, the Administrator of Vehicle Standards, Department of Transport and Regional Services advised the applicant that he considered the vehicle was not eligible for entry on the Register (T5 p40).  The decision stated, inter alia, “Regulation 24(4)(b)(ii)(A) and 24(4)(c)(ii). Model of vehicle has not been supplied in MA Category to the Australian market in Full Volume but does not meet 2 out of 4 criteria” (T p41).  On 11 January 2006, the applicant requested reconsideration of the decision (T6 p44) and on 30 January 2006, having acknowledged receipt of his application, the administrator gave Mr Seinor a further opportunity to make representations prior to a reconsideration of the decision being made (T7 p45).  On 11 February 2006, Mr Seinor wrote to the administrator stating, inter alia:

I note that your reasons for rejection are virtually identical to those initially used by Mr. Robertson as Administrator when rejecting my application apropos SEVS Entry for the Toyota Aristo.  As a result of further pursuits by my company, the Administrator, at that time, reviewed and reversed his decision in a letter dated 14 September 2005.  In that letter the Administrator, it seems, conceded that his preferred interpretation of the meaning of “featured”, “featured in as manufactured condition” or what might constitute a feature article was not necessarily correct.

On review, the Administrator regardless of the forgoing based his final decision on whether or not the vehicle in question had characteristics that would make it attractive to the genuine specialist and enthusiast market; and despite the fact that the vehicle was a four door sedan which seemingly held some importance to him.

On the basis of the immediate above the Administrator re-assessed the vehicle model as eligible for the purposes of Regulation 24 of the Motor Vehicle Standards Regulations 1989 and issued Entry No.: 340/00 for the Toyota Aristo.

I further note that, the Toyota Caldina Series ST215W, the model immediately preceding the Caldina Series ST246W, is listed on the approved SEVS vehicle DOTARS website list, as Entry No.: 399/00 and as Mr. Karl Brown’s email dated 10 January 2006 kindly advised.  It would seem that you as Administrator entered this vehicle on the Register.

Mr. Robertson, as Administrator, in his letter to me of 14 September 2005 said and I quote “Just having an article about the car is not enough; there has to be evidence of genuine specialist and enthusiast interest”.  It would seem that you also considered that to be the case when making your decision regarding Entry No.: 399/00 for the Toyota Caldina Series ST215W.  Equally it must have been taken into account when the Nissan Cima family sedan Entry No.: 394/00 was assessed as eligible and therefore must have had as Mr. Robertson put it, characteristics that would make it attractive to the genuine specialist and enthusiast market.

Here we have a vehicle of the same Make, the same Model name (Caldina) the same high level of performance in both power and handling, styling inside and out described as truly leading-edge, more affordable than its predecessor at new price; everything that would interest the genuine enthusiast and yet rejection is exercised on grounds conceded to be flawed by the Department on previous occasion.

Is it seriously being suggested that the Toyota Caldina Series ST246W would clearly not be attractive to the genuine specialist and enthusiast market?  How could that conclusion possibly have been reached in view of the feature in High Performance Imports Issue 51, pages 91 – 92?

I have included for your perusal some ATTACHMENTS which seem to crystallise the position and strongly suggest that there are some serious anomalies in this process and not limited to these attachments.  Naturally you would not want that situation to continue.  I would have thought that the red outlined section of ATTACHMENT A, which is the only reference to the vehicles concerned in the entire Issue No. 16, would not have constituted a distinctive part or the central topic of the publication.  Clearly I must be wrong.  However, I can see that the vehicle would have characteristics that would make it attractive to the genuine specialist and enthusiast market, as Mr. Robertson concluded in the assessment of Entry No: 340/00.  That is what the scheme is all about, is it not?

Given the fact that the ST246W Series is simply a later model of the same vehicle type as Entry No: 399/00 and in view of the forgoing, I find your decision to refuse it entry and in particular for the reasons given, at best, highly inconsistent.

Be that as it may, perhaps you might take the above into account as you further reconsider your decision.  I have nothing further to add.  I note your intention to finalize your decision soon after 17 February 2006.

Once again, I would expect a definitive response within the reasonable time frame of the standard DOTARS “Service Charter”.

No definitive written response apropos the above will confirm that, you have reconsidered; and that your reconsideration decision remains unchanged.

7.      On 24 February 2006, having considered the applicant’s further information, the administrator Mr Robertson confirmed the original decision to refuse entry of the Toyota Caldina ST246W onto the Register (T9 p51).  On 22 March 2006, Mr Seinor lodged an application for a review of that decision by the tribunal.

8. At the hearing, the applicant appeared in person and the respondent was represented by Michael Palfrey, solicitor, Clayton Utz lawyers, Canberra. The evidence before the tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the parties at the hearing. Mr Seinor gave oral evidence.

Legislation and Policy

9. Section 21 of the Motor Vehicle Standards Act 1989 (“the Act”) provides that the Regulations may make provisions for and in relation to the Minister keeping a Register of specialist and enthusiast vehicles. Subsections 24 – 28 inclusive of Division 4.2 of the Regulations sets out the application process for a vehicle to be entered on the Register; the criteria to be satisfied before vehicles may be entered on the Register; the procedures to be followed for amending the Register; the notification of decisions and the process for the review of such decisions. Regulation 23 provides the application for entry of a vehicle on the Register.

10.     The regulations state as follows:

Division 4.2 Register of Specialist and

Enthusiast Vehicles

22 Register of Specialist and Enthusiast Vehicles

(1) This regulation is made for paragraphs 21 (2) (a) and (d) of the Act.

(2) The Minister must keep a register to be known as the Register of Specialist and Enthusiast Vehicles.

(3) The Register must be kept in electronic form.

(4) The Register must be made available on the Internet at the Department’s web site.

(5) The Minister must make a paper copy of an entry on the Register available on request by any person.

23 Application for vehicle to be entered on Register

(1) This regulation is made for paragraph 21 (2) (b) of the Act.

(2) A person may apply to the Minister, in the approved form, for a road vehicle to be entered on the Register.

(3) The Minister, on receipt of an application in accordance with subregulation (1) for a vehicle, must consider the application and must:

(a) if the vehicle is eligible under regulation 24 — enter the vehicle on the Register; or

(b) if the vehicle is not so eligible — refuse to enter the vehicle on the Register.

(4) The Minister may, on the Minister’s initiative and without an application, enter a road vehicle on the Register if the vehicle is eligible under regulation 24.

24 Eligibility of vehicles to be entered on Register

(1) This regulation is made for paragraph 21 (2) (c) of the Act.

(2) Subject to subregulation (7), a road vehicle is eligible to be entered on the Register if it is of a make of vehicle in a vehicle category in respect of which vehicles are not supplied to the market in full volume in Australia.

(3) Also, subject to subregulation (7), a road vehicle is eligible to be entered on the register if it:

(a) is of a make of vehicle in a vehicle category in respect of which vehicles are supplied to the market in full volume in Australia; and

(b) satisfies each of the criteria set out in subregulation (4) that apply to the vehicle.

(4) For paragraph (3) (b), the criteria are as follows:

(a) if the road vehicle is not a new vehicle, it must be of a vehicle model for which vehicles were first supplied to the market, in Australia or elsewhere, at least 18 months before the date of the application;

(b) whether or not the road vehicle is a new vehicle, it must:

(i) be intended for first supply to the market in Australia as a campervan under the provisions of Administrator’s Circular 0-4-12 and:

(A) be of a model that is not supplied to the market in full volume in Australia; or

(B) be a variant not supplied in Australia of a model that is supplied to the market in full volume in Australia; or

(ii) if it is not a road vehicle of a kind mentioned in subparagraph (i):

(A) be of a model that has not been supplied to the market in full volume in Australia; or

(B) being a model that has been supplied to the market in full volume in Australia, have a build date at least 1 year later than the build date of the last vehicle of the model supplied to the market in full volume in Australia;

(c) if the road vehicle is in the MA, MB, MC, MD1, MD2 or NA vehicle category, it must:

(i) be a single cab, four-wheel drive vehicle with an open work tray; or

(ii) meet at least 2 of the following criteria:

(A) appearance — be significantly different in appearance to the popular class of vehicles in that category;

(B) unusual design features — be significantly different in sub-assemblies to the popular class of vehicle in that category;

(C) performance — be significantly different in the level of performance to the popular class of vehicle in that category;

(D) specialist publications — be featured in at least 1 specialist motoring magazine in ‘as manufactured’ condition.

(5) Paragraph (4) (a) does not apply to a vehicle in respect of which the original manufacturer of the vehicle has told the Minister, in writing, that it does not intend to supply to the market vehicles of that model as new vehicles under an approval for supply in full volume in Australia.

(6) Sub-subparagraph (4) (b) (ii) (B) does not apply to a vehicle if the person to whom approval has been granted under section 10A of the Act to place identification plates on vehicles of that model has told the Minister, in writing, that the person agrees to the waiver of the 1 year period mentioned in that sub-subparagraph in respect of the vehicle.

(7) A vehicle is not eligible to be entered on the register if it is:

(a) in the TA, TB, TC or TD vehicle category; or

(b) of a make and model that is 15 or more years old.

(8) In this regulation:

Administrator’s Circular 0-4-12 means the circular of that name issued by the Administrator, as in force at the commencement of this regulation.

single cab, in relation to a vehicle, means having one row of seats in the cab of the vehicle.

25 Minister may determine make, model or vehicle category of vehicle

(1) For the purposes of regulation 24, the Minister may determine that a road vehicle is of a particular make or model, or is in a particular vehicle category.

(2) The Minister may determine that vehicles of the same design are of the same make or model whether or not they are identified or marketed as different makes or models.

(3) The Minister, in making a determination about the model of a road vehicle, must use as a basis the vehicle’s originally manufactured specification.

26 Amendment of Register

The Minister may amend the Register:

(a) to correct an error on the Register; or

(b) to include an additional variant of a model of vehicle included on the Register; or

(c) to restrict the year range of eligibility to road vehicles that are of a make and model not more than 15 years old; or

(d) to extend the year range of eligibility for road vehicles that are of a make and model not more than 15 years old; or

(e) for any other reasonable cause in connection with the administration of the Register.

27 Removal of vehicles from Register

(1) This regulation is made for paragraph 21 (2) (e) of the Act.

(2) The Minister must remove a road vehicle from the Register if the vehicle is of a make and model that is 15 years old or older.

28 Notice of decisions

(1) This regulation is made for paragraph 21 (2) (g) of the Act.

(2) The Minister must give notice in writing to an applicant of the Minister’s decision on an application to enter a road vehicle on the Register.

(3) If the Minister’s decision is to refuse to enter a road vehicle on the Register, the Minister must give reasons for the refusal.

29 Review of decisions

(1) This regulation and regulations 30 to 38 are made for paragraph 21 (2) (h) of the Act.

(2) A person who is given notice under regulation 28 of a decision to refuse to enter a road vehicle on the Register may apply, in writing, to the Minister for reconsideration of the decision.

(3) The Minister must reconsider the decision and must make a decision:

(a) confirming the decision; or

(b) revoking the decision and entering the road vehicle on the Register.

(4) Before making a decision under subregulation (3), the Minister may refer the application to the Review Panel established under regulation 30.

(5) Also, before making a decision the Minister must give to the applicant a reasonable opportunity to make representations about the decision.

(6) In making a decision under subregulation (3), the Minister must take into account:

(a) the recommendations, if any, of the Review Panel; and

(b) any representations made by the applicant.

(7) The Minister must give notice, in writing, to an applicant of the Minister’s decision on reconsideration.

(8) An application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under paragraph (3) (a).

11.     In April 2002, the Department of Transport and Regional Services issued Circular 0-2-12 Specialist and Enthusiast Vehicle (SEVS) Eligibility.  The purpose of the circular was to describe the requirements regarding the eligibility of motor vehicles for entry on the Register.  It states in the introduction, inter alia:

1.2      The intent of SEVS is to make motor vehicles available in Australia which cater for specialist and enthusiast interests.  These vehicles may otherwise not be viable because the high costs associated with full volume certification can only be spread over a small number of vehicles.

1.3      The SEVS is a process for determining vehicle make/model eligibility.  Entry on the Register does not constitute automatic approval of the vehicle for supply to the Australian market.

12.     In Part 4 Criteria for determining a vehicle is specialist and enthusiast, the circular provides:

4.1      For a vehicle to be eligible for entry on the Register it must:

4.1.1be of a Make of vehicle for which vehicles of the same Vehicle Category are not currently supplied to the market in full volume in Australia; or

4.1.2if of a Make of vehicle currently supplied to the market in full volume in Australia,

4.1.2.1in the case of used vehicles, be a vehicle Model for which vehicles were first supplied to the market (anywhere in the world) at least 18 months ago (unless the original vehicle manufacturer has advised the Administrator without prejudice that it does not plan to supply the vehicle model new under a full volume approval in Australia); and

4.1.2.2           in the case of new or used vehicles;

4.1.2.2.1be intended for first supply to the market in Australia as a “campervan” under the provisions of Administrators Circular 0-4-12 and either, be a Model that is not supplied in full volume in Australia, or a variant not supplied in Australia of a Model that is supplied in full volume in Australia; or

4.1.2.2.2for Models that have been supplied in full volume to the market in Australia; have a build date of at least one year after the build date of the last vehicle supplied to the market in Australia in full volume (unless the full volume compliance plate approval holder(s) has advised the Administrator without prejudice that it agrees for the one year period to be waived); and

4.1.2.2.3in the case of MD3, MD4, ME, NB, NC and all L category vehicles there are no further requirements to be met.

4.1.2.2.4in the case of MA, MB, MC, MD1, MD2 & NA category vehicles;

4.1.2.2.4.1either be a “single cab” (ie single row of seats) 4WD with an open tray or

4.1.2.2.4.2meet at least two of the four following criteria:

(a)       Appearance – Significant difference in appearance to popular class of vehicle in that category;

(b)       Unusual Design Features – Significant difference in sub-assemblies to popular class of vehicle in that category;

(c)       Performance – Significant difference in level of performance to popular class of vehicle in that category;

(d)       Featured in specialist motoring magazine in “as manufactured” condition.

Pre-hearing contentions and submissions

13.     As stated above, the issue for the tribunal is whether the Toyota Caldina GT-Ford ST246W meets the criteria for entry on the Register, including whether it was “featured in a specialist motoring magazine in ‘as manufactured’ condition”.

14.     In a written submission to the tribunal dated 17 May 2005, Mr Seinor stated:

Specialist publications – be featured in at least 1 specialist motoring magazine in “as manufactured” condition.

The Parliament passed the Regulation as above.  Had the Parliament wanted to pass into Regulation something other than the above, then the Parliament would have done that; it did not.

The Regulation makes no definitive statement the like of – Editorial comments do not constitute a feature article.  Feature articles are a distinctive part of a publication and are the central topic which usually appears advertised on the front cover.

Further, it appears once again that under Interpretation in both the Motor Vehicle Standards Act and the Motor Vehicle Standards Regulations that “featured” and or featured in “as manufactured” condition is not defined.  The Parliament rightly or wrongly seemed to rely on the reasoning of a normal mind.

Let me say in closing that if the question of, “was the subject vehicle, featured in the article Wacky Wagons of the specialist publication High Performance Imports” put to any normal person then I feel sure a response other than yes would be extremely difficult to find.

15.     In its statement of facts and contentions (Exhibit R1), the respondent stated the vehicle is not eligible under regulation 24(2) as the make of the vehicle is Toyota which is currently available in Australia.  Regulation 24(4)(c) is also not met because two of the four criteria in regulation 24(4)(c)(ii) have not been met, namely criteria A and B were not addressed by the applicant and therefore have not been met.  Criterion C is accepted as being met, but the respondent submits criterion D has not been satisfied because the vehicle has not been “featured” in at least one specialist motoring magazine in “as manufactured condition”.

16.     The respondent submits, and the applicant agrees, that the principal issue in this matter is whether the vehicle has been “featured” in at least one specialist motor magazine.  The respondent submits:

The applicant contends that the reference to the Vehicle in the article entitled “Wacky Wagons” in Edition 51 of the magazine “High Performance Imports” amounts to the vehicle being “featured” in specialist motoring magazine in “as manufactured” condition for the purposes of regulation 24(4)(c)(ii)(D).  The Respondent accepts that “High Performance Imports” is a specialist motoring magazine and that the reference to the vehicle is a reference to it in its “as manufactured” condition, however the Respondent contends that the vehicle is not “featured” in the magazine such to satisfy the requirements of the legislation.

Further, as the term “featured” is not defined in the legislation and it should be given its ordinary meaning “1. made a feature of; give prominence, presented” (Macquarie Dictionary, Second Edition, page 35).  The respondent submitted that the Federal Court applied the Oxford Dictionary meaning in Re BHP Petroleum (Timor Sea) Pty Ltd and Others and Minister for Resources (1997) 46 ALD 117 where it stated, at para 165, “feature” is relevantly defined in the Oxford English Dictionary as “a prominent or conspicuous part of characteristic” (actually it was the full tribunal, not the Federal Court).

17.     The respondent submitted that consistently with the dictionary meaning, the Caldina GT-Ford is not “featured” in High Performance Imports for the following reasons:

(a)       the Vehicle is not presented on the cover of the magazine;

(b)the contents page divides the magazine into 4 parts, those being “Feature cars”, “Technical Features”, “Special Features” and “Departments”. The Vehicle is mentioned in an article included in the Impertinent section of “Departments” rather than being presented in the parts referring to “Features”;

(c)       the Vehicle is one of three vehicles mentioned in the article on page 91;

(d)the reference to the Vehicle constitutes four paragraphs and does not provide a detailed analysis of the performance and specifications of the Vehicle.

18.     The respondent submitted that the article could be contrasted with those relating to two other vehicles which have satisfied the requirements of regulation 24(4)(c)(ii)(D) being, firstly, the Caldina GT-T which was featured in Issue 61 of High Performance Imports having been presented on the front cover, included in the “special features” part of the magazine and was the subject of a six page article which included specifications and secondly, the Mitsubishi Evolution VII which was featured in Modern Motor magazine, where it was the cover story.

19.     The respondent also submitted that regulations 24(5), 24(6) and 24(7) do not apply to this vehicle.  The respondent therefore submitted that the vehicle is not eligible for entry on the Register because regulation 24(3)(b) has not been met.

Evidence and submissions at the hearing

20.     At the hearing, the applicant gave oral evidence only for the purpose of tendering Exhibit A2, a bundle of copies of entries from the register of specialist and enthusiast vehicles, specialist automotive magazine articles referring to the vehicles to which each entry related, other editorial material, correspondence and two statutory declarations.

21.     The register entries related to four vehicles which, the respondent had determined, satisfied criterion D, the provision now in issue.  A copy of the relevant article relating to each particular vehicle was attached.  Mr Seinor relied on that evidence as providing comparisons with the determination relating to the vehicle the subject of the decision under review.

22.     The first vehicle was the Toyota AE101 Corolla Levin.  The reasons for decision in relation to that vehicle stated that it met criterion D because it had “Featured in specialist publications eg High Performance Imports No. 16”.  The extracted pages from that issue showed that the vehicle was not mentioned or depicted on the front cover, the coverage did not appear in any of the three features sections but in a department section, the vehicle was only one of eight discussed in the same article and occupied only eight percent of the page area, there were only 24 words of text and minimal description.  The second vehicle was the closely related Toyota Corolla AE111, which was depicted in a photograph adjoining that of the first vehicle and was referred to in the same piece of text.  The same comments apply as in the case of the AE101.

23.     The third vehicle was the Toyota Chaser/Cresta/Mark II – JZX90, which was determined to have met criterion D because it appeared in High Performance Autos [scil. Imports], Issue 12 (October 2000) and Issue 16.  The extract of Issue 16 showed that the vehicle was not portrayed or mentioned on the front cover, was not covered in any of the features sections but in a regular department (in fact it was in the same article as the first two vehicles mentioned), it was dealt with in a short paragraph with little analysis or data, and there was no photograph of it.  It was not referred to in Issue 12 at all.

24.     The fourth vehicle was the Toyota Chaser/Cresta/Mark II – JZX100.  This vehicle was accepted as complying with criterion D because it featured in High Performance Autos [Imports] Issue 12 and Issue 16.  In Issue 12 it was not depicted or mentioned on the front cover, but it was the subject a three-page special feature article with eight photographs and some technical information.  In Issue 16, however, it was dealt with in the same one-page spread referred to earlier and was thus only one of the eight vehicles described and depicted.

25.     Exhibit A2 also included a page of comment by Ben Ellis, the editor-in-chief of High Performance Imports.  The editorial criticised the administration of the specialist and enthusiast vehicle scheme, referring by way of example to the Pajero convertible that was passed on the basis of having been featured in the magazine, when it had never run any editorial on that car.  “Another interesting example is the AE111 Levin, which was passed based on editorial featured in Issue 16.  In that issue there was not even a photo of the AE111, just a mention of it in a caption”.

26.     The applicant also relied on two statutory declarations that formed part of Exhibit A2.  One was by Mr John Raymond Mitchell, of Oatlands, New South Wales, a journalist with 45 years’ experience who had served as a deputy editor-in-chief, a newspaper editor and a magazine editor.  In his opinion the article “Wacky Wagons” could be described as a feature.  It could not be considered a news article per se but a feature in itself.  Further, the Toyota Caldina GT-4 ST246W was one of the models featured in that publication.

27.     The other statutory declaration was by Mr Leonard Alfred John Rodney, of North Rocks, New South Wales.  Mr Rodney was formerly editor-in-chief of Cumberland Newspapers and, at one time, editor of Australian Motor Sport and Power Boat and Yachting magazines.  He has 47 years’ experience in editing and publishing.  In his view the vehicle that is the subject of this application was featured in that magazine, and the article was a feature in itself.

28.     Mr Palfrey on behalf of the respondent pointed out that the article on pages 91 and 92 of High Performance Imports, Issue 51, in which the Caldina GT-Four was described, appeared in one of the magazine’s regular departments, not in one of the feature sections.  There was no photograph of, or reference to, the vehicle on the cover and the article dealt with two other vehicles besides the one in question.  The coverage of the GT-Four consisted of four paragraphs on aspects of its performance, styling and features.  It was true that the Caldina GT-T, the predecessor of the GT-Four, was approved for registration and had features very similar to those of the GT-Four, but it qualified under criterion D because it had been the sole subject of a six-page feature article in Issue 61 of High Performance Imports.  It was mentioned on the cover and the article gave details of its specifications and of a road test, also making comparisons with other vehicles.

29.     As an example of specialist magazine coverage that the department considered did qualify under criterion D, Mr Palfrey relied on the treatment of the Mitsubishi Evolution VII in the March 2002 issue of Modern Motor (Exhibit R1 attachment C).  A photograph of the Evolution, accompanied by a large caption, appeared on the cover while the article, which covered 11 pages, provided a comprehensive analysis and detailed evaluation.

30.     The respondent acknowledged that Mr Seinor’s earlier application to register the Toyota Aristo had initially been rejected on the same basis as the GT-Four in the decision under review.  After reconsideration, that decision was set aside and registration was granted, but that was after further material had been supplied by Mr Seinor and by others, as he was not the only applicant seeking registration of that vehicle.  Ultimately a substantial amount of coverage in specialist Australian and North American automotive magazines was assembled (Exhibit R1 attachment D) and the criterion was complied with.  This material was altogether different from the four paragraphs dealing with the GT-Four, which were not featured or given any prominence in Issue 51 of High Performance Imports.  It did not appear in any of the three sections comprising features, but was in a department section at the back of the magazine.  It was not depicted or mentioned on the cover, was only one of three vehicles described in the article and was not the subject of any detailed information about specifications, or of any analysis or a road test.

31.     Mr Palfrey explained that the Pajero convertible received registration at a time when the scheme operated on a purely administrative basis, before it became the subject of specific statutory regulation in 2002.  As it was already on the register when the regulations took effect, the Pajero was permitted to retain registration under the transitional measures.  The Toyota Levin (the first and second vehicles referred to as examples by Mr Seinor) had, he was instructed, slipped through as the result of an error.  He had no instructions in relation to the Chaser series (the third and fourth vehicles mentioned by Mr Seinor), as the respondent had no prior notice that the applicant would be relying on them at the hearing as examples or comparisons.  He was therefore not in a position to explain why it was registered, but at all events it was not the subject of review in the current proceedings.  The respondent did not suggest that there was any reason to disbelieve the statutory declarations tendered by the applicant.

32.     It was unfortunate that there had been some inconsistencies in treatment in the past, Mr Palfrey said, but it was necessary to apply the criteria correctly in the present case and the respondent had done so.

33.     As Mr Palfrey pointed out, the legislation is silent on the meaning of “featured” in criterion D and there appears to be little case law on the word’s meaning other than BHP Petroleum, which relies on the Oxford Dictionary meaning of “a prominent or conspicuous part or characteristic”.

34.     The applicant in his submissions drew attention to the contrast between the refusal of registration to the GT-Four and the grant of registration to the four vehicles that were the subject of documentary evidence in Exhibit A2, as well as the treatment of the Pajero and the Aristo.  Criterion D had not been consistently applied even in terms of the dictionary definition accepted in BHP Petroleum and the department appeared to have added a new requirement of its own, that the vehicle should be the subject of a special feature article.  The statutory declarations by the two experienced newspaper and magazine editors categorically stated that the GT-Four had been featured in Issue 51 of High Performance Imports and that the article itself was a feature.

35.     The applicant referred to paragraph 1.2 of Department of Transport and Regional Services Circular 0-2-12, which deals with eligibility for the scheme.  The paragraph explains the intent of the scheme as follows:

The intent of the SEVS is to make motor vehicles available in Australia which cater for specialist and enthusiast interests.  These vehicles may otherwise not be viable because the high costs associated with full volume certification can only be spread over a small number of vehicles.

36.     The Circular stressed that the intent of the scheme was to cater for specialist and enthusiast interests.  If an article about a vehicle appeared in a specialist magazine, there must be enthusiast interest in it, otherwise enthusiasts would not buy the publication.

Consideration

37.     As Mr Seinor pointed out, the respondent has not followed a consistent pattern of interpretation when applying criterion D in Regulation 24(4)(c)(ii).  Some other vehicles have received registration partly in reliance on criterion D even though they received considerably less specialist periodical coverage than the vehicle in question.  The respondent offered an explanation for that, but in any event the tribunal can give little weight to that point.  Its statutory obligation is to arrive at the correct or preferable decision in the particular case, not to try to rectify the consequences of past history.

38.     Criteria A to C share a common element of being concerned with distinctiveness.  The vehicle in issue must be of significantly different appearance, or incorporate unusual design features, or have significantly different performance.

39.     It is therefore appropriate to interpret criterion D as sharing some of that focus on the quality of being distinctive or conspicuous in some way.

40.     Dictionary definitions confirm that perspective.  The Macquarie Dictionary (2^nd edition, page 635) defines “feature” relevantly as, “4. A prominent or conspicuous part or characteristic.  6. A special article, column, cartoon, etc, in a newspaper or magazine.  10. To make a feature of, or give prominence to; to feature a story or picture in a newspaper”.  The term “featured” is defined as “made a feature of; given prominence, presented”.  The relevant online Merriam-Webster Dictionary definition of the verb is “to give special prominence to”.

41.     The most recent edition of the Oxford English Dictionary relevantly defines “feature”, when used as a verb, as “To exhibit as a ‘feature’; to make a special feature or display of, make a special attraction of.  orig.  U.S. … To be a feature (in); to participate or play an (important) part in”.  BHP Petroleum dealt with “feature” as a noun, in the context of geological features.  Nevertheless, its adoption of the meaning “a prominent or conspicuous part or characteristic” is consistent with the other definitions above in its emphasis on importance or primacy.

42.     Did the passage dealing with the GT-Four in High Performance Imports make a special feature or display of, or make a special attraction of the GT-Four?  Alternatively, did the vehicle “play an important part” in the publication?  The conclusion must be in the negative.  The GT-Four was not depicted or mentioned on the magazine’s cover.  It received only a short four-paragraph discussion as one of three station wagons covered in the article, and was not mentioned in the article’s title.  The four paragraphs contained no comprehensive coverage of its specifications or performance, nor was there a report of a road test.

43.     The regulation does not use the word “featured” in any specialised journalistic sense but in its ordinary sense.  The two statutory declarations by former magazine editors may well be evidence of a custom or usage in the print media as to what is a feature and what is not, but their specialist understanding of the term lacks the element of conspicuousness or importance that forms part of the ordinary meaning.  At the same time, I accept their evidence in so far as it states that an article, or a subject matter, can be described as being featured even though it does not appear in one of the explicitly named feature sections in the periodical.

44.     The interpretation given above does not mean (as the applicant suggested, was the respondent’s position) that to satisfy criterion D a vehicle has to be the subject of a special feature article.  Nor need it be the cover story in that particular issue as in the case of the Mitsubishi Evolution VII.  But it must form an important part of the publication and preferably some kind of special attraction in that issue.

45.     That was not the case with the Caldina GT-Four, which received only a brief discussion in a section devoted to three other vehicles.  The vehicle does not satisfy the requirements of regulation 24(4)(c)(ii) and the decision should be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  7 July 2006
Date of Decision  14 July 2006
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr M Palfrey, Clayton Utz lawyers