Senior and Department of Transport and Regional Services

[2006] AATA 64

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1088

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAME WILLIAN SENIOR

Applicant

And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date27 January 2006

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

TRANSPORT – application for vehicle model Toyota Prius to be entered on Register of Special and Enthusiast Vehicles – whether vehicle meets eligibility requirements – issue of whether vehicle is of a vehicle make which has not been supplied to the Australian market in full volume – issue of whether the vehicle is a model of which has not been supplied in full volume – issue of whether the vehicle is a model supplied to the market in full volume in Australia and has 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 – the build date of the relevant vehicle is not one year later than the build date of the last vehicle of the model supplied to the market in full volume in Australia – decision affirmed

Motor Vehicles Standards Act 1989, section 21
Motor Vehicle Standards Regulations 1989, regulations 23, 24, 25, 28

REASONS FOR DECISION

27 January 2006 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      On 29 July 2005, the Department of Transport and Regional Services ("the Department") refused Mr Senior’s application under regulation 23(2) of the Motor Vehicle Standards Regulations 1989 ("the Regulations") for Toyota Prius, model code NHW ("the Vehicle") to be entered on the Register of Specialist and Enthusiast Vehicles ("the Register") (T11).  On 8 August 2005, Mr Senior applied for reconsideration of the refusal decision (T12) and on 6 September he also applied to this Tribunal for review of the decision.  

2.      On 6 October 2005 the Tribunal found that it did not have jurisdiction to review the decision of 29 July 2005 and that reconsideration pursuant to regulation 29(8) was required to enliven the jurisdiction of the Tribunal.  On 7 November 2005 the Respondent reconsidered and affirmed the decision of 29 July 2005 (T14).  This decision of the Respondent, dated 7 November 2005, is the decision under review by this Tribunal.

THE HEARING

3.      A hearing was held on 17 January 2006 at which Mr Senior was self represented and the Department was represented by Mr M Palfry of Clayton Utz, solicitors.

4.      I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.  Mr Senior provided a written statement and material in relation to decisions about other motor vehicles and the Department provided a Statement of Facts and Contentions.

LEGISLATION

5.      Section 21 of the Motor Vehicles Standards Act 1989 (“the Act”) provides that the Regulations may make provisions for and in relation to the Minister keeping the Register. 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 road vehicles may be entered on the Register; the procedures to be followed for amending the Register; the notification of decisions made and the review of decisions made. An application for entry of a vehicle on the Register may be made under regulation 23.

6.      The Minister must refuse to enter a vehicle on the Register if the vehicle is not eligible under regulation 24.  Regulation 24 sets out the criteria for meeting the eligibility requirements so that vehicles may be entered on the Register:

“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 sub regulation (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 sub regulation (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 sub regulation (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:

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

(b)it was manufactured before 1 January 1989.

(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.

Note for paragraph (7) (a)   T group vehicle categories are for trailers.”

7.      Regulation 25 provides that the Minister may determine the make, model or vehicle category of a vehicle.

8.      Regulation 28 sets out the notice provisions and Regulation 29 sets out the review provisions including the right of review to the Tribunal.

ISSUE BEFORE THE TRIBUNAL

9.      The issue before the Tribunal is whether the Toyota Prius NHW11 MA category vehicle is eligible to be entered on the Register under regulation 24.  Regulation 24 provides two possible bases for the inclusion of the vehicle on the Register:

I.The vehicle must be 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

II.The vehicle must be 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 being a model that has either:

a.not been supplied to the market in full volume in Australia, or,

b.if supplied to the market in full volume in Australia, has 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

BACKGROUND

10.     It is worthwhile to outline the history of the eligibility of the vehicle:

·On 29 January 2001 NHW10 model vehicles with a build range of ‘1997 to current’ were ruled as eligible.  It was agreed at the hearing that this included the NHW11 variant (T16).  At that time, that model had not been supplied to the Australian market in full volume.  This did not occur until 27 August 2001 (T7 and T16).  Had Mr Senior applied before that date, the vehicle could have been entered, subject to meeting other requirements.  However, Mr Senior’s application was not until 9 July 2005.

·On 30 August 2001 a further eligibility ruling was issued in respect of NHW10 vehicles with a build date of ‘1997 to 07/2001’ to reflect that from the August date referred to the vehicles would be supplied in full volume. (T8)

·A further eligibility ruling was issued on 1 April 2002 in respect of identical build dates to the ruling of 30 August 2001.

CONSIDERATION OF THE EVIDENCE

11.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

12.     The Department contended that the vehicle is not eligible under regulation 24(2) as the make of the vehicle in the application is Toyota, which is currently supplied to the Australian market in full volume. (T15)

13.     Mr Senior submitted that the system in relation to special and enthusiastic vehicles is that if a vehicle is not supplied to the Australian market in full volume it is eligible for registration provided it meets two of the four criteria (as set out in regulation 24(4)(c)).  While this is true as far as it goes, Mr Senior’s understanding omits the requirements of regulation 24(4)(B)(ii)(b), that the vehicle must 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.

14.     As previously noted the NHW10 model was supplied to the Australian market in full volume from 27 August 2001 and finished on 6 May 2005 when it was superseded by the new model, Series 20.  The build dates applied for by Mr Senior were from May 2000 to July 2001 (T10) which precede the full volume approval, and are therefore not one year later than the build date of the last vehicle of the model supplied to the market in full volume in Australia.

15.     I note with some concern the information supplied to me by Mr Senior in relation to the Nissan Silvia.  On the face of the available material, it appears that that vehicle was inappropriately registered on 21 December 2004.  The build date range of December 1998 to August 2000 clearly does not meet the requirement of regulation 24(4)(B)(ii)(b), given that the vehicle was supplied to full volume from September 2000.  Mr Palfry, admittedly without the benefit of instructions, also observed that, if the produced material was accurate, the decision in relation to that vehicle was, on the face of it, incorrect.  While the correctness of that decision is not before me, there appears there may be some anomalies in the approach by the Department. 

16.     Whether or not my perception is accurate, the decision I am obliged to make will give Mr Senior no joy whatsoever.

CONCLUSION

17.     The vehicle is not eligible for entry on the Register as the vehicle does not meet the criteria set out at regulation 24(4)(b) and as a result fails to meet regulation 24(3)(b). 

DECISION

18.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis  Associate

Date of Decision  27 January 2006
Date of Hearing  17 January 2006
Representative for Applicant     Self
Solicitor for Respondent           Mr Palfry