Taylor and Minister for Infrastructure, Transport, Regional Development and Local Government

[2008] AATA 561

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 561

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       2008/0231

GENERAL ADMINISTRATIVE DIVISION        )           

Re:TREVOR TAYLOR

Applicant

And:MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date12 June 2008

PlaceMelbourne

Decision For reasons given orally, the decision under review is set aside and a decision substituted that pursuant to Regulation 11 of the Motor Vehicle Standards Regulations 1989 the applicant is permitted to import a 1989 Bentley Turbo R VIN SCBZR04A3KCH26104 into Australia.

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

Deputy President

CATCHWORDS

MOTOR VEHICLE STANDARDS – No identification plate – Vehicle manufactured before 1989 – Meaning of manufacture – Whether to exercise discretion to import vehicle – Decision under review set aside

Motor Vehicle Standards Act 1989 (Cth) s 5

Motor Vehicle Standards Regulations 1989 (Cth) rr 11 and 17

REASONS FOR DECISION

12 June 2008   Mr G L McDonald, Deputy President

1. The applicant is seeking to import a vehicle into Australia. The Tribunal had before it the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). He purchased the vehicle and, as is evidenced at T3 page 19, the person from whom he bought the vehicle in the United Kingdom – the vehicle being a Bentley Turbo “R” – described it as a 1988 model.  To import a vehicle a person must make an application under the provisions of the Motor Vehicle Standards Regulations 1989 (the Regulations) and, in particular, in relation to this case, regulation 17 is relevant. It provides:

The Minister must approve an application to import a non-standard road vehicle, or a vehicle that does not have an identification plate, if the vehicle was manufactured before 1 January 1989.

2.      I accept, although there is no evidence of it, that the vehicle is a non-standard road vehicle, or it is a vehicle that does not have on it an identification plate.  The issue upon which the applicant relies is that the vehicle was, to put it in his terms, built before 1 January 1989.  In relation to the purchase of the vehicle the applicant did two things. First, he rang the department and discussed with the department its requirements for the importation of such a vehicle.  Secondly, he completed an application form, which is set out at T3, which was then submitted to the department.

3.      Part 4 of the application form[1] relates to vehicles said to be built before 1 January 1989, and refers to regulation 17A of the Regulations.  The question is asked in the following terms:

Was the vehicle built before 1 January 1989?

[1] T3 page 16

4. The applicant ticked the appropriate box indicating that it was built prior to 1 January 1989. The word used in the form is “built”, whereas the word used in the relevant regulation is “manufactured”. The word “manufacture” has a defined meaning which is found in s 5 of the Motor Vehicle Standards Act 1989 (the Act) and is as follows:

manufacture in relation to a road vehicle, includes modify the vehicle and assemble the vehicle.

5.      Mr Klein, for the respondent, drew the attention of the Tribunal to the use of the word “includes” and to evidence which establishes that in the manufacturer’s mind the manufacture of the vehicle was not completed before, at the earliest, 12 January 1989.  The applicant has obtained evidence from various sources that I need not go into, which establishes that the vehicle was substantively completed and road tested prior to the end of 1988.  It appears from the documents obtained by the applicant from the manufacturers, or which ultimately came from the manufacturers, that there were some adjustments, checking, etcetera to be done on the vehicle, and this occurred in the early part of January 1989.

6.      It is unfortunate that the words on the form differ from the words used in the regulation.  It would be appropriate if the form gave some explanation as to what was intended by the use of the word “built,” or in fact used the word “manufacture”.  However, it does not.  I am satisfied that Mr Taylor made relevant inquiries of the Department, that he was told that if the vehicle had been built before 1 January 1989, then he would be able to import it pursuant to the provisions of regulation 17.

7.      There was some discussion over whether the words “Build date” used in a letter by Mr Taylor to the department on 24 December 2007, and found in the T documents at T1 page 5, acquired a technical meaning, or should be regarded as having a technical meaning, equivalent to “manufacture date”.  Mr Klein maintained that was the case, but I do not have anything before me that really establishes that. 

8.      There is mention of “Build Date” with capitals used for both “Build” and “Date” in a fax or an email at T13 page 34 that came from the manufacturer’s company in the UK but, again, I do not know whether that is a term that the particular manufacturer uses, or whether it is a general term that is equivalent to “manufacture”. 

9.      Certainly, Mr Klein accepts the applicant as “an ordinary member of the public,” and there is no suggestion that he has particular knowledge of the meaning of these terms, even if – which is not established – they do have a technical meaning. 

10.     However, the evidence establishes to my satisfaction that the vehicle was manufactured and its manufacture was completed on or about 12 January 1989, and therefore it is not a vehicle under the terms used in the regulation as defined in the Act.  It is not a vehicle that can be regarded as a pre 1 January 1989 vehicle.

11.     Regulation 11 provides for the exercise of a discretion which would permit me standing in the place of the Minister, or the Minister’s Delegate, to consider allowing the applicant to bring the vehicle into Australia.  The discretion is an open discretion and, I agree with Mr Klein, that the discretion must be exercised in a way which promotes the objects of the Act and of the regulations.  I am unsure as to what Mr Klein was referring to when he said:

The date of 1 January 1989 was a date selected after discussion with the States and the Territories for inclusion in the Act.

12.     And I do not quite know what significance should be attributed to that statement.  However, it is plain to me that from a layman’s point of view – and I accept the applicant as being a layman in relation to the manufacture of vehicles – that after his discussions with the department and upon completing the form he was of the opinion that the word “built” did not have any particular technical connotation.  Of course, in this he has learned to his detriment that that is not the case. 

13.     It is however a circumstance which I accept as being peculiar to this particular case.  It is not the sort of circumstance that one regularly comes across in considering cases such as this.  I also accept that to all intents and purposes the vehicle in question was built or manufactured in the period prior to 1 January 1989.  The evidence disclosed it had been road tested in December 1988, indicating it had been substantially manufactured by that time.  If, indeed, as the evidence demonstrates the vehicle had been completed on time it would have been built by 2 December 1988, however, there were some delays in its manufacture. 

14.     It, however, should be regarded from a non-technical point of view as a vehicle that was built to completion in 1988.  I, therefore, cannot see that it undermines the purposes of the Act for discretion to be exercised in favour of this applicant to permit the importation of the vehicle into Australia.  For those reasons I set aside the decision under review and substitute a decision that pursuant to the exercise of the discretion contained in regulation 11, that the vehicle of the applicant may be imported into Australia.

I certify that the fourteen preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President

Signed:         ...............................................................

Grace Horzitski                 Associate

Date of Hearing  12 June 2008

Date of Decision  12 June 2008
For the Applicant  self represented

Solicitor for the Respondent     Mr A Klein

DLA Phillips Fox