Dreamtech International Pty Ltd v Commissioner of Taxation (includes Corrigenda dated 22 March 2010 and 23 February 2010) [2010] FCA 109 (19 February 2010)

Last Updated: 23 March 2010

FEDERAL COURT OF AUSTRALIA

Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCA 109

Citation:		Dreamtech International Pty Ltd v Commission of Taxation [2010] FCA 109
Appeal from:		Dreamtech International Pty Ltd v Commissioner of Taxation [2009] AATA 365
Parties:		DREAMTECH INTERNATIONAL PTY LTD v COMMISSIONER OF TAXATION
File number(s):		VID 423 of 2009
Judge:		KENNY J
Date of judgment:		22 February 2010
Corrigenda:		22 March 2010 23 February 2010
Catchwords:		TAXATION – whether stretched Hummer a ‘car’ within s 27-1 of A New Tax System (Luxury Car Tax) Act 1999 (Cth) and therefore subject to luxury car tax – appeal dismissed
Legislation:		A New Tax System (Luxury Car Tax) Act 1999 (Cth) ss 7-5, 7-10, 25-1, 27-1
Cases cited:		Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 Ergon Energy Corporation Ltd v Commissioner of Taxation (2006) 153 FRC 551
Date of hearing:	1 December 2009
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Applicant:	Mr M Flynn
Solicitor for the Applicant:	Madgwicks Lawyers
Counsel for the Respondent:	Mr E Wheelan
Solicitor for the Respondent:	Legal Services Branch, Australian Taxation Office

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 423 of 2009

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DREAMTECH INTERNATIONAL PTY LTD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	KENNY J
DATE OF CORRIGENDUM:	22 MARCH 2010
PLACE:	MELBOURNE

CORRIGENDUM

1. On the cover sheet the Date of Judgment has been changed to ‘22 February 2010’.
2. On the second corrigendum, replace the Date of Order with ‘22 February 2010’.
3. On the Order page, replace the Date of Order with ‘22 February 2010’.
4. On the Reasons for Judgment page, replace the Date with ‘22 February 2010’.
   

I certify that the preceding four (4) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 22 March 2010

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 423 of 2009

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DREAMTECH INTERNATIONAL PTY LTD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	KENNY J
DATE OF ORDER:	19 FEBRUARY 2010
PLACE:	MELBOURNE

CORRIGENDUM

1. On the cover page, to the right of the heading ‘Citation’, replace ‘Commission of Taxation’ with ‘Commissioner of Taxation’.
2. On page 2, to the right of the heading ‘Counsel for the Respondent’, replace ‘Mr E Wheelan’ with ‘Mr E Wheelahan’.
   

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 23 February 2010

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 423 of 2009

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DREAMTECH INTERNATIONAL PTY LTD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	KENNY J
DATE OF ORDER:	19 FEBRUARY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal brought pursuant to section 44(1) of the Administrative Appeal Tribunal Act 1975 (Cth) be dismissed
2. The applicant pay the respondent’s costs of the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 423 of 2009

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DREAMTECH INTERNATIONAL PTY LTD Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	KENNY J
DATE:	19 FEBRUARY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal by Dreamtech International Pty Ltd (‘Dreamtech’) from a decision of the Administrative Appeals Tribunal (the ‘Tribunal’), delivered on 19 May 2009, affirming a decision of the Commissioner of Taxation. The Commissioner disallowed Dreamtech’s objection to the imposition of luxury car tax on a motor vehicle which Dreamtech had imported from the United States in June 2007. The vehicle in question was a Krystal Hummer stretched from its original 122.8 inch wheelbase to a 140 inch wheelbase (the ‘Hummer’). The issue before the Tribunal was whether the Hummer was a limousine and therefore, a car, for the purposes of the A New Tax System (Luxury Car Tax) Act 1999 (Cth) (the ‘LCT Act’). The relevance of this for the purposes of the LCT Act is discussed below.
2. Dreamtech submitted that, in reaching an affirmative conclusion, the Tribunal wrongly disregarded the ordinary meaning of the word ‘car’; had regard to an irrelevant consideration in finding that the Hummer was luxurious; and failed to take a ‘purposive’ approach to statutory interpretation when construing the term ‘limousine’. Dreamtech maintained that by its notice of appeal, it had raised a question of law, which, as the parties agreed, was a pre-requisite to the Court’s jurisdiction. The Commissioner submitted that Dreamtech had done no more than challenge the Tribunal’s findings of fact, and that the appeal was for that reason incompetent. In any event, so the Commissioner said, none of Dreamtech’s complaints about the Tribunal’s decision were sustainable.

STATUTORY CONTEXT

3. Under s 7-5 of the LCT Act, luxury car tax is payable on all taxable importations of luxury cars. Section 7-10(1) defines ‘taxable importation of a luxury car’ in the following way:

(1) You make a taxable importation of a luxury car if:
(a)  the *luxury car is *imported; and
(b) you *enter the car for home consumption.

Section 7-10(3) sets forth exceptions to the definition, which are not relevant here.

4. There was no dispute that the Hummer was imported, and that Dreamtech entered it for home consumption, as those terms are defined in the LCT Act. The sole issue before the Tribunal was whether the Hummer met the statutory definition of ‘luxury car’.
5. That definition appears in s 25-1(1) of the LCT Act, which provides:

A luxury car is a *car whose *luxury car tax value exceeds the *luxury car tax threshold.

Section 25-1(2) states exceptions which, again, are not relevant here.

6. There was no dispute that the luxury car tax value of the Hummer exceeded the luxury tax threshold. Accordingly, the Hummer was a luxury car for purposes of the LCT Act, and subject to luxury car tax, if it met the statutory definition of ‘car’.
7. Section 27-1 of the LCT Act defines ‘car’ thus:

car means a *motor vehicle (except a motor cycle or similar vehicle) that is:
(a) designed to carry a load of less than 2 tonnes and fewer than 9 passengers; or
(b) a limousine (regardless of the number of passengers it is designed to carry).

‘Motor vehicle’ is defined as “a motor-powered road vehicle (including a 4 wheel drive vehicle)”. ‘Limousine’ is not defined.

8. The Tribunal rejected Dreamtech’s argument that the Hummer was not a ‘motor vehicle’ within the meaning of the LCT Act because it was not a ‘road vehicle’, and Dreamtech did not pursue that argument on appeal.
9. As the Hummer was designed to carry more than nine passengers, it could only meet the statutory definition of ‘car’ if it was a limousine.

THE TRIBUNAL’S DECISION

10. The Tribunal found that the Hummer had the following characteristics:
    • The Hummer is modelled on a United States military vehicle known as a Humvee and is designed for both road and off-road driving: at [7] and [27].
    • The Hummer is stretched to 140 inches in length, weighs 5.82 tonnes, and has a carrying capacity of 14 people including the driver: at [6].
    • The body of the Hummer is bolted on to the top of the chassis, which is based on a type used by General Motors for pick-up trucks: at [8].
    • The Hummer has truck tyres capable of carrying 2.7 tonnes each: at [8].
    • The Hummer has a heavy-duty suspension designed for high load capacity, which compromises the quality of the ride: at [8]. The Tribunal described the ride as “rather firm”: at [31].
    • The Hummer is classified as a bus for the purposes of the Department of Transport and Regional Services’ rules: at [9], [33]-[34]. It is considerably longer than a small bus, but, unlike a bus, it has a low profile, which makes it impossible for passengers to stand upright and walk around inside, and provides limited headroom for seated passengers: at [9], [30]. Passengers’ knees are higher than hip level when they are seated, resulting in reduced comfort: at [9]. The Tribunal considered the Hummer “rather cramped” inside: at [31].
    • The driver’s compartment is separated from the passenger compartment by a partition, and the two compartments are connected by an intercom: at [11].
    • The interior of the Hummer features black vinyl seat coverings, flashing lights and strobe lights under the seats, and a reflective polished metal roof containing small multicoloured lights described as “disco lights” by the Tribunal: at [10], [31].
    • The Hummer has three liquid crystal display screens, a DVD player, a high volume built-in sound system, drinking glasses and large ice buckets for alcoholic beverages: at [10] and [31].
11. Overall, the Tribunal considered it appropriate to describe the Hummer as “a mobile nightclub or a party vehicle”: at [10]. The Tribunal also noted that the Hummer was described as a limousine in promotional materials and that one advertising brochure stated that the Hummer would make a passenger “feel like the toast of the town” and like “a Hollywood movie star”: at [32].
12. The Tribunal noted that the essence of the dispute was whether the Hummer was a limousine under the LCT Act. It began its analysis by considering the history of the LCT Act and A New Tax System (Indirect Tax and Consequential Amendments) Act (No 2) 1999 (Cth), which added ‘limousine’ to the definition of car under section 27-1. The Tribunal explained that the amendment was introduced because luxury vehicles designed to carry more than nine passengers, such as stretched limousines, were not covered by the Act as originally drafted: at [17]-[22].
13. Observing that ‘limousine’ was not defined by the legislation, the Tribunal stated the applicable principles of statutory interpretation: the term “should be given its ordinary meaning, having regard to the context in which [it] appears in the LCT Act”: at [23]. The Tribunal cited definitions of ‘limousine’ from the Shorter Oxford English Dictionary, the Australian Concise Oxford Dictionary and the Macquarie Dictionary: at [24].
14. After concluding that the Hummer was a ‘motor vehicle’ (at [26]-[27]) – a conclusion not in issue on appeal – the Tribunal turned to the question “whether the Hummer [was] properly described as a limousine as that expression is understood in the ordinary sense”: at [28]. It observed that “although the word limousine is reasonably well understood, it may mean different things to different people”: at [28]. The Tribunal considered the meaning of ‘limousine’ as used in colloquial speech, which, according to the Tribunal, “incorporates the fact that a limousine is usually considerably larger than a standard road vehicle, conveying a sense of luxurious motor transport driven by a chauffeur”: at [29].
15. Applying this definition, the Tribunal concluded that the Hummer was a limousine, as it was indisputably large and would be considered luxurious by the young people who form the market for the vehicle: at [30] – [34].

CONSIDERATION

Appeal Grounds 4.1 and 4.2: Ordinary Meaning of ‘Car’

16. Dreamtech’s first submission, encompassing grounds 4.1 and 4.2 of its notice of appeal, was that the Tribunal erred in disregarding part of the dictionary definition of ‘limousine’. Specifically, Dreamtech contended that, according to the dictionary definitions, a limousine must be a car in the ordinary sense of the word, and that the Tribunal ignored this aspect of the dictionary definitions. According to Dreamtech, the Tribunal improperly substituted the statutory definition of ‘car’ in the LCT Act for the ordinary sense of the word when considering the meaning of ‘limousine’. Dreamtech submitted that a limousine is a large, luxurious car, as ordinarily understood; and the ordinary meaning of the word ‘car’ did not include a vehicle such as the Hummer.
17. There is no dispute that the Tribunal set forth the applicable principle of statutory interpretation when it stated that ‘limousine’ “should be given its ordinary meaning, having regard to the context in which [it] appears in the LCT Act”. Dreamtech’s argument was that the Tribunal did not actually apply the principle it announced.
18. The Commissioner submitted that Dreamtech’s notice of appeal, which included grounds 4.1 and 4.2, did not raise any question of law, and that the Court therefore lacked jurisdiction to consider them. As this appeal was brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Court’s jurisdiction is limited to appeals on questions of law: see, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 286. No appeal will lie from the Tribunal’s findings of fact, unless those findings were reached in a manner giving rise to a question of law: see, e.g., Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 per Davies and Beazley JJ and at 16 per Hill J.
19. The ordinary meaning of a word used in a statute is a question of fact: see Pozzolanic 43 FCR at 287. Similarly, where different conclusions are reasonably open, whether a particular set of facts falls within the ordinary meaning as determined is also a question of fact: see Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7-8; Sharp 59 FCR at 16; Pozzolanic 43 FCR at 288. Nonetheless, if the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it, then that question is a question of law: see, e.g., Sharp 59 FCR at 12.
20. In conformity with Order 53 rule 3(2) of the Federal Court Rules, by its notice of appeal, Dreamtech stated the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal separately. The question of law that Dreamtech said was raised by the appeal was “[w]hether the Tribunal erred in law by misconstruing the meaning of ‘limousine’ in paragraph (b) of the definition of ‘car’ in section 27-1” of the LCT Act. When read with some of the grounds upon which Dreamtech relied, this question can be characterised as a question of law. When read with grounds 4.1, 4.3 and 4.5, it is apparent that Dreamtech argues for an affirmative answer to this question on the grounds that the Tribunal adopted a wrong approach and/or took account of an irrelevant consideration in determining what was meant by a ‘limousine’ for these purposes: compare Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 at 734, 735-6 and Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at 564-5.
21. This is not to say that it was open to Dreamtech to support its case by reference to all its stated grounds. The Commissioner was correct that the Tribunal’s conclusions regarding the ordinary meaning of ‘limousine’ and whether the Hummer fits within that meaning were findings of fact. Ground 4.2 was merely a challenge to these findings of fact and could not advance Dreamtech’s case.
22. Dreamtech’s ground 4.1 is capable, however, of supporting an affirmative answer to a question of law that it seeks to agitate: in substance, this ground is that the Tribunal adopted a wrong approach to determining the ordinary meaning of ‘limousine’ by ignoring the ordinary meaning of ‘car’.
23. As will be seen, for the reasons stated below, I find that the Tribunal’s reasons disclose no error of this kind, and ground 4.1 fails. When regard is had to the whole of the Tribunal’s reasons, it is apparent that the Tribunal posed the right question and conducted a correct inquiry.
24. As noted, the Tribunal began its inquiry into the ordinary meaning of ‘limousine’ with three dictionary definitions (at [24]):

The word limousine is defined in the Shorter Oxford English Dictionary as:

A motor-car with a closed body and roofed place for the driver.

The Australian Concise Oxford Dictionary defines limousine as:

a large luxurious motor car, often with a partition behind the driver.

The Macquarie Dictionary definition is more expansive, defining limousine as:

1. any large, luxurious car, esp. a chauffeur driven one.
2. an airline bus carrying passengers between the city terminal and the airport.

25. Whilst acknowledging that this was a proper starting point for the Tribunal’s analysis, Dreamtech submitted that the Tribunal ran into error after setting forth these definitions. This submission focussed on paragraph [25] of the Tribunal’s reasons and, in particular, on the Tribunal’s statement that the ordinary meaning of ‘car’ was ‘irrelevant’. Paragraph [25] stated:

Mr Flynn submitted that the ordinary meaning of the word limousine led inescapably to the conclusion that a vehicle so described must be a car within the ordinary meaning of that term, and it must be large and luxurious. However, that submission may not be entirely correct as is demonstrated by the Macquarie Dictionary definition of limousine. In any event, the word car is a defined term in the LCT Act and accordingly, it is irrelevant, for the purposes of that Act, what the ordinary meaning might be. With respect to Mr Flynn, it makes no sense to fix on the ordinary meaning of the word limousine, which refers to a large luxurious car, and then to say that one must therefore accept the ordinary meaning of the word car when attempting to determine whether the vehicle is a limousine. For the purposes of the LCT Act, a limousine must be a car as that term is defined in the Act. Therefore, for the purposes of the LCT Act, a car must be a motor vehicle (again a defined term) which may be a limousine or, conversely, a limousine must be a motor vehicle (as that term is defined in the Act). Therefore, for the purposes of the LCT Act, a limousine must be a motor powered road vehicle (which includes a 4-wheel drive vehicle). It cannot be disputed that the Hummer is motor powered. Whether it is also a 4-wheel drive vehicle matters not. The question is therefore whether it can be described as a road vehicle. (Emphasis added.)

26. If the Tribunal had in fact, as Dreamtech submitted, merely inserted the statutory definition of ‘car’ into the dictionary definition of ‘limousine’, it could not have made any progress with its analysis. The statutory definition of ‘car’ includes a limousine; thus, defining ‘limousine’ as a large and luxurious ‘car’ (as ‘car’ is statutory defined) would simply lead back to the original question, what is a limousine? This would in turn lead back to the statutory definition of ‘car’, and so on, ad infinitum. The fact that the Tribunal reached a conclusion regarding the Hummer indicates that, although paragraph [25] is unclear, the Tribunal did not rely on the statutory definition of ‘car’ for determining the ordinary meaning of ‘limousine’. That is, if the Tribunal had adopted the approach that Dreamtech attributes to it, then the Tribunal would have not have been able to decide whether or not the Hummer was, relevantly, a limousine. The Tribunal would, instead, have been obliged to jump back and forth endlessly between the statutory definition of ‘car’ and the dictionary definition of ‘limousine’. This is not what the Tribunal actually did.
27. Rather, it is apparent that the Tribunal asked itself the proper question, namely, whether the Hummer was a limousine in the ordinary sense of the word, considering the word ‘limousine’ in its place in the LCT Act. Paragraphs [28] and [29] of the Tribunal’s reasons better show its approach to determining the meaning of ‘limousine’ than paragraph [25]:

The only remaining question is whether the Hummer is properly described as a limousine, as that expression is understood in the ordinary sense. As I have set out above, the ordinary meaning of the word limousine is reasonably wide although, for the present purposes, we can probably disregard the second meaning attributed to that word in the Macquarie Dictionary. The Hummer is not a vehicle designed for carrying passengers between a city terminal and the airport. However, that definition does raise the interesting question about how the word limousine is ordinarily used. It seems to me that although the word limousine is reasonably well understood, it may mean different things to different people. . . .

It is appropriate, in my view, that when interpreting the meaning of limousine in its ordinary sense, we should refer to that expression as it is commonly used in colloquial speech. In my opinion, that incorporates the fact that a limousine is usually considerably larger than a standard road vehicle, conveying a sense of luxurious motor transport driven by a chauffeur.

These paragraphs make it clear that the Tribunal had regard to the ordinary meaning of ‘limousine’.

28. Dreamtech’s argument focused unduly on the Tribunal’s statement in paragraph [25] that the ordinary meaning of ‘car’ was ‘irrelevant’ to its inquiry. This statement was wrong to the extent that it failed to allow for the fact that all the primary definitions of ‘limousine’ incorporated the word ‘car’ or ‘motor-car’ in a non-statutory sense; the ordinary meaning of ‘car’ is therefore relevant to these definitions of ‘limousine’, to which the Tribunal properly referred. This is a case in which it is essential not to focus on particular parts of the Tribunal’s reasons: the reasons must be read as a whole.
29. What the Tribunal meant in describing the ordinary meaning of ‘car’ as irrelevant is explained in the Tribunal’s next sentence:

With respect to Mr Flynn, it makes no sense to fix on the ordinary meaning of the word limousine, which refers to a large luxurious car, and then to say that one must therefore accept the ordinary meaning of the word car when attempting to determine whether the vehicle is a limousine.

As this sentence indicates, paragraph [25] was a response to an argument put by Mr Flynn, counsel for Dreamtech. As I understand it, the argument to which paragraph [25] refers is Dreamtech’s argument that the ordinary meaning of ‘car’ did not encompass vehicles such as the Hummer.

30. Though strictly unnecessary to do so, I interpolate here that there are in fact possible formulations of the ordinary meaning of ‘car’ that would apply to the Hummer. The Macquarie Dictionary, for example, relevantly defines ‘car’ as ‘a motor car’; motor car is defined as

a vehicle, especially one for passengers, carrying its own power-generating and propelling mechanism, usually an internal-combustion engine, for travel on ordinary roads.

31. Be that as it may, the Tribunal was correct in so far as it intended to say that it was not required to incorporate any particular formulation of the ordinary meaning of ‘car’ into the meaning of ‘limousine’ as used in the LCT Act, much less to accept the narrower ‘ordinary meaning’ urged by Dreamtech. The Tribunal was required to consider the ordinary meaning of ‘limousine’, which, according to the various dictionary definitions to which it referred, includes that a ‘limousine’ is a ‘car’ or ‘motor-car’. In considering the ordinary meaning of ‘limousine’, however, the Tribunal was free to accept, reject or modify elements of this meaning based on statutory context, in order to arrive at the meaning of the term as used by Parliament.
32. As already noted, paragraph [25] is unclear, but, as I read it, the Tribunal was attempting to express the point that it is wrong to focus on the ordinary meaning of ‘car’ to the exclusion of the statutory context in which the term ‘limousine’ appears. That context includes the fact that ‘limousine’ is part of a broad statutory definition of ‘car’. Put differently, the fact that ‘limousine’ appears in the LCT Act as part of an otherwise expansive statutory definition of ‘car’ weighs against adopting the narrow ‘ordinary meaning’ of ‘car’ put forward by Dreamtech. Such reasoning does not disclose any relevant error.
33. In sum, although paragraph [25] of the Tribunal’s reasons mistakenly describes the ordinary meaning of ‘car’ as irrelevant, the Tribunal did not lead itself astray by this statement. Rather, its reasons as a whole illustrate that the Tribunal posed the proper question and took an approach that was open to it in answering it. Under these circumstances, to conclude that paragraph [25] of the Tribunal’s reasons discloses relevant error would be erroneously to examine the reasons ‘‘minutely and finely with an eye keenly attuned to the perception of error’’: see Pozzolanic 43 FCR at 287. Paragraph [25] displays loose language and “unhappy phrasing” (cf: Pozzolanic 43 FCR at 287) but such infelicity does not make out Dreamtech’s case under ground 4.1

Appeal Grounds 4.3 and 4.4: Finding that the Hummer Was ‘Luxurious’

34. Dreamtech’s second set of submissions, covering grounds 4.3 and 4.4, was that the Tribunal erred in finding that the Hummer was luxurious. The Tribunal’s discussion of this matter appears at paragraphs [31] and [32] of its reasons:

Mr Flynn argued that the Hummer is not luxurious. He submitted that it would be reasonable to expect that a luxurious motor vehicle would have high quality suspension, good soundproofing to reduce noise from the engine and a good quality interior, such as leather seats and wood panelling or a finish of similar quality. While I readily accept Mr Flynn’s description of a luxurious motor vehicle, I do not accept that persons under the age of 30 years would necessarily agree with that description. The Hummer is clearly designed to attract younger people for the purpose of having a good time. It has all the characteristics which young people would, in my opinion, find luxurious. That is, luxuriously-styled seating covered with black vinyl, ice buckets and glasses for drinking, a DVD player and screens, no doubt to play music videos at very loud sound levels. In addition, it has a reflective polished metal interior roof fitted with what can only be described as disco lights. It is not difficult to accept that these features are attractive to young people who would see them as luxurious despite the fact that some of us, who have reached a certain age, would not necessarily agree. For those young people to whom this vehicle would appeal, a good quality suspension, soundproofing and quality interior including wood panel finish would simply not be relevant. I seriously doubt that any passenger would notice engine noise with a sound system battering the eardrums at very high decibel outputs. The fact that it is rather cramped inside and the ride may be rather firm would, I believe, not even be noticed by the types of persons attracted to use the services of this kind of vehicle.

Given the market to which this vehicle is directed, it hardly comes as a surprise that in promotional material the vehicle is described as a chauffeur-driven limousine. One advertising brochure describes it this way:

Whether it is your wedding day, corporate function, formal or any other special occasion you can travel through Sydney as if you are a Hollywood movie star with one to 14 of your friends, this over 8.5m long vehicle will make you feel like the toast of the town.

I have no doubt that were the Hummer described as a luxury bus, it would not have anywhere near the same appeal as describing it as a luxury limousine. Although the promotional material does not necessarily lead to the inescapable conclusion the Hummer must be a limousine, it is indicative of the common description given to this vehicle in ordinary colloquial speech

35. As these paragraphs make clear, the Tribunal’s conclusion that the Hummer “has all the characteristics which young people would ... find luxurious” was a finding of fact based on a consideration of the vehicle’s features. In substance Dreamtech’s ground 4.4 does no more than challenge this finding and, like ground 4.2, is therefore incapable of supporting Dreamtech’s case.
36. Ground 4.3, on the other hand, if made out, could support an affirmative answer to a question of law that Dreamtech raises: that is, whether the Tribunal took into account an irrelevant matter – the perceptions of young people – in considering whether the Hummer might be described as luxurious and a limousine within the meaning of s 27-1 of the LCT Act.
37. Dreamtech supported its case with two related lines of argument. First, Dreamtech argued that, having accepted that quality suspension, soundproofing, and a leather interior were characteristics of a luxurious vehicle, it was not open to the Tribunal to conclude that a vehicle without these features was luxurious. Second, Dreamtech argued that on no view could the features cited by the Tribunal be considered luxurious; and the fact that “young people might be attracted by disco lights, loud music and ice buckets does not mean that those are luxurious features”. Rather, so Dreamtech asserted, features such as a DVD player and strobe lights were “a form of entertainment”, not luxury.
38. There are three answers to this aspect of Dreamtech’s case. First, as the respondent noted, the Tribunal did not find that the Hummer was a luxurious vehicle in any absolute sense. Rather, it found that the Hummer had characteristics that the young people for whose use the vehicle was designed would consider luxurious. The Tribunal’s statement at paragraph [29] that, in colloquial speech, “a limousine is usually considerably larger than a standard road vehicle, conveying a sense of luxurious motor transport driven by a chauffeur” is not equivalent to a factual finding that Hummer, to be a limousine, must have been luxurious, as Dreamtech’s submissions at one point suggested. Rather, it is the Tribunal’s statement of what is usually intended by the word ‘limousine’ in colloquial usage.
39. The second answer to Dreamtech’s argument is that in essence, the Tribunal’s analysis rested on the notion that luxury is in the eye of the beholder. The Tribunal therefore addressed the question of luxury from the perspective of the young people to whom the Hummer is marketed, rather than limiting its consideration to features the Tribunal (or some other group) would consider luxurious. Dreamtech’s position, on the other hand, seemed to reflect the view that it is possible to identify universal categories of automotive features which are and are not luxurious. This is in substance the point that ground 4.3 seeks to agitate.
40. It was, however, open to the Tribunal to take the view that various groups will make different appraisals of what constitutes luxury and to conduct its fact-finding accordingly. It was therefore open to the Tribunal to consider that the likely perception of the Hummer among members of the target market for the vehicle bore on the determination it was required to make. In taking into account the perceptions of young people, the Tribunal did not take into account an irrelevant consideration. This being so, it was open to the Tribunal not only to conclude that young people would perceive the Hummer as luxurious, given the vehicle’s features, but to take this consideration into account in reaching its ultimate decision that the Hummer was a limousine for the purpose of s 27-1 of the LCT Act.
41. Finally, when close regard is had to the manner in which Dreamtech actually puts its argument in support of this ground, it becomes apparent that under this ground Dreamtech is in truth inviting the Court to second-guess the fact-finding of the Tribunal, which the Court is not at liberty to do. Ground 4.3 cannot be accepted.

Appeal Grounds 4.5 and 4.6: Alleged Failure to Take a ‘Purposive’ Approach

42. Grounds 4.5 and 4.6 of Dreamtech’s notice of appeal encompassed the argument that the Tribunal erred in ignoring a legislative intent that the LCT Act apply only to vehicles classified as ‘light’ under the Australian Design Rules, to be found at Vehicle Standard (Australian Design Rule – Definitions and Vehicle Categories) 2005 Compilation 3. Like grounds 4.2 and 4.4, ground 4.6 was a challenge to findings of fact and, as such, could not advance Dreamtech’s case.
43. Like ground 4.1, ground 4.5 was apparently another argument capable of supporting the answer that it would have the Court give as to whether the Tribunal had misconstrued s 27-1 of the LCT Act (with the result that the Tribunal had wrongly found that the Hummer was a limousine for the purposes of this provision), because, in substance, this ground was that the Tribunal had wrongly adopted a non-purposive approach to construing the provision.
44. There were numerous difficulties with ground 4.5, possibly reflected in the fact that, at the hearing, counsel for Dreamtech declined to put forward oral submissions in support of it, but stated that Dreamtech was not abandoning it.
45. In written submissions filed before the hearing, Dreamtech submitted that a legislative intent to cover ‘light’ vehicles only was apparent in paragraph 1.70 of the Explanatory Memorandum accompanying the A New Tax System (Indirect Tax and Consequential Amendments Act (No 2) 1999 (Cth). It pointed to the statement that

the definition of car is intended to include all passenger cars (including stations wagons), all 4 wheel drive vehicles, light trucks, motor homes, campervans and hearses.

46. In its written submissions, Dreamtech argued, without further elaboration, that “this explanation confirms that the LCT was intended to apply only to ‘light’ vehicles, not to heavy vehicles such as the Hummer”. It was not clear how the cited passage from the Explanatory Memorandum was said to demonstrate this intent. The Australian Design Rules were not produced and/or explained to the Court. Dreamtech has advanced no argument or other consideration that would justify the inference that the Explanatory Memorandum intended to refer to the Australian Design Rules, and by such a reference to imply a limitation to ‘light’ vehicles as characterised by those Rules. Nor has Dreamtech advanced any argument that would support a conclusion that the Australian Design Rules embody a clear distinction between ‘light’ and non-‘light’ vehicles, which is consistently applied; or that the classes of vehicles in the Australian Design Rules correspond in some meaningful way to the vehicles mentioned in the Explanatory Memorandum or the relevant portions of the LCT Act.
47. As part of its argument that the Tribunal failed to take a ‘purposive’ approach to statutory interpretation, Dreamtech also argued that the Explanatory Memorandum indicated that Parliament intended to limit the definition of limousine to vehicles that would have been considered limousines before being ‘stretched’. According to Dreamtech, the Hummer would not have been considered a limousine prior to being ‘stretched’ because it could not have accommodated the features the Tribunal considered luxurious. This submission lacks necessary foundation and should be rejected. The Court was not referred to any evidence before the Tribunal regarding the capacity of the pre-‘stretched’ Hummer to accommodate the relevant features; and the Tribunal made no finding to this effect. In any event, as the respondent submitted, it may well be that the Hummer would have been caught by the LCT Act if imported before being stretched.
48. Plainly enough, the Tribunal took legislative intent into account in construing the LCT Act, in paragraphs [17]-[22] of its reasons for its decision. It concluded that the addition of ‘limousine’ to the statutory definition of ‘car’ was intended to cover luxury vehicles designed to carry more than nine passengers, which would not otherwise be subject to luxury car tax. This conclusion was well-supported by the text and legislative history of the LCT Act, to which the Tribunal referred. Dreamtech’s submission that the Tribunal ignored the legislative purpose must be rejected.

CONCLUSION

49. For the reasons stated, nothing advanced by Dreamtech supports the conclusion that the Tribunal misconstrued s 27-1 of the LCT Act in finding that the Hummer is a limousine within the meaning of that provision. Dreamtech has failed to show that the Tribunal pursued a wrong approach, or that it took account of an irrelevant consideration in reaching its decision. According, Dreamtech’s appeal under s 44(1) of the Administrative Tribunal Appeals Act 1975 (Cth) should be dismissed, with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:
Dated: 22 February 2010