Gwilt and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 69 (1 February 2010)

Last Updated: 11 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 69

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2813

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Geoffrey Gwilt

Applicant

And

Minister for Infrastructure, Transport, Regional Development & Local Government

Respondent

DECISION

Tribunal

Mr S Penglis , Senior Member

Date 1 February 2010

Place Perth

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision dated 26 May 2009 is affirmed.

..........(sgd) Mr S Penglis..................
Senior Member

CATCHWORDS

Customs- prohibited imports - import of non-standard motor vehicle - whether ministerial discretion should be exercised because the specific requirement of regulation 12 was nearly satisfied - evidence does not entitle Tribunal to conclude that requirement of regulation 12 was nearly satisfied - discretion not exercised- decision under review affirmed

LEGISLATION

Motor Vehicle Standards Act 1989 (Cth) sections 3, 18 and 20

Motor Vehicle Standards Regulations 1989 (Cth) regulations 11, 12 and 13

Da Silva and Department of Transport and Regional Services [2004] AATA 1355
Murase and Department of Transport and Regional Services [2005] AATA 705
Williamson and Department for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48

REASONS FOR DECISION

1 February 2010

Mr S Penglis ,Senior Member

1. The applicant owns a 2002 Triumph Thunderbird motorcycle. He purchased the Thunderbird on 3 March 2008, as a used vehicle, from a gentleman in Dorset in the United Kingdom.
2. At the time, the applicant and his wife resided in New Zealand. The applicant holidayed in the United Kingdom from 4 September 2008 to 30 September 2008 in which time he used the Thunderbird.
3. The applicant and his wife subsequently immigrated to Australia and applied to have various of their motor vehicles imported into the country.
4. On 26 May 2009 Robert Hogan, the Administrator of Vehicle Standards, made a decision not to approve the applicant’s application to import the Thunderbird into Australia. That is the reviewable decision which the applicant seeks this Tribunal to review.

MOTOR VEHICLES STANDARDS ACT 1989 (CTH) (“THE ACT”)

5. Under the Act, vehicles which do not comply with the national standards (the Australian Design Rules) are referred to as non-standard vehicles. Importation of non-standard motor vehicles is generally prohibited by section 18 of the Act.
6. Section 20 of the Act permits a person to import a non-standard vehicle in prescribed circumstances. Relevant to this matter are regulations 11, 12 and 13 of the Motor Vehicle Standards Regulations.
7. Regulation 13 provides:

“The Minister must approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate if:
(a) the vehicle has been owned and used by the Applicant for a continuous period of at least:

(i) for a vehicle owned by the Applicant before 9 May 2000 –3 months; or
(ii) in any other case – 12 months; and
(b) at the time the vehicle is imported, the Applicant is:
(i) an Australian Citizen or an Australian permanent resident; or
(ii) a person who has applied to become an Australian citizen or and Australian permanent resident; and
(c) the Applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(d) the Applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister: and
(e) the Applicant has not imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.”

8. Regulation 12 provides:

“The Minister must approve an application to import a road vehicle what complies with the national standards but does not have an identification plate if

(a) the vehicle complied with the national standards when it was first manufactured and delivered for use in transport; and
(b) the applicant is of an age that entitled him or her to hold a licence or a permit to drive a road vehicle of that type; and
(c) the applicant has not imported a road vehicle within the year ended on the day on which the vehicle in respect of which the application is made is landed in Australia.”

9. Regulation 11 provides:

“(a) The Minister may approve an application to import a non-standard road vehicle or a vehicle that does not have an identification plate.
(b) An approval may be given subject to conditions specified in the instrument of approval.
(c) Without limiting the generality of subregulation (a), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.
(d) An approval must be given by signed instrument.”

10. It is well established that the discretion provided by regulation 11 is not to be exercised at large, but rather is to be exercised having regard to the policy and objectives of the Act, the regulations and to all of the relevant circumstances of the applicant: see for example Da Silva and Department of Transport and Regional Services (2004) AATA 1355: Murase and Department of Transport and Regional Services [2005] AATA 705: Williamson and Department for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48.

ANALYSIS

11. At the hearing, the applicant accepted that he did not satisfy either regulation 13 or regulation 12. With respect to regulation 13, the applicant accepted that he had only used the Thunderbird for a continuous period of approximately one month and that this was therefore well short of the 12 month period referred to in the regulation.
12. With respect to regulation 12, the applicant accepted that the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport. However, the applicant contended that the respects in which the vehicle did not so comply were only twofold: first, that the speedometer was in miles per hour (not kilometres per hour) and, secondly, that a noise label needed to be fitted. He therefore asserted that the Triumph almost satisfied regulation 12.
13. It was the applicant’s case that given that regulation 12 was not satisfied by reason only of those two matters, being matters which could be easily attended to and in respect of which the applicant undertook to modify the Thunderbird, this was an appropriate case for the exercise the discretion under regulation 11.
14. On behalf of the respondent, Mr Palfrey submitted that the evidence did not in fact establish that the only respects by which the Thunderbird did not comply with the Australian Design Standard when it was first manufactured and delivered for use in transport was in respect to the speedometer and the noise label.
15. It was in this regard that the hearing of the application was adjourned part heard so as to give the applicant an opportunity to adduce further evidence (if he were able to) to address this issue. Directions were made for the applicant to do so and for the matter to return for further directions.
16. The applicant subsequently provided additional evidence. The Tribunal was then informed that, in light of that evidence, both parties were content for the Tribunal to determine the application by reference to the evidence received at the hearing, as well as the evidence subsequently provided by the applicant, and that they did not require an opportunity to make further submissions in light of that additional evidence.
17. If it is the case that the only respects by which the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport was the two respects which have been identified, there is much to be said in support of the exercise of the discretion provided by regulation 11 in favour of the applicant, particularly the applicant’s undertaking to attend to those two matters.
18. The fate of this application therefore in large part turns on whether or not the evidence does in fact establish that they are the only respects in which the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for use in transport.
19. I therefore turn to consider the evidence on this point and make findings with respect thereto.
20. On 10 August 2009, one Paul Polidano sent an email to Bob Mills, of Triumph Motorcycles Limited, in the following terms

“This request follows previous contact with is by Mr Gwilt re importing he T/Bird to Australia – whereby we informed him that a Letter of Compliance could not be issued for reason as outlined below.

As can be seen from his undershown (sic) email, having this import matter further with DOTARS and having appealed their initial refusal to grant him VIA for his vehicle, it appears that Mr Gwilt has been given an indication that DOTARDS are willing to reconsider this matter if we could supply him with something in writing which would verify the difference between his Thunderbird and the Thunderbirds imported into Australia.

Therefore and as I am happy to do this (on behalf of the Company) can you please confirm that indeed, the only difference a UK and an Australian spec T/Bird is the dual marked (mph/kph) speedo.

Thanking you in advance.”

21. On 19 August 2009, Mr Mills emailed Mr Polidano, the relevant terms of which are as follows

“Taking this at face value, the bike shows on our system as UK spec, but with a US VIN structure which suggests that it was converted to UK spec here. The difference between the UK and the AU spec would be the speedometer (MPH no km/h) and the noise label will be missing. Other than that, the specifications are identical.”

22. That was the extent evidence that was that was produced during the course of the hearing.
23. Mr Palfrey submitted, rightly in my view, that those emails concerned a comparison between the specification of UK Thunderbirds and those imported into Australia. In particular, they did not address to what extent the Thunderbird complied with the Australian National Standards applicable as at the date when it was first manufactured and delivered for use in transport. That question is not answered by simply referring to the difference in specification between the Thunderbird owned by the applicant and those which are imported into Australia: apart from anything else it does not address the right time frame as the regulation speaks of comparing the vehicle to be imported with the national standards which applied when the vehicle was first manufactured and delivered for use in transport (as opposed, for example, to the date of proposed importation)
24. This is the point that was carefully explained to the applicant during the course of the hearing and resulted in the hearing being adjourned part heard so as to enable the applicant to endeavour to obtain further evidence.
25. The additional evidence which was provided (which I hereby receive into evidence) was as follows. First, there was an email dated 10 December 2009 from the applicant to Mr Polidano in the following terms:

“Dear Mr Polidano

I attended my tribunal hearing earlier today with Mr Penglis who is the Senior member overseeing proceedings here in Perth.

The main point being contended is the speedometer not being in KPH, but in MPH.

It will be Mr Penglis’s decision under section 11 as to whether my appeal is successful or not, and I believe that is currently “in the balance”,

However whilst all evidence for both sides has now been submitted. A further question has arisen from Mr Penglis regarding the bike; basically he would like to know if there are any other differenced between by bike spec and the Australian models spec other than the Speedometer & Noise Label. I realise Bob Mills has said this in one of his emails but they wanted to be reassured.

Would it be possible for you to kindly supply or obtain the extra information requested on my behalf. I am happy to pay any costs involved for this.

Does the rest of the Triumph Thunderbird’s build (Except for the Speedometer and noise label) meet the ADR’s in place for the Triumph Thunderbirds that were imported into Australian market in 2002 by Triumph.

Model: Triumph Thunderbird
Year: 2002
VIN: SMT395DJX2J153177
Engine no: 153761

Mr Penglis has suggested he delays his decision to see if I can obtain this information, and further indicated, with the agreement of DOTARs, the information may swing the balance in my favour.
A late January time limit has been imposed for any further evidence to be supplied or the decisions will be based on what evidence has currently been submitted.

I feel that the Senior member and DOTARs are trying to help me here, but they need to be convinced that the rest of the motorcycle conforms to the ADRs as well.

I am more than happy to be billed accordingly

Many thanks in advance for your help... “

26. Next there was an email from Mr Polidano to Mr Mills dated 10 December 2009 in the following terms:

“Hi Bob

Sorry to have to bother you with the undershown request – but as can be seen we have been asked for further assistance (as noted in red text) by Mr Gwilt in his court (appeal) case against DOTARS’s refusal to grant him a VIA for UK Spec Triumph Thunderbird model.

As you can see from below we have already advises of the differences between Mr Gwilt’s UK spec bike and the Australian “ADR model” – but it seems that the Tribunal adjudicator (presiding over Mr Gwilt’s case) needs further assurance that the only differences between the two Thunderbird models in question (ie UK Spec and Aust ADR spec units) were in respect of the Speedometer (mp/h) and the Stationary Noise label (- and that otherwise they were identical)

Thanking you in advance for any further assistance you can give us on the request from Mr Gwilt.
...”

27. Then followed an email from Mr Mills to Mr Polidano dated 10 December 2009 in the following terms

“Dear Paul

This is indeed correct. The UK and Australian bikes differ only in those two specific areas.

Kind regards Bob”

28. The final email was from Mr Polidano to Mr Gwilt, copying to him Mr Mill’s email, and stating as follows

“ Dear Mr Gwilt

As can be seen from undershown further emails of today between myself and Mr Bob Mills (- Homologation and Publications Manager at Triumph Motorcycles YK), having forwarded your further request for assistance, he has just replied to (again) confirm that the only differences between your Thunderbird (and those ADR compliant Thunderbird models marketed locally) are in respect of the Speedometer (MP/H –in lieu of KM/H) and the Stationary Noise Label.

Hoping this further confirmation from Triumph UK helps you in your endeavour to be permitted to import your vehicle into Australia...”

29. Having carefully considered the additional evidence provided by the applicant I am simply unable to conclude with the requisite degree of certainty that the only respects by which the Thunderbird did not comply with the Australian Design Rules when it was first manufactured and delivered for used in transport was in regard to the speedometer and noise label. This is primarily because the evidence which has been provided is just too general: first it refers to the differences between the Thunderbird and the specification of the “ADR compliant Thunderbird models marketed locally” and, decidedly, it does so without any reference as to the time periods being referred to. The need for greater certainty with respect to the evidence is highlighted by the fact that the evidence establishes that the Thunderbird in fact has “a US VIN structure which suggests that it was converted to UK spec” in the United Kingdom sometime after it was first manufactured and delivered for use in transport.
30. I remind myself that the discretion provided by regulation 11 “must be exercised sparingly”: see Wiliiamson at [7]. Given that, and having regard to the fact that the primary object of the Act with respect to used vehicles is to regulate the first supply to the market (see section 3 of the Act), I am simply unable to find on the evidence provided by the applicant that which needs to be found in order to exercise the discretion in the applicant’s favour, namely that the extent to which the Thunderbird does not satisfy regulation 12 is effectively de minimus.
31. For the sake of completeness, I note that the applicant has taken steps to sell the Thunderbird in the United Kingdom, but without any success, and that this is so notwithstanding that the sale price offered was less than that which he had paid to purchase it. That, however, was as far as the evidence went and is insufficient to establish any basis that hardship will be suffered by the applicant if the regulation 11 discretion is not exercised in favour of the applicant.
32. It therefore follows that the reviewable decision must be affirmed.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis

Signed: ......... (sgd) Ms L Huynh..............................................

Associate

Date/s of Hearing 9 December 2009

Date of Decision 1 February 2010

Counsel for the Applicant Self represented

Counsel for the Respondent M Palfrey

Solicitor for the Respondent Clayton Utz