Bempasciusto and Minister for Infrastructure and Transport [2013] AATA 104 (22 February 2013)

Last Updated: 28 February 2013

[2013] AATA 104

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3531
Re	FRANCESCO BEMPASCIUSTO
	APPLICANT
And	MINISTER FOR INFRASTRUCTURE AND TRANSPORT
	RESPONDENT

DECISION

Tribunal	Mr S Penglis, Senior Member and Mr W Evans, Member
Date	22 February 2013
Place	Perth

The Tribunal affirms the decision under review.

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

Catchwords
Transport – motor vehicle regulations – importation of used car – whether structural integrity of vehicle had been reduced by crash damage

Legislation
Motor Vehicle Standards Act 1989, s 13D
Motor Vehicle Standards Regulations 1989, reg 57(i)
Motor Vehicle Standards (Approval to Place Used Import Plates) Guidelines 2006 (No. 1), clause 4 of Schedule 1
Motor Vehicle Standards (Procedures for Inspecting and Testing used Imported Vehicles) Determination 2002, cl 6(2)

Cases

Elkhishin and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 261

REASONS FOR DECISION

Mr S Penglis, Senior Member and
Mr W Evans, Member

22 February 2013

1. The decision under review in this matter is a decision by a delegate of the Respondent made on 4 August 2011 to refuse to grant RAAWS Pty Ltd, a company of which the Applicant is and was at all material times a director, an approval to place a Used Import Plate (UIP) on a Maserati Coupe M138 (Vehicle) pursuant to section 13D of the Motor Vehicle Standards Act 1989 (Act). The reviewable decision was based on a finding that the “subject vehicle had previously suffered structural damage such that it is not suitable for fitment of a used Import Plate”. The Applicant was informed that the Vehicle “is to be exported or destroyed”.

RELEVANT LEGISLATION

2. Section 13D of the Act authorises the Respondent to grant to a registered automotive workshop approval to place a UIP on a used imported vehicle. A registered automotive workshop (such as RAAWS Pty Ltd) may apply to the Minister for such approval: sub-section 13C(1) of the Act.
3. By sub-section 13D(1) of the Act, the Respondent may grant approval if, having regard to a report in relation to the vehicle that is given to the Minister by the relevant registered automotive workshop (known as the Vehicle Inspection Certificate), the Minister is satisfied that it is appropriate to grant the approval.
4. Sub-section 13D(3) of the Act provides that the Respondent must comply with the Motor Vehicle Standards (Approval to Place Used Import Plates) Guidelines 2006(1) (Guidelines) when making a decision to grant a registered automotive workshop an approval to place a UIP on a used imported vehicle. The Guidelines are made pursuant to s.13D(3) of the Act.
5. Sub-clause 4(1) of Schedule to the Guidelines provides as follows:

“A used imported vehicle must not have had its structural integrity reduced by crash damage or corrosion.”

6. This is reinforced by Regulation 57(i) of the Motor Vehicle Standards Regulations 1989, which provides that it is a condition of the approval of a registered automotive workshop “that the registered automotive workshop must not place a used import plate on a vehicle whose structural integrity has ever been reduced by corrosion or crash damage.”
7. By sub-clause 6(2) of the Motor Vehicle Standards (Procedures for Inspecting and Testing Used Imported Vehicles) Determination 2002, (Determination) the person inspecting a vehicle must inspect the vehicle for any crash damage, damage repair or corrosion that may affect its structural integrity, and note any damage, repair or corrosion in an inspection report.
8. By sub-section 6(3) of the Determination, a person carrying out an inspection must have regard to various criteria in determining if crash damage or corrosion is likely to affect the structural integrity of a vehicle, including (by sub-clause 6(3)(a)) “damage to the vehicle’s outer body panels, which affect the integrity of any seams or joints”.

THE ISSUE

9. There was no dispute before the Tribunal that, prior to its importation, the Vehicle had been in an accident, had sustained crash damage and that the damage had been repaired. The dispute before the Tribunal was whether or not the crash damage had reduced the vehicle’s structural integrity.

THE APPLICANT’S STATEMENTS OF ISSUES, FACTS AND CONTENTIONS

10. Initially the Applicant was not represented by a legal practitioner. When representing himself, the Applicant filed a Statement of Facts, Issues and Contentions which focused on the quality of the repairs to the vehicle, effectively submitting that the repairs were of the highest quality and that, as a consequence of those repairs, “the vehicle’s structural integrity has not been compromised”.
11. The Applicant subsequently came to be represented by Ms Veltman of Counsel and caused a Supplementary Statement of Facts, Issues and Contentions to be filed. That document contained the following paragraphs:

“10 It is clear that regulation 57(1) of the Regulations never intended that the presence of crash damage in and of itself should prevent approval for an import place. The structural integrity must have been reduced by the accident.

11. It is respectfully submitted that the structural integrity has never been reduced by crash damage sustained by the vehicle.
12. This has been confirmed by the authorized repairer who has stated that there has never been any structural damage to the vehicle. Annexed hereto and marked with the letter “A” (pages 1-6) is correspondence from Bodytechnics in relation to the repair.
13. Furthermore, all repairs were made using factory sourced parts and were therefore identical to that of the vehicle in its original state.
14. It is respectfully submitted that Elkhishin is relevant in relation to matters involving corrosion, which is not relevant here, however, in this case the vehicle is the same structurally as when it was supplied to the market overseas and this is supported by the letters from Bodytechnics as well as the reports in the Applicant’s Statement of Facts Issues and Contentions and in particular the Cast Engineering report.
15. It is respectfully submitted that the integrity of the structure of the vehicle was undiminished by the accident. “Integrity” refers to “structural integrity” only and not to any changes that may be made to the vehicle such as minor repairs, which the Applicant submits is all that has occurred with the vehicle. It the word “integrity” referred to anything more than that, any service the vehicle had undertaken, or change in oil or windscreen wiper replacement would under the Respondent’s contentions render the vehicle incapable of being registered.”

THE RESPONDENT’S STATEMENT OF FACTS, ISSUES AND CONTENTIONS

12. The Respondent filed a Statement of Facts, Issues and Contentions containing the following paragraphs:

“43 The term “Integrity” is not defined in the Act, Regulations, Guidelines of Determination. The Macquarie Dictionary definition of integrity is:

“2. The state of being whole, entire, or undiminished: to preserve the integrity of the empire

3. Sound, unimpaired, or perfect condition: the integrity of the text.”

44. The Minister contends that the structural integrity of the Vehicle was reduced by the crash damage to structural components. The Minister relies on the evidence of Mark Terrell in his witness statement dated 15 February 2012.
45. This contention is consistent with subclause 6(3) of the Determination which provides indicia (minimum criteria) in determining whether crash damage is likely to affect the structural integrity of a vehicle. In particular, the criterion at sub-clause 6(3)(e) which refers to damage to the vehicle’s outer body panels, which affect the integrity of any seams or joints. Sub-clause 6(3)(g) is also relevant, being distortion of any structural component of the vehicle.
46. The photographic evidence clearly establishes that there had been damage to the Vehicle’s inner body panels, most likely in conjunction with damage to the vehicle’s outer body panels. The Minister contends that the damage to these structural components (the panels and joints) had reduced the structural integrity of the Vehicle in that those components were rendered less capable of safely resisting imposed or required loads compared to the state as originally manufactured.”
13. The Respondent also observed that “the expert evidence led by the Applicant does not address whether the structural integrity of the vehicle has at any time been reduced. The Applicant’s expert evidence assesses whether the repaired vehicle was repaired in line with standard industry practice and if the vehicle is sound and roadworthy. Evidence concerning the standard of repairs or roadworthiness of a vehicle are no a feature of the RAWS assessment process”.

THE HEARING

14. During the course of the hearing it became clear that the evidence upon which the Applicant sought to rely to make good the proposition in paragraph 12 of its Statement of Facts, Issues and Contentions, namely that “the authorised repairer ... stated that there has never been any structural damage to the vehicle”, did not come even close to establishing that proposition. As a result, the Applicant sought an adjournment so as to produce further evidence on that point. Despite that application being opposed by the Respondent, the Tribunal acceded to the Applicant’s request and the matter was adjourned.
15. Upon resumption of the hearing, the Tribunal received into evidence, amongst other things, the oral testimony (by telephone from the United Kingdom) of Roderick Wallace, the Managing Director of the prestige car repairer that repaired the crash damage to the Vehicle. That evidence will be analysed below.
16. After all evidence had been tendered by the parties and received by the Tribunal, the hearing was further adjourned so that the parties could file and serve written closing submissions. A date was fixed for a further hearing of the application in the event that either party sought to supplement their written submissions orally. Neither party sought to do so.

THE EVIDENCE PRODUCED ON BEHALF OF THE APPLICANT

17. Although not the only evidence produced on behalf of the Applicant, the primary evidence produced on behalf of the Applicant was, as noted above, the evidence of Mr Wallace.
18. Mr Wallace is the Managing Director of Bodytechnics in Slough, in the United Kingdom. When giving his evidence, Mr Wallace had occupied that position for almost 3 years. Mr Wallace was 56 years old, and had worked in the prestige motor industry all of his working life.
19. Mr Wallace began in the industry as an apprentice technician with the British Leyland franchise. He qualified as a mechanical engineer some 36 years ago. He has been working with Maserati vehicles for over 3 years, prior to which he has had some 20 years’ experience with Porsche vehicles.
20. Mr Wallace confirmed that he had provided to the Applicant some images in relation to the Vehicle. They included photos of the extent of the crash damage.
21. In regard to the structural integrity of the vehicle, Mr Wallace gave the following evidence:

“The structural integrity of the car, from our perspective, from a repairer’s perspective, wasn’t questioned. When we – look at the vehicle, structural integrity is normally dictated by chassis, so, the underside of the vehicle and in this particular instance there was no chassis damage but there was panel damage to the left hand side of the vehicle”.

22. Mr Wallace subsequently clarified that when he referred to panel damage, he was speaking of outer panel damage, not inner panel damage.
23. Mr Wallace also gave evidence with respect of the nature of the repair work that had been undertaken on the Vehicle. With respect to welds, he confirmed that “we would replace exactly the welds that the manufacturer puts on the vehicle when they construct it”.
24. Mr Wallace was asked by Ms Veltman: “In relation to this car – do you agree or disagree that the parcel shelf area was damaged in relation to this car or not?” Mr Wallace responded: “I’m sorry; I have no photographic evidence of that, so I am not able to comment, to be quite frank”.
25. When asked about photos he supplied, Mr Wallace said there was nothing in particular he wanted to show by them. He said that it was a routine process to take photographs of vehicles when they come in for repair.
26. In the course of his evidence in chief, Mr Wallace said:

“I read a report that’s by someone called Mark Terrell and he questions the structural integrity of the vehicle. But I really don’t know how he can question the structural integrity. If we have replaced a manufacturer’s weld and the welds are a manufacture’s specification, I question, without wrecking the vehicle, how you could actually test the integrity of the vehicle. To be frank with you, I’m amazed that it’s in question. Had the vehicle been repaired not to manufacturer’s specification, or had it been repaired not using the manufacturer’s repair process and parts, then I could understand. But, as far as I’m concerned, the vehicle is as good as it – when it left the factory.”

27. Mr Wallace was then asked by Ms Veltman: “Now, in relation to the vehicle, if it had been brought to you and it had structural integrity damage, would you repair it or not?” Mr Wallace responded as follows:

“Well, the first thing that happens to a vehicle of this nature in the repair process is it is put on to a body jig. A body jig works to extremely high tolerances to ensure that the vehicle is in a condition where it is geometrically straight. So this vehicle has been on a body jig. The vehicle didn’t require any movement of the chassis of the vehicle to bring it to tolerance. It was already at tolerance, which was indicative that the impact damage to the outside of the car, in my opinion, more aesthetic than it was structural. However, the right thing in terms of repairing this car, to make sure that the car, you know, looked the way a Maserati should look, was not to try and repair the panel, but was to unstitch it and replace it. And, I can only repeat, if the manufacturer wasn’t happy with that as a repair process, they wouldn’t publish it as a repair process, and they certainly wouldn’t supply the parts”.

28. Mr Wallace also gave the following evidence in chief:

“Mr Terrell says in his witness statement, which I have here, that to remove ... the panel ... the left hand panel of the car ... does alter the structural integrity of the car, and that is absolutely correct. But the fact that a brand new panel is put back on the car and then re-fitted to the car within the manufacturer’s specification reinstates any suspect to the integrity of – the structural integrity of the car. He’s absolutely right in his statement, and I don’t disagree that if that panel is removed from the car, that alters the structural integrity, but if it’s replaced with a brand new panel, produced by the manufacturer, fitted under manufacturer’s specifications, you are reinstating that structural integrity.”

29. Mr Wallace was then cross-examined by Mr Van Brakel, Counsel for the Respondent. Mr Wallace said that he did not have any personal involvement in the repair of the Vehicle, and the evidence he had given was based solely on a review of the photographs and something called the “working pack of documents”. In re-examination, Mr Wallace added that, before he had given his evidence, he had spoken to “engineers who worked on this car to see if there was anything unusual; about this vehicle, and it was a routine repair for us.” He said that, whilst the Vehicle “was pretty dented,...(it) was a straightforward repair”.
30. Mr Wallace agreed that the evidence that he gave with respect to the chassis did not mean that everything above the chassis did not go to a structural issue. He said:

“The side panels are part of the cockpit of the car, they are part of the structural integrity of the car. But the backbone of the car in this particular instance was absolutely fine and to replace a side panel as opposed to repairing it, was, in our opinion, the correct thing to do for the vehicle. So, when I’m saying I don’t think the structural integrity was endangered in this car, it’s because there was no repairs required underneath the car and this panel was a simple case of unstitch it and replace it. So I don’t believe how the structural integrity could be – could have been affected by this route of repair. Had we gone a route of repair, of repairing the panel as opposed to replacing it, then I suppose that could be questionable. But in this instance we’ve reinstated any structural concern of the car”.

31. Later in the course of cross-examination, the following exchange occurred and evidence given:

“But when the vehicle arrived at your yard, and as shown by those photographs, do you accept that at that point in time, prior to any repair being undertaken, there was reduced structural integrity in the vehicle? --- Well, I’ve got no evidence to show me that there were broken welds. Certainly the shape of the car had changed quite dramatically, but I have no reason to believe that any structural welding of the car had taken place. I’m not really in a position to comment whether or not the structural integrity had been changed at that stage.
So, it may have been – it may have been changed because you cannot determine simply from looking at the photographs whether or not that was the case? --- I don’t think I’m in a position to comment either way, to be frank.
Okay. But you did say in response to questions from the tribunal that at the point when the rear panel was removed, the vehicle at that point in time was impaired and had a reduced structural integrity? --- When you take the panel off the car?
Yes?---Yes, absolutely. Yes.
Yes?---I’m not disputing that, but what I’m saying to you is that if you replace the panel with a brand new panel from the manufacturer and you replace the welds as per the manufacturer’s instructions, then you’re reinstating manufacturer’s build quality.
Yes. And isn’t the thrust of all your evidence, Mr Wallace, to the effect that the focus of your business is to restore the vehicle to manufacturer specifications and that you’re satisfied that that has occurred?--- Well, we work to manufacturer specifications. We’re a business that holds manufacturer’s approval; we’re audited on an annual basis. That’s always our objective, yes. We’re not in the business of repairing them cars and sending them out sub-standard, under any circumstances.
But the criterion for whether or not this vehicle is in a sound state is whether or not you have repaired it to manufacturer’s specifications, in your view?--- We would reinstate manufacturer’s specifications, yes.
And can I confirm your evidence as well is that, from the materials you’ve seen, you cannot comment on what process was adopted in terms of welding around the parcel shelf area?--- Well, personally I haven’t seen that, so I’m struggling to comment on that with any – with any surety, no.”

THE EVIDENCE PRODUCED ON BEHALF OF THE RESPONDENT

32. The Tribunal received evidence on behalf of the respondent from John William Carmichael, an employee of the Department of Infrastructure and Transport. Mr Carmichael is employed as a Motor Vehicle Standards Vehicle Inspector for the Vehicle Safety Standards Division of the Department, a position he has been in for 5 years.
33. Mr Carmichael, with others, attended at the Registered Automatic Workshop of RAAS Pty Ltd to inspect the Vehicle and assess if it complied with the requirements of the Act “and the associated regulations, guidelines and determinations”. For the reasons given in his witness statements, he concluded that the Vehicle did not so comply. Mr Carmichael was not cross-examined by Counsel for the Applicant.
34. The Tribunal finds Mr Carmichael’s evidence of limited assistance.
35. The respondent’s primary witness was Mark Benjamin Terrell. Mr Terrell is a Section Leader, Registered Automotive Workshop Scheme, Vehicle Safety Standards with the Department, a position he has held for over 7 years. Mr Terrell holds a Bachelor of Engineering from the Australian National University, which he received in 1994. His role within the Department requires him to manage the operation of the RAWS Section of the Department.
36. In his first witness statements, Mr Terrell gave the following evidence
    • (a) “There are very few areas of the body of a typical passenger car that do not perform some structural functions. I consider that the join between the left hand rear guard and parcel shelf area to be structural components of a vehicle. This is because, in my opinion the inner guard and parcel shelf panels:

(a) form part of the unitised (monocoque) body structure of the vehicle,

(b) are likely to transmit loads from seat, seatbelt and child restraint anchorages: and

(c) may transmit loads from the vehicles suspension and drive line.”

(b) What he had observed indicated, amongst other things, the “join between the left hand inner panel and the parcel shelf of the vehicle showed evidence of significant repair work” and “the inner panel and parcel shelf showed evidence of deterioration (tearing) of the base material from the repair process”;
(c) “I am satisfied the damage (panels and joints) reduced the structural integrity of the Vehicle in that those components were rendered less capable of safely resisting imposed required loads compared to the state as originally manufactured”.

37. After the images provided by Mr Wallace had been inspected by him, Mr Terrell prepared a further witness statement in which he stated, amongst other things:

(a) The photographs “demonstrate that the vehicle was subjected to a heavy impact along the left hand side of the vehicle which has substantially distorted the shape of the vehicle in that area. In particular, the creasing of the left hand rear panel below the rear side window, in combination with previous evidence of replacement welds at the join of the parcel shelf and inner guard, demonstrate that there has been deformation in this part of the vehicle. As I have previously stated, the left hand rear guard and parcel shelf area (forming part of the unitised construction of the vehicle) are structural components”

(b) “As explained in my previous statements, many parts of the vehicle above the under-body of the vehicle, such as the inner guards and parcel shelf, play a structural role in transferring loads from one part of the vehicle to another. Also, areas such as the “A”, “B” and “C” pillars (being a reference to the vertical structural components of a vehicle forward of and behind the doors and behind the rear side windows) perform a significant structural role. The photographs show deformation of the B-pillar. The B-pillar is a structural part of the vehicle, being the main contributor to the side impact strength of the vehicle, as well as attaching a door striker to the body and connecting to the roof of the vehicle. This part appears to have been replaced, as part of the “left hand side” panel listed in the supplied invoice”.

38. In cross examination and questioning by the Tribunal, Mr Terrell did not deviate from those views. With the respect to the B-pillar, Mr Terrell said “The B-pillar is the –basically behind the door. That looks to be damaged. Again, I’m going on photos’ that are of modest quality, I guess, so it is sometimes a little bit difficult to tell. Again, that part has been replaced. That suggests that there has been a level of damage to that part, and as I say, the area around the B-pillar, the connection to the sill of the vehicle, I would expect to have a structural role. I didn’t design this vehicle, so I can’t tell you for sure, but – that would be the indication. And I think, again, if you apply the sort of tests that we would expect workshops to be applying on those vehicles, then looking at those images, that’s structural damage”.
39. With respect to the disconnection and tearing of the panel shelf, Mr Terrell said he did not know if that was from the repair or from the original accident.
40. On numerous occasions Mr Terrell made reference to the fact that the removal and replacement of part of the Vehicle meant that the structural integrity had been reduced as a consequence of and during the process.
41. Mr Terrell said that, from the photos, he observed “fairly significant bending of the outer panel” which “while it may have a minor structural role” it “then forms the outer scheme of the B pillar”.
42. Ms Veltman then asked Mr Terrell “in relation to when you were talking about the last thing that you said in relation to the welds to the parcel shelf, what I am going to suggest to you is that that is part of the repair process that’s just outlined by the manufacturer, it doesn’t indicate crash damage necessarily”, to which Mr Terrell said “I understand that point. The thing is it is difficult to understand why it would be necessary to unstitch that part of the vehicle for damage that hasn’t affected that area of the vehicle. That would seem a rather strange repair”.

ANALYSIS

43. It was agree by the parties that whether or not the Vehicle is presently of the same structural integrity as it was prior to its involvement in an accident is irrelevant: the issue is whether or not the structural integrity of the Vehicle had been reduced at some point time and as a result of crash damage (or corrosion).
44. The Tribunal holds that, as a matter of proper construction, it must be the “crash damage” that reduces the structural integrity of a vehicle, as opposed to, for example, the repair of that crash damage.
45. Accordingly, and by way of example, if the Tribunal were to conclude on the evidence before it that, when the Vehicle came into the repair yard, its structural integrity had not been reduced by the crash in which it had been involved, the fact that, as part of the repair process, welds had been unstitched and panels removed resulting at that point in the structural integrity of the Vehicle being undoubtedly reduced (but then reinstated when the new panel is put in place and new welds made in accordance with the manufacturer’s specification) would not constitute a reduction of the vehicle’s “structural integrity.... by crash damage”.
46. Counsel were unable to locate any previous decision of the Federal Court or of this Tribunal which would assist in the proper construction of the concept of “structural integrity” where it appears in subclause 4(1) of the Schedule 1 to the Guidelines. The Tribunal was referred to the Tribunal’s decision in Elkhishin and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 261, and to Hussain v Dhawan (unreported, Newcastle County Court, 7 November 2008). However, neither decision actually considered the definition of the term “structural integrity”.
47. Counsel for the Applicant noted that there was a definition of “structural integrity” contained in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and suggested that it may provide a useful guide to the definition of ‘structural integrity” for the purposes of that term as it appears in the Guidelines. However, the Tribunal does not consider it productive to refer to statutory definitions of terms in unrelated legislation.
48. Having regard to the ordinary meaning of the word “integrity” as indicated by the definition in the Macquarie Dictionary referred to in the respondent’s Statement of Facts Issues and Contentions, the Tribunal finds that the term “structural integrity” refers to the structural soundness and wholeness of a vehicle: “structural” being a reference to the structure of the motor vehicle as opposed to, for example, its mechanical operation or items purely aesthetic.
49. The Tribunal therefore asks itself the question: does the evidence in this case establish that the damage caused to the Vehicle as a result of the crash in which it was involved reduce (to any extent other than de minimus) the structural soundness and wholeness of the Vehicle before the damage was repaired?
50. For the reasons which follow, the Tribunal concludes that the evidence produced at the hearing of this matter requires that question to be answered in the affirmative.
51. First, the evidence of Mr Wallace, a qualified mechanical engineer who has spent many years in the prestige motor vehicle repair industry, was that the dents in the panels were “quite severe”.
52. Mr Wallace said that he did not think the structural integrity had been reduced because “there were no repairs required underneath the car and the panel was a simple case of unstitch it and replace it. So I don’t think how the structural integrity could have been affected by going this route of repair”. However, Mr Wallace went on to say “had we gone a route of repairing the panel as opposed to replacing it, then I suppose it could be questionable. But in this instance we have reinstated any structural concern of the car”.
53. To observe that repairing the panel as opposed to replacing it may have raised questions as to the structural integrity of the car post-repair tends to suggest that there must be at least some doubt as to the structural integrity of the car pre-repairs.
54. Mr Wallace said that he could not comment upon what was done to the welding around the parcel shelf area.
55. The applicant’s closing submissions were critical of Mr Terrell’s evidence because “he did not understand the nature of the manufacturer specified correct process of repair ... he did not understand that the welds are repaired even when they are not damaged in the process of replacing an entire panel as part of a judgement call of an experienced and authorised Maserati repairer. He assumed all these things were due to crash damage, even though he was aware that the vehicle had been repaired. That being the case, he could not possibly make an informed judgment if he believed that carefully executed repair where areas where there was crash damage, which in fact was not necessarily the case”.
56. For the reasons previously discussed, the Tribunal agrees that, to the extent that Mr Terrell expressed views that the structural integrity of the vehicle had been diminished as a consequence of repairs having been undertaken to it, such evidence does not address the true issue which the Act and Guidelines identify.
57. However, that fact does not detract from the force of Mr Terrell’s other evidence set out above and to the effect that the photographic evidence of the Vehicle prior to repair and the nature and extent of the repairs undertaken are consistent with damage which had diminished the structural integrity of the vehicle prior to its repair.
58. The Application’s Outline of Closing Submissions also included the following paragraph:

“It is respectfully submitted that an appropriate definition of structural integrity in relation to a motor vehicle ought be in line with the notion that a vehicle has structural integrity so long as the structure as a whole is still able (sic) transmit/support the loads required for safe operation. The repair process, as it was documented, explained to the Tribunal and completed by an authorised Maserati repairer to the highest standards ought not in and of itself prevent RAWS registration. If there are any remaining doubts about the structural integrity of the vehicle, a child anchorage restraint test can be completed to show without a doubt that there is no reduction in structural integrity of the vehicle. The vehicle should be given approval to be plated as it meets the criteria for RAWS registration. If there is any doubt that there has been loss of structural integrity, the vehicle can be subjected to the anchorage test and be registered upon passing the test”.

59. The Tribunal respectfully disagrees with each of the propositions contained in that paragraph for the following reasons:
    • (a) the suggested test focuses on whether or not the structural integrity of the vehicle remains fit for its purpose. The Tribunal has no doubt that the structural integrity of a vehicle may be “reduced” – which is the word used in the Guidelines – without in effect destroying the structural integrity. In other words, a vehicle may still possess “structural integrity” in the sense that it is still able to transmit/support the loads required for safe operation notwithstanding that, as a consequence of crash damage, the “structural integrity” of the vehicle as compared to that prior to sustaining crash damage has been “reduced”.
    • (b) on the basis of the Applicant’s own case (with which the Tribunal agrees), the quality of the repairs are irrelevant;
    • (c) the Tribunal must determine this case based on the evidence presented to it. It is not for the Tribunal to suggest or require that a child anchorage restraint test be performed;
    • (d) in any event, the performance of a child anchorage restraint test would appear to be of little assistance as it is not in issue that the high quality of the repairs was such that the “structural integrity” of the vehicle post repairs is not presently in question. So the Tribunal presumes that such a test would show that the structural integrity of the vehicle as it presently stands is of highest order. However, that is not to the point: the point is whether or not at some prior time, and a consequence of the crash damage, the “structural integrity” of the Vehicle had been “reduced”.
60. Having regard to the evidence referred to above, the Tribunal therefore finds that,:
    • (a) the Vehicle was involved in a “crash”;
    • (b) it thereby sustained “crash damage”;;
    • (c) the side panel, which was replaced, was extensively damaged, so as, of itself, to bring into question whether the structural integrity of the Vehicle had been reduced;
    • (d) the damage included creasing of the left hand rear panel below the rear side window and deformation around the parcel shelf and in the inner guard, both of which are structural components;
    • (e) there was deformation of the B-pillar;
    • (f) the B-pillar is a structural part of the Vehicle, being the main contributor to the side impact strength of the Vehicle, as well as attaching a door striker to the body and connecting to the roof of the Vehicle;
    • (g) the extent of the damage required part of the vehicle being removed, including the unstitching of welds, and replaced;
    • (h) the impact to which the Vehicle was therefore subjected was not merely trivial;
61. Having regard to the Tribunal’s construction of the words “a used imported vehicle must not have had its structural integrity reduced by crash damage” and the findings of fact which the Tribunal has made, the Tribunal concludes that the Vehicle had its structural integrity reduced by crash damage.
62. Accordingly, irrespective of whether or not the structural integrity of the Vehicle had been restored as a consequence of the repairs which had been made to it, by reason of sub-clause 4(1) of Schedule 1 of the Guidelines, the Respondent had no option but to refuse to approve the use of UIP on the Vehicle.
63. The reviewable decision must therefore be affirmed.

POSTSCRIPT

64. The Tribunal’s role is to determine the facts and to apply the law. That is what has been done in this case. Having done so, however, the Tribunal notes that it has considerable sympathy for the Applicant in this case.
65. The Vehicle was clearly repaired by highly experienced repairers who specialise in the repair of prestige vehicles. The repairs were carried out to the manufacturer’s specifications and there is no question as to quality of those repairs or the structural integrity of the Vehicle post repairs and prior to importation. Notwithstanding, the result is that the Vehicle has to either be exported (no doubt at considerable expense to the Applicant) or destroyed.
66. The Tribunal accepts that one of the primary purposes of the Act, Regulations, Guidelines and Determination is safety and in that context to regulate the supply of used vehicles into the Australian market. However, it appears to the Tribunal that the result in this matter is difficult to comprehend or justify on the grounds of safety or otherwise.

I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member.

.....(sgd) T Freeman...............
Associate

Dated 22 February 2013

Date(s) of hearing	7 August 2012 and 5 September 2012
Date final submissions received	30 October 2012 and 13 November 2012
Counsel for the Applicant	Ms Frances Veltman
Counsel for the Respondent	Mr M Van Brakel