Abraham Abbas v Department of Transport and Planning
[2024] VMC 11
•18 September 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
Case No. Z01875366
| ABRAHAM ABBAS | Applicant |
| v | |
| SECRETARY TO THE DEPARTMENT OF TRANSPORT AND PLANNING | Respondent |
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MAGISTRATE: | Magistrate T. W. GREENWAY |
WHERE HELD: | Melbourne Magistrates’ Court |
DATE OF HEARING: | 10 September 2024 |
DATE OF DECISION: | 18 September 2024 |
CASE MAY BE CITED AS: | Abraham Abbas v Department of Transport and Planning |
MEDIUM NEUTRAL CITATION: | [2024] VMC 11 |
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STATUTORY INTERPRETATION – Road Safety Act 1986 – Road Safety Act (Vehicles) Regulations 2021 - Whether a motor vehicle is a written-off vehicle – Repairable write-off and s 16B – When is a motor vehicle written off s 16C – Secretary of the Department of Transport and Planning refuses to remove motor vehicle from the written-off vehicles register and – Appeal to the Magistrates’ Court pursuant to s 16E(2)(c).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr. A. Strauch | RS Chase Lawyer |
| For the Respondent | Ms. A. Best | Department of Transport and Planning |
HIS HONOUR:
Introduction
Mr Abraham Abbas (Abbas) is the registered operator of a 2015 Mercedes Benz C63 AMG (Vehicle).
In this proceeding, Abbas appeals against[1] the refusal[2] of the Secretary to the Department of Transport (Secretary) to remove the Vehicle from the written-off vehicles register (WOVR).
[1] The appeal is brought pursuant to s 16E(1)(c) of the Road Safety Act 1986 (Act).
[2] The Secretary’s refusal was made pursuant to regulation 110 of the Road Safety Act (Vehicles) Regulations 2021 (Regulations).
Abbas’ contention is that the Vehicle is not a ‘written-off vehicle’ within the meaning of s 16B of the Act and this Court has the power to determine this issue by way of de-novo appeal.
In response, the Secretary submits that an Insurer of the Vehicle has already determined that it was a written-off vehicle pursuant to s 16C of the Act. When the Act is correctly construed, the Insurer’s determination is conclusive, and the appeal must therefore be dismissed.
Both parties requested a written decision, as the legal issue raised in this appeal is contentious and may apply beyond the parties to the proceeding.
Before addressing the competing interpretations of the parties, it is necessary to set out the brief facts of the dispute and the relevant statutory provisions.
Facts and Applicable Statutory Provisions
Abbas became the registered operator of the Vehicle on 27 March 2023. At all relevant times, the Vehicle was insured by Insurance Australia Limited in the course of its business (Insurer). The Vehicle was damaged in a collision on 25 August 2023.
Abbas lodged a claim with the Insurer on or around 29 August 2024. The Insurer then referred the claim for internal investigation. Following an exchange of correspondence, the Insurer declined the claim on 27 November 2023.
On or around 6 December 2023, the Secretary received an electronic notification (Notification) from the Insurer through the ‘MyVicRoads Partner Portal’.
The ‘MyVicRoads Partner Portal’ provided information regarding the Notification, indicating that the Vehicle had sustained damage in an incident on 25 August 2023 and had been assessed as a repairable write-off.
The definition of write-off vehicle is found in s 16B:
(a) a written-off vehicle means
(i) a statutory write-off; or
(ii) a repairable write-off.
(b) a statutory write-off means a motor vehicle to which section 16BA applies;
(c) a repairable write-off means a motor vehicle that –
(i) is written off but is not a statutory write-off; or
(ii) is written off and is entered on an interstate written-off vehicles register in a corresponding category to repairable write-off under this Division.
Whenever a vehicle is written off, regulation 101 of the Road Safety (Vehicles) Regulations 2021 (Regulations) requires Insurers to inform the Secretary of certain information:
(a) the usual information; and
(b) whether the motor vehicle is a statutory write-off or a repairable write-off; and
(c) a statement of the event or circumstances that, in the opinion of the insurer or self-insurer, resulted in the motor vehicle being a statutory write-off or repairable write-off, described by reference to codes or terms approved by the Secretary from time to time; and
(d) the location and severity of the damage to the motor vehicle, described by reference to codes or terms approved by the Secretary from time to time; and
(e) the date on which the information in paragraphs (a) to (d) is lodged with the Secretary.
Regulation 107 provides that the Secretary must enter details of a motor-vehicle on the WOVR, if information about the vehicle is given by an insurer under regulation 101. This occurred in the present case.
The Note appended to regulation 107 refers to s 16D(2A) and adds the following:
Section 16D(2A) of the Act states that, in entering a motor vehicle on the register of written-off vehicles, the Secretary is entitled to rely on a determination made by an insurer or self-insurer under section 16C(1)(b) that a written-off vehicle is a statutory write-off or a repairable write-off and is not required to make any enquiries of the Secretary's own in relation to the matter before entering the motor vehicle on the register.
On 6 December 2023, the Secretary entered the Vehicle into the Written-Off Vehicle Register (WOVR). Under s 16D of the Act, the Secretary is obliged to maintain a WOVR that:
(a) includes vehicles of the class or classes prescribed by the regulations; and
(b) is kept in the manner prescribed by the regulations.
Further, by s 16D(2) of the Act, entries on the WOVR may be made, amended and removed only in accordance with the Regulations.
The entry on the WOVR recorded the following details pertaining to the Vehicle:
(a) its registration number (CJN538), year of manufacture (2015), and its make and body type (Mercedes B sedan);
(b) information about the registered owner, such as their name, address, and licence status;
(c) the date of the incident that led to the Vehicle being designated as written-off, which occurred on 25 August 2023;
(d) the date the Vehicle was officially determined to be written off, recorded as 6 December 2023;
(e) the classification of the Vehicle as a Repairable Write-Off (R);
(f) the write-off codes: 101AI02A; and
(g) the credential of the user who entered the Vehicle into the WOVR, identified as LLMPERAF, which is known to be associated with the Insurer.
On 6 December 2023, the Department of Transport and Planning (Department) sent an automated letter to Abbas, informing him that the Vehicle had been recorded on the Written-Off Vehicle Register (WOVR) and that its registration would be cancelled.
On 22 December 2023, Abbas’ solicitors wrote to the Department regarding its decision to enter the Vehicle on the WOVR. That letter stated:
Dear Sir/Madam,
I act for Mr Abraham Abbas, the registered operator of the above vehicle.
I write to you with reference to Road Safety (Vehicle) Regulations 2021, sections 139-142. By letter from VicRoads, my client received notification that his vehicle would be listed on the WOVR as a repairable write-off.
I submit this email for review of the above decision. In support of this submission, I have attached a copy of a quotation for repair prepared by Maidstone Auto and Body, which is independently assessed by Accident Assessing Services.
You will note that the repair cost of the vehicle is significantly less than the market value less salvage. The damage is not severe enough to render the vehicle a repairable write-off, and the vehicle is economical to repair.
Based on the above, we request the previous WOVR notification as a repairable write-off be withdrawn.
As stated above, regulations 139 to 142 granted a right of internal review to Abbas, as the registered operator of the vehicle. The decisions amenable to internal review pursuant to regulation 139 were decisions by the Secretary:
(a) to enter or refuse to enter a vehicle on the register of written-off vehicles; or
(b) to refuse to remove an entry from the register of written-off vehicles; or
(c) to amend, or refuse to amend, an entry, on the register of written-off vehicles.
In addition, regulation 110 provided a right for Abbas to make application for the Secretary to remove the Vehicle from the WOVR. Regulation 110 provided:
Removal or amendment of entries on the register of written-off vehicles
1. The following persons may apply to the Secretary for an entry of a motor vehicle on the register of written-off vehicles to be removed or amended—
a.…
b.a person who was the registered operator of the motor vehicle when it became a written-off vehicle or, if the registration of the motor vehicle was already cancelled, the registered operator immediately before that cancellation;
c.…
2.The Secretary may require an applicant under subregulation (1) to lodge with the Secretary evidence, in a form acceptable to the Secretary—
a.of the applicant's personal particulars or corporation particulars; or
b.that the applicant is a person referred to in subregulation (1); or
c.of the vehicle particulars, condition, ownership, possession, or control of the vehicle.
3.If, after considering the application, the Secretary is satisfied that the motor vehicle was not a written-off vehicle when it was entered on the register, the Secretary may remove the entry relating to that motor vehicle.
4.If, after considering the application, the Secretary is satisfied that the motor vehicle did not satisfy the criteria for the category of written-off vehicle under which the motor vehicle was registered when it was entered on the register, the Secretary may amend the entry—
a.in the case of a statutory write-off—by amending the entry to a repairable write-off; or
b.in the case of a repairable write-off—by amending the entry to a statutory write-off.
5.If the Secretary refuses the application, the Secretary must give the applicant written notice of—
a.the applicant's right to internal review of the decision under Subdivision 2 of Division 12 of this Part; and
b.the applicant's right under section 16E of the Act to appeal against the refusal.
Upon receipt of the 22 December 2023 letter, the Department requested further materials from the Insurer regarding its assessment of the Vehicle. On 2 January 2024, the Insurer provided a Motor Vehicle Assessment Report of Vic Metro Assessing (Insurer’s Assessment). The Insurer’s Assessment does not contain an itemised breakdown of the cost of repairs. It also is a stand-alone assessment, in that it does not purport to assess a motor vehicle repairer’s quotation.
The Insurer’s Assessment recorded a pre-accident value of $91,720 and a salvage value of $40,000. In respect of the cost of repairs, the Insurer’s Assessment stated as follows:
Remove & Refit: $4,188.00
Repair: $650.00
Paint: $6,515.00
Total Labour: $11,353.00
Parts: $44,224.73
Mechanical: $715.00
Misc: $2,411.00
Total excl GST: $58,703.73
GST: $5,870.37
Total incl GST: $64,574.10
Less Excess to be Collected: $0.00
Total Payable to Repairer: $64,574.10
The Insurer’s Assessment recorded an excess $12,854.10, being $104,574.10 (total of repair costs and salvage value) less the pre-accident value of $91,720.
The Secretary’s evidence as to why this information was requested was as follows:
Specifically, the Department sought the materials to verify that they substantiated the Insurer’s determination that the Vehicle met the definition of a written-off vehicle under the [Act].
Those materials supported the Insurer’s determination that the Vehicle met the definition of a written-off vehicle under the RSA. In other words, they confirmed that there was no error, such as an arithmetical mistake, affecting the Insurer’s determination. Had such an error been detected — for instance, if the Insurer had incorrectly calculated whether the Vehicle's fair salvage value, together with the cost of repairing it for use on a road or road-related area, would exceed its fair market value immediately before the event or circumstances that caused the damage, the Department would have contacted the Insurer to request a review of its determination that the Vehicle was a written-off vehicle.
On 24 January 2024, the Department sent a letter of determination for the Internal Review to the Appellant. That determination was as follows:
Thank you for your correspondence received 22 December 2023 requesting an internal review on behalf of your client Abraham Abbas, of the decision to record the above vehicle on the Written-Off Vehicles Register (WOVR) as a Repairable Write-Off (RWO).
What was reviewed?
I have reviewed the details in your submission, together with information provided to VicRoads by the insurance company. Legislation provides the authorisation for an insurance company (whether or not the insurer of the vehicle) to assess and record a vehicle as a write-off on the WOVR. Also, as a matter of interest, the insurance company, whether or not the insurer of the vehicle, must record the details of the assessment, irrespective of whether the claim is resolved, withdrawn or is being disputed.
Whilst in some instances a vehicle will require minimum repair or it may be possible to be repaired in a more economical manner, an insurance company is unable to settle a claim with an insured party in this manner.
The vehicle was recorded on the WOVR as a repairable write-off with an incident date 25 August 2023 and was recorded as having sustained heavy panel impact damage to the driver front and heavy panel impact damage the passenger front.
Under the legislation, a vehicle must be recorded on the WOVR if it is assessed as a write-off and is less than 15 years old at the time of incident. The insurer determined that the vehicle was 8 years at the time of the incident, and that the extent of the vehicle damage was such that the salvage value plus the estimated cost of repairing the vehicle would be more than its pre-accident fair market value, and subsequently recorded the vehicle as a repairable write-off.
What is the outcome of my review?
In this instance, as the insurer has provided information to VicRoads confirming that the vehicle was correctly assessed in accordance with the legislation, I affirm VicRoads’ decision to record this vehicle on the WOVR as a repairable write-off and cancel the registration.
How can I maintain the registration of the vehicle?
As previously advised, a Vehicle Identity Validation (VIV) certificate and Certificate of Roadworthiness (RWC) are required for registration of a vehicle recorded as a repairable write-off.
Please note that the damage which caused the vehicle to be entered on the WOVR must be repaired, restored, or replaced to be issued a VIV certificate. Important information regarding written-off vehicles and repair requirements can be accessed on the VicRoads website:
You should familiarise yourself with the requirements to minimise any delays or further costs.
What are my options?
If you disagree with the determination from the insurer regarding the market value of the vehicle, the salvage value, or the repair costs and with their decision to declare the vehicle as a write-off I suggest that you immediately contact the Australian Financial Complaints Authority (AFCA) and/or seek independent legal advice as to your legal options.
If you do not agree with the outcome of this internal review, you may appeal to the Magistrates’ Court within 28 days of being notified of this decision.
What is the relevant legislation?
In this instance, VicRoads is acting in accordance with the following: Section 16C (1)(b) of the Road Safety Act 1986 and regulation 134 of the Road Safety (Vehicles) Regulations 2021. For more information, please visit type="1">
On, 6 March 2024, Abbass filed the Notice of Appeal. Section 16E of the Act sets out the relevant considerations of appeals to the Magistrates’ Court. It provides:
16E Appeals regarding written-off vehicle registration
(1) If the Secretary decides to:
a. …
b. …
c. Refuse to remove an entry from the register of written-off vehicles—
a person referred to in subsection (2) may appeal against that decision to the Magistrates’ Court in accordance with the regulations.
(2) An appeal may be made under subsection (1) by –
a. …
b. the person who was the registered operator of the vehicle when it became a written-off vehicle or, if the registration of the vehicle was then cancelled, immediately before that cancellation;
c. …
(2A) A person may only appeal on one or more of the following grounds-
a. …
b. …
c. in the case of an appeal against a refusal to remove an entry, that the vehicle was not a written-off vehicle when it was entered on the register.
(3) On an appeal under subsection (1), the court must –
a. re-determine the matter of the decision; and
b. hear any relevant evidence tendered by the appellant and the Secretary; and
c. without limiting its discretion, take into consideration anything that the Secretary ought to have considered.
(3A) …
(4) The Secretary must give effect to the decision of the Magistrates’ Court on an appeal.
Abbas also relied upon an affidavit sworn by Mr Joseph Vojtek, motor vehicle assessor (Vojtek).
Vojtek was engaged by Abbas to assess the Vehicle. Vojtek observed the Vehicle had sustained damage to the front bumper, support guards, condenser skirts, bonnet, hinges, head lamps, and under body brackets.
To complete his assessment, Vojtek reviewed a quotation for repairs to the Vehicle prepared by Maidstone Smash Repairs in the sum of $41,508.50 (Quotation). Vojtek made minor adjustments to the Quotation and determined the fair and reasonable costs of repairing the vehicle were $41,013.50 (Vojtek Assessment). In his opinion, the damage sustained in the collision did not render the Vehicle uneconomical to repair.
The Vojtek Assessment recorded a pre-accident value of $81,900 and a salvage value of $28,000. In respect of the cost of repairs, the Vojtek Assessment recorded the following:
Remove & Refit: $4,695
Repair: $270
Paint: $3,225
Total Labour: $8,190
Parts: $2,693
Misc: $2,694
Total excl GST: $37,285
GST: $3,728
Total incl GST: $41,013.50
Abbas’ Submissions
Abbas submitted that the appeal was brought pursuant to s 16E(1)(c) of the Act. The decision appealed from was the Secretary’s refusal to remove the Vehicle from the WOVR. Notwithstanding the ambiguity in the 22 December 2023 and 24 January 2024 letters, the relief sought by Abbas was for the “WOVR notification [of the Vehicle] as a repairable write-off [to] be withdrawn.”.
The central argument advanced by Abbas was one of statutory construction. It was submitted that s 16E(3) conferred a discretion upon this court to re-determine the matter of the decision of the Secretary, notwithstanding the Insurer’s Determination. The ‘matter of the decision’ was whether the Vehicle was a written off vehicle when it was entered on the register.
Abbas pointed to the definition of repairable write-off in s 16B, contrasted with the mechanism of when a vehicle is written off in s 16C. Abbas submitted that the definition is not limited to a single factor, such as an Insurer’s determination.
Further, regulation 110 granted Abbas a right to apply to have the Vehicle removed from the WOVR. As occurred here, evidence may be lodged with the Secretary of the ‘particulars, condition, ownership, possession or control of the vehicle’. Abbas submitted that evidence of the vehicle’s condition’ was an important additional factor that the Secretary was required to consider under regulation 110(3). The Secretary would not be required to consider such evidence, if an insurer’s determination under s 16C(1)(b) was conclusive.
If the Insurer’s Determination resolved the question of whether the Vehicle was a written-off vehicle at the time it was entered on to the WOVR, an application to the Secretary for its removal, and an appeal to this court, would be largely futile. Alternatively, the effect of regulation 110[3] and s 16E(3)[4] would be significantly curtailed. Such a construction ought not be accepted in the absence of a clear statutory intention.
[3]the Secretary’s consideration of a removal application.
[4] the Court’s de-novo re-determination of the matter of the decision, hearing of any relevant evidence, and exercise of discretion.
Rather, the court should give an interpretation to the Act that, upon a s 16E(1)(c) appeal, the court is conferred a discretion to consider whether a vehicle is written off. This would require the court to assess the criteria underlying the Insurer’s Determination. Such an interpretation would allow the court to interrogate an Insurer’s Determination for factual errors. If this was not contemplated, insurer’s determinations that were factually incorrect would be conclusive.
If Abba’s construction was accepted, the Court should prefer the Vojtek Assessment to the Insurer’s Assessment, as the latter did not provide sufficient particularity or supporting documentation to support its conclusions.
Secretary’s Submissions
Notwithstanding some ambiguity in the 22 December letter, the 24 January 2024 letter and Notice of Appeal, the Secretary agreed to treat the appeal as properly brought pursuant to s 16E(2A)(c).[5]
[5] Paragraph [2] to [6] of the Secretary’s submissions dated 9 July 2024.
On the proper construction of s 16E of the Act, the Secretary submitted that an appeal constitutes a de novo hearing, involving a re-determination by the Court of the Secretary’s decision. The Court must, therefore, substitute the Secretary’s decision with its own by way of a re-determination.
The role of the Court in a s 16E appeal was to arrive at the ‘correct or preferable decision’ whilst remaining subject to the general constraints that applied to the administrative officer.[6]
[6]Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J).
Principally, the Secretary submitted that the court’s discretion conferred by s 16E(3)(c) was constrained by the statutory definition of ‘when a vehicle is written off’ in s 16C. That is, to the extent of any inconsistency, s 16E(3)(c), as a subordinate provision, must give way to s 16C(1) as the leading provision. This construction achieved a harmonious interpretation of the Act.
It follows that the only question before the Court on appeal was whether the Vehicle was written off at the time it was added to the WOVR. The Secretary submitted that this question must be answered in the affirmative, as s 16C provided a decisive and exhaustive definition of when a vehicle is written off – in this case, the Insurer’s Determination.
Such a conclusion was reinforced by the explanatory memorandum to the bill introducing this provision (EM). Relevantly, the EM stated:
Proposed new section 16C explains when a vehicle is to be taken to be written-off for the purposes of the new Division. A vehicle will be written-off if it has been damaged so badly that the insurer, self-insurer, or uninsured registered operator determines the cost of repair as more than the vehicle is worth.
Without limiting this meaning of “written-off,” the new section 16C goes on to provide that if an insurer, self-insurer, or uninsured registered operator takes certain actions, they must be taken to have determined that the vehicle concerned is a write-off.
These cases include the insurer allowing a claim for a vehicle’s full value, an insurer or self-insurer disposing of a damaged vehicle to a third party, or a registered operator disposing of a vehicle to a motor wrecker.
The reason for this provision is to simplify proof, in any subsequent legal proceedings, that a person made a write-off determination where the person’s conduct makes it clear that this had occurred.
The centrality of an insurer’s determination under s 16C(1)(b) was reinforced by other regulations. These included regulations 107 and 108. Regulation 107 confirmed the effect of s 16C(1)(b) and the obligation on the Secretary to enter the subject vehicle onto the WOVR. Regulation 108 stipulated what vehicles must be included on the WOVR. Importantly, vehicles that were subject of a determination made under s 16(C)(1)(b) must be included on the WOVR.
Finally, the Secretary contended that the matters constituting the Insurer’s Determination under s 16C(1)(b) had been established and were conclusive. Even if another expert formed the view that the Vehicle was not a write-off, this would not change the fact that the Insurer had formed the contrary view and made a s16C(1)(b) insurer’s determination. For the purposes of the relevant division of the Act and Regulations, the Vehicle was a write-off when the entry was made on the WOVR.
Such an interpretation should be preferred, as it supported the Act’s purpose for transparency of vehicles’ damage and repair, and most importantly, safety, across the national road network.
Applicable Legal Principles
The principles of statutory interpretation are well established.[7]
[7] Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267, [53]-[62].
The High Court has stated on many occasion that the task of statutory construction must begin with a consideration of the text. The text, however, is to be considered in light of the context and purpose of the statute or particular provision.[8]
[8] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan, and Kiefel JJ).
The primary object of statutory construction is to construe the relevant provision(s) so that they are consistent with the language and purpose of all the provision of the statute. That is, statutory construction requires deciding what is the legal meaning of the relevant provision by reference to the language of the instrument viewed as a whole, and the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.[9] The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.[10]
[9] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby, and Hayne JJ) (Project Blue Sky).
[10] Ibid at [78].
Inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction that is reasonably open and more clearly conforms to the legislative intent.[11]
[11] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
The potential consequences of the competing constructions must be considered. In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation,[12] the High Court has said:
If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
[12] (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
Similarly, where two statutory provisions conflict, Gummow J described the correct approach to their statutory interpretation as:
The Court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In A.M.P. Inc. v Utilux Pty Ltd (1972) RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.[13]
[13] Minister for Resources and Anor v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 (Hill and Cooper JJ agreeing).
This statement was cited by the High Court in Project Blue Sky as supporting the following propositions:
Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result that best gives effect to the purpose and language of those provisions, while maintaining the unity of all the statutory provisions.
…
Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other." Only by determining the hierarchy of the provisions will it be possible, in many cases, to give each provision the meaning that best gives effect to its purpose and language, while maintaining the unity of the statutory scheme.[14]
[14] Project Blue Sky, 382.
Finally, extrinsic materials or the history of the statute may only be used to resolve ambiguity or uncertainty but should not displace the meaning of the text.[15]
[15] Section 35(b) of the Interpretation of Legislation Act 1984.
Determination – Statutory Construction
The provisions in question form part of Division 3 – Written-off vehicles. The purposes of this Division are:
(a) to curtail trade in stolen motor vehicles by preventing vehicle information about written-off vehicles, particularly vehicle identifiers, from being used to register stolen motor vehicles;
(b) to facilitate inspections of written-off vehicles that have been repaired;
(c) to make information available to prospective purchasers about whether a motor vehicle has previously been written off.
The central concept of Division 3 is a ‘written-off vehicle’. The Secretary must maintain a register of written-off vehicles[16] to advance the purposes of the Division.
[16] s 16D of the Act.
The definition of written-off vehicle is expressly provided by s 16B – in this case, a repairable write-off. In turn, this is defined to mean a motor vehicle that ‘is written off but is not a statutory write-off’.
There is no definition of ‘written off’ in s 16B. Rather, for the purposes of Division 3, a motor vehicle is written off in the circumstances set out in s 16C. A vehicle is written off under s 16C(1) if:
(a) the vehicle has been damaged in a collision; and
(b) an insurer… makes a determination that the extent of the damage is such that the vehicle’s fair salvage value plus the cost of repairing it for use on a road or road related area would be more than its fair market value immediately before the event or circumstances that caused the damage.
It is the clear statutory intention that an insurer’s determination under s 16C(1) is a sufficient basis for the Secretary to enter the subject vehicle onto the WOVR. This is apparent from the effect of s 16D(2A) and regulations 107 and 108. Importantly, before making the entry, the Secretary is not required to make any enquiries in relation to the subject matter of the insurer’s determination.
The Act, however, does not contain a similar provision regarding the Secretary’s task when considering whether to remove a registration. This would suggest that the Secretary is required to perform a particular function.
The Act makes clear that an entry on the WOVR may only be removed in accordance with the regulations.[17] The relevant regulation is regulation 110, which grants a registered operator of a vehicle a right to apply to the Secretary to have a WOVR entry removed. The standing to make such an application also includes ‘a person who gave the Secretary notice that the motor vehicle was a ‘written-off vehicle’ – i.e., an insurer.
[17] s 16D(2) of the Act.
Under regulation 110(2), the Secretary may require an applicant to lodge evidence as to the condition of the vehicle. Whilst this is expressed permissively, where such evidence is lodged, the Secretary is obliged to consider it. This would accord with principles of procedural fairness, noting that prior to this point, the applicant has had no input into a decision of an insurer which affects their interests.
The obligation to consider the evidenced lodged is found in regulation 110(3). That regulation provides:
If, after considering the application, the Secretary is satisfied that the motor vehicle was not a written-off vehicle when it was entered on the register, the Secretary may remove the entry relating to that motor vehicle. [emphasis added]
After making the determination, the Secretary is required to give the applicant written notice of a right to appeal against the refusal under s 16E of the Act
Section 16E of the Act then sets out this court’s jurisdiction as to an appeal. Again, the standing to appeal is conferred not only on the registered operator of the vehicle, but also a person who notified the Secretary that the vehicle was a written-off vehicle.[18]
[18] s 16E(2)(a) and (b) of the Act.
The Act then prescribes the grounds of appeal in s 16E(2A). Relevantly, where the decision of the Secretary was a refusal to remove an entry, the ground of appeal is confined to whether the vehicle was not a written-off vehicle when it was entered on the register.[19]
[19] s 16(2A)(c) of the Act.
On an appeal, the court must do the following:
(a) re-determine the matter of the decision; and
(b) hear any relevant evidence tendered by the appellant and the Secretary; and
(c) without limiting its discretion, take into consideration anything that the Secretary ought to have considered. [20]
[20] s 16(2A)(3) of the Act.
Accordingly, the matter of the decision on appeal is whether the vehicle was not a written-off vehicle when it was entered on the WOVR. Returning to the Secretary’s submission, it was contended that the Vehicle was written off because:
(a) the Vehicle was damaged in a collision;
(b) the insurer made a determination under s 16C;
(c) therefore pursuant to regulations 107 and 108, the Secretary was mandated to enter the Vehicle onto the WVOR; and
(d) therefore it was a written-off vehicle, being a repairable write-off, at the time it was entered on the WOVR.
On this interpretation and factual scenario, it is difficult to envisage a situation where the Secretary considering an application, or a court re-determining the matter, would have any discretion to remove an entry from the WOVR. This would significantly curtail the practical operation of regulation 110 and s 16E. Such an outcome would be unusual in circumstances where the Act expressly confers such a discretion on the court and a mandatory consideration to hear any relevant evidence tendered by both parties. The fact that an insurer’s determination had been made would usually bar a vehicle removal from the register. Applying ordinary principles of statutory construction, I consider the court should not read down the court’s appellate function under s 16E(3), unless that is the clear legislative intent.
In my view, there is an alternative interpretation that produces a more reasonable result. Both the Secretary on considering an application, and the Court re-determining the matter, are empowered to consider whether there has been a determination in accordance with s 16C of the Act.
The central concept of a ‘written-off vehicle’ is the formula expressed in s 16C(1)(b), namely, where an insurer… makes a determination that the extent of the damage is such that:
(a) the vehicle’s far salvage value; plus
(b) the cost of repairing it on a road or road related uses; would be more than
(c) the fair market value of the vehicle immediately before the event or circumstances that caused the damage.
The ordinary and natural meaning of a ‘determination’ is a decision or conclusion on a particular matter. In order to make the s 16C determination, the insurer must decide to ascribe a value to each of the subject matters above. Two of those matters must be ‘fair’.
By permitting an applicant to lodge evidence of the vehicle’s condition with the Secretary, and with the Court, a registered operator is challenging the insurer’s determination. Put another way, the applicant is contending that there is no insurer’s determination because the values ascribed to matters within the determination were not ‘fair salvage value’, or ‘fair market value’, or were not the costs of repairs.
This interpretation accords with the legislative purpose behind the writing off of certain vehicles. The corollary is that where the combined costs of repairs to a motor vehicle and the fair salvage value is less than its fair market value prior to the collision, the vehicle should not be written-off vehicle.
Such an interpretation also permits the Court, on appeal, to determine whether an insurer’s determination was erroneous or contained an arithmetic error. In the absence of such an appeal, a mistake in an insurer’s determination would not be addressed, as it would be conclusive. That would be an unintended consequence.
Accordingly, I consider that s 16E of the Act permits the Court to consider whether the components that comprise the Insurer’s Determination are valid.
Determination – written-off vehicle
The parties agreed that if Abbas’ construction of the Act was preferred, the Court should determine the appeal on the basis of the affidavits filed by the parties. Accordingly, there was no cross-examination of the relevant witnesses.
The Secretary relied upon the Insurer’s Assessment, while Abbas relied upon the Vojtek Assessment.
After considering the parties evidence, the Court must determine the vehicle’s fair salvage value, the cost of repairing the vehicle for use on a road, and its fair market value. If the costs of the two former matters are more than the latter, the Vehicle was a written-off vehicle when it was entered on the WOVR.
Fair salvage value
The parties’ respective evidence on this issue was relatively brief. The Insurer’s Assessment of the fair salvage value was set out in a table entitled “Prior Accident Value Calculation”. The value ascribed was $40,000 and the salvage provider was “Pickles”. There was no other supporting evidence, such as an email confirming the salvage price from Pickles.
Similarly, the Vojtek Assessment expressed the fair salvage value as: “German Star $28,000.00, German Star $25,250.00 Motor sport $24,500”. Again, there was no further supporting evidence, or emails confirming the offers for these salvage figures.
In order to allow the appeal on this question, the Court must feel an actual persuasion that the Vehicle was not a write-off within the meaning of the Act at the time it was entered onto the WOVR. This requires positive evidence adduced by Abbas, being the party who asserts the existence of the relevant fact.[21]
[21]Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, 305 (Todd J).
On the basis of Vojtek Assessment, I am not satisfied that Vojtek Assessment displaces the fair salvage value of $40,000 ascribed in the Insurer’s Assessment.
Accordingly, I find the fair salvage value was $40,000.
Cost of repairing the vehicle for use on a road
The competing cost of repairs set out in the parties’ assessments may be conveniently set out in tabular form:
Insurer’s Assessment
Vojtek’s Assessment
Remove & Refit: $4,188
Remove & Refit; $4695
Repair: $650.00
Repair: $270
Paint: $6,515.00
Paint: $3,225
Total Labour: $11,353.00
Total Labour: $8,190
Parts: $44,224.73
Parts: $26,402
Mechanical: $715.00
N/A
Misc: $2,411.00
Misc: $2,693
Total excl GST: $58,703.73
Total excl GST: $37,285
GST: $5,870.37
GST: $3,728
Total incl GST: $64,574.10
Total incl GST: $41,013.50
Abbas submitted that the values in the Insurer’s Assessment contained no underlying workings. For example, there was no clear hourly rate for labour, the only value being $1 per hour. On this basis, the Court should prefer the values of the Vojtek Assessment, where the costs of a repairer had been individually itemised and then assessed.
I accept this submission. It is not possible to interrogate the individual items or hourly rates set out in the Insurer’s Assessment. As the Vojtek report represents a superior methodology of the repair costs, those values should be accepted.
Secondly, I also prefer the Vojtek Assessment’s value on the parts to be supplied. The parts in the Insurer’s Assessment were ‘OEM’ – Original Equipment Manufacturer while the parts stipulated by the Vojtek Assessment were ‘used’. Given the Vehicle was a 2015 model, and the cost of repairs were to be assessed ‘for use on a road or road related area’, I consider that second-hand parts were more appropriate in this case.
Accordingly, I find the costs of repairs was $41,013.50.
Fair market value immediately before the event or circumstance that caused the damage
The fair market value must be assessed at the time immediately before the collision – being 25 August 2023. The Vehicles odometer was 81,230kms.
The Insurer’s Assessment determined the fair market value of the Vehicle at $91,720. This was the average of four examples:
(a) Glass’s Guide (with KMS Adjust) $85,880.00;
(b) Online example 1 $99,000.00; KMS 63,500;
(c) Online example 2 $89,500; KMS 59,255;
(d) Online example 3 $92,500; and KMS 59,975.
The Glass’s Guide exhibited to the Insurer’s Assessment contained no specific date as to the figures. The determination of fair market value was $85,880, being the Glass Value of $82,900 plus $2,980 on account of a kilometre adjustment. The online examples were not exhibited to the Insurer’s Assessment.
The Vojtek Assessment purported to give a valuation of $81,900 for the Vehicle as of December 2023. It exhibited a Glass valuation for the period of May 2023 to April 2024. The Glass figure in August 2023 was $84,500.
Doing the best I can on the evidence, I consider the fair market value of the Vehicle immediately prior to the collision was $85,190. This figure is derived from the average of the Insurer’s adjusted Glass valuation of $85,880 and the Glass valuation in August 2023 of $84,500. I consider these figures best represent the fair market value of the Vehicle prior to the collision. The online examples referred to in the Insurer’s Assessment each have significantly lower odometer readings. Further, I consider Online Example 1 to be an outlier, as it has a higher odometer reading than the other examples, but also has a higher valuation.
Accordingly, I find the fair market value of the Vehicle immediately prior to the collision was $85,190.
From these determinations, I find that the Vehicle was not a written-off vehicle when it was entered on the WOVR - $40,000 plus $41,013.50 ($81,013.50) being less than $85,190.
I will therefore direct, pursuant to s 16E(4) of the Act, that the Secretary remove the entry of the Vehicle from the WOVR.
I will otherwise hear the parties on any further orders and the question of costs.
MAGISTRATE GREENWAY
18 September 2024
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