Brown and Minister for Transport and Regional and Services

[2006] AATA 33

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 33

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/145

GENERAL ADMINISTRATIVE  DIVISION		)
Re		REBECCA JAYNE BROWN

Applicant

And MINISTER FOR TRANSPORT AND REGIONAL SERVICES

Respondent

INTERLOCUTORY DECISION

Tribunal Ms A F Cunningham (Part-Time Member)

Date17 January 2006

PlaceHobart

Decision The application for extension of time is refused.

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

Part-Time Member

CATCHWORDS

Application for extension of time – application ten months out of time – whether acceptable explanation for delay – whether fair and equitable in the circumstances – applicant aware of appeal rights – merits of substantive application not satisfactorily addressed – no acceptable explanation for the delay – application refused

Administrative Appeals Tribunal Act 1975, S29(7)

Hunter Valley Developments Pty Ltd v Cohen 1984 FCR 344   Kuljic v Secretary, Department of Social Security 1994 33 ALD 121   Johnson and Commonwealth (5 January 1990, 5619)   Cates and Minister for Transport and Regional Services [2004] AATA 105   Zizza v The Federal Commissioner of Taxation 1999 55 ALD 451

REASONS FOR INTERLOCUTORY DECISION

17 January 2006  Ms A F Cunningham (Part-Time Member)         

1. This was an application made pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (the Act) for an extension of time in which to lodge an application for the review of a decision. The decision which it is sought to review is dated 3 December 2004.

2.      This application for an extension of time was made on 5 October 2005 some 10 months after the original decision.  The decision was to refuse the applicant’s application for the importation of 41 China Longstar GA-646B petrol scooters on the basis they are designed primarily for on-road use and as such are subject to the Australian Design Rules.  The applicant requested a reconsideration of the decision contending that the vehicles are not designed primarily for on-road use.  The original decision was upheld.

3.      The application for extension of time is opposed by the respondent on the basis that there is no acceptable reason for the 10 month delay and that the substantial application for review lacks merit.

4.      The applicant contended that she had queried the original decision and had been in telephone contact with departmental officers following receipt of the decision.  The applicant subsequently decided to accept the decision, but changed her mind after seeing like vehicles on display in Victoria and advertised for sale in Tasmania.

5. An appeal to this Tribunal is to be made within 28 days of the reviewable decision. Sub-section 29(7) of the Act states:

“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

6.      It was stated by Justice Wilcox in the decision Hunter Valley Developments Pty Ltd v Cohen 1984 3 FCR 344 at page 348:

“The “prescribed period” of twenty-eight days is not to be ignored.  Indeed, it is a prima facie rule that proceedings commenced outside the period will not be entertained.

It is a precondition to the exercise of the discretion in his favour that the application for an extension of time show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time”.

7.      The Tribunal in re Johnson and Commonwealth (5 January 1990, 5619) listed the relevant considerations in determining whether it is proper to entertain an application for an extension of time as being:

1.  whether or not the applicant rested on her rights or took action to make the      decision-maker aware that the decision was contested; 

2. any prejudice to the respondent that would be caused by granting the     extension of time;

3. any wider prejudice to the general public in terms of disruption to            established practices;

4.  the merits of the substantive application;

5. fairness in granting the extension of time as between the applicant and other persons in a like position

8.      The applicant was clearly aware of her appeal rights to the AAT and after initially questioning the Minister’s decision, decided to explore the possibility of returning the scooters to China.  The Tribunal was informed that the applicant continued her telephone enquiries of the Department until mid-January.  The 28 day period in which the applicant could apply to the AAT for a review of the decision expired on 11 January 2005.  It was contended that the applicant had not rested on her rights but up until at least mid-January 2005 continued to dispute the decision to refuse vehicle import approval for the scooters.  The applicant had advised that an appeal to the AAT was being considered. 

9.      After ascertaining the cost of returning the items to China, the applicant then investigated on-selling the scooters to New Zealand.  Prior to doing so, she had cause to travel to Melbourne and visited a retail outlet where she saw mopeds and scooters very similar to the ones for which import approval had been refused to her.  In September 2005 the applicant discovered similar items for sale advertised in the Trading Post in Tasmania.  It was at this point that she decided to pursue the issue and instructed a solicitor to lodge an appeal with the AAT.

10.     It was the applicant’s belief after sighting similar vehicles in Victoria and Tasmania that her application had some prospect of success.

11.     It was contended on behalf of the applicant that no prejudice would be occasioned to any party other than the applicant as she was meeting the storage costs since the goods had been quarantined.

12.     Mr Palfrey contended on behalf of the respondent that the prejudice suffered by the respondent was the lack of certainty of outcome and finality.   Mr Palfrey contended that the 28 day statutory period should not be disregarded and served the purpose of providing certainty and finality to decisions.

13.     The applicant did not address the issue of the merits of the substantive application in any depth.  Mr Hall argued that it was not clear why import approval had been granted for the pocket bikes which also produced an out-put of over 200 watts and was refused with respect to the scooters.  Mr Palfrey contended that the primary purpose of the pocket bikes was not on-road use.  He was unable to inform the Tribunal of the specific design features that distinguished the pocket bikes from the subject scooters.

14.     Mr Palfrey referred to Tribunal’s decision of Cates and Minister for Transport and Regional Services [2004] AATA 1005 which considered the meaning of the term “on-road”. The Tribunal there defined the word “on-road” in broad terms which included the definition of road under the co-operative Commonwealth and State and Territory legislation covering road transport. These enactments state that the term “road” includes “road related area” which in turn includes “footpath, nature strip, area that is open to the public and designated for use by cyclists or animals or an area that is not a road and that is open or used by the public for driving, riding or parking vehicles”. (paragraphs 26 to 27).

15.     It was contended on behalf of the respondent that the subject scooters are clearly designed for use on flat surfaces such as footpaths, cycling paths, medium strips and other road-related areas.  They do not contain any off-road characteristics that would characterise them as being designed for “off-road” use. 

16.     Mr Palfrey pointed out that where scooters are designed principally for the transport of people on roads and on road-related areas they are subject to compliance with the Australian Design Rules.  It was not in dispute that the scooters do not comply with the Australian Design Rules.  As stated in the Cates decision, motor-scooters with a power output exceeding 200 watts are regarded by all State and Territory legislatures as road vehicles that are prohibited under the Australian Design Rules from road-related areas.  As such the scooters are non-standard road vehicles and may not be imported without the approval of the Minister.  Mr Palfrey contended that as in the case of Cates, there are no grounds to warrant the exercise of the Minister’s discretion under Regulation 11.

17.     Mr Hall contended that the basis upon which the Minister’s discretion would be exercised in such a case is not clear.  However Mr Hall did not address the issue upon which in the circumstances of his client’s case,  there would be any basis for the exercise of such a discretion.  The fact that the applicant has sighted or has knowledge of other similar vehicles being present in Tasmania and Victoria would not of itself warrant the exercise of such a discretion. 

18.     Mr Hall contended that there was little decided authority on the issue but did not address the Tribunal’s decision in Cates case in any detail.  That decision appears to have considered the same issue that arises in the current case.  It was decided in 2004 prior to the decision which the applicant seeks to have reviewed. 

19.     It was stated by Justice Von Doussa in Kuljic vSecretary, Department of Social Security 1994 33 ALD 121 at page 122:

“One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal”.

20.     In the current case the applicant has failed to convince the Tribunal as to the prospect of a successful appeal in the event that an extension of time is granted.  The fact that she has sighted or learned of similar vehicles being offered for sale is not of itself a convincing factor. 

21.     Nor is the Tribunal satisfied that the applicant has offered a proper explanation for her failure to lodge her appeal within time.  She was certainly aware of her appeal rights and considered an appeal.  Along with the length of delay and awareness of rights, the question of whether there is an acceptable reason for the delay were relevant factors considered by the Court in Zizza v The Federal Commissioner  of Taxation 1999 55 ALD 451. The applicant’s application was lodged some 10 months after the original decision. The Tribunal does not accept that the applicant’s explanation for the fairly lengthy period of delay is acceptable. Whilst she initially queried the decision and provided further information as requested, she ultimately accepted the Minister’s decision without further enquiry or seeking legal advice as to the merits of an appeal. The substantive challenge to the Minister’s decision appears to be on the basis that import approval was given for the pocket bikes but not the scooters. In response Mr Palfrey submitted that the distinguishing facts are the design features of the vehicles in that the pocket bikes are clearly not designed for on-road use. There is simply no acceptable explanation as to why the applicant did not pursue this issue at the time of the original decision being made known to her.

22.     For the above reasons the Tribunal is not satisfied that it is fair and equitable in the circumstances to grant the extension of time sought.  The application is refused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-Time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  13 December 2005
Date of Decision  17 January 2006
Counsel for the Applicant         Mr Adrian Hall
Solicitor for the Applicant          CN Dockray Barristers & Solicitors
Counsel for the Respondent     Mr Michael Palfrey
Solicitor for the Respondent     Clayton Utz Lawyers