Express Vehicles Compliance Pty Ltd and Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts

[2024] AATA 2083

Express Vehicles Compliance Pty Ltd and Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts [2024] AATA 2083 (26 June 2024)

Division:GENERAL DIVISION

File Number(s):2024/3293, 2024/3480 and 2024/3414      

Re:Express Vehicles Compliance Pty Ltd  

  Sydney AVV Pty LtdAnd:

  ADR Model Reports Pty Ltd And:

APPLICANT

Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the ArtsAnd  

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:26 June 2024

Place:    Sydney

I dismiss each of the applications for a stay.

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Mr Rob Reitano, Member

CATCHWORDS
PRACTICE AND PROCEDURE - STAY APPLICATION – entry of vehicles on to Register of Approved Vehicles – approval of Model Reports – suspension of approval of Model Reports – Australia Design Rule – United Nations Regulations - prospects of success not good - risks to public safety – financial loss - reputational loss.

LEGISLATION
Administrative Appeals Tribunal Act 1975
Road Vehicle Standards Act 2019
Road Vehicle Standards Rules 2019
Road Vehicle Standards (Model Reports – Compliance and Standards) Determination 2021

CASES
Scott v Australian Securities and Investment Commission [2009] AATA 798

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164

SECONDARY MATERIALS

Australian Design Rule 85/100 – Pole Side Impact Performance 2015

REASONS FOR DECISION

Mr Rob Reitano, Member

26 June March 2024

1. This is an application under s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) by Express Vehicles Compliance Pty Ltd, Sydney AVV Pty Ltd and ADR Model Reports Pty Ltd (collectively referred to as ‘the Applicants’ in these reasons) seeking a stay of three decisions of the Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Secretary) made on 3 May 2024 to suspend approval of a series of alphanumerically identified Model Reports under r.192(3)(a) of the Road Vehicle Standards Rules 2019 (RVS Rules).

2. The Secretary made the decisions to suspend the approvals of the Model Reports because he was not satisfied that a vehicle modified or manufactured in accordance with the Model Reports would comply with Australian Design Rule 85/100 – Pole Side Impact Performance 2015 (ADR 85/100) as it was when the approval was granted. The Secretary also considered that the declarations that had accompanied the application for approval did not provide sufficient information to confirm that a vehicle manufactured or modified in conformity with the Model Reports would comply with ADR 85/100.

3. The Applicants have sought a review of the Secretary’s decision, but before that hearing takes place, they seek a stay of the decisions. The effect of a stay would be that vehicles manufactured or designed in accordance with the Model Reports would be able to be introduced to the Australian market and driven on public roads.

4. I have decided to dismiss the stay applications and what follows are my reasons for doing so.  

   THE REGULATORY SCHEME

5. The regulatory scheme is more than a little detailed but can be broken down to several key elements. Before doing so it is important to observe and keep steadfastly in mind that one of the objects of the Road Vehicle Standards Act 2019 (RVS Act) is to provide ‘consumers in Australia with a choice of road vehicles that … meet safety and environmental expectations of the community’. It will be apparent from the analysis of the RVS Act, and the associated subordinate legislation that the objective is achieved by some of the detailed prescriptions that I will refer to.

6. First, s.24 of the RVS Act provides that a motor vehicle that is to be provided to someone for the first time in Australia cannot be provided to the marketplace unless it has been entered on the Register of Approved Vehicles (RAV).

7. Second, s.15 of the RVS Act provides the ways in which a vehicle can be entered on the RAV. The first way is by what is known as a ‘type approval’. The second way is by ‘a concessional RAV entry approval’.

8. Third, r.37 of the RVS Rules provides amongst other things that a vehicle is eligible for concessional approval if there is an approved ‘Model Report’ in respect of the vehicle and it is intended to comply with the conditions of that approval.

9. Fourth, a ‘Model Report’ is a document that outlines the manufacturing processes or modifications that must be done in relation to a vehicle before it can be entered on the RAV. For present purposes it is not relevant but should be noted that only particular types of persons can do those tasks and only particular kinds of persons can verify them. Rule 71 provides that the Secretary may approve a Model Report but only upon being satisfied about various things one of which has importance here requires meeting the ‘eligibility requirements’ in r.72. In turn r.72, again amongst other things that are not relevant here requires compliance with any Ministerial determination if one has been made.

10. Fifth, the Minister has made some determinations of which the Road Vehicle Standards (Model Reports – Compliance and Standards) Determination 2021 (Determination) is relevant to this case. Paragraph 89(2) of the Determination provides that an ‘overarching standard’ for Model Reports is compliance with Australian Design Rules (ADR). The combined effect of r.71 and r.72 of the Rules and paragraph 89(2) of the Determination is that a Model Report can only be approved if the Secretary is satisfied that it conforms to the ADR. In the absence of that satisfaction the Secretary cannot approve a Model Report.

11. Finally, r.191 gives the Secretary power to suspend an approval of a Model Report on his own initiative. Rule 192(3)(a) provides that the Minister or Secretary may suspend an approval ‘in any case—that person ceases to be satisfied of the matters based on which the approval was granted.’

    THE BACKGROUND

12. There was no question that ADR 85/100 applied to all the vehicles that are covered by the Model Reports that have been suspended. ADR 85/100 provides that compliance with United Nations Regulation 135 – 01 (UNR 135 – 01) for vehicles less than 1.5 metres in width is deemed to be compliance with ADR 85/100.

13. When the applications for approval of the Model Reports were initially made evidence was provided by way of compliance information forms that declared ADR 85/100 was met because the Japanese adoption date for UNR 135 – 01 was some time during 2016 (or in the case of Express Vehicle Compliance Pty Ltd, Global Technical Regulation 14 (GTR 14) which had been adopted as way of demonstrating compliance under Japanese standards. On that basis the Model Reports were approved so that no modifications were necessary to achieve compliance with ADR 85/100 because the vehicles had been, so it was thought, designed in accordance with that standard.

14. At some time, presumably shortly before 3 May 2024, the Secretary became aware that the Japanese adoption of UNR 135 – 01 was not unqualified such that it had an applicability date of 20 January 2023 – that is, the Japanese adoption of the standard required designers to meet that standard by that date, but not necessarily before that date. That meant once the matter came to the attention of the Secretary, he could no longer be satisfied that vehicles to which the Model Reports applied having a design date before 20 January 2023 complied with UNR 135 – 01 and, by deduction ADR 85/100, so that the Model Reports should not have been approved as it was not possible to be satisfied about compliance with ADR 85/100.

15. As an aside, the action of suspending rather than revoking the approval leaves open the possibility that at some stage the suspension might be lifted because someone might bring information to the Secretary’s attention that provides a basis for a satisfaction that ADR 85/100 or UN 135 – 01 has been applied to the design of the relevant vehicles. No doubt the Applicants have some interest in providing that information if they can obtain it. And no doubt the Secretary will be bound to consider it if it is placed before him.

16. There is no evidence that has been referred to or relied on by the Applicants that called into question any of the above analysis. The Applicants submitted that ‘it is not yet fully clear whether the Kei vehicles conform with Regulation 135.00 only or with both UN Regulation 135.00 and UN Regulation 135.01. There may be other regulatory avenues to have the Model Reports approved for these vehicles’. Significantly, as I will return to in a moment the Applicants did not identify any other regulatory avenues for approval.

17. The Applicants did provide evidence which I am prepared to accept for the purpose of this application that each of the Applicant’s will suffer financial losses and reputational damage because of the suspension of the Model Reports and that consumers would be adversely affected by not being able to obtain the vehicles.

    THE ISSUE

18. The issue is whether the decision to suspend the approval of the Model Reports should be stayed, the effect of which would leave in place the approval of the Model Reports so that in effect the vehicle can be provided to the Australian marketplace.

19. The issue involves consideration of the discretion in s.41(2) of the AAT Act which provides:

    The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.

20. The matters relevant to consideration of whether a stay of a decision should be granted are well established: they include the prospects of success, the consequences of the refusal of a stay for the applicant and others, the consequences of granting a stay for the respondent, the public interest, whether the refusal of a stay would render the final relief nugatory, the time between granting or refusing the stay and the final hearing and any decision and any other matters that might be relevant. I will deal with those matters in turn.

    SHOULD THE DECISIONS BE STAYED?

21. The Applicants prospects of success as things stands are not good. There is nothing much that is persuasive about their case, which must on a final hearing be that the Tribunal, standing in the Secretary’s shoes, should be satisfied that ADR 85/100 or UN 135–01 has been applied to the design of the relevant vehicles such that the Model Reports were appropriate for approval. The fact that it is not presently ‘fully clear’ whether there is conformity with either of the United Nations Regulations or whether there is some other ‘regulatory avenue’ to approval means that at least as far as things presently stand the Tribunal would be unlikely to be satisfied that the ‘overarching standard for Model Reports’, compliance with ADR’s has been met. The absence of any actual or potential basis for approval means that the Applicants prospects of success are not good.

22. The Applicants referred to a lack of consultation before the suspension was imposed but consultation as desirable as it might be forms no part of the regulatory scheme. It has no relevance to the Applicant’s prospects of success.

23. The Applicants are on stronger ground so far as the consequences for them are concerned. The evidence about financial hardship suggest they will suffer some loss should a stay not be granted. That would seem rational enough even if the precise nature and extent of that loss is not readily apparent, but the Applicants have undertaken some quantification which suggests it will not be insignificant. Reputational damage is more difficult to quantify but again the prospect that there will be some such damage is reasonable. There is no doubt granting a stay would ameliorate that loss and would also avoid the inconvenience caused to the Applicant’s and their customers by the suspension.

24. The public interest is in my assessment firmly against the grant of a stay. It is obvious that a reason, likely the most substantial reason, for the need to have approved Model Reports that comply with relevant ADR’s is because of that part of the legislative scheme that has it eyes firmly focussed on the expectations of the community so far as safety is concerned. It is not possible to say much about the length and breadth of the safety concern that arises here except that it is well known that motor vehicle traffic accidents have the potential for catastrophic consequences for members of the community. That ADR 85/00 is concerned with a type of collision, which is evident from its title, strongly suggests safety is an important matter which arises from compliance with its terms.

25. It is, in the view I take, no answer to the question of public safety that there are or might already be potentially many non-compliant vehicles on the roads. In fact, on one view, that makes the imperative greater so far as not increasing the risk. Nor is it an answer that the Secretary has not issued a process of recall in relation to those other vehicles. The fact is that permitting more vehicles on the roads that do not comply with ADR 85/00 creates a risk to the people in those vehicles. It is true that motor vehicle accidents are relatively unusual events and that pole side collisions might be even more unusual, but despite those things the regulatory regime to which I have referred gives importance to compliance in the interest of safety consistent with community expectations.

26. The Applicants referred to other businesses that they say have been permitted to continue to market the very same makes and models of vehicle. It only needs to be noted that I know nothing about the facts and circumstances that concern those vehicles or the requirements of the Model Reports applying to them.

27. Further, the Applicant’s identified other kinds of vehicles that are exempt from compliance with ADR 85/00, but that exemption arises from the terms of Determination not from the Secretary granting some exemption from compliance. The Applicants suggested that the same kinds of vehicle are widely used in other countries, including Japan. Even if the comparison to overseas road conditions can be made, the simple fact is the regulatory context that I am required to consider and which should be applied on a ‘correct and preferable’ basis is the one applying in Australia.

28. Further, again it is not for the Secretary, or the Tribunal, to make his or its own determination about what standards are to be applied: the regulatory context is one in which those standards have been prescribed in considerable detail and they are the ones that must be applied. In this case, so far as the vehicles that are subject to the Model Reports that have had their approval suspended are concerned the Determination requires that the Secretary must be satisfied that the requirements of the Determination have been met. At present there is no basis for that satisfaction and little to suggest there will be in future.

29. The Applicants did not submit that their application for review would be rendered nugatory if a stay were not granted. The application for review will proceed irrespective of whether a stay is granted.

30. The Applicant’s submitted that independently of factors affecting them, the Secretary and the public interest, the ‘balance of convenience’ favoured granting a stay. That expression is most often used in courts dealing with interlocutory injunctions. To the extent it is apt here, the identification of the relevant private interests, financial and reputational loss and the public interest in vehicle safety are the factors that need to be brought to account in balancing the matter. In my assessment that balance is reflected in the regulatory regime in favour of the public interest, and I should have regard to that.

31. Finally, the Applicant’s put forward what they described as policy considerations that I should consider such as the claimed ‘reasonable expectation’ that the Secretary ‘created’ by approving the Model Reports in the first place. The approval of those reports was always given in a regulatory context where approval could at any time be suspended, or even revoked, should the Secretary no longer be satisfied that the basis of approval was being met. Any expectations, reasonable or not, that the Applicants may have had was in the context of the knowledge of that part of the regulatory scheme in which they participate.

32. Neither party made any submissions about the time that would elapse between until a final hearing. It is important in my assessment that the Applicant’s did not provide much promise that they would be in a position to confront an early final hearing given that they did not at present have material that would assist them in their case. That being so, the uncertain time period in which any concerns about public or consumer safety might continue is a factor I should consider in the mix. Against that is the prospect that the Applicant’s might suffer further losses, but that is a matter that is in many respects in their own hands which can be met by them obtaining appropriate evidence or information that would permit the Secretary, or if necessary on a final hearing the Tribunal, to be satisfied that the overarching consideration of compliance with the ADR’s has been met by the Model Reports.

33. In the end, I do not consider that it is desirable to stay the Secretary’s decisions to suspend the Model Reports mainly because I consider that the Applicant’s case is on the present state of things not a particularly strong one and because I cannot be satisfied that the interest in public and consumer safety consistent with community expectations is outweighed by the financial and other loss that might be occasioned to the Applicants.

34. I do not consider a stay of the decisions is ‘appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review’.

    DECISION

35. I dismiss each of the applications for a stay.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member.

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Associate

Dated: 26 June 2024

Date(s) of hearing:	20 June 2024
Applicant:	Mr A Hudson and Mr A Uskhopov
Solicitors for the Respondent:	Mr Jeremey Cummings