Grazaria Pty Ltd v Automotive Alternative Fuels Association Inc
[2011] VSC 542
•26 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2011 01272
| GRAZARIA PTY LTD (ACN 145 962 848) | Plaintiff |
| v | |
| AUTOMOTIVE ALTERNATIVE FUELS ASSOCIATION INC (VIC REG NO A0026701K) | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2011 | |
DATE OF JUDGMENT: | 26 October 2011 | |
CASE MAY BE CITED AS: | Grazaria Pty Ltd v Automotive Alternative Fuels Association Inc | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 542 | |
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ADMINISTRATIVE LAW – Judicial review – Review of decision of board not to register business as an industry participant in scheme for regulation of LPG conversions – Whether board had power under constitution and rules to make decision – Whether scheme inconsistent with the Associations Incorporation Act 1981 – Whether guideline made under road safety regulation invalid – Whether power properly delegated to board under regulation – Whether decision actuated by improper purpose – Whether decision made on basis of irrelevant consideration – Whether board entitled to hold itself out as operating mandatory registration scheme – Quo warranto – None of grounds made out – Appeal dismissed – Road Safety Act1986, ss 5, 5AB, 91, 95 – Road Safety (Vehicle) Regulations 2009, reg 257.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Clemens, Solicitor | Clemens Haskin |
| For the Defendant | Mr A G Urens QC and Mr S J Moloney | Freehills |
TABLE OF CONTENTS
A The defendant’s constitution..................................................................................................... 3
B The Associations Incorporation Act 1981................................................................................. 8
C The regulatory interface.............................................................................................................. 8
D Was the board’s decision invalid............................................................................................ 11
E Holding out.................................................................................................................................. 15
F. Quo Warranto............................................................................................................................. 17
G. Conclusion................................................................................................................................. 17
HIS HONOUR:
This proceeding arises out of a scheme regulating the conversion of motor vehicles to enable them to utilise LPG as a fuel.
That scheme is founded upon a regulation made under the Road Safety Act 1986 which requires such modifications to be either:
(a) approved by VicRoads; or
(b) carried out in accordance with the guidelines made under the regulation.
In turn, the guidelines require such modifications to be made in accordance with relevant specifications and accompanied by the fixing of a compliance plate to the motor vehicle. Only three classes of persons are authorised to provide such plates:
(a) businesses registered with the defendant;
(b) interstate and territory regulatory authorities; and
(c) car manufacturers, such as Holden and Ford.
The practical effect of the scheme is that a Victorian business cannot engage in making LPG conversions to motor vehicles unless it is registered with the defendant.
On 10 December 2010, the defendant’s board (‘the board’) rejected an application by the plaintiff to be registered as an industry participant.
The plaintiff challenges the board’s refusal and its ongoing role on grounds which were refined in argument to the following:
(a) the board had no power to conduct an industry participants’ registration scheme under its constitution and rules;
(b) the board could not conduct an industry participants’ registration scheme consistently with the Associations Incorporation Act 1981;
(c) the nomination of the board pursuant to the guideline made under the relevant road safety regulation was invalid; and
(d) the board’s decision to refuse registration to the plaintiff was actuated by an improper purpose and/or was made on the basis of an irrelevant consideration.
The plaintiff also contends that the board has held itself out as possessing regulatory power which it does not hold and should be restrained from continuing to do so.
I will deal with each of these matters in turn.
A The defendant’s constitution
The defendant’s constitution specifically provides that its purposes include to:
1 Purposes
…
(b) implement, review from time to time, monitor and enforce:
(1) an accreditation scheme for individuals; and
(2) a registration scheme for Businesses,
to form the basis of those persons’ entitlements to be granted and to maintain status as an Industry Participant, and to:
(3) evidence; and
(4) assist in the maintenance of,
a standard of competence determined by the AAFRB in the matters set out in clause 1(a);
…
(e)discharge and fulfil other functions and responsibilities given to the AAFRB by legislation or regulation from time to time.
The board’s powers include doing everything necessary or convenient for or incidental to furthering its purposes, including the power to investigate and take appropriate action in the case of complaints against registered businesses or accredited individuals. It also has the power :
(h) to:
(1)enter into any arrangements with any government or authority that are incidental or conducive to attaining the purposes and exercising the powers of the AAFRB;
(2)obtain from any government or authority any rights, privileges or concessions which the AAFRB thinks it desirable to obtain; and
(3)carry out, exercise and comply with any such arrangements, rights, privileges and concessions;
The defendant’s rules further provide a scheme for the accreditation of industry participants. Clauses 3.3(a) to (i) provide:
(a)Subject to these Rules, Industry Participants are not Members, but are:
(1)individuals who have been accredited by the AAFRB in accordance with rule 3.3 and maintain that accreditation; or
(2)Businesses that have been registered by the AAFRB in accordance with rule 3.3 and maintain that registration.
(b)The Board may approve an individual’s application to be accredited if that individual pays the Initial Fee and:
(1)is a qualified motor mechanic who has passed a Board-approved exam or completed a Board-approved Alternative Fuel training course;
(2)holds another AAFRB approved automotive trade qualification and has passed a Board-approved exam or completed a Board-approved Alternative Fuel training course;
(3)holds any other qualification acceptable to the AAFRB, has a minimum of 1 year experience in the automotive Alternative Fuel installation industry and has passed a Board-approved exam or completed a Board-approved Alternative Fuel training course; or
(4)is licensed or accredited as an Alternative Fuel fitter or installer in another Australian State or Territory.
(c)The Board may approve a Business’ application to be registered if that Business pays the Initial Fee and:
(1)passes an initial inspection of its premises by a representative of the AAFRB to ensure that its premises and equipment comply with:
(A)Standards; and
(B)other standards, regulations or guidelines the AAFRB is obliged to enforce or otherwise implement,
(2)employs, in relation to its installation, alteration, repair, testing and commission of Alternative Fuels systems in motor vehicles activities, staff at least 50% (or such other percentage the Board may determine in relation to a specific Business, a class of Businesses or Businesses generally) of whom are AAFRB accredited individuals; and
(3)demonstrates to the satisfaction of a representative of the AAFRB that all industry work is or will be carried out by, or under the direct supervision of, an AAFRB accredited individual.
(d)An individual which applies for and is approved for accreditation under these Rules:
(1)receives that accreditation; and
(2)becomes an industry Participant,
upon the later to occur of:
(3)payment of the First Year’s Annual Renewal Fee; and
(4)the applicant’s name being entered into the Register of Industry Participants.
(e)A Business which applies for and is approved for registration under these Rules:
(1)receives that registration; and
(2)becomes an Industry Participant,
upon the later to occur of:
(3)payment of the First Year’s Annual Renewal Fee; and
(4)the applicant’s name being entered into the Register of Industry Participants.
(f)An individual or Business may not be admitted as an Industry Participant:
(1)unless he, she or it applies as provided in rule 3.3(b) or 3.3(c) as applicable; and
(2)his, her or its accreditation or registration (as applicable) is approved by the Board.
(g)An application by an individual or a Business for accreditation or registration must be made in writing in a form prescribed by the Board from time to time, and must include the applicant’s agreement to be bound by the obligations of Industry Participants from time to time under these Rules if the application is approved.
(h)As soon as practicable after the receipt of an application for accreditation or registration, the Board must consider the application.
(i)The Board must decide whether to approve or reject the application. The Board need not give reasons for any decision to any applicant, Member, Industry Participant or any other person.
In turn, the constitution conveys rights to an industry participant by way of status. Clause 3.3(m) provides:
(m)Subject to these Rules, an Industry Participant has the following rights:
(1)to hold itself out as being accredited or registered by the AAFRB (as appropriate); or
(2)any other rights expressly set out in these Rules or in AAFRB Regulations,
however, for the avoidance of doubt, such rights may only be enforced in the Industry Participant’s capacity as an independent contractor of AAFRB, as these rights are not, and do not create, rights in relation to Membership.
Clause 3.3(o) further provides:
(o)A right, privilege or obligation of an Industry Participant arising from his, her or its status as an Industry Participant:
(1)cannot be transferred or transmitted; and
(2)ends when his, her or its status as an Industry Participant terminates, whether under rule 3.6, rule 3.7 or otherwise.
Clauses 3.7 and 3.8 provide, in turn, for the discipline of industry participants and clause 3.9 provides for a grievance procedure.
This scheme embraces and validates the registration system pursuant to which the plaintiff applied and was refused registration. It is complimented, incidentally, by s.16(1)(d) of the Associations Incorporations Act 1981.
The board only has power with respect to an industry participant or an application for registration as an industry participant by reason of that party’s voluntary submission to the scheme of the constitution and rules. The consequences of such submission flow from an agreement that the application and subsequent registration will be dealt with in accordance with the constitution and rules. That agreement is expressly contained in the rules of registration and the application form they provide for. It is, in effect, the basis on which an applicant ‘signs up’ to join as an industry participant.
The terms of the constitution are apt to embrace arrangements between the defendant and VicRoads to give effect to the defendant’s purposes, but the process and consequences of registration as between a business and the defendant are governed by the constitution and rules themselves. As I have said, the board's powers include expressly obtaining from government, or authority, any rights, privileges, or concessions which are desirable to obtain, and entering into any arrangements with any government or authority that are incidental, conducive to attaining the purposes and exercising the powers of the AAFRB.
There is no substance in the submission that the constitution does not entitle the board to deal with a registration application for the purposes of, and in accordance with, the rules set out in the constitution. Those rules give the board a discretion with respect to the approval or rejection of the application. The scheme is broadly analogous to that referred to by Kyrou J in CECA Institute Pty Ltd v Australian Council for Private Education and Training:[1]
[1](2010) 245 FLR 86.
In the present case, the ACPET is a private body and the power of its Board to admit an applicant as a member of the ACPET or as a member of the ACPET’s scheme is derived from its Constitution and By-laws.[2]
Although it should be noted that in CECA, membership of the scheme was only available to members of the ACPET. [3]
B The Associations Incorporation Act 1981
[2]Ibid, 102 [76].
[3]See para [36] where it is said that “a) Membership of the scheme is restricted to members of the ACPET (para 9.5)”.
This Act adds nothing to the above analysis.
The rights given to members pursuant to ss 14A and 14B are not inconsistent with the registration scheme provided for in the defendant’s constitution and rules. This Act does not preclude the creation of a scheme for the registration of industry participants to which applicants may voluntarily submit.
C The regulatory interface
Section 95 of the Road Safety Act 1986 provides for the making of regulations necessary to be prescribed to give effect to the Act, including the matters and things specified in sch 2. The Road Safety Act gives VicRoads the power to impose conditions on the registration of motor vehicles, s 5AB(1)(e). Pursuant to s 5, the purposes of registration include ensuring safety standards are met.
Section 95(3)(d) expressly provides such regulations may be made:
So as to confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies.
Regulation 257 of the Road Safety (Vehicles) Regulations 2009 provides as follows:
257 Use of modified vehicles
(1)A person must not use on a highway a vehicle that has been modified from the condition in which it was in when first registered unless the modification—
(a)has the Corporation's approval; or
(b)has been carried out in accordance with guidelines published by the Corporation which are available—
(i)at the offices of the Corporation; or
(ii)on the internet website of the Corporation.
Penalty: 5 penalty units.
(2)The Corporation must not give its approval to or in respect of a vehicle modification if the vehicle no longer complies with the standards for registration unless the Corporation proposes to register the vehicle under regulation 30(1).
There was no submission made that these regulations were beyond power, nor could such a submission be readily entertained in the absence of the appropriate contradictor.
The relevant guideline is contained in VicRoads’ vehicle standards information document number 27. The guideline provides:
Introduction
Regulation 257 of the Road Safety (Vehicles) Regulations 2009 requires all modifications to a vehicle to either have specific approval from VicRoads or to be carried out in accordance with guidelines published by VicRoads.
Conversion of an existing motor vehicle to operate on LPG or CNG is a modification.
This document is a published guideline for the purposes of Regulation 257.
Any LPG or CNG conversion carried out in accordance with this document is an approved modification.
Requirements
1.All LPG installations must comply with the technical requirements of the version of Australian Standard AS1425 current at the time of conversion and be fitted with an acceptable LPG compliance plate if converted to operate on LPG on or after 1 February 1993.
2. All CNG installations must comply with the technical requirements of Australian Standard AS 2739 current at the time of conversion and be fitted with an acceptable CNG Compliance Plate if converted to operate on CNG on or after 1 August 2000.
3. The structural integrity of the vehicle and its continued compliance with the Standards for Registration must not be adversely affected (see Note).
4. VicRoads must be notified of the change in fuel type using the LPG/CNG Conversion Report provided overleaf.
The first of the requirements is the critical requirement.
The guideline further provides:
General
An acceptable LPG or CNG Compliance Plate is one issued by:
·The Automotive Alternative Fuels Registration Board (AAFRB). (Compliance plates are only issued to businesses registered with the AAFRB - ph (03) 9862 6700);
·Other recognised State and Territory regulatory authorities; or
·Approved volume vehicle manufacturers e.g. Holden, Ford, etc.
The effect of this guideline is to adopt the registration scheme of the defendant and to condition the obtaining of compliance plates upon such registration, unless they are issued by a state or territory regulatory authority, or by approved car manufacturers, or presumably upon approval by the corporation under cl 1A of reg 257.
It was submitted on behalf of the plaintiff that the guideline did not validly appoint the defendant to issue compliance plates.
I am unable to see why this is so. The issue of compliance plates is an entirely reasonable and sensible concomitant of the scheme implemented by the guidelines. The nomination of the parties entitled to issue such plates is also entirely reasonable and sensible, if such plates are to effectively fulfil their obvious purpose of satisfactory certification.
It is only if the registration scheme provided for by the defendant’s constitution could be said to be necessarily inconsistent with the purpose or terms of the guideline that the nomination of the defendant as an issuer of compliance plates could be said to be invalid.
In my opinion it cannot be so said.
The plaintiff’s case was put on the basis that the guideline effected a delegation of VicRoads’ functions other than in accordance with s 91 of the Road Safety Act 1986. In my view, the relevant head of power is s 95(3)(d), to which I have already referred. The guideline is made pursuant to the regulation and the Act authorises the regulation to provide for the exercise of an administrative discretionary authority.
I further accept Mr Uren’s submission that the Court could not rule adversely upon the validity of the guideline in the absence of VicRoads as a party. It would be a strong thing to rule that all compliance plates issued by the defendant have been issued invalidly. The result would be that all the conversions so certified were, and are, unlawful. The Court should not do so without the appropriate contradictor. If the validity of the guideline is to be challenged, that should be the subject of another proceeding. The question of the validity of the guidelines stands apart from the other challenges mounted by the plaintiff in this proceeding.
D Was the board’s decision invalid
The plaintiff next seeks to impugn the board’s decision refusing it registration. I will assume for present purposes that that decision is reviewable in accordance with the principles stated in Datafin,[4] without expressing a conclusion on that question, but I record that the defendant contends that this is not such a case.
[4]R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815.
The defendant gave reasons for its decision, although it was not required to do so by its constitution, or at common law.[5]
[5]See Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 662 per Gibbs CJ (Wilson, Brennan, Deane and Dawson JJ agreeing), : ‘There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.’
Those reasons set out the procedural history of the plaintiff’s application at para 2:
2 Determination whether to accept or decline the Application
On 10 December 2010, the Board considered the Application and determined that the Application should be declined.
In considering the Application, the Board had regard to the following matters:
1the Application listed the trading name of Grazaria as ‘Southeast LPG Conversions [sic]’ and the business address of Grazaria as 1/12 Laser Drive, Rowville;
2the Application enclosed an extract from the Austrlian Business Register for Grazaria and a Certificate of Registration of Business Name for ‘South East L.P.G Conversions’ dated 4 December 2006 under the Business Names Act 1962 (Vic);
3in its letter to Grazaria dated 22 November 2010, the Board noted that:
(a)the records of Consumer Affairs Victoria showed that he owner of the business name ‘South East L.P.G Conversions’ was Calf Rearing Services Pty Ltd of 1/12 Laser Drive, Rowville and that the sole director of that company was Nancy Lucisano;
(b) a business which traded from 1/12 Laser Drive, Rowville under the name South East LPG Conversions was previously registered with the Board to undertake LPG conversions;
(c)the operator of that business was Frank Lucisano;
(d)the LPG registration of that business was cancelled on 29 October 2010 and Mr Lucisano was notified of the cancellation by letter dated 4 November 2010; and
(e)the Board understood from discussions with Mr Lucisano that he was in the process of selling the business to Tony Iaria;
4in a letter to Grazaria dated 22 November 2010, the Board requested that Grazaria:
(a)indicate to the Board the nature of the relationship between Mr Iaria and Mr Lucisano;
(b)send to the Board a copy of the executed sale of business agreement; and
(c)indicate to the Board which (if any) employees were being transferred with the sale of the business and the date on which completion of the sale was to occur;
5in an email to the Board on 26 November 2010, Grazaria stated that:
(a)the settlement of the purchase of the South East LPG Conversions business by Grazaria would occur that day; and
(b)with respect to the transfer of employees, Grazaria would be ‘keeping on’ Damian Hunter;
6in an email to Grazaria on 26 November 2010, the Board requested, in order for it to consider the Application further, that Grazaria:
(a)indicate to the Board the nature of the relationship between Mr Iaria and Mr Lucisano;
(b)send to the Board a copy of the executed sale of business agreement; and
(c)indicate to the Board which (if any) employees were being transferred with the sale of the business and the date on which completion of the sale would occur;
7in a further email to the Board on 26 November 2010, Grazaria stated that:
(a)‘Terms and Condition [sic] of the purchase is privileged information that I do [sic] see the need to share as part of obtaining business registration’;
(b)Mr Iaria was ‘not related to Mr Lucisano’; and
(c)‘The staff? Originally I was hoping to keep everyone on that was there, but as a result of the imposing restrictions on the business to the extent of not even being permitted to continue with sales they don’t have any work forward booked in. So unfortunately at this stage it seems unlikely that I will be in a position to reemploy everyone there, I have instructed Mrs Lucisano they can stand everyone down this evening unless there is no clear sign that the Business Registration will issued [sic]’;
8in an email to Grazaria on 30 November 2010, the Board stated that:
(a)Mr Lucisano had indicated during a telephone discussion with Tony O’Mara on 29 November 2010 that Grazaria did not wish to provide a copy of the sale of business agreement to the Board because it disclosed the financial details of the purchase;
(b)a sale of business agreement was not a privileged document, so there was no risk of any privilege being lost if Grazaria provided the Board with a copy of the agreement;
(c)if Grazaria was concerned about disclosing the purchase price or any other commercially confidential information to the Board, the Board would be content for Grazaria to provide the Board with a copy of the agreement with the purchase price and any commercially confidential information blacked out;
(d)the Board would decide whether to accept or decline the Application at a meeting on 10 December 2010, regardless of whether a copy of the sale of business agreement had been received; and
(e) in deciding whether to accept or decline the Application, it would be relevant for the Board to consider whether a copy of the sale of business agreement had been received and, if so, to have regard to the contents of the agreement;
9in an email to the Board on 3 December 2010, Grazaria stated that ‘settlement has not taken place nor is it going to take place if these are conditions of registration’ and ‘I am happy to supply you with documentary proof of the purchase after I have received an assurance that business registration will be issued only then can i [sic] complete the purchase’;
10in an email to Grazaria on 6 December 2010, the Board stated that it would receive and consider the terms of the sale of business agreement even if the agreement had not yet been executed; and
11the Board did not receive any further correspondence from Grazaria prior to its meeting on 10 December 2010.
It can be seen that the board sought to confirm that the plaintiff’s purchase of the business which it sought to register was not in effect a sham and/or that the plaintiff was not seeking to simply re-register a business in substance identical to that which the board had recently deregistered.
The board ultimately concluded:
That it was not satisfied that the business to be operated by Grazaria would be genuinely separate from the South East LPG Conversions business, whose LPG registration was cancelled on 29 October 2010, and the principals of that business (that is, Mr Lucisano).
In my view, it was not improper to make enquiries as to whether the purchase was in effect a sham. The disciplinary powers provided for in the defendant’s constitution and rules would be nugatory if the effect of cancellation of registration could be simply evaded by applying under a new name for fresh registration of a business which had suffered the cancellation of its registration for disciplinary reasons.
In the present case, the previous operator of the business had not challenged the cancellation of its registration as it was entitled to under the defendant's rules. That deregistration had occurred following the making of three justified complaints within 12 months, which in turn followed prior complaints. At the date of its decision, the board was entitled to treat the deregistration as proper, whatever the plaintiff may now say about its underlying factual basis.
The board was not required to grant the application simply because the boxes on the application form were ticked (as Mr Uren put it). The board retained an overall discretion informed by the purposes set out in the constitution (see clause 3.3(c) and (f) of the constitution rules and the terms of the application rules).
The lack of informative response to the board’s enquiries was, in turn, a relevant consideration bearing on the decision. In particular, once the board offered to accept a copy of the relevant contract with commercially sensitive details blacked- out, it is difficult to see why the plaintiff refused to supply such a document.
Further, and fundamentally, the conclusion reached by the board was open to it on the evidence before it. It was not bound to be satisfied that the plaintiff’s business would be genuinely separate from that which it deregistered. The onus was on the plaintiff to persuade the board to exercise its discretion and it failed to discharge that onus. It is impossible to conclude that the board was bound to reach a conclusion favourable to the plaintiff on the material before it.[6]
[6]See the observations of Brooking JA in Ericcson v Popovski [2000] 1 VR 260, esp 265.
I should add that I accept that the reasons given were proper reasons. In any event, defects in the reasons alone would not invalidate the defendant's decision.
Further, there would be no utility in setting aside the board’s decision. The plaintiff is entitled to make a fresh application for registration. On such an application, the board will be bound to consider the evidence as it now stands. It is apparent from the evidence before the Court that the plaintiff’s position has changed. In particular, the liquidator of the previous owner of the business has now sold the assets of the business to the plaintiff. The proper course, enabling the merits of the situation to be re-assessed, is simply for the plaintiff to make a further application for registration.
E Holding out
The plaintiff further complains in its statement of claim that the defendant exceeded its authority or powers in:
(a) holding out that it had authority to impose mandatory requirements for LPG registration on the plaintiff; and
(b) purporting to operate a mandatory scheme to register businesses, accredit individuals, adjudicate consumer complaints and inspect vehicles for compliance with standards.
It might be said that if there is a practical alternative to obtaining registration as an industry participant from the defendant, then the plaintiff’s whole proceeding is futile. None was, however, identified.
Nevertheless, the plaintiff points, in particular, to the opening terms of the application for registration, which are as follows:
GENERAL INFORMATION:
From January 1, 1993, any business (ie sole trader, partnership, company or incorporated body) engaged in the installation and repair of LP Gas vehicles in Victoria must be registered with the Automotive Alternative Fuels Registration Board (AAFRB). ‘Repair’ means any repair to the vehicle which involves opening the high pressure LP Gas lines to the atmosphere.
I am not persuaded that this statement was materially false or deceptive. It reflects the practical effect of the guideline. Whilst the guideline remains in its current form, the practical reality is as stated in the application form. Indeed, this is the underlying foundation of the plaintiff’s grievance with respect to the refusal of registration, as reflected in its written and oral submissions.
The guideline itself refers to the requirement for registration with the defendant. Whilst it does so, the defendant is entitled to refer to its effect. The consequences of the guideline are the result, however, not of the defendant's actions, but of those of VicRoads.
The other documentation to which the plaintiff referred does not improve or make out the point.
By letter to the plaintiff’s solicitors dated 5 May 2011, VicRoads stated, with respect to the board’s position:
If another suitable body sought to issue compliance plates VicRoads would be willing to discuss its requirements. For VicRoads the main issue is the level of reliability that it can have in the issuer of a compliance plate. In this regard, VicRoads must be confident that all technical matters have been addressed and that the quality of work and modification is satisfactory
This letter, in effect, addresses the underlying issue of potential restrictive trade practices of which the plaintiff complained at various points in submission to me, but which, I should add, is not an issue properly the subject of ruling in this proceeding.
It follows from VicRoads' letter that the situation may not remain as it is. Nevertheless, while it does, I am not satisfied that the defendant has materially misstated its position under the guideline in the statements it has made to potential industry participants.
I should add that even if the statements complained of are regarded as overstating the defendant’s position, this would not automatically justify injunctive relief from this Court. The plaintiff’s submissions that the misstatements might found claims in negligence or deceit are misconceived.
F. Quo Warranto
Insofar as relief in the nature of quo warranto pursuant to r 38.041 of the Supreme Court Rules is claimed, the defendant has not purported to usurp an office independent in title.[7] It has simply sought to convey in plain terms the practical effect of the guideline. The guideline designates it as entitled to issue compliance plates to persons registered with it. Proceedings in quo warranto cannot be utilised to challenge the validity of the guideline itself.
[7]R v Speyer (1915) 1 KB 595, 609.
G. Conclusion
For the above reasons, the proceeding will be dismissed. I will add, however, in effect of footnote, that if there were any valid basis for the proceeding I would have extended time for the commencement of the proceeding under Order 54 having regard to the date on which reasons which had previously been promised were, in fact, received by the plaintiff.
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