JOHN SELLICK and MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

[2009] AATA 733

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 733

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2086

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN SELLICK

Applicant

And MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date24 September 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

TRANSPORT – Prohibited import – Importation of nonstandard road vehicle – Ministerial discretion – Whether vehicle used for a continuous period of 12 months – Vehicle used in contravention of local registration requirements should not count towards the continuous period – Whether general discretion should be exercised – Decision affirmed

Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 18, 20

Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 13

REASONS FOR DECISION

24 September 2009 Senior Member Bernard J McCabe         

1.      

Section 18 of the Motor Vehicles Standards Act 1989 (“the Act”) prohibits the import of nonstandard road vehicles into Australia. Section 20 of the Act provides for exceptions to the general rule. The text of the exceptions is set out in the Motor Vehicle Standards Regulations 1989 (“the Regulations”). Mr John Sellick, the applicant, wishes to import a nonstandard motorbike into Australia from

New Zealand

. He asked the Minister for Infrastructure, Transport, Regional Development and Local Government, the respondent, to exercise the discretion in the Regulations to approve the import. The Minister’s delegate declined to do so and the matter has come before the Tribunal.

The facts

2.      

Mr Sellick purchased a Triumph 2001 model motorbike in New Zealand on

19 September 2007. It had been damaged in a collision and it required some repair work before it was eligible for registration. Mr Sellick says that in New Zealand it is necessary to have the motorbike registered every six months. The authorities declined to certify the vehicle as being fit for use on the first occasion that he sought to register it. He was told he had to attend to a number of improvements. He says he did so and a certificate of registration (a document that Mr Sellick described as a “warrant of fitness”) was finally issued on 6 October 2008.

3.      In his written statement provided to the respondent, Mr Sellick says it was not until he obtained the certificate of registration that he “started to enjoy [his] bike”. The respondent has proceeded on the assumption that meant Mr Sellick did not start to ride and use the motorbike until after the certificate was issued. Mr Sellick provided additional information at the hearing to the effect that he had been riding the motorbike on a reasonably regular basis for some considerable time before he received the certificate. He says he had been taking the motorbike for test drives on the road – including major highways – for around 12 months prior to the time the certificate of registration was issued. He says this use may not have been legal but adds the police were unlikely to prosecute him if he were stopped. He says he would have been given a notice to make changes and secure a certificate within 28 days of the issue of the infringement notice. He says the reference in his statement to “enjoying” the motorbike is really a reference to riding the motorbike without a fear the police might pull him over at any moment.

4.      

Mr Sellick is a divorced father of two. He told me his ex-wife had indicated during 2007 that she wanted to move to Australia. He says he anticipated moving to this country as well: he wanted to be near his sons, and the rest of his family lived here. He says his ex-wife planned making the move in the middle of 2009. But something unexpected happened in June 2008. Mr Sellick’s ex-wife left

New Zealand

with their children without telling him. She simply disappeared. He says he was distraught. He retained a lawyer to find his children. When he finally located them on the Gold Coast, he says he felt compelled to bring forward his own plans to move. He sold up his business at a fire-sale price and packed his belongings into a container. He applied to import his lovingly-restored Triumph motorbike into Australia. Not long before he was due to leave, he was told his application to import the motorbike had been refused. He says he put the motorbike into the container with the rest of his belongings and decided to trust to the appeal process. The container, including the motorbike, remains in New Zealand.

5.      The applicant says he has experienced poor health. He has a heart condition and actually had a heart attack a month ago. He has no job and is unlikely to get one. He is not eligible for Australian social security benefits as yet because he has not lived here long enough to qualify. He says the only joy in his life comes from his sons and the motorbike. He says if he is unable to sell the motorbike, he will face the cost associated with returning to New Zealand and attending to the sale. He says he cannot afford to do that.

The legislation

6. I have already explained that the prohibition in s 18 of the Act is subject to a power to approve the import of nonstandard road vehicles in the limited circumstances set out in the Regulations.

7. There are to two regulations that might be relevant here. The first is reg 13 which says that, subject to the other matters set out in the Regulations, the Minister must approve an application to import a vehicle that the applicant has owned and used overseas for a continuous period of at least 12 months. Mr Sellick now claims he comes within that rule notwithstanding what he said in his statement because he was riding the motorbike unlawfully for a lengthy period while repairs were completed.

8. I was not directed to any authority on the question of whether the period of time spent driving an unregistered vehicle in contravention of the law could count towards the requirement in reg 13. The claim with respect to reg 13 came as a surprise to Mr Klein, advocate for the respondent. He suggested the time spent riding a motorbike in contravention of the law should not count when assessing whether the applicant had used the vehicle for 12 months. Mr Klein pointed out the regulation refers to a “road vehicle” which is defined to include a “road motor vehicle”. Road motor vehicle is defined in s 5 of the Act to mean:

(a)a motor vehicle designed solely or principally for the transport on public roads of people, animals or goods; or

(b)a motor vehicle that is permitted to be used on public roads.

9. Mr Klein says (i) the scheme of the Act and (ii) the definition of “road motor vehicle” in s 5 of the Act suggest that I should only have regard to the time during which the vehicle was lawfully driven on the road. I note the second limb of the definition of “road motor vehicle” in s 5 refers to a vehicle that one is permitted to drive on the road. The existence of permission is not, on its face, a requirement in the first limb of the definition. Does that mean one can have regard to the use of an unregistered motor vehicle on the road for the purposes of reg 13 provided the vehicle was designed to be used for that purpose?

10.     I do not think reg 13 should be interpreted in that way. The exception is clearly premised on the assumption that the motor vehicle in question might be brought to Australia because it was used in a foreign country where it satisfied the local registration requirements. I do not think I can have regard to the use of the vehicle during a period it was unregistered or was otherwise unauthorised.

11.     It follows the exception in reg 13 is not available to the applicant. That leaves the residual discretion in reg 11. Regulation 11 allows the Minister to approve an application to important a nonstandard vehicle. The regulation does not specify what matters the Minister must take into account or offer any guidance as to the basis on which he or she must act. But that does not mean the Minister (or the Tribunal, when acting in his or her place) is free to exercise the power on a whim. The power to grant approvals that operate as exceptions to the general rule should be exercised (a) consistently with the policy evident in the Act and (b) for a good reason that justifies departure from the general rule.

12.The objectives of the Act are set out in s 3. That section says:

(i)The main objects of this Act are:

(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and

(b)to regulate the first supply to the market of used imported vehicles.

13.     The Act contemplates common national standards which exclude types of vehicles that are undesirable or inappropriate to Australian conditions. I am satisfied that an exception could be made here without seriously compromising the policy evident in the Act, although I am mindful that an overly generous exercise of the discretion may, of itself, compromise the policy. Is there a good reason for departing from the general rule in this case?

14.     Mr Sellick’s strongest argument is that he would have continued using the motorbike for at least 12 months and thereafter imported it into Australia without impediment but for unexpected events – namely, the unexplained and unexpected departure of his former wife and children for Australia. He says, in effect, that a sudden change in personal circumstances over which he had no control prompted him to change his plans and leave for Australia before he could establish a pattern of ownership and use of at least 12 months. Because of that change in circumstances, he says he will now suffer additional hardship if he is forced to return to New Zealand and manage a sale of the motorbike.

15.     I do not think the cost of disposing of the motorbike is a significant factor in these circumstances. Mr Sellick knew his application had been declined before he left New Zealand. He could have sold the motorbike at that point. He must have known there was a risk that his appeal would be unsuccessful.

16.     

I accept Mr Sellick has a strong sense of attachment to his motorbike. He has restored it and spent a good deal of time and money bringing it up to standard. I acknowledge he says he does not intend parting with it if he is allowed to bring it into Australia. But it is not a bespoke vehicle or a collectors’ item, as was the case in

Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government

[2008] AATA 1054. Nor does it hold special sentimental value, as in Re Hunt and Minister for Infrastructure, Transport, Local Government and Regional Development [2008] AATA 417. I do not think the sense of attachment evident in this case justifies the exercise of the discretion. I also do not see how the applicant’s current health difficulties improve his case.

17.     I am left with the argument over the sudden change in circumstances. I accept that if the applicant had stuck to his original plan, he would have been able to import the vehicle without difficulty. I also note the Tribunal has taken account of sudden and serious changes in circumstances when deciding to exercise the discretion in cases like Re Haughey andMinister for Infrastructure, Transport, Local Government and Regional Development [2008] AATA 540 and Re Heath andMinister for Infrastructure, Transport, Local Government and Regional Development
[2009] AATA 9.

18.     While I am conscious Mr Sellick is having a difficult time, and I acknowledge he would incur expense and inconvenience if he is required to sell the vehicle, I am not convinced this is an appropriate case for the exercise of the discretion. I do not doubt his truthfulness as a witness, but I am not persuaded the circumstances he describes are sufficiently compelling to justify an approval under reg 11.

Conclusion

19.     While I have sympathy for Mr Sellick’s circumstances, this is not a case where the exercise of the discretion under reg 11 is appropriate. The decision under review must be affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..................................[Sgd]............................................
  Michael Buckingham, Associate

Date of Hearing  17 September 2009
Date of Decision  24 September 2009
Solicitor for the applicant          Unrepresented 
Solicitor for the respondent      DLA Phillips Fox