Kowald and Minister for Infrastructure, Transport, Regional Development and Local Government

[2010] AATA 1018

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1018

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2200

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN MARGARET KOWALD

Applicant

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

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date17 December 2010

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

R W DUNNE
  (Senior Member)

CATCHWORDS

TRANSPORT – importation of motor vehicle – nonstandard vehicle – no identification plate – vehicle not owned and used for a continuous period of at least 12 months – vehicle did not comply with National Standards – discretion – no grounds for exercise of discretion – decision affirmed.

Motor Vehicle Standards Act 1989 (Cth) ss 3, 5, 7, 18, 19, 20

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

Re Patel and Department of Transport and Regional Services [2001] AATA 957
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re Marra and Minister for Transport and Regional Services [2003] AATA 323
Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355
Re Murase and Department of Transport and Regional Services [2005] AATA 705
Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054
Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Re Brassington and Minister for Transport and Regional Services [2006] AATA 724
Re Fraser and Department of Transport and Regional Services [2003] AATA 44
Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646
Re Miller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 608
Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417  

REASONS FOR DECISION

17 December 2010   Senior Member R W Dunne  

introduction

1.      On 19 March 2010, the applicant (Susan Kowald) applied to import a 1994 Mercedes Benz E200 motor vehicle (“Vehicle”) from England.  The Administrator of Vehicle Standards (“Administrator”) was not satisfied that Ms Kowald met the criteria required under Regulation 13 of the Motor Vehicle Standards Regulations 1989 (“Regulations”), enacted under the Motor Vehicle Standards Act 1989 (“Act”). The Administrator also considered that Ms Kowald’s circumstances did not warrant exercising the discretion under Regulation 11. Regulations 11 and 13 are exemptions to the prohibition on importing nonstandard motor vehicles into Australia, found in s 18 of the Act.

2. On 15 June 2010, Ms Kowald applied to this Tribunal for review of the Administrator’s decision. At the hearing, Ms Kowald represented herself (with the assistance of her husband) and Mr M Palfrey appeared for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence (Exhibit R1), together with the following documents:

·the applicant’s outline of argument (Exhibit A1); and

·the respondent’s statement of facts and contentions, with Attachment (Exhibit R2).

issue before the tribunal

3. The issue before the Tribunal is whether the Tribunal should exercise its discretion under Regulation 11 of the Regulations to allow the applicant to import into Australia the nonstandard vehicle which is the subject of her application.

legislative scheme

4. The main object of the Act, with respect to used vehicles, is to regulate the first supply to the market (s 3 of the Act). Under s 7 of the Act, the Minister may determine vehicle standards for road vehicles and vehicle components. The term “vehicle standard” is defined in s 5 to mean:

“vehicle standard means a standard for road vehicles or vehicle components that is designed to:

(a)       make road vehicles safe to use; or

(b)       control the emission of gas, particles or noise from road vehicles; or

(c)       secure road vehicles against theft; or

(d)       promote the saving of energy.”

5. Section 5 of the Act also defines:

(a)the standards determined under s 7 as “national standards”. National standards are also known as Australian Design Rules (“ADRs”);

(b)the term “nonstandard” in relation to a road vehicle or vehicle component to relevantly mean not compliant with the national standards; and

(c)the term “identification plate” to mean a plate declaring the status of a road vehicle in relation to the standards.  An identification plate affixed to a motor vehicle establishes that the vehicle complies with the national standards.

6. The importation of a nonstandard motor vehicle or a vehicle without an identification plate is prohibited under s 18 of the Act, which relevantly reads:

“18       Prohibition of importation of nonstandard vehicles etc.

(1)Subject to sections 19 and 20, a person must not import a road vehicle that:

(a)       is nonstandard; or

(b)       does not have an identification plate.

Penalty:         120 penalty units.”

The prohibition in s 18 is relaxed by s 20, which permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The prescribed circumstances are set out in Regulations 9 to 21A. Only Regulations 11 and 13 are relevant in Ms Kowald’s case.

7.      On 17 November 2009, the Motor Vehicle Standards Amendment Regulations 2009 (No 1) commenced. These amendment Regulations include an amendment to Regulation 13 which applies in the present case. Regulation 13 now relevantly reads:

“13      Approval to import vehicle without an identification plate if owned and used by applicant overseas

(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:

(aa)the applicant owns the vehicle at the time the application is made; and

(ab)     the applicant acquired ownership of the vehicle overseas; and

(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and

(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and

(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and

(b)at the time the application is received by the Minister, the applicant is:

(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or

(ii)a person who has applied to become an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely if granted Australian citizenship or permanent residency; or

(iii)a person who is entitled to remain in Australia indefinitely and provides evidence that he or she intends to do so; or

(iv)the holder of a visa that entitles him or her to apply to become a permanent resident (whether or not after a specified period or in specified circumstances) and provides evidence that he or she intends to remain in Australia indefinitely; and

(c)the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and

(d)the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and

(e)the applicant has not been granted an approval under this regulation within the period of 5 years ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

(2)An approval under subregulation (1) is subject to any written conditions determined by the Minister.”

8. The wording of Regulation 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it. Regulation 11 reads:

“11      Minister’s approval to import vehicles without identification plates

(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate.

(2)An approval may be given subject to conditions specified in the instrument of approval.

(3)Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.

(4)      An approval must be given by signed instrument.”

background and evidence

9.      Ms Kowald was born in the United Kingdom.  She married her Australian husband in her home city of Hereford, England on 30 August 1986.  They moved to South Australia and live in the Adelaide Hills.  She is now a citizen of both Australia and the United Kingdom.  Every two years she and her husband would return to England to visit her parents and family for up to six weeks.  For the last 11 years, due to her mother’s sickness, she has returned to England at least every year for about five to six weeks at a time.  In the last few years, because of her father’s sudden illness and passing, Ms Kowald has been at Hereford from December 2008 to January 2009, from August 2009 to September 2009 and from February 2010 to March 2010, a total of about 18 weeks.  Her father died on 21 August 2009, aged 91 years, while she was at his bedside.  Her father bought the Vehicle in April 1998.

10.     In giving her evidence, Ms Kowald said that, during her trips to England, she would use the Vehicle, which her father told her he had insured for her to drive.  He had left a Will, one of the executors being Ms Kowald’s brother, Robert Brailsford.  A letter from Mr Brailsford appears in the T documents (Exhibit R1, page 108) and reads, in part:

“…

He [his father] bought this car in April 1998 just before his 80^th birthday.  It brought him a great deal of pleasure over the 11½ years that he owned it.  His daughter, Susan Kowald, has lived in Australia for some years and has shared Dad’s love of the car.  She would very much like to have the car in Australia and this is something that my father would have wanted.

Although there is no specific bequest in the will, the executors can confirm that he would have wished his daughter to have the car after his sudden demise.   She has visited the UK for about 2 months nearly every year during my father’s ownership of the car and, due to his advancing years, has been one of its main drivers over the past 12 years.  The car has been specifically insured for her to drive.

…”

11.     Ms Kowald said that her husband had spoken to Mercedes Benz Australia in Melbourne about the importation of the Vehicle.  Apparently, it was fitted with only two crucial child restraints, whereas the ADRs required three restraints.  She said she would be more than happy to comply with the ADR requirements. 

12.     In cross-examination, Ms Kowald said that the executors of her father’s Will were happy for her to have the Vehicle.  When referred to the letter from her brother, she noted that it said nothing about the ownership of the Vehicle.  When referred also to her application to import the Vehicle (Exhibit R1, pages 104-106), she said she had made no enquiries of the respondent about the requirements for importation.  She was surprised that there were such requirements in a case such as hers.  Then, when asked about the ownership issue, she said she expected that, if the Vehicle was sold, she would receive the proceeds from her father’s estate.

consideration

Should the Tribunal exercise its discretion under Regulation 11 of the Regulations to allow the applicant to import the 1994 Mercedes Benz E200 motor vehicle into Australia?

13. In her evidence, Ms Kowald acknowledged that she was unable to comply with the literal requirements of Regulation 13 of the Regulations. She sought from the Tribunal a liberal reading of Regulation 13. However, as Mr Palfrey has submitted (which submission I accept), I am not permitted a liberal or compassionate reading of Regulation 13. It is clear that Regulation 13 is not satisfied in Ms Kowald’s case. She admitted that she did not own the Vehicle at the time of her application. The letter of 8 March 2010 from her brother, as an executor, makes it clear that the Vehicle at that time was the property of her father’s estate or the executors of that estate. There was no provision in her father’s Will bequeathing the Vehicle to her, but the letter suggests that the Vehicle may be transferred to her at the executors’ discretion. This does not amount to ownership and there is no other evidence that Ms Kowald was at any stage the owner of the Vehicle. In these circumstances, she fails to meet the requirements of Regulation 13(1)(aa), (ab) and (ac) of the Regulations and, conjunctively, Regulation 13(1) itself.

14.     More specifically, Regulation 13 “sets out a clear policy in relation to the importation of nonstandard road vehicles which have been owned and used overseas” (see Re Patel and Department of Transport and Regional Services [2001] AATA 957). Regulation 13, after its amendment on 17 November 2009, emphasizes that in order to satisfy the “ownership” and “use” requirements, an applicant is to be overseas with the vehicle during the 12 months immediately preceding their move to Australia.  These requirements are clearly not met by Ms Kowald.  In fact, the evidence is that she has never owned the Vehicle at all. 

15. The sole issue in this case, therefore, is the exercise of the discretion by the Tribunal (standing in the shoes of the Minister) under Regulation 11 of the Regulations. It confers an unfettered discretion on the Tribunal to approve the importation into Australia of a nonstandard road vehicle or a road vehicle that does not have an identification plate. It was Ms Kowald’s contention that, on the basis of compassionate grounds and the interests of being just and fair, the discretion should be exercised in her favour. However, as was said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at paragraph [15], an unconfined discretion must be exercised consistently with the limitations implied from the subject matter, scope and purpose of the legislative scheme of which it forms a part.

16.     In Re Marra and Minister for Transport and Regional Services [2003] AATA 323, Deputy President Hotop said that it must be:

“… exercised in accordance with the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation …”

17.     In discussing the application of the discretion in Regulation 11 in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355, Member M J Allen stated at paragraph 55:

“…I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.”

And at paragraph 59 stated:

“In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered …”

18.     This approach to the application of Regulation 11 has been followed by the Tribunal in other cases such as Re Murase and Department of Transport and Regional Services [2005] AATA 705, Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054 and Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48.

19. The respondent contends that, consistent with the cases above, an appropriate approach to the application of the Regulation 11 discretion is to undertake two inquiries. First, if there is some unfairness or injustice that would flow to the applicant if the application was not approved, it may be appropriate to exercise the discretion in the applicant’s favour. Second, the application should not be approved if doing so would undermine or frustrate the policy and objects of the legislative scheme established under the Act.

20.     In deciding the appropriateness of the exercise of the discretion in Regulation 11, the respondent referred the Tribunal to the observation of Senior Member McCabe in Re Williamson (supra), where, at paragraph 7 in discussing the nature of the discretion in Regulation 11, he stated:

“…By its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. …”

21.     The respondent also contended that no unfairness or injustice would flow to Ms Kowald if her application was refused.  There is no evidence that she was given incorrect advice by the respondent’s department (see Re Marra (supra) and Re Brassington and Minister for Transport and Regional Services [2006] AATA 724), or given out of date and misleading documents (see Re Fraser and Department of Transport and Regional Services [2003] AATA 44) upon which she relied to her detriment. She said she was surprised and disappointed by the decision reached by the respondent to refuse her application for importation of the Vehicle. The respondent referred to the decisions in Re Bastian and Minister for Transport and Regional Services [2007] AATA 1646, where the Tribunal found that sentimental attachment was not a sufficient reason to exercise the Regulation 11 discretion, and ReMiller and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 608, where the Tribunal said (at paragraph 14):

“…This is not a case where incorrect advice was provided about the importation process and, indeed, Ms Miller made no inquiry of the respondent about the prospects of importing the vehicle into Australia until she arrived here. In the context of the purpose of the legislative scheme under the Act and Regulations, rejection of Mr Miller’s application does not reflect unfairness or injustice to her and I am satisfied that the discretion in reg 11 of the Regulations should not be exercised in favour of MsMiller.”

22.     In Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417, the Tribunal was required to consider the refusal by the delegate to allow the importation from the United Kingdom of a 1999 Mercedes Benz E300 motor vehicle, where the applicant became the owner of the vehicle on the distribution of his late father’s estate. The late father had expressed a personal wish that after his death the vehicle should be shipped to Australia so that the applicant and his family could enjoy its use. The Tribunal distinguished Re Bastian (supra) on the facts and found that there was more to the case before it than the mere inheritance of a vehicle.  The Tribunal found that it would be fair and just to exercise the discretion in Regulation 11 in favour of the applicant.

23.     In my view, the decision in Re Hunt is distinguishable in Ms Kowald’s case on the facts. Ms Kowald was obviously disappointed that the respondent refused her application for importation and I have sympathy for her position. However, surprise, disappointment and sentimental attachment to a motor vehicle, to be consistent with earlier Tribunal decisions, are feelings insufficient to bring about an exercise of the discretion under Regulation 11 of the Regulations. As was said by the Tribunal in Re Williamson (supra), by its nature, the discretion must be exercised sparingly.  To exercise the discretion in the present circumstances would undermine the clear purpose of the legislative scheme.

conclusion

24.     In my view, Ms Kowald does not meet the requirements of Regulation 13 and a favourable exercise of the Regulation 11 discretion is not warranted in the circumstances.

decision

25.     The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         ...........J Coulthard...........................................
  Associate

Date of Hearing  21 October 2010
Date of Decision  17 December 2010
Advocate for the Applicant       Self represented
Counsel for the Respondent     Mr M Palfrey
Solicitor for the Respondent     Clayton Utz