Pantos and Department of Transport and Regional Services
[2006] AATA 332
•7 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/805
GENERAL ADMINISTRATIVE DIVISION
Re: THEODORE PANTOS
Applicant
And: MINISTER FOR TRANSPORT AND
REGIONAL SERVICES
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:7 April 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
TRANSPORT – approval to import sports car – nonstandard road vehicle - importation prohibited without approval – general discretion not exercised in the applicant’s favour - discretion – no grounds for exercise of discretion
Motor Vehicle Standards Act 1989
Motor Vehicle Standards Regulations 1989
Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 705
REASONS FOR DECISION
7 April 2006 Mr Egon Fice, Member
1. Mr Theodore Pantos decided to purchase a Mazda RX‑7 sports car. He found the car he was looking for on the Internet and made arrangements to purchase and import it from Japan. His problems began when his application for approval to import the vehicle was refused by the Minister for Transport and Regional Services (the Minister). The Minister determined that Mr Pantos did not meet the requirements prescribed by the regulations permitting the import of the Mazda RX7 motor vehicle. The Minister also found that there were no grounds to warrant the exercise of a general discretion under which the Minister could approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate. Mr Pantos has applied for a review of the decision of the Minister pursuant to s 39(1)(f) of the Motor Vehicle Standards Act 1989 (MVS Act).
BACKGROUND
2. Mr Pantos was advised by friends that it was possible to purchase used vehicles from Japan cheaply and to import those vehicles into Australia. Upon searching the Internet, Mr Pantos discovered the website of Batfa Japan Inc (Batfa) which sold used Japanese cars. After making inquiries, Mr Pantos agreed to purchase a 1992 model Mazda RX‑7 sports car, for US$7800 FOB.
3. Mr Pantos borrowed money from his parents and paid the purchase price. He also paid US$580 to have the motor vehicle shipped to Australia. He received a receipt on 12 August 2004. On 11 September 2004, Batfa issued a Bill of Lading in favour of Mr Pantos, and an Arrival Notice indicated that Mr Pantos' Mazda RX‑7 should arrive in Melbourne on 29 September 2004.
4. Mr Pantos completed an Application for Approval to Import a Vehicle and also an Application for Eligibility Specialist and Enthusiast Vehicle Scheme (SEVS) on 16 August 2004. Those documents were received by the Department of Transport and Regional Services (the Department) on 30 August 2004. On the application form Mr Pantos stated that the current physical location of the motor vehicle was Japan/Tokyo. There is a dispute about what happened next.
5. Mr Pantos said in evidence that Mr Don Benness from the Department telephoned him and said that he had Mr Pantos' application in front of him. According to Mr Pantos, Mr Benness told him that his application to import the Mazda RX‑7 motor vehicle would be allowed. Mr Pantos also said that a person from the Department, whom he could not name, told him that he needed to buy the vehicle before making an application to import it. Mr Pantos said that Mr Benness told him that his application to import the vehicle would be approved as soon as he received a letter of compliance from Mr Bempasciuto, who ran a business in Western Australia which was a registered automotive workshop (RAW) under the MVS Act. Mr Pantos also said that Mr Benness told him that his motor vehicle would not be left on the docks, but he denied that at the time he spoke with Mr Benness, his vehicle had already arrived in Melbourne.
6. Mr Benness gave a different account of what happened. He said that he first spoke with Mr Pantos by telephone during September 2004, although he does not know exactly when. He did recall that it was several weeks before he replied to an inquiry from the Office of the Commonwealth Ombudsman about his conversation with Mr Pantos. Upon reviewing the Department's records, he claimed that he had replied to the Office of the Commonwealth Ombudsman by email dated 14 October 2005. Therefore, Mr Benness believed he first spoke with Mr Pantos at about the end of September 2004. After his initial contact, Mr Benness spoke with Mr Pantos on several occasions over a period of about two weeks. Although he did not keep notes of his conversations with Mr Pantos, he said he recalled that the following was discussed in that first conversation:
(a)that Mr Pantos had a problem because his vehicle was "on the docks" in Melbourne but he did not have permission to take delivery of it;
(b)the vehicle concerned was a Mazda RX‑7 that Mr Pantos had purchased from Japan;
(c)that it was costing Mr Pantos money to leave the vehicle "on the docks" and he wanted to know what he needed to do to get permission to take delivery of the vehicle;
(d)he told Mr Pantos that he would need approval from the Department to import the vehicle;
(e)he told Mr Pantos that he could arrange for a RAW to apply to import the vehicle on his behalf;
(f)he gave Mr Pantos the contact details for Mr Frank Bempasciuto, the director and delegate of a RAW in Perth which was authorised under the RAW scheme to apply to import and to bring up to Australian standards used Mazda RX‑7 vehicles; and
(g)he gave Mr Pantos his telephone number in the event that he should require further assistance.
7. According to Mr Benness, he received a telephone call from Mr Pantos a few days after he first spoke with him and Mr Pantos told him that Mr Bempasciuto would not deal with Mr Pantos' vehicle. Mr Benness then contacted Mr Bempasciuto to inquire as to why he would not deal with Mr Pantos' vehicle. Mr Bempasciuto told Mr Benness that he was not eligible to apply to import a 1992 model Mazda RX‑7 motor vehicle because that model was not included on the Register of Specialist and Enthusiast Vehicles maintained by the Department. Mr Bempasciuto told Mr Benness that only Mazda RX‑7 motor vehicles manufactured between 1999 and 2002 are on the Register and are eligible to be imported under the RAW scheme.
8. Mr Pantos wrote to Mazda, the manufacturer of the motor vehicle, seeking a letter from the manufacturer stating that the 1992 model RX‑7 motor vehicle complied with Australian standards. Mazda refused to provide such a letter.
9. Mr Pantos said that he bought the vehicle for personal use, although he did mention he was attracted to it because it was worth some $30,000 in Australia. He did say that he did not plan to sell it.
10. After Mr Pantos' first application for import approval was refused, he sought assistance from the then Minister for Transport and Regional Services, Mr J. Anderson and he also wrote to Senator Christopher Ellison. He later filed a complaint with the Ombudsman, without success.
11. Mr Pantos then lodged a second Application for Approval to Import a Vehicle on or about 1 June 2005. In that application Mr Pantos described the vehicle as a Mathuda, Efini manufactured in 1993. The vehicle's identification number or chassis number was not stated. When requested to provide that information, Mr Pantos disclosed that the VIN number was FD3S‑200859, which is exactly the same as is stated in his first application. That application was refused.
12. Mr Pantos then made a third application in which he correctly described the vehicle as a 1992 Mazda RX‑7 vehicle. That application is the subject of this review,
CONSIDERATIONS
13. The importation of nonstandard vehicles is prohibited under s 18 of the MVS Act, which provides:
18(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.
(2) Subject to sections 19 and 20, a person must not import a nonstandard prescribed vehicle component.
14. Section 19 of the MVS Act provides that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate with the written approval of the Minister. Section 20 of the MVS Act permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate in prescribed circumstances. The exceptions, or prescribed circumstances, are set out in the Motor Vehicle Standards Regulations 1989 (MVS Regulations).
15. The supply and importation of vehicles is dealt with under Part IV of the MVS Regulations. Regulation 9 provides that, for the purposes of s 20(1)(b) of the MVS Act, a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister has approved an application by the person to import the vehicle. Regulation 10 provides that a person may apply to the Minister for such approval. Regulations 11‑18 set out specific circumstances under which the Minister must either approve an application for the import of a vehicle without an identification plate or may, under a general discretion, approve such an importation.
16. Regulation 12 provides that the Minister must approve an application to import a road vehicle that complies with national standards but does not have an identification plate, if the vehicle complied with national standards when it was first manufactured and delivered for use in transport. Mr Pantos sought a letter from Mazda in an attempt to satisfy the requirements of this regulation. Mazda refused to provide such a letter. Therefore, Mr Pantos cannot avail himself of this exception.
17. Regulation 13 provides an exception for Australian citizens or an Australian permanent resident who has spent an extended time overseas, where he or she has owned and used the vehicle for, a vehicle owned before 9 May 2000, 3 months, and in any other case for 12 months. This regulation does not apply to Mr Pantos.
18. Regulation 14 deals with the import of new vehicles and is clearly inapplicable.
19. Regulation 15 provides that the Minister may approve an application to import a used road vehicle if the applicant is a RAW; the vehicle was first manufactured after 31 December 1998; and the make and model of the vehicle is included in the schedule of approved vehicles for that applicant. Although there are other requirements which must also be satisfied, this regulation cannot assist Mr Pantos because he is not a RAW. Nevertheless, in an attempt to assist Mr Pantos, Mr Benness suggested that Mr Bempasciuto make the application to import the RX‑7 vehicle. However, and this is not disputed, Mr Bempasciuto said that he was not eligible to apply to import a 1992 model Mazda RX‑7 because it was not included on the Register of Specialist and Enthusiast Vehicles. Only Mazda RX‑7s manufactured between 1999 and 2002 are on the register and are eligible to be imported under the RAW scheme. Section 21 of the MVS Act provides that the Regulations may make provision for, and in relation to, the Minister keeping a Register of Specialist and Enthusiast Vehicles.
20. Division 4.2 of the MVS Regulations deals with the Register of Specialist and Enthusiast Vehicles. The register is required to be kept in electronic form and must be made available on the Internet at the Department's website. The eligibility criteria for vehicles to be entered on the register are set out under Regulation 24. Despite the fact that Mr Pantos' Mazda RX‑7 vehicle was not eligible to be entered on the register, Mr Pantos nevertheless completed an application for eligibility in respect of the SEVS. In completing that form, Mr Pantos stated the build date range of the vehicle to be from 2001 to 2002, although he well knew that the vehicle had been built in about 1992. The register in fact states that eligibility starts at 09/1999. When Mr Pantos was asked why he completed this form, he said that he did not know but he thought that it was part of the application. That may be so, although I am concerned that Mr Pantos was prepared to falsify information when he made the first application. In his second application, he also made a false statement regarding the date of manufacture, but he said that he was under considerable pressure at that time because he desperately wanted to take possession of the vehicle. My concern is that Mr Pantos seems to be inclined not to tell the truth if it is to his advantage to do so.
21. Regulation 16 applies only to used two‑wheeled or three‑wheeled vehicles; and therefore is not relevant to this matter.
22. Regulation 17 provides that the Minister must approve an application to import a nonstandard road vehicle or a vehicle that does not have an identification plate if the vehicle was manufactured before 1 January 1989. Clearly, that exception does not apply to Mr Pantos' Mazda RX‑7.
23. Finally, Regulation 18 does not apply to Mr Pantos as it provides that the Minister may approve an application to import a used nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that it is to be used in market evaluation and research.
24. Given the above, the only regulation upon which Mr Pantos can rely is Regulation 11 which provides the Minister with a general discretion to exempt the vehicle from the general prohibition set out in s 18 of the MVS Act. In order to better understand the basis upon which the Minister ought to exercise his discretion under Regulation 11, I have taken into consideration the context in which the exceptions appear in the regulations and the object of the MVS Act. Section 3 of the MVS Act provides:
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.
The phrase supply to the market is defined under the MVS Act as: in relation to a road vehicle, means deliver the vehicle to a person for use in transport in Australia. The word use is also defined to mean …in relation to a road motor vehicle—[to] drive…
25. The purpose of creating exceptions is set out in the Explanatory Memorandum to the Motor Vehicle Standards Bill 1989. Paragraph 23 of the Explanatory Memorandum states:
23. The exceptions to the general prohibition are that nonstandard vehicles, or vehicles not having compliance plates, may be supplied to the market with the Minister's written permission (which may be given subject to conditions), or under circumstances which may be prescribed by regulations. These exceptions are to make provision for bona‑fide manufacture or testing of small numbers of vehicles, or of vehicles used for special purposes for which it is not thought appropriate to require that compliance plates be obtained.
26. Mr R.J. Brown, the then Minister for Land Transport and Shipping Support, said in his Second Reading Speech at the time of the introduction of the Motor Vehicle Standards Bill 1989:
…A vital component of the Federal Government's road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first place and, in the event that a crash occurs, to protect the occupants.
…The Bill will underpin national uniformity. It includes provisions aimed at avoiding additional local requirements, by applying the same standards to all vehicles at the time of their first sale in Australia, regardless of source. The Bill will ensure the maintenance of the levels of safety and environmental quality that the community rightfully expects. This represents a major improvement over the current situation, particularly concerning second‑hand imported vehicles. As it happens, this is a timely Bill. Honourable members will be aware that there have been increased imports of substandard, second-hand motor vehicles. These do not have a number of major safety features and the fact that they are permitted registration in some States but not others is a vivid demonstration of the problems of non-uniformity. A truly national approach will avoid these situations. I am advised that some examples of the way in which these vehicles do not meet the design rules include a lack of protection against side impacts, inferior seat belts and lack of child restraint fittings. Other examples include inferior tyre and breaking standards. This is because they are built for low speed driving in densely populated cities, such as those in Japan, and Japanese cars just do not travel as far or as fast as cars used in Australia.
…
The Bill provides control over the import of vehicles, both new and second-hand. There will be procedures to allow non-standard vehicles into Australia provided that the Minister is satisfied that proper arrangements exist to modify the vehicles to ensure that they meet the standards. Provision will also be made in the regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas. There will also be provision to allow for test or evaluation vehicles and for the exemption of certain classes of vehicles, such as tractors and road-making machinery, from the requirements of the Act.
27. The Minister submitted that the discretion conferred by Regulation 11 should be exercised only in exceptional circumstances and not so as to frustrate the objects of policy of the MVS Act and the MVS Regulations. Mr Pantos, on the other hand, submitted that the discretion ought be exercised by the Minister because the vehicle was in fact landed in Australia and he had obtained assurances from Mr Benness to the effect that his application would be approved on the basis that Mr Bempasciuto, who could import the vehicle and make necessary modifications to ensure compliance, would do so. According to Mr Pantos, he relied entirely on the information given to him by Mr Benness. He said that he would not have initiated importation of the vehicle to Australia without permission. Mr Pantos also submitted that without the use of a motor vehicle he has had difficulty with his employment, spending almost a year unemployed. He also complained that he was not able to sell the vehicle and could not afford to buy another. He said that he owed a monthly repayment of just under $200, which would continue for seven years, in order to repay his parents for the loan which they had obtained for him from the bank. He also indicated that the whole situation had made him very depressed and he wanted that taken into account.
28. A succinct statement regarding the exercise of the discretionary power was made by Deputy President S.D. Hotop in Re Marra and Minister for Transport and Regional Services (2003) 73 ALD 705 at 715 where he said in respect of Regulation 9B, which is the predecessor to Regulation 11 of the current regulations and in precisely the same terms:
The tribunal accepts that the discretionary power conferred by reg 9B(1) of the regulations, although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the regulations: see, for example, Re Trajkovski, above, at (32). One such kind of circumstance, envisaged in Re Trajkovski, at (34), where it might be appropriate to exercise that discretionary power is in the event that, if that were not done, injustice would necessarily be suffered by the relevant importer.
29. In Re Marra the Deputy President in fact found in favour of Mr Marra for a number of reasons, including the fact that his importation of the motorcycle in question did not involve any lack of good faith or any fault, blameworthiness or lack of due diligence on Mr Marra's part. Furthermore, Mr Marra had relied upon advice given by the Department and he had no reason to doubt that ultimately import approval would be granted. The Department's then current Information Bulletin merely recommended that a vehicle not be shipped until import approval had been granted. Mr Marra had not seen that Information Bulletin before he shipped the vehicle and he had no reason to be aware of that recommendation. Taking into account all of the circumstances in that case, Deputy President Hotop found that the Minister's decision to refuse import approval would cause Mr Marra a serious injustice.
30. There are number of significant differences between Mr Marra's case and that of Mr Pantos. Although Mr Pantos said that he did not commence to import the vehicle before speaking with Mr Benness, the evidence does not support that statement. Mr Benness said that he did not speak with Mr Pantos until about the end of September 2004 and that the nature of those conversations was by way of assisting Mr Pantos with a general inquiry about the RAW scheme. This is supported by the fact that, in an email dated 13 September 2004 from Teighan Martins of the Department, Mr Pantos was advised that in respect of his first application, which was received by the Department on 30 August 2004, in order to obtain approval to import his vehicle, he had to either contact the RAW which held his vehicle or, if one did not exist, he should become a RAW in order to import the vehicle. This email also clearly explained to Mr Pantos that his application dated 16 August 2004 would be refused because his vehicle did not qualify for approval. It appears that he was given advice about the RAW scheme because that was the only way that his vehicle could be imported. It follows that, if Mr Benness had a conversation with Mr Pantos after 13 September 2004, it was likely to be about the RAW scheme. This, of course, accords with Mr Benness' evidence.
31. Mr Pantos denied that he had in fact imported the vehicle prior to speaking with Mr Benness or making an application to import the motor vehicle. Mr Benness has a clear recollection that Mr Pantos told him that his vehicle was on the docks in Melbourne but he did not have permission to take delivery of it. By an email dated 28 September 2004, Mr Pantos wrote to the Minister, Mr Anderson, in which he stated:
I have imported a vehicle and am having trouble receiving a Letter of compliance…I have attached the Notice of Arrival which also shows reference to the Vehicle Chassis Number, the Port of Destination and the Address [which] I wish to register as its temporary location until the time of Compliance and Registration.
Quite clearly the vehicle had arrived by 28 September 2004. Given that Mr Benness said in evidence that he first had a conversation with Mr Pantos at the end of September, I accept Mr Benness' evidence that Mr Pantos told him that the vehicle had been imported and that he was having difficulty taking possession of it because his Application for Approval to Import a Vehicle had not been approved. Quite clearly Mr Pantos ignored the recommendation which is set out in bold letters on the first page of the application that It is strongly recommended that you do not ship your vehicle until you are issued with an Import Approval.
32. It is also apparent from the evidence that Mr Pantos attempted to manipulate his application to have the vehicle declared eligible under the SEVS. Although no doubt this was born of desperation, as were the false statements made in his second application, this does not assist Mr Pantos in seeking that the Minister exercise discretion in his favour.
33. It is my opinion that at all times Mr Benness acted properly and professionally in dealing with Mr Pantos and he attempted to assist him as best he could. Although he referred Mr Pantos to Mr Bempasciuto, thereby perhaps raising his hopes that something could be done, when he realized he had overlooked the fact that the Mazda RX‑7 was manufactured in 1992 and was not eligible to be imported under the RAW scheme, he apologised to Mr Pantos for this oversight. Of course, given that the vehicle had already been imported, it did not affect Mr Pantos' position at all.
34. Although Mr Pantos said that he imported the vehicle for his personal use, I am not entirely satisfied on the evidence that he did not import it to for the purpose of selling it at a profit. Mr Pantos said in evidence that he was attracted to the vehicle as it was worth some $30,000 in Australia. In his submissions, Mr Pantos also referred to not being able to sell the vehicle and also that he owed money to his parents who had obtained a loan from the bank to enable him to purchase the vehicle. Although not specifically argued, I understood Mr Pantos to be saying that he is suffering financial hardship as a consequence of the decision taken by the Minister. However, if in fact Mr Pantos purchased the vehicle for personal use as he claimed, even if he were allowed to take possession of the vehicle at this time, he would nevertheless be required to repay his parents to assist them in repaying the bank loan.
35. There were also questions raised about the cost of storage and re‑exporting the vehicle. Mr Pantos did mention that it would cost about AUS$1000 to re‑export the vehicle. Although I accept that Mr Pantos will suffer some financial detriment as a consequence of not being able to take possession of the vehicle, no evidence was put before me regarding his financial position and therefore I cannot conclude that he will in fact suffer financial hardship as a consequence of not being able to register the vehicle in Australia.
CONCLUSION
36. The Tribunal has taken the consistent view that the exercise of discretion under the former Regulation 9B and currently under Regulation 11 should only be exercised in exceptional circumstances. Numerous cases were cited to me on behalf of the Minister and there is no need for me to refer to them in detail. I accept that is the position, particularly following the decision by Deputy President Hotop in Re Marra. Although that decision went on appeal to the Federal Court, the appeal was only on the question whether the Act and Regulations prevented approval being given for the importation of a motor vehicle after its arrival in Australia. Although it matters not for this case, the Federal Court upheld the decision of Deputy President Hotop on that point.
37. Mr Pantos has not demonstrated that there are exceptional circumstances in his case. This is not like the cases that deal with overseas residents returning to Australia who have almost met the ownership requirements under Regulation 13 and where the discretion was exercised in their favour. Nor am I of the view that Mr Pantos' situation is in any way analogous to those situations. In fact, there is some evidence which suggests that Mr Pantos may have decided to import this vehicle for the purpose of selling it at a profit in Australia. He imported the vehicle without first lodging an application for approval, despite the warning that is set out boldly on the first page of each application form. It appears that he did not make sufficient inquiries about the restrictions placed on the importation of such vehicles before completing the purchase and commencing to import the vehicle. If this has now caused him some financial hardship, then it is because of his own actions and not the actions of any delegate of the Minister. To refuse to exercise the discretion in his favour would not, in those circumstances, cause him injustice.
38. Accordingly, the decision of the Minister to refuse approval for the import of Mr Pantos' Mazda RX‑7 motor vehicle should be affirmed.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 8 March 2006
Date of Decision: 7 April 2006
Advocate for the applicant: Self‑representedSolicitor for the respondent: Mr Anthony Field, Phillips Fox
1
0
0