RCM v Dept of Transport
[2001] FMCA 53
•25 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
RCM INDUSTRIES PTY LTD v DEPARTMENT OF TRANSPORT AND
REGIONAL SERVICES [2001] FMCA 53
ADMINISTRATIVE LAW – Judicial Review – Application for review of Decision to suspend authority granting approval to affix compliance plates to motor vehicles pursuant to s 10A(1) of Motor Vehicle Standards Act 1989 – delegation – whether decisionmaker duly authorised – whether suspension notice should refer to fixed time of suspension – whether application should be reviewed by Administrative Appeals Tribunal – s 39(1)(a) of Motor Vehicle Standards Act 1989
Motor Vehicle Standards Act 1989 s 10A, 11, 23, 39(1)(a)
Administrative Decisions Judicial Review Act 1977 s 5, 10(2)(b)(ii) and 11(3)(b)(iii)
Borkovic v Minister for Immigration and Ethnic Affairs; Knesevic v Minister for Immigration and Ethnic Affairs (heard together) (1981) 39 ALR 186
Kioa v West (1985) 159 CLR 550
D’Emden v Pedder (1904) 1 CLR 91
| Applicant: | RCM INDUSTRIES PTY LTD |
| Respondent: | DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES |
| File No: | MZ62 of 2001 |
| Delivered on: | 25 July 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 February 2001 and 9 March 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D E Whiting |
| Solicitors for the Applicant: | Stedman Cameron |
| Counsel for the Respondent: | Mr P J Hanks QC |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The time be extended to 8 February 2001 to permit the Application to be filed and to enable the Application to be heard.
The Application is dismissed.
The Applicant shall pay the Respondent’s costs of the Application including reserved costs to be taxed in default of agreement
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MZ62 of 2001
RCM INDUSTRIES PTY LTD
Applicant
And
DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 July 1999 pursuant to s 10A(1) of the Motor Vehicle Standards Act 1989 (the MVS Act) the Respondent issued Authority number 21483 (the Approval) granting Compliance Plate Approval (CPA) to the Applicant to affix compliance plates to motor vehicles modified by the Applicant provided the compliance plates were fixed in accordance with the terms of the Approval.
The Applicant does not hold any other approvals and the modification of vehicles and fitting of compliance plates in accordance with the Approval comprises a substantial proportion of its business. The Approval to affix compliance plates means that motor vehicles modified by the Applicant may be registered for road use in Australia. It is acknowledged that the terms of the Approval may be modified from time to time. According to the Respondent’s evidence the Approval allowed identification plates to be fitted to Ford RCM SD F-series vehicles having a Gross Vehicle Mass (GVM) between 5.08 tonnes to 5.6 tonnes within Vehicle Category NB2. Ford RCM SD F-series vehicles are defined in the Australian Design Rule (ADR) documents referred in Schedule 4 of the Approval. Vehicle category NB2 is defined in the ADR’s.
The object of the MVS Act is “to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia”. The ADR’s are designed to make road vehicles safe to use or to control the emission of gas particles or noise for road vehicles or secure road vehicles against theft or to promote saving of energy.
Following an alleged breach of the Approval the Respondent made a Decision to vary the Approval (along with other authorities numbered 11662 and 11992) by imposing an additional condition set out in a new schedule 5. That schedule was attached to a letter dated 10 May 2000 to the Applicant and required the Applicant to forward to the Director of Approvals and International Policy on a weekly basis “a circular 0-4-0 inspection certificate” signed by a registered chartered professional engineer for each vehicle to be supplied to the market. There was an extensive exchange of correspondence referred to in the chronology set out in this judgment. The correspondence however culminated in a decision which arose from a query by the Respondent as to how three identified vehicles had been imported by the Applicant where Approval had not been granted. The vehicles had been included in an import application by the Applicant dated
19 June 2000 and no import approval had been granted as the vehicles were not within the scope of any approvals held by the Applicant. Ultimately on 8 November 2000 the Applicant completed circular 0-4-5 inspection certificates for seven vehicles which had been imported on 29 June 2000 though the certificates it is said by the Respondent were backdated and contained anomalies. Further information was provided by the Applicant on 13 November 2000 and according to the Respondent it was clear that the Applicant had used the “standing” import approval that had been revoked on 10 May 2000.
The Respondent had considered submissions made by the Applicant and made a decision to suspend the Approval. That decision was based upon an alleged breach of condition of the Approval namely to supply weekly 0-4-5 certificates together with its plating and supplying to the market two vehicles which were not included in the Approval. The Applicant was advised by letter dated 22 November 2000 that the Respondent had suspended the Applicant’s Approval to place identification plates on vehicles (the Decision).
In its Amended Application the Applicant seeks review of the Decision. Save for the use of Form 56 pursuant to Order 54 Rule 543 of the Federal Court Rules no reference is made in the Amended Application to any section of the Administrative Decisions Judicial Review Act 1977 (ADJR Act).
As indicated the Decision relates to an authority granted by the Respondent to the Applicant to place compliance plates on vehicles issued by section 10A(1) of the Motor Vehicle Standards Act 1989 (the MVS Act). The Decision was made pursuant to sub-section 11(1)(b) of the MVS Act when the person purporting to be the delegate of the Minister decided that he was satisfied that the Applicant has, “placed an identification plate on a road vehicle or any road vehicle other than in accordance with the arrangements referred to in section 10 of the Act”.
It is useful to set out the Decision as both parties have relied upon details of it during the course of submissions. The letter dated
22 November 2000 constituting the Decision provides:-
“I refer to the letter of 19 October 2000 from the Administrator of Vehicle Standards giving you notice to show cause why the Authority to place compliance plates on vehicles number 21483 issued under Section 10A(1) of the Motor Vehicle Standards Act 1989 (also known as Compliance Plate Approval) should not be suspended, varied or cancelled.
You were given until 05 November 2000 to respond to the queries raised in the Administrator’s letter of 19 October 2000.
Taking all the circumstances into account including your facsimile of 4 November 2000, and your letter of 8 November, I as the Delegate of the Minister and in accordance with subsection 11 (1) (b) of the Act, am satisfied that RCM Industries P/L has:
· placed an identification plate on a road vehicle or any other vehicle other than in accordance with the arrangements referred to in Section 10 of the Act
I have therefore decided to suspend the Authority to place compliance plates on vehicles number 21483 issued under Section 10A.(1) of the Motor Vehicle Standards Act 1989 (also known as Compliance Plate Approval).
This variation to Authority number 21483 is made pursuant to section 11(3) of the Motor Vehicle Standards Act 1989 and takes effect from the date of this notice.
Pursuant to section 40 of the Motor Vehicle Standards Act 1989 I must advise you that;
(a)subject to the Administrative Appeals Tribunal Act 1975, application may be made by you or on your behalf to the Administrative Appeals Tribunal for review of this decision; and
(b)except where Subsection 28(4) of that Act applies, application may be made in accordance with Section 28 of that Act by you or on your behalf for a statement in writing setting out the reasons for the decision.”
As indicated the basis of the Decision appears to be that the Respondent was satisfied that the Applicant had “placed an identification plate on a road vehicle or any other vehicle other than in accordance with the arrangements referred to in s 10 of the Act”.
The Proceedings
When the Application was first listed for hearing on 14th February 2001 I dealt with a Notice of Motion by the Applicant seeking interim orders that the authority be reinstated pending the final hearing of the Application. I refused to make an interim order and instead listed the Application for hearing on 27 February 2001. I was satisfied that there is a degree of urgency in this matter and have expected to deal with the Application expeditiously. At the conclusion however I was told that a further notice of intention to cancel had been served upon the Applicant by the Respondent arising out of the same circumstances in the present case and it would appear therefore that to some extent concerns raised during the course of argument about the effect of a suspension have now been superseded by a formal notice of cancellation.
The task of dealing with the Application expeditiously was not assisted by an application for leave to make substantial amendments to the Application during the course of submissions on the first day of the hearing. The Amended Application was filed prior to resumption of the hearing on the second day. It was effectively a replacement for the original application and both parties filed and served further written submissions arising out of the Amended Application. The Respondent did not oppose the matter proceeding on the basis of the Amended Application. However the Respondent made certain submissions challenging a number of matters arising out of the Amended Application.
Although the Applicant only seeks to review the Decision in its Amended Application it claims the following:-
“1.An order that the Decision of the Minister responsible for the administration of the Motor Vehicle Standards Act 1989 on 22nd November 2000 to suspend authority 21483 is invalid.
2.An order that the Decision of the Minister responsible for the administration of the Motor Vehicle Standards Act 1989 on 10 May 2000 to vary Authority 21483 is invalid.”
The Application also seeks extension of all times necessary “to permit the filing and hearing of this Application”.
Whilst the Decision made on 10 May 2000 is sought to be challenged it is not referred to as a Decision sought to be reviewed pursuant to any provision of the ADJR Act. It seemed to me that the Applicant conceded that the Court would have difficulty undertaking review under the ADJR Act of the Decision made 10 May 2000 but simply asserted that if I were to find in its favour in relation to the Decision under review upon the grounds that there has not been the appropriate delegation then such a finding may by inference render invalid the Decision of 10 May 2000. In my view it is not appropriate for a Court upon review of a Decision pursuant to the ADJR Act to indirectly consider other decisions which may be effectively rendered invalid as a consequence of the Decision of this Court. Accordingly I do not propose reviewing the Decision made on 10 May 2000.
In its Amended Application the Applicant claims to be aggrieved by the Decision because:
1.A breach of rules of natural justice occurred in connection with the making of the decision.
2.Procedures that were required by law to be observed in connection with the making of the decision were not observed.
3.The making of the decision was an improper exercise of the power conferred by the enactment in pursuant of which it was purported to be made.
4.That there was no evidence or other material to justify the making of the decision.
5.That the decision was otherwise contrary to law.
The grounds of the Amended Application are:
1.Applicant not called upon to respond to reasons and/or circumstances upon which the Administrator made the decision.
2.The notice does not contain facts and circumstances which warrant the cancellation, suspension or variation of Authority 21483
3.The suspension notice does not contain any information which would enable the Applicant to determine the basis upon which Authority 21483 might be reinstated (the suspension withdrawn), and accordingly the suspension notice takes effect other than in accordance with its terms.
4.The notice does not include an adequate statement of the facts and circumstances that formed the basis of the Minister’s opinion and accordingly the Applicant was not given an adequate opportunity to show cause under subsection 11(2).
5.The relevant considerations upon which the Minister made the decision under subsection 11(1) should be limited to the facts and circumstances properly given and contained in the notice and any response provided under subsection 11(2). The Minister has taken other matters into account in determining the relevant considerations for the purposes of subsection 11(1).
6.The notice directs the Applicant to a matter under subsection 11(1)(b) other than the matter that was the basis of the decision.
7.The Minister failed to follow the procedure laid down in the Act in making the decision to issue the suspension notice in that:
(a)The letter of 19th October 2000, purporting to be written notice under subsection 11(2) is not signed by the Minister or a duly authorised delegate.
(b)The notice does not contain any facts and circumstances as required by subsection 11(2) that are relevant to that part of subsection 11(1)(b) referred to in the show cause notice.
(c)The notice and the response of the Applicant do not contain all of the facts and circumstances upon which the Minister made the decision to issue the suspension notice and accordingly, the notice is deficient, as is the suspension notice.
8.
The obligation to provide 0-4-5 certificates to which the Minister refers to or appears to claim as a fact and circumstance for the purpose of the notice is not an obligation validly imposed upon the Applicant as the Minister failed to follow the procedure laid down in the Act in making the decision to issue the notice of
10 May 2000 in that the letter of 12th April 2000, purporting to be written notice under subsection 11(2) is not signed by the Minister or a duly authorised delegate.
9.The Minister took into account irrelevant considerations in the making of the decision to issue the suspension notice being:
(a)Matters not included in the notice and any response by the Applicant; and
(b)
Non compliance by the Applicant with the purported variation to Authority 21483 constituted by the letter of
10 May 2000.
10.The instrument of delegation giving to the delegate of the Minister limited delegation under subsection 11(1) does not include the power to determine the relevant considerations as required by that subsection, and accordingly the delegation is not effective.
11.In the absence of a written notice under subsection 11(2) the Minister had no power to make the decision to issue the suspension notice.
12.The show cause notice and the responses of the Applicant do not contain any evidence that would enable the Minister to be satisfied as to any of the matters listed in subsection 11(1)(b).
13.The notice constituted by the letter of 19 October 2000 is not a notice as required by subsection 11(2) as a person who has not signed it received an appropriate delegation.
14.
The purported variation to Authority 21483, being the letter of
10 May 2000 was ineffective in that the letter of 12 April 2000, being or purporting to be a notice under subsection 11(2) is not a notice as required by that subsection as it was signed by a person who has not received an appropriate delegation.
Relevant Legislation
Reference has been made in submissions to sections 5, 10(2)(b)(ii) and 11(3)(b)(iii) of the ADJR Act. It is not proposed to set out those provisions in these Reasons though reference will be made to relevant clauses where appropriate.
The relevant provisions of the MVS Act are as follows:-
“10A Approval for the placement of identification plates
(1) If road vehicles or vehicle components of a particular type comply with the national standards, the Minister must give written approval for identification plates to be placed on vehicles or components of that type.
(2) If:
(a) road vehicles or vehicle components of a particular type do not comply with the national standards; but
(b) the Minister is satisfied that such noncompliance is only in minor and inconsequential respects;
the Minister may give written approval for identification plates to be placed on vehicles or components of that type.
(3) If:
a) road vehicles or vehicle components of a particular type do not comply with the national standards; and
(b) the Minister is satisfied that the noncompliance is not only in minor and inconsequential respects; but
(c) the Minister is satisfied that, despite the noncompliance, vehicles or components of that type are safe to use if specified conditions are observed;
the Minister may give written approval for identification plates to be placed on vehicles or components of that type.
(4) Authority for the placement of identification plates may be subject to written conditions determined by the Minister.
11 Withdrawal of identification plate authority
(1) Where:
(a) a person is authorised under this Act to place identification plates on road vehicles of a type specified in the authority; and
(b) the Minister is satisfied:
(i) that the person has placed an identification plate on a road vehicle or any other vehicle otherwise than in accordance with arrangements of the kind referred to in section 10 or
(ii) that the person has made a false statement for the purpose of avoiding liability for fees payable under this Act or the regulations in relation to the placing of identification plates; or
(iii) that the person has failed, without reasonable excuse, to pay fees payable under this Act or the regulations in relation to the placing of identification plates; or
(iv) that the person has failed to observe procedures determined under section 9; or
(v) that the person has failed to comply with a condition to which his or her authority is subject under subsection 10A (4);
the Minister may, having regard to all the relevant circumstances, cancel, suspend or vary the person's authority to place identification plates on road vehicles of that type.
(2) Before making a decision under subsection (1), the Minister is to:
(a) give written notice to the person of the facts and circumstances that, in the opinion of the Minister, warrant consideration being given to the cancellation, suspension or variation of the authority; and
(b) allow the person to show cause, within such reasonable time as is specified in the notice, why the authority should not be cancelled, suspended or varied.
(3) The Minister is to give written notice of a decision under subsection (1) and the grounds for the decision to the person, and the decision takes effect from the date the notice is given.
23 Delegation by Minister The Minister may by signed instrument delegate to the Administrator or to an Associate Administrator all or any of the Minister's functions or powers under this Act, other than:
(a) the power to determine that vehicles of a particular class or description are not road motor vehicles under subsection 5B (1); and
(b) the power to determine national standards under section 7; and
(c) the power to determine the organisations whose documents may be incorporated under section 7A; and
(d) procedures and arrangements for determining whether road vehicles or vehicle components comply with this Act under section 9; and
(e) the power to determine procedures and arrangements for the placement of identification plates on road vehicles under section 10;”
Evidence and Submissions
The Applicant relied upon Affidavits sworn by William Malcolm Turnbull on 8th February 2001 and 24 February 2001. In addition to oral submissions the Applicant also relied upon Outline of Submissions dated 26 February 2001, Submissions dated 1st March 2001 and a List of Authorities dated 7 March 2001.
The Respondent relied upon Affidavits of Peter Andrew Robertson sworn 21st February 2001 and 27 February 2001. In addition to oral submissions the Respondent relied upon written submissions dated 26 February 2001, further submissions dated 27 February 2001, supplementary submissions dated 8 March 2001 together with a List of Authorities dated 26th February 2001 and additional authorities filed on 9 March 2001.
Chronology
It is appropriate to set out the chronology together with extracts of relevant correspondence which may assist by way of establishing the factual background in this matter.
30 June 1999 - Secretary of Respondent pursuant to sub-s 22(2) of the MVS Act appoints “the person from time to time holding occupying or performing the functions and duties of the position of assistant secretary, Motor Transport, Land Department of Transport and Regional Services to be the Administrator of Vehicle Standards” (emphasis added)
15 July 1999 - Approval No 21483 issued pursuant to s10A(1) of MVS Act to the Applicant by administrator of vehicle standards which referred to four schedules (Document was signed by the Administrator on 20 July 1999)
8 September 1999 - Instrument of Delegation by Minister for the Respondent pursuant to s 23 MVS Act delegated powers under sub s 11(1) of the MVS Act (to vary or suspend an authority only) to the delegated position of “AS Vehicle Safety Standards Land Transport
15 February 2000 – Letter forwarded to Applicant by Respondent stating that the Applicant had “affixed an identification plate to her vehicle that is not the specified vehicle and is different from the vehicle described in the final form of the Application for this Approval”. The letter requested the Applicant to advise the reasons for placing “an identification plate on a vehicle for which no authority has been given”.
12 April 2000 - Letter from Administrator of Vehicle Standards to Applicant giving notice to show cause why authorities 11662,11992 and 21483 should not be suspended, varied or cancelled. The letter further noted that the Applicant had not provided reasons in response to the letter of 15 February 2000.
26 April 2000 – File note of Respondent of telephone call from Mr Turnbull of the Applicant noting Mr Turnbull states that he had not responded to the administrator’s letter because he had been unable to contact the original owner of the relevant vehicle.
8 May 2000 - Letter from Applicant to Respondent in reply to show cause notice dated 12 April 2000.
10 May 2000 - Administrator of Vehicle Standards varies authority 21483 by incorporating a new schedule 5 to the authority. The variation was made pursuant to sub s 11(3) of the MVS Act and was to take effect from the date of the notice. A letter from the Respondent to the Applicant dated 10 May 2000 purportedly enclosed a copy of schedule 5 as an attachment though the Applicant denies receiving that schedule at any time. The letter further provides a notice pursuant to s 40 of the MVS Act that the decision to vary the authority may be the subject of an application to the Administrative Appeals Tribunal.
29 September 2000 - Letter Respondent to Applicant. This letter referred to CPA’s including the Approval together with other approvals numbered 11662 and 11992 and stated, “These three CPA’s were all varied adding schedule 5 on 10th May 2000 requiring you to forward a circular 0-4-5 Inspection Certificate for each vehicle to be supplied to the market to this office on a weekly basis.” The letter enquired about the status of seven Ford SDV series vehicles on 29 June 2000 in circumstances where no 0-4-5 certificates had been submitted by the Respondent as required by the Approval as varied by the addition of schedule 5.
19 October 2000 - Administrator of Vehicle Standards gives notice to the Applicant to show cause why authority 21483 should not be cancelled suspended or varied pursuant to sub s 11(2) of the MVS Act referring to a failure to respond within 14 days to the Respondent’s letter dated 29 September 2000 to the Applicant. Reference is made in the letter to schedule 5 and in particular the following extract appears:-
“A circular 0-4-5 inspection certificate signed by a registered chartered professional engineer for each vehicle to be supplied to the market shall be forwarded on a weekly basis to the:
Director
Approvals and international policy
Vehicle Safety Standards Branch
Department of Transport and Regional Services”.
31 October 2000 – Respondent received notice that the Applicant was surrendering CPA’s 11662 and 11992
31 October 2000 – Mr Payne of the Respondent telephones Mr Turnbull of the Applicant to remind him the response is required to the administrator’s letter of 19 October 2000.
31 October 2000 – Respondent receives an undated letter from Applicant addressed to Mr Payne stating that RCM was reviewing all its test data and will be able to finalise the issues raised by the Respondent after 3 November 2000.
1 November 2000 – Mr Payne of the Respondent writes to the Applicant acknowledging receipt of the undated letter received on 31 October 2000 and states that “Administrator’s letters to show cause of 18 October require your satisfactory response to the issues raised by 4 November 2000”.
4 November 2000 –Applicant provides response to issues raised in the 19 October 2000 letter and seven incomplete 0-4-5 Inspection Certificates were provided with the response.
6 November 2000 – Mr Payne of the Respondent writes to the Applicant seeking advice from the Applicant as to how three identified vehicles have been imported by the Applicant when the Respondent had not granted an import approval for the vehicle.
8 November 2000 – Applicant provides completed circular 0-4-5 Inspection Certificates for the seven vehicles which had been imported on 29 June 2000. The Respondent asserts that there are certain anomalies in the backdated certificates.
13 November 2000 – Applicant provides further information confirming that it had imported three vehicles without a valid import approval and had used the “standing” import approval which had been revoked on 10 May 2000.
22 November 2000 – Respondent makes decision to suspend the approval based upon breach of condition contained in the approval to supply weekly 0-4-5 certificates and the plating and supplying to the market two vehicles which were not included in the approval.
20 December 2000 - Meeting between Applicant’s representatives and Respondent’s representatives whereby Applicant told that suspension would not be lifted and the Respondent would be moving to cancel authority 21483 and that the Applicant could apply for a new registration.
20 December 2000 - Administrator of vehicle standards gives notice to the Applicant requesting Applicant to show cause why authority 21483 should not be cancelled suspended or varied.
5 January 2001 - Applicant seeks advice from its solicitors
8 January 2001 - Facsimile response forwarded by Applicant’s solicitors to Respondent in reply to the notice dated 20 December 2000.
8 January 2001 - Facsimile message from Respondent to Applicant stating,
“I refer to your fax 8 January 2001 and draw your attention to the fact that CPA 21483 issued to RCM Industries Pty Ltd is currently suspended and the company has no authority to place compliance plates on vehicles”.
15 January 2001 - Applicant’s solicitors request the administrator to provide a copy of schedule 5 seeking cancellation of the suspension in response to the notice of suspension dated 22nd November 2000 and purporting to deal with the show cause notice dated 19 October 2000.
The chronology is based largely upon documentary material and affidavit evidence provided by the Respondent in the Affidavit of Peter Andrew Robertson sworn 21 February 2001. To the extent that there is any conflict in terms of evidence concerning the correspondence and file notes I prefer the evidence of the Respondent’s deponent given the Affidavit has attached to it file notes and copy correspondence which I regard as reliable. Further, the conduct of the Respondent in replying to the requests albeit belatedly further confirms receipt of the relevant correspondence and an acknowledgment that there had been non compliance with the requirements imposed. For present purposes therefore I accept the chronology set out above as an accurate record of the events which took place over the period of time from 30 June 1999 up to
15 January 2001.
Preliminary Issues
Preliminary issues were raised in this matter concerning extension of time, whether the application should have been made to the Administrative Appeals Tribunal rather than the Court, whether the Court should review and/or attempt to review the Decision dated
10 May 2000 and whether the decisionmaker was the subject of the appropriate delegation pursuant to s 23 of the MVS Act.
Although these matters were referred to at the commencement of the Application as preliminary issues, it became clear that they should be dealt with in the context of the analysis of the merits of the Application and hence shall be considered at the end of the judgment and/or during the course of my reasoning. Submissions were made throughout concerning the issue of delegation and/or whether the proceedings could be commenced in the Administrative Appeals Tribunal rather than this Court. The issue of an extension of time clearly depends in part upon the merits of the Application.
It should be indicated at the outset that the function of the Court in a judicial review under the ADJR Act is not to embark upon the process of making a decision on the merits though obviously in considering its obligations under the ADJR Act it will look closely at the facts which form the basis of the decision. This is undertaken to determine whether the Application can truly be said to be one which requires judicial review where a contravention of one of the provisions of the ADJR Act has occurred (see Borkovic v Minister for Immigration and Ethnic Affairs; Knesevic v Minister for Immigration and Ethnic Affairs (heard together) (1981) 39 ALR 186).
In the present case it is appropriate for the Court to determine whether the decisionmaker had appropriate delegation, whether the action was lawful and whether there are any other matters raised before the Court which would otherwise constitute a breach of the rules of natural justice or otherwise provide support for grounds which may be relied upon under section 5 of the ADJR Act.
It is accepted for the purpose of this Application that procedural fairness requires the delegate exercising statutory power to act in a manner where the power is exercised according to procedures that are “fair to the individual considered in the light of the statutory requirements”. (see Kioa v West (1985) 159 CLR 550 at 584).
The task of the Court has been made more difficult by the absence of specific reference to the provisions of the ADJR Act relied upon by the Applicant and it is by inference that I am prepared to consider the merits of the Application and I rely upon submissions made by the Applicant where some reference was made to the provisions relied upon.
Delegation
An issue has been raised concerning delegation whereby it is asserted by the Applicant that the letter of 19 October 2000 has not been signed by a Minister or duly authorised delegate, that the person purporting to be the delegate, namely Mr Robertson is not the Administrator of Vehicle Standards. It has been submitted that he has not been delegated any powers under s 11(1) of the MVS Act.
It is further submitted the Minister’s delegation or the power to vary or suspend did not authorise the delegate to give a written notice under s 11(2) of the MVS Act or that the delegate was not authorised to form the required state of satisfaction referred to in s 11(1)(b).
On the material before me I am satisfied that in fact there has been a proper delegation of power by the Minister in s (11)(1) of the MVS Act to the administrator. During the course of submissions the Applicant submitted that a delegation should be regarded as one made to an individual or person holding a position and that a delegation cannot be made to a person who holds more than one position. In my view this submission cannot be sustained. It would be contrary to the whole concept of ministerial delegation of powers to suggest that the delegation is confined to an individual rather than the position held by the individual or indeed that a delegation can be restricted to one individual. Accordingly there is no merit in my view in that submission.
It was submitted by Mr Hanks of Counsel for the Respondent and I accept that the delegation under s 11(1) of the MVS Act must carry with it all the powers and duties that are necessary or proper to give effect to the delegated power (see D’Emden v Pedder (1904) 1 CLR 91 at 109-110).
In my view it would be absurd to suggest that a delegation of the 11(1) power would not permit the delegate to perform the duty imposed as a condition of the exercise of the power by s 11(2) which provides for written notice and further allows for the person to show cause as to why an authority should not be suspended.
As to the issue of whether Mr Robertson had the appropriate delegation I find as a matter of fact that at all material times he was in fact the person designated to be the administrator of vehicle standards. This delegation is provided in the Minister’s Instrument of Delegation dated 8 September 1999 which had been made to “AS Vehicle Safety Standards, Land Transport”. The Affidavit evidence of Mr Robertson clearly indicates that at all material times this was a position he held and therefore I accept that in those circumstances he had a delegation of the power to vary or suspend an authority contained in s 11(1) of the MVS Act.
I do not believe it is necessary to consider the other authorities to which I have been referred by Counsel for the Respondent save to say that in my view once the correct delegate has been nominated and the powers associated with the delegation clearly referred to in the legislation there is no doubt in my mind that that delegate is able to then exercise the powers including the issue of a notice to show cause which occurred in the present case.
If indeed the contrary view were to be taken and a delegation restricted to the point where the Minister has to turn his mind to every decision made by a delegate exercising delegated power then effectively that would undermine the purpose and intent of a delegation.
It is clear on the material before me that in the present case the administrator holds an office established by s 22(1) of the MVS Act and had been appointed by the secretary and is a SES (or acting SES) employee: s22(2). It is submitted by Mr Hanks that s 23 of the MVS Act contemplates that the administrator will exercise substantial powers. I accept that submission.
Applicant not called upon to respond to the notice given on
19 October 2000
In essence it seems that the Applicant asserts that the notice given on 19 October 2000 referred to one matter only namely a matter arising under s 11(1)(b)(v) of the MVS Act namely that the person “has failed to comply with a condition to which he his her authority is subject under sub-s 10(a)(iv)”. It is then submitted that the decision only relied upon s 11(1)(b)(i) that the Applicant had “placed an identification plate on a road vehicle or any other vehicle other than in accordance with the arrangement of the kind referred to in s 10.
In my view it is appropriate to read the decision together with the earlier notice dated 19 October 2000 in a matter of this kind. The chronology which I have set out in detail above clearly indicates that the Applicant either in the text of correspondence or by its conduct in reply to correspondence was fully aware of the requirements of schedule 5 which required the weekly furnishing of a circular 0-4-5 certificate “for each vehicle to be supplied to the market”. The letter of 19 October 2000 refers to the schedule and indeed the extract in the body of the letter sets out fully schedule 5. It should further noted that it is not necessary for the notice to set out the facts and circumstances which would objectively support a decision under
s 11(1) but rather ensure that the Applicant is aware that it had failed to respond to an earlier letter of 29 September 2001 and as indicated draws the Applicant’s attention to its failure to comply with schedule 5.
I cannot find any lack of conformity between the notice under s 11(2) and the decision under s 11(1) of the MVS Act. It is clear on the chronology of correspondence in my view that the decision to suspend the Applicant’s authority was made on the basis that the Respondent believed a breach of the conditions attached to the Approval had occurred and that the Applicant had failed to provide on a weekly basis the certificates required by schedule 5 and had plated and supplied to the market two vehicles that were not included in the Approval.
Content of the 11(2) notice
Although it would have been preferable for the notice given on
19 October 2000 to contain detail of a kind set out in the earlier letter dated 29 September 2000, I am satisfied that the reference to that letter albeit in a `shorthand’ manner of referring to other material is still sufficient to alert the Applicant to the basis upon which the decision was ultimately made. Hence there has been no denial of procedural fairness arising from the content of the notice.
In making the decision under s 11(1) it is not necessary for the decisionmaker to refer to all matters which may have been raised in a response or indeed draw inferences from failure to respond.
Failure to respond or follow procedures
In ground 7 of the amended application a number of complaints are raised in relation to the decision to issue the suspension notice. I have already dealt with those objections to the extent that the notice did not require the signature of the Minister or indeed the duly authorised delegate but must at least bring to the attention of the Applicant the relevant matters for consideration prior to a decision being made to suspend the Approval.
Other matters
It was further submitted by the Applicant that the variation of the Approval on 10 May 2000 was not valid. I have already indicated that it is not proposed to review that decision and in any event on the material presently before me there is no basis to review that decision as it is quite open to the Respondent to indeed vary an Approval by the addition of a schedule which in fact has occurred on this occasion. I am satisfied on the detailed chronology set out above that there was sufficient notice given of the terms of that variation either in the body of letters and/or attachments notwithstanding there is some dispute about receipt of those attachments. Even if I were to find the Applicant did not receive the attachment I am satisfied there was sufficient information and indeed conduct by the Applicant subsequent to 10 May 2000 which would indicate the Applicant was well aware of the terms of schedule 5.
A further matter which caused some concern to me in considering this Application was the issue of whether the suspension can be imposed without there being a specified period when the suspension should operate. It was submitted by Counsel for the Applicant that this amounts to effectively a cancellation. To that extent I interpret his submission to be one which then raises a suggestion of breach of natural justice or procedural fairness as the Applicant is not sufficiently alerted to either the duration of the suspension and/or what steps may be taken to lift the suspension.
Whilst it may be clearly desirable for a suspension to have a fixed term I accept that what has occurred in the present case is that the Applicant has rights granted under the Approval which as a consequence of the decision have been suspended. Although the legislation appears silent about the manner in which a suspension can be lifted, I accept the submission by Mr Hanks of Counsel for the Respondent that it is open to the Applicant to make submissions to the administrator and present a case for the lifting of the suspension. There is no limit on that application.
I should also add that prior to the conclusion of submissions in this matter I was told that in fact a decision had been made to cancel the Approval based upon the breach which has occurred and which was the subject of the decision in the present case.
Whilst there is a superficial unfairness about not providing the Applicant with a clear guide in relation to the lifting of a suspension it is my view in the circumstances that the Approval in the first place is one which provides a benefit to the Applicant and whilst that benefit is suspended then at least there is a potential for the benefit to be reinstated. A cancellation on the other hand clearly would put an end to the authority and would eliminate it entirely rather than simply suspend its operation.
The only other matter of some concern in relation to suspension or cancellation was the use of the term “cancellation” by Mr Robertson who only had authority to suspend rather than cancel. In any event the reality of the situation is that a suspension had occurred and no purported power has been exercised by Mr Robertson to cancel. It is conceded he does not have a delegation to cancel and therefore any reference to a suggested cancellation was an error. It is not an error however sufficient to attract in my view provisions of the ADJR Act.
It was submitted in this Application by the Applicant that the Court should apply s 10(2)(b)(ii) of the ADJR Act as it is claimed that there is adequate provision made under s 39(1)(a) of the MVS Act to enable the Applicant to make application to review on its merits any administrative decision made by the Respondent to suspend the licence. Having regard to my reasons for decision it is clear to me that there is no basis upon which the Application can succeed by way of judicial review under the ADJR Act though I can see at least a potential for a merit review by the Administrative Appeals Tribunal. Hence I find that the decision is one which is capable of an Application by way of review to the Administrative Appeals Tribunal and on that ground alone I would be prepared to dismiss this Application.
Conclusion
Accordingly it is clear from the reasons in this judgment that I cannot find any basis upon which the Application should succeed. It is appropriate to therefore order that the Application be dismissed. For the sake of completeness however having found there is no merit in the Application is different to finding there is sufficient merit to justify an extension of time. As there does not appear to be an inordinate delay and applying the normal principles in relation to extension of time I am satisfied that it is appropriate to allow an extension of time in which to make the application but as I have indicated on the material before me it is appropriate that the application be dismissed.
I propose making the following orders:-
(1)The time be extended to 8 February 2001 to permit the Application to be filed and to enable the Application to be heard.
(2)The Application is dismissed.
(3)The Applicant shall pay the Respondent’s costs of the Application including reserved costs to be taxed in default of agreement.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 25 July 2001
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