Re Anthony and Department of Transport and Regional Services - [2001] AATA 543

DECISION AND REASONS FOR DECISION [2001] AATA 543

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos W2000/253 & W2000/325

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Bruce Anthony
  Applicant
  Jerry Anthony
  Applicant
           And    Department of Transport and Regional Services
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member

Date15 June 2001
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the two decisions under review, each made on 11 April 2000, not to approve the respective applications of 9 February 2000, to import the vehicles in question, are affirmed.
  ...........(sgd R D Fayle)..........
  Senior Member
CATCHWORDS
MOTOR VEHICLE IMPORTATION – Motor Vehicle Standards Act 1989 & Motor Vehicle Standards Regulations – purchase of motor vehicle for personal use in Japan – whether vehicle owned and used for a continuous period of three months overseas – whether extraordinary circumstances prevented continuous use – whether discretion pursuant to Reg. 9B should be exercised.
Motor Vehicle Standards Act 1989 - ss1; 3; 5 "compliance plate', "import", "use"; 10; 19; 20(1) & (3)
Motor Vehicle Standards Regulations 1989 – Regs 9A, 9B & 9D
Acts Interpretation Act 1901 – ss22(1) "month" & "calendar month"; 22(1)(a)
Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Chalmers Nurseries Pty Ltd and Department of Transport and Regional Services [2001] AATA 307

REASONS FOR DECISION

15 June 2001 Mr R D Fayle, Senior Member

Mr Bruce Anthony and his spouse, Mrs Jerry Anthony ("the applicants") each made an application on 9 February 2000 to import a 1990 Honda Prelude and a 1992 Honda Integra respectively. On 11 April 2000 the Administrator of Vehicle Standards as delegate for the Minister responsible for the then Commonwealth Department of Regional Services ("the respondent") wrote to each of the applicants advising that he was unable to approve the applications. In those respective letters the delegate stated:
"From the information you have supplied in respect of your application you do not satisfy Regulation 9D(a) [of the Motor Vehicle Standards Regulations 1989], as you were not present in Japan for 3 continuous months from date of purchase and registration of your vehicle."
The applicants each requested a review of the decisions and on 30 June 2000 the respondent wrote to each applicant advising, in effect, that the decision had been reconsidered and affirmed. Those letters prompted the applications to this Tribunal for review of the delegate's decisions of 11 April 2000.
Mr Michael Hayter, Solicitor, represented the applicants at the hearing. Both applicants gave evidence by telephone link from Japan. Ms Rhonda Henderson, counsel, represented the respondent. The Tribunal had before it the respective documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). It also took into evidence an affidavit with attachments, sworn by Mr Hayter. The respondent objected to that being admitted on the basis of relevance. The Tribunal, not being bound by the rules of evidence, undertook to give that evidence whatever weight it deemed appropriate, accepting that the matters averred did not go to the relevant legislative provisions but to subsequent and material amendments of those provisions.
From the evidence before it, the Tribunal summarises the relevant facts as follows.
The applicants are Australian citizens. They have worked in Japan from 1995 as teachers, living in Tokyo some distance from the school at which they both teach. They commute to school by train each term day, which journey takes about one hour each way. They do not drive to school as they estimate that that would take about 3 hours each way. They spend on average about 8 months of each year in Japan, coinciding with the school terms and, usually, the rest of the year in Australia. They have a house in a Perth suburb, which is occupied by their adult daughter. They reside there when they return to Australia and own a motor car that they use on those occasions.
The evidence is that Mr Bruce Anthony had previously purchased two motor cars in Japan and imported them to Australia for personal use. Mrs Jerry Anthony said in evidence that on one previous occasion she also had imported a vehicle from Japan for personal use.
The applicants told the Tribunal that they each purchased the vehicles in question through an agent, Mr Abid Ali, with the intention of using them in Japan prior to shipping them to Perth after the expiry of the then required time of three months. It was conceded that neither vehicle bore an Australian compliance plate, a matter of some importance when considering the governing legislative provisions in this case. Mr Anthony's vehicle was acquired on 18 November 1999 and that of Mrs Anthony, on 8 December 1999. These vehicles were garaged near their home, one in a garage leased long term and the other is a garage leased temporarily for the purpose.
The applicants said they used the vehicles at weekends and sometimes during the week. Mr Anthony told the Tribunal that a deposit of about $A500 was paid to Mr Abid Ali before the decision was made to purchase. The purchase and registration of the vehicles took place soon after. At the time arrangements were made with Mr Abid Ali to have the vehicles shipped to Perth and the cost of that was included in the purchase price.
Ordinarily, the applicants would have been able to satisfy the three months use and ownership test. However, they returned to Perth urgently, departing Japan on 18 December 1999, to attend an arbitration hearing on 22 December 1999. That hearing related to a dispute, which they had with the builder of their home in Perth, which attendance they considered imperative in the circumstances. The evidence was that had they lost the dispute, which was finally resolved in their favour, that it may have prospectively cost them around $40,000. As it happened the arbitration hearing was adjourned in December 1999 to recommence in February 2000. They returned to Japan arriving on 10 January 2000.
The applicants left Japan on 5 February 2000 to return to Perth for their holidays and attend the reconvened arbitration hearing. They said that they returned to Japan at the beginning of April 2000.
In the meantime the vehicles in question were shipped from Japan soon after the applicants had departed on 5 February 2000, arriving at the port of Fremantle on or about 25 March 2000. Whilst the applicants still own those vehicles they are being held by Customs (presumably in storage).
Relevant legislation
The Motor Vehicle Standards Act 1989 relevantly provides:
"S1 Short title
This Act may be cited as the Motor Vehicle Standards Act 1989.
…
S3 Object of Act
The object of this Act is to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia.
…
S5 Interpretation
(1) In this Act, unless the contrary intention appears:
'import', in relation to a road vehicle or vehicle component, means do an act which constitutes importation of the vehicle or component for the purposes of the Customs Act 1901;
'compliance plate', means a plate referred to in section 10;
'use', means:
(a) in relation to a road trailer vehicle – drive; or
(b) in relation to a road trailer – have attached to, or towed by, a road motor vehicle that is being driven;
(2) Declarations by the Minister under the definition of 'road motor vehicle' in subsection (1) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
…
S10 Compliance plates
(1) The regulations are to provide for arrangements under which plates are to be placed on road vehicles to indicate that:
(a) the vehicles comply with the national standards; or
(b) approval has been given under subsection (2) for plates to be placed on the vehicles.
(2) If a vehicle does not comply with the national standards, but the Minister is satisfied that it is only in minor and inconsequential respects that the vehicle fails so to comply, the Minister may give written approval for plates to be placed on the vehicle.
(3) Approvals under subsection (2) may be subject to written conditions determined by the Minister.
…
S19 Importation of vehicles requiring modification
(1) A person may import a nonstandard road vehicle, a road vehicle that does not have a compliance plate or a nonstandard prescribed vehicle component with the written approval of the Minister, which may be approval subject to written conditions determined by the Minister.
(2) A person must not knowingly or recklessly contravene a condition referred to in subsection (1).
S20 Approval to import certain nonstandard vehicles
(1) A person may import a nonstandard road vehicle or a road vehicle that does not have a compliance plate:
(a) where the vehicle is to be exported from Australia (with or without further work being done on it) without having been used in transport in Australia; or
(b) in prescribed circumstances.
…
(3) Regulations for the purposes of paragraph (1)(b) or (2)(b) may provide for the importation, whether generally or in specified circumstances, of a road vehicle, or a vehicle component, as the case may be:
with the written approval of the Minister; or
with such approval subject to written conditions determined by the Minister.
…".

The Motor Vehicle Standards Regulations 1989 relevantly provide:

"MOTOR VEHICLE STANDARDS REGULATIONS 1989
9A Applications for approval to import vehicles without compliance plates
A person may apply to the Minister for approval to import a nonstandard road vehicle or a road vehicle that does not have a compliance plate.
Application for approval to import vehicles without compliance plates;
9B Minister's approval to import vehicles without compliance plates
(1) The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have a compliance 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 an identification 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.
9D Approval to import vehicle without a compliance plate if owned and
used by applicant overseas (prior to its amendment by No.194 of 2000)
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have a compliance plate if:
(a) the vehicle has been owned and used by the applicant for a continuous period of at least 3 months; and
(b) at the time the vehicle is imported, the applicant is:
(i) an Australian citizen or an Australian permanent resident; or
(ii) a person who has applied to become an Australian citizen or an Australian permanent resident; 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 imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

9D Approval to import vehicle without a compliance plate if owned and
used by applicant overseas (as amended by No.194 of 2000)
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have a compliance plate if:
(a) the vehicle has been owned and used by the applicant for a continuous period of
(i) for a vehicle owned by the applicant on or before 8 May 2000 — 3 months; or
(ii) for a vehicle to which subparagraph (i) does not apply but for which the application is made on or before 8 November 2000 — 3 months; or
(iii) in any other case — 12 months; and

(b) at the time the vehicle is imported, the applicant is:
(i) an Australian citizen or an Australian permanent resident; or
(ii) a person who has applied to become an Australian citizen or an Australian permanent resident; 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 imported a road vehicle owned by him within the year ending on the day on which the vehicle in respect of which the application is made is landed in Australia.

...".

The Acts Interpretation Act 1901 relevantly provides:

"22 Meaning of certain words
(1) In any Act, unless the contrary intention appears:
…
(b) Month shall mean calendar month;
…
(g) Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;

…
46 Construction of rules, regulations and by-laws
(1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; and

…".

Submissions and reasons

Mr Hayter, for the applicants, submitted Reg. 9D does not lay down a requirement that to comply, the applicant has to be present in Japan for a continuous period of three months from the date of purchase and registration of the motor vehicle. He submitted that as each applicant had clearly owned their respective vehicle for three months prior to the vehicles arriving in Australia, on or about 25 March 2000, then that is sufficient, since, in his submission the word "continuous" in Reg. 9D qualifies ownership and not "use". In this respect, as the Tribunal understands it, Mr Hayter submitted in respect of Reg. 9D, that to assert a prerequisite condition of three months continuous use (as opposed to ownership) in Reg. 9D is absurd since "use" is defined as to mean to "drive". Therefore, he submitted, the only reasonable interpretation is that contended for above.
In the alternative, Mr Hayter submitted that this is a case where neither applicant could avoid breaking their time in Japan (because of the imperative of returning to attend the arbitration). Therefore, this, of itself, was a sufficient circumstance to warrant a favourable exercise of the discretion clearly within the jurisdiction of the Tribunal pursuant to Reg. 9B. He submitted that unless the applicants attended the arbitration hearing they stood to lose in the vicinity of $40,000, which would have resulted in considerable hardship. He further submitted in this respect that the circumstances of the applicant's return in December 1999 was sufficiently special to warrant a favourable exercise of the discretion pursuant to Reg. 9B.
Ms Henderson for the respondent submitted that it was not contended that the words "owned and used by the applicant for a continuous period of at least 3 months" in Reg. 9D mean that the vehicle must be driven continuously for a period of 3 months. It was submitted that whether the vehicle was used, in the relevant sense, for a continuous period of 3 months, raises questions of fact and degree. The respondent contended that it cannot be said, on the evidence before the Tribunal, that either applicant used their respective vehicle for a continuous period of 3 months (in Japan). This obtains because after they acquired the vehicles they were in Japan, in the case of Mr Anthony, for one month and in the case of Mrs Anthony, about 10 days, before departing. And upon return to Japan on 10 January 2000 both applicants remained only until 5 February 2000, a period of less than one calendar month. It was submitted that in these circumstances the "use" test of Reg. 9D could not be satisfied. Ms Henderson referred the Tribunal to the definition of "month" and "calendar month" in the Acts Interpretation Act 1901, which, she submitted must be adopted in the present matter, for example, a "month" beginning on say the 18th of on month would conclude on the 17th of the following month.
As regards Reg. 9B, Ms Henderson submitted that the Tribunal should only exercise the relevant discretion with great caution and that this was not such a case. Ms Henderson submitted that on the evidence the applicants had purchased and registered their respective vehicle, each of which was garaged in Tokyo near their home. Ms Henderson submitted that neither applicant was compelled to ship their respective vehicle from Japan in February 2000, which was a decision made by them in the light of the fact that they had returned to Australia on 18 December 1999 until 10 January 2000. Ms Henderson further pointed to the fact that the applicants each cancelled the respective vehicle registration in February 2000, soon after the vehicles departed Japan for Australia. Ms Henderson submitted that there is no evidence before the Tribunal of financial hardship or any other form of hardship which may have been experienced by the applicants should they not have been able to attend the arbitration hearing in December 1999. She submitted that the only relevant evidence was that of the potential loss of $40,000. Further, Ms Henderson submitted that as each applicant chose to ship the vehicles in February 2000 it could not be said that their circumstance were in any way extraordinary, exceptional, unavoidable or special. For those reasons, Ms Henderson submitted, the Tribunal should not exercise a favourable discretion pursuant to Reg. 9B when clearly the applicants each failed to meet the prerequisite condition of Reg. 9D(a). It was submitted that Reg. 9D is a concession to Australian residents returning to Australia after having been absent for some time and whilst absent having purchased, for their personal use, and used, a motor vehicle without an Australian compliance plate.
In the opinion of the Tribunal Reg. 9D, which is governed by s20 of the Motor Vehicle Standards Act 1989 ("the Act"), requires the Minister to approve an application to import a non-standard vehicle in given objective circumstances. That is, those circumstances must have been fulfilled at the date of the lodgement of the application to import the vehicle. Subparagraph (a) of the regulation stipulates that the vehicle is to have "been owned and used by the applicant for a continuous period of at least 3 months". Two observations can be made about that condition precedent to mandatory approval. The first is that the period of ownership and use must precede the time of application. The second is that the applicant must be not only the relevant owner but that person is also the relevant user of the vehicle during that continuous period of 3 months. It does not seem to require that the 3 months period necessarily occur immediately before the importation (or shipping for export). Conceivably one could comply with the strict requirements in circumstances where the 3 months period of continuous ownership and use occurred well before the actual shipping for the purpose of importation to Australia. For example, an Australian resident posted to a foreign country for a period of service of say, 2 years, may purchase a locally produced vehicle soon after arrival and use it for say 18 months. And for whatever personal reason, then make arrangements to ship it to Australia in say a few months time, to coincide with his/her application pursuant to Reg. 9D upon return to Australia.

In so far as the word "use" is defined to mean "drive", common sense dictates that Reg. 9D cannot mean that the vehicle must be driven unabatedly for 3 continuous or consecutive months. A common sense approach is that the vehicle should be available to the applicant to be driven in the ordinary course of that person's usage. It is, as Ms Henderson submitted, a matter of fact and degree. If, as in the circumstances of the applicants, it would be very inefficient to drive the vehicle to school each day but quite reasonable to drive it only at weekends, then, in the Tribunal's opinion, that is sufficient to meet the "use" test of Reg. 9D. That presupposes that not only should the vehicle be continuously available to be driven, that is, in this instance, registered and garaged proximate to the applicants' home, but also, that the driver be in a situation where he or she could, if needed, continuously drive the vehicle. If either condition is not satisfied then, in the Tribunal's opinion, those prerequisites of Reg. 9D are not met. The Tribunal accepts the submissions of Ms Henderson in this regard, that neither applicant owned and used their respective vehicles continuously for 3 months prior to their respective application, on 9 February 2000, to import them into Australia.
In regard to whether the Tribunal should exercise the discretion available pursuant to Reg. 9B, the Tribunal makes the following observations. The evidence is that Mr Anthony previously imported two vehicles from Japan and Mrs Anthony one, none of which bore compliance plates and each of which required a separate approval pursuant to Reg. 9D and which were granted. The applicants therefore cannot be said to have been naive and have fallen foul of a law of which they were in fact unaware. The applicants' present circumstances, in relation to the two vehicles in question, is largely of their own making. Indeed, when asked, Mrs Anthony admitted that at the time of making the decision to return to Australia in December 1999 to attend the arbitration hearing, the matter of the planned import of the vehicles into Australia was far from their minds. The applicants' evidence is that they planned at the time of the respective purchases to bring the vehicles to Australia and indeed then made those arrangements with their agent Mr Abid Ali to ship the vehicles to Australia at a later date.
The Tribunal agrees with the submissions of Ms Henderson, particularly in regard to the question of whether the Tribunal should exercise the discretion in Reg. 9B in a manner favourable to the applicants. Also, the Tribunal is mindful of the stated objective of the Act, as set out in s.3 – to achieve uniform vehicle standards to apply to road vehicles when they begin to be used for transport in Australia. Clearly, it is a concession to approve road use in Australia of a vehicle that does not have a compliance plate or is non-standard. In the opinion of the Tribunal, very exceptional, extraordinary or special circumstances peculiar to an applicant would need to exist before the Minister (and therefore the Tribunal) should exercise the discretion where an applicant has not met the prerequisite conditions of Reg. 9D. This view finds support in the decision of the Hon R N J Purvis in Trajkovski and Department of Transport and Regional Services [2000] AATA 1073, where the learned Deputy President said, in relation to Reg. 9B, "On a proper construction of the regulations, such a situation [as would warrant favourable exercise of the discretion] would be exceptional." (para. 32), and later "The primary position on policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia." (para. 33) The Tribunal cannot arbitrarily exercise discretions of this type. In not exercising the discretion in Reg. 9B in a manner favourable to the applicants, the Tribunal is of the opinion that it is acting consistently with the stated policy sought to be achieved by the legislation, taking into consideration the matters sought to be relied upon by the applicants: see Trajkovski (supra, para 35).
In the opinion of the Tribunal, the fact that the applicants' return to Australia to attend personal business caused an interruption to their respective continuous use of the vehicles is not, of itself, sufficiently unusual, extraordinary or exceptional to justify the exercise of the discretion in Reg 9B in a manner favourable to the applicants. Also, the evidence is that the longest "continuous period of ownership and use" for Mr Anthony was one month and for Mrs Anthony, not even a month, so in this respect neither applicant goes even close to satisfying the requisite periods stipulated in Reg. 9D. And further, in any case, no relevant hardship has been demonstrated to alter that conclusion, despite the Tribunal recognising that failure to comply with the legislation and regulations may have unfortunate consequences for the applicants. It is clear that persons, such as the applicants, seeking approval to import a non-standard vehicle, (or without compliance plates), are required to comply with the requirements of the legislation and regulations as they exist at the time of the application for approval. This, as the evidence shows, the applicants failed to do.
Decisions
For the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the two decisions under review, each made on 11 April 2000, not to approve the respective applications of 9 February 2000, to import the vehicles in question, are affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member
Signed:
.................................(sgd S Railton)................................
Associate
Date of Hearing  29 May 2001
Date of Decision  15 June 2001
Counsel for the Applicant        Mr M Hayter
Solicitor for the Applicant
Counsel for the Respondent    Ms Rhonda Henderson
Solicitor for the Respondent    Australian Government Solicitor