Re Brassington and Minister for Transport and Regional Services
[2006] AATA 724
•22 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 724
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/268
GENERAL ADMINISTRATIVE DIVISION
Re: MICHAEL BRASSINGTON
Applicant
And:MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:22 August 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
TRANSPORT - motor vehicle importation – exemptions – Australian citizen importing personal possessions – non-standard road vehicle – no identification plate - use for a continuous period – decision affirmed
Motor Vehicles Standards Act 1989 (Cth) s 3, s 18, s 19 and s 20
Motor Vehicles Standards Regulations 1989 (Cth) reg 11, reg 13, reg 13(a), reg 13(a)(ii), and reg 13(b) – (e)
Christie v Permewan & Wright & Co. Ltd (1904) 1 CLR 693
Re Marra and Minister for Transport and Regional Services [2003] AATA 323
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355
REASONS FOR DECISION
22 August 2006 Mr Egon Fice, Member
1. Mr Michael Brassington, an Australian citizen, visited the United Kingdom in October 2003 where he purchased a pub and restaurant business in Eldwick in West Yorkshire. He moved to the United Kingdom in November 2003. In December 2003 he purchased a 1996 BMW 316iSE motor vehicle which he drove on a daily basis for his business and personal needs. The vehicle was registered in his name on 6 January 2004.
2. Mr Brassington left the United Kingdom to return to Australia in July 2004. His son remained in West Yorkshire to run the pub and restaurant business and he used the BMW motor vehicle until February 2006 when he too returned to Australia. In January 2006 Mr Brassington applied for approval to import the BMW motor vehicle into Australia. His application was refused, essentially for the reason that Mr Brassington had not owned and used the motor vehicle in the United Kingdom for a continuous period of 12 months. Mr Brassington seeks a review of that decision.
relevant facts
3. The facts of this matter are not in dispute.
4. In October 2003, Mr Brassington purchased a pub and restaurant business. He remained the owner of that business until January 2006. Mr Brassington took a leasehold of the premises in which the pub and restaurant were situated and he, together with his son Gavin Fawbert, occupied the first floor which was set up as a residence.
5. In about November or December 2003, Mr Brassington purchased a 1996 BMW 316i sedan Vin No. WBACA 72010AF22940 (the vehicle). The vehicle was used in Mr Brassington’s business as well as for his personal needs. He said he drove the vehicle on a daily basis, except for two weeks in June 2004, between the date of its registration 6 January 2004 and 2 July 2004, a period of almost six months.
6. On 2 July 2004 Mr Brassington returned to Australia leaving Mr Fawbert to run the business. Mr Fawbert continued to have full use of Mr Brassington’s vehicle while operating the Eldwick pub and restaurant as its operation’s manager. A written employment agreement was entered into between Mr Brassington and Mr Fawbert on 29 June 2004. It was a term of the agreement that, upon its termination, Mr Fawbert would immediately return to Mr Brassington any company assets including but not limited to: motor vehicle, mobile phone, computer, computer software or other equipment in their control or possession. Although the written agreement refers to company assets, there was no evidence that the motor vehicle was in fact owned by anybody other than Mr Brassington.
7. Mr Fawbert continued to use the vehicle until February 2006 when the pub and restaurant business was sold and Mr Fawbert returned to Australia.
8. After the business was sold, Mr Brassington obtained a quote from King & Wilson, International Removalists, to have all of his personal affects, including the vehicle, transported to Australia. The quote was $5850.00. He was subsequently invoiced the amount of $6244.28 by King & Wilson for transport costs including costs for quarantine examination and inspection of the vehicle. Mr Brassington has paid that account. According to Mr Brassington, approximately $3500.00 of the transport costs is directly attributable to the motor vehicle.
9. Mr Brassington obtained an application form for approval to import a vehicle from King & Wilson. He made no independent enquiries about whether the vehicle could be imported into Australia. He completed the application form and submitted it to the Department of Transport and Regional Services (the Department) on or about 29 January 2006. On 16 February 2006, an officer of the Department requested that Mr Brassington provide further information including:
(a) overseas driver’s licence;
(b) every page of his passport including the blank pages;
(c) purchase documents;
(d)a signed statement detailing all dates which he had travelled outside the overseas country where he used the vehicle including duration, dates travelled and reasons for travel; and
(e)the vehicle registration documents.
10. An officer of the Department wrote to Mr Brassington on 7 March 2006, informing him that his application to import the vehicle had been refused because he had not owned and used the vehicle for a continuous period of at least 12 months in the United Kingdom.
importation of used motor vehicles
11. The importation of non-standard motor vehicles is prohibited under s 18 of the Motor Vehicles Standards Act 1989 (the 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.
Penalty: 60 penalty units.
12. The main object of the Act, for new vehicles, is to achieve uniform vehicle standards which apply to road vehicles when they begin to be used in transport in Australia; and for used vehicles, to regulate the first supply to the market (see s 3 of the Act). Non-standard vehicles are vehicles which do not comply with the National Standards or the Australian Design Rules. An identification plate affixed to a motor vehicle establishes that the vehicle complies with the National Standards.
13. Section 19 of the Act provides that a person may import a non-standard road vehicle or a road vehicle that does not have an identification plate, with the written approval of the Minister. Section 20 of the Act permits a person to import a non‑standard 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 (the Regulations).
regulation 13 exception
14. The exception relied on by Mr Brassington to import the vehicle is that set out in reg 13 of the Regulations, which provides:
The Minister must approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if:
(a)the vehicle has been owned and used by the applicant for a continuous period of at least:
(i) for a vehicle owned by the applicant before 9 May 2000 — 3 months; or
(ii) 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.
15. Mr Brassington submitted that he met all of the requirements set out in reg 13 and, accordingly, his application must be approved by the Minister. On the other hand, the Department contended that although Mr Brassington satisfies the requirements under reg 13 (b) – (e), he does not satisfy the requirements of reg 13 (a) (ii). Regulation 13 (a) (ii) applies to Mr Brassington as he did not become the owner of the vehicle until about November or December 2003.
16. Mr Brassington contended that reg 13 does not require that he personally use the vehicle for the statutory 12 month period. Ms S. Ryan of counsel, who appeared on behalf of Mr Brassington, submitted that it is a general rule of law that what a person may do himself or herself, he or she may do by an agent. Ms Ryan also relied on the authority of Geddes & Pearce Statutory Interpretation Australia (5th edition) that legislation is presumed not to alter common law doctrine. That authority goes on to say, at p 166:
However, the Courts will require a clear indication that the intent is to abrogate or curtail a fundamental right before such an interpretation will be accepted.
17. Ms Ryan referred to the High Court decision in Christie v Permewan & Wright & Co. Ltd (1904) 1 CLR 693. That was an appeal from a decision of a Magistrate dismissing an information for an offence against the Customs Act. Section 245 of the Customs Act provided that Customs prosecutions may be instituted in the name of the Minister by action, information or other appropriate proceedings. The informant in the proceeding before the Magistrate was a Mr Christie, who was authorised by the Collector of Customs to institute the prosecution. The question for the Court was whether the Collector of Customs for the State was the only person in whose name a prosecution could be instituted, and whether that required him to institute the prosecution in person. Griffith CJ said, at page 700, that:
there was nothing in the Customs Act to say that the power conferred on the Collector cannot be exercised by some other person for and on behalf of the Collector.
His Honour then referred to cases dealing with statutes which required persons to sign documents and whether that requirement could be satisfied by the signature of an agent. He referred to a passage by Bowen LJ in Re Whiteley Partners, Ltd.,32 Ch. D. 337 where it was said:
The law on the subject is thus summed up by Blackburn, J, in Reg. v. Justices of Kent, L.R, 8. Q. B., 305, 307:
No doubt at common law, where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it; nevertheless there may be cases in which a Statute may require personal signature.
Quain J, then says,
We ought not to restrict the common law rule, qui facit per alium facit per se [he who acts through another issue is deemed to act through him or herself], unless the Statute makes a personal signature indispensable.
Archibald, J,. said,
I think this case comes within the common law rule, qui facit per alium facit per se, and there is nothing in the Statute to qualify the operation of that maxim. It is easy to understand that there may be cases in which a different construction must be put on particular Statutes.
18. Relying on Christie, Ms Ryan submitted that there is nothing in the Regulations which expressly states that the use of the motor vehicle required under reg 13(a) (which is interpreted as the driving of the vehicle) cannot be performed through an agent. Ms Ryan then submitted that the Department’s administration of the Act, which appears to proceed on the basis that the use (of the vehicle) must be personal, should not be permitted to negate the general rule nor a proper construction of the legislation.
19. However, in my opinion, Christie is distinguishable from the present matter. That case was concerned with the power conferred on a person by statute and whether that power could properly be exercised by an agent of the conferee despite reference in the statute only to the person upon whom the power was conferred.
20. In Mr Brassington’s case, the subordinate legislation creates an exemption to the statutory requirement regarding the importation of a used motor vehicle. That exemption applies solely to the person who has made an application to import a motor vehicle into Australia. The subordinate legislation expressly exempts the applicant from the statutory regime if he or she has owned and used the vehicle for a continuous period of 12 months. Further, the applicant must be an Australian citizen or an Australian permanent resident, or must have applied to become an Australian citizen or an Australian permanent resident. The applicant must also hold a licence or permit to drive the vehicle in question and must undertake to comply with any road safety requirements imposed by the Minister in respect of the vehicle. The applicant must not have imported a vehicle within the 12 month period immediately preceding the landing of the vehicle which is the subject of the current application.
21. The exemption contained in reg 13 does not confer any power on the applicant. It merely nominates him or her as the person to whom the exemption applies. There is no common law rule which makes any such exemption applicable to an agent of the nominated person. Clearly, the exemption is intended to be personal to the applicant where the applicant has met the statutory requirements. The criteria set out in reg 13 would be meaningless if an applicant could rely on an agent to use the vehicle for the required period.
22. Therefore, it is my view that the exemption set out in reg 13 of the Regulations cannot apply to Mr Brassington. The vehicle was purchased by Mr Brassington after 9 May 2000 and it is undisputed that he did not use the vehicle for a continuous period of 12 months.
general discretion
23. Section 19 of the Act, together with reg 11, confer on the Minister a general discretion to approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate. That approval may be given subject to conditions specified in the Instrument of Approval. As Ms Ryan submitted, the wording of reg 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it. However, as Deputy President Purvis said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073, at paragraph 35:
There is no question that the decision to be made now by the Tribunal is not to be arbitrary but is to be one consistent with the policy sought to be achieved by the legislation, taking into consideration the matters relied upon by the Applicant. Thus the matter is to be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. (Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 337).
Deputy President Hotop in Re Marra and Minister for Transport and Regional Services [2003] AATA 323 at paragraph 20 reiterated what was said by Deputy President Purvis :
That discretionary power is, however, not at large - it must be exercised in accordance with the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
24. The object or purpose of the Act, which is set out in s 3, in so far as it applies to the supply to the market of used imported vehicles, is to regulate that supply. As far as new vehicles are concerned, the purpose is to achieve uniform vehicle standards to apply when new vehicles begin to be used in transport in Australia. As Ms Ryan submitted, the purpose as currently stated in the Act is different to the purpose which was stated in the Act as originally drafted, i.e. to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport. According to Ms Ryan, the amended s 3 recognises that there are degrees of uniformity which can be achieved and the Act itself is pragmatic about this. In particular, she referred to the Minister’s Second Reading Speech at the time of the introduction of the Motor Vehicle Standard’s Bill 1989, where the Minister said:
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.
25. On 8 May 2000, Mr Anderson, the then Minister for Transport, and Senator Minchin announced changes to the rules for importing personal motor vehicles. The effect of the change was to increase the qualifying period of ownership and use of the vehicle from a continuous period of 3 months to 12 months. It was said that the primary reason for extending the qualifying period was to limit the abuse of the scheme, the purpose of which is to allow migrants and Australian citizens returning from long periods overseas to treat their vehicles as bona fide personal possessions.
26. Mr A. Chand, a solicitor with Clayton Utz, who appeared on behalf of the Department, submitted that the broad discretion contained in reg 11 should only be exercised in exceptional circumstances. Mr Chand pointed to a number of cases where the Tribunal has referred to the fact that the discretion should only be exercised in exceptional circumstances (see for example Trajkovski and Marra). However, Ms Ryan directed my attention to the Tribunal decision in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355 where Member Allan, commenting on the use of the adjective exceptional, said at paragraph 55:
For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to in the previous paragraph. Rather, I believe that it is sufficient to pose the question in terms of whether, having regard to the policy and objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretionary power in favour of the applicant.
27. In my opinion, Member Allan was not suggesting that circumstances in which it was appropriate to exercise the discretion need not necessarily be exceptional. Rather, he was minded to look at the policy and objectives of the Act, the Regulations and to all the relevant circumstances of an applicant in order to determine whether that discretion ought to be exercised. The fact that the object of the Act in relation to used vehicles is to regulate the first supply to the market, and the exercise of discretion will only be resorted to where an Applicant is unable to rely on any of the exceptions set out in regs 11 – 18, would, of necessity, result in the circumstances being exceptional. In any event, I am satisfied that I should approach the exercise of discretion in this case on the same basis as Member Allan did in Da Silva; where he said at paragraph 59:
In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered…
This statement, in effect, follows what was said by Deputy President Hotop in Marra.
28. I am satisfied that the vehicle is a bona fide personal possession of Mr Brassington who is an Australian citizen returning from a period of time spent overseas. He is seeking to import the vehicle for his personal use. I accept that the vehicle is in sound condition although the current MOT test certificate expired on 4 August 2006. Mr Brassington has not attempted to circumvent the approval process by importing the vehicle and then subsequently seeking approval for that importation.
29. However, I am not able to find that there would be some element of unfairness or injustice to Mr Brassington if approval were not granted. Mr Brassington’s evidence was that he made no enquiries about the importation of the vehicle prior to leaving the United Kingdom. Nor did he make any enquiries prior to entering into an agreement with King & Wilson to transport the vehicle to Australia along with his other possessions. Had he made any enquiries at all between the time of purchase of vehicle and the time of his application for approval to import the vehicle, Mr Brassington would have immediately realised that he would be confronted with the difficulties which he now faces. Therefore, it is my view that he has not suffered from unfairness or injustice in the same way that Mr Marra had. Mr Marra made enquiries of the Department but was given incorrect information. Relying on that information, he proceeded to import his motorcycle. Through no fault of his own, he was left in a situation where he would suffer considerable hardship having shipped the motorcycle to Australia where he was incurring storage costs.
30. I am also of the view that a grant of approval in these circumstances would undermine or frustrate the policy and objects of the legislative scheme. In effect, if the discretion were exercised in Mr Brassington’s favour, the Tribunal would convey the message that where an applicant is unable to satisfy the exceptions set out in the Regulations for the import of a used vehicle, and despite the fact that the applicant made no enquiries whatsoever as to the statutory requirements regarding the import of motor vehicles to Australia, compliance with the statute could nevertheless be avoided by the exercise of the discretion under reg 11. Had Mr Brassington made enquiries either prior to leaving the United Kingdom or prior to his son returning to Australia, it would have been a relatively simple matter to arrange for his son to have sold the vehicle.
31. Ms Ryan also submitted that Mr Brassington will face financial and professional hardship if the refusal is maintained. Mr Brassington’s evidence was that he had paid King & Wilson to transport the vehicle to Australia although he admitted that he would seek a refund in respect of that cost were he not permitted to import the vehicle into Australia. Mr Brassington also said that the vehicle was now parked at a property owned by his son’s friends and that if permission were not granted, he would necessarily have to fly to the United Kingdom and arrange for the vehicle’s sale. His evidence was that he could not impose that obligation on his son’s friends and that although he had family in the United Kingdom, he was not on good terms with them and could not rely on them to sell the vehicle. Furthermore, the MOT test certificate had expired and that would have to be renewed before the vehicle could be sold.
32. Although I accept that Mr Brassington will have some difficulty in disposing of the vehicle in the United Kingdom, I do not believe that it is necessary for him to go there to sell the vehicle. I have no doubt that he will incur expenses in selling the vehicle and he may suffer some loss, but I do not accept that that would constitute significant hardship for Mr Brassington.
conclusion
33. It is clear that Mr Brassington cannot take advantage of the exemption in reg 13 to obtain approval for the importation of his motor vehicle from the United Kingdom. He was only in the United Kingdom for six months after purchasing the motor vehicle and he therefore does not meet the qualifying period of 12 months set out in the Regulations. Because Mr Brassington made no enquiries prior to attempting to import the vehicle into Australia, he has not suffered any unfairness or injustice which may have called for the general discretion in reg 11 to be exercised to allow importation of the vehicle. Furthermore, the grant of approval in these circumstances would undermine the policy and objects of the legislative scheme, which is to regulate the first supply to the market of imported used vehicles. Although that now puts Mr Brassington in the awkward position of having to sell the vehicle in the United Kingdom through some third party, it is not my view that any serious hardship would result from him being in that position.
34. In my opinion, the decision made by the Department refusing to grant approval to Mr Brassington to import the vehicle was correct and should be affirmed.
I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Lydia Zozula
Associate
Date of Hearing: 4 August 2006
Date of Decision: 22 August 2006
Counsel for the applicant: Ms S. RyanSolicitor for the respondent: Mr Avinesh Chand, Clayton Utz, Canberra
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