Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government

[2008] AATA 1054

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3323

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK DUNSBY

Applicant

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

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date23 October 2008

PlaceBrisbane

Decision

For the reasons given orally at the hearing, the Tribunal:

1.      sets aside the decision under review;

2. decides in substitution that the applicant is permitted, pursuant to reg 11 of the Motor Vehicle Standards Regulations 1989, to import his nonstandard motor vehicle into Australia.

.....................[Sgd].........................

Senior Member

CATCHWORDS

CUSTOMS – Prohibited imports – Importation nonstandard road vehicle – Ministerial discretion – Whether discretion should be exercised – Approval to import when vehicle owned and used for continuous period of 12 months – Applicant did not use vehicle for prescribed period – General discretion – Consider all circumstances – Uniqueness of applicant’s vehicle considered – Discretion exercised – Decision set aside and substituted

Motor Vehicle Standards Act 1989 (Cth), ss 3, 18

Motor Vehicle Standard Regulations 1999 (Cth), regs 11, 13

Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355; (2004) 85 ALD 756

Re Bowering and Minister for Infrastructure, Transport, Regional Services and Local Government [2007] AATA 2079

REASONS FOR DECISION

23 October 2008 Senior Member Bernard J McCabe         

1.      Mr Mark Dunsby, the applicant, is a car enthusiast. He owns a 2004 Ford F250 motor vehicle that was imported second hand from the United States to New Zealand. He made extensive modifications to the motor vehicle while it was in New Zealand. He applied to the Minister for Infrastructure, Transport, Regional Development and Local Government’s for permission to import the vehicle into Australia. The delegate refused the application. The matter came before me on 23 October 2008 to decide whether the vehicle ought to be allowed into Australia. At the conclusion of that hearing I gave an oral decision in Mr Dunsby’s favour. The respondent subsequently requested written reasons for my decision.

The issue

2.      The Motor Vehicle Standards Act 1989 (“the Act”) sets out a regime for the importation of road vehicles into Australia. Section 18 of the Act prohibits the importation of nonstandard vehicles. It was common ground between the parties, and I accept, that Mr Dunsby’s vehicle is nonstandard. Section 18 operates subject to s 20 of the Act, and s 20 permits a person to import a nonstandard vehicle in prescribed circumstances set out in the Motor Vehicle Standards Regulations 1989 (“the Regulations”).

3. The critical issue discussed at the hearing was whether the applicant ought to be allowed to import his nonstandard vehicle pursuant to one of the exceptions in the Regulations. I was required to decide if the applicant fell within the prescribed circumstances, specifically regs 11 or 13.

The power to make exceptions

4.      Regulation 13 says the Minister must approve an application to import a nonstandard road vehicle if, among other things, it has been owned and used for a continuous period of at least 12 months.

5.      Mr Dunsby took delivery of the vehicle in August 2005 in New Zealand, where he and his family were living at the time. He immediately began making major improvements to the vehicle. The improvement process – which included painting and other electrical work – continued until June 2006. The vehicle could not be driven while the work was being done. In the meantime, the vehicle was leased to the applicant’s employer, although the evidence from the employer in the form of a statement from Mr Christian Boston makes it clear the applicant was still permitted to drive the vehicle at any time and for virtually any purpose after the vehicle became available following completion of the improvements in June 2006. Mr Dunsby used the vehicle at work and in connection with his other business interests, which included a popular television program, and his hobbies, which included hosting racing events. It was also used at shows and in connection with promotional events.

6.      I was shown pictures of the vehicle in question, and I heard Mr Dunsby describe the extensive modifications that he caused to be made. The creation he described is quite extraordinary. Amongst other things, it has had 140 speakers fitted to it. It included three plasma screen televisions and a wide variety of other changes that make the vehicle unique. Mr Dunsby regarded the vehicle as, in effect, a work of art that he had created. Many car enthusiasts would agree.

7.      I accept the vehicle was owned by the applicant from August 2005. However, it was owned and used continuously by the applicant for a shorter period of time: from June 2006, when the vehicle became available after its modifications, until March 2007, when Mr Dunsby migrated to Australia. That means the applicant falls short – although not far short – of the minimum time period envisaged in reg 13.

8. Because Mr Dunsby fails to satisfy reg 13, it is necessary to consider whether the discretion in reg 11 ought to be exercised in his favour.

9.      Regulation 11 confers on the Minister a general discretion to approve an application to import a nonstandard road vehicle. That regulation is unstructured in the sense that the decision-maker is not explicitly required to consider any particular thing or matter. As Senior Member Allen observed in ReDa Silva and Department of Transport and Regional Services [2004] AATA 1355; (2004) 85 ALD 756 at [55], the real question is:

whether, having regard to the policy and the objectives of the Act and the regulations, and to all the relevant circumstances of the applicant, it is appropriate to exercise the discretion in favour of the applicant.

10. The objectives of the Act are set out in s 3:

The main objects of this Act are:

(a)to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and

(b)to regulate the first supply to the market of used imported vehicles.

11.     The objectives were also discussed in the Explanatory Statement, which Senior Member Allen discussed in Da Silva. The legislation appears to contemplate the implementation of national standards that can be readily administered so that types of vehicles which are undesirable or inappropriate to Australian conditions cannot be registered in any Australian jurisdiction. But the legislation recognises there will be individual exceptions, perhaps many. Admitting one vehicle is a particular problem if it sets an unfortunate precedent.

12. Mr Dunsby referred to a significant financial cost if he were required to sell the vehicle. He also referred to a sense of disappointment. Ordinarily, cost and disappointment would not be enough to justify exercising the discretion in reg 11: see, for example, my decision in Re Bowering and Minister for Infrastructure, Transport, Regional Development and Local Government [2007] AATA 2079. But as I said in Bowering and as Senior Member Allen said in Da Silva, one must look at all of the circumstances of the case.

13.     In the present case two circumstances stand out. First, Mr Dunsby’s vehicle is unique. Indeed, his car might be described as a bespoke vehicle. It has not been so much altered as it has been transformed. From a car lover’s perspective that transformation is something akin to an artistic process. Secondly, it is a quintessential personal possession. This is reflected in the fact that it could not be sold for anything like its true value. Mr Dunsby says he spent $250,000 on the vehicle over the years. Admittedly, not all of that money was Mr Dunsby’s, but it is still a substantial sum.

14.     Having regard to these circumstances and the fact that Mr Dunsby barely misses out under reg 13, I am inclined to think it would be unfair if he were not permitted to bring his vehicle into Australia. The discretion ought to be exercised in Mr Dunsby’s favour.

Conclusion

15.     The decision under review is set aside. In substitution I decide that the applicant is permitted to import his nonstandard road vehicle into Australia.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing  23 October 2008
Date of Decision  23 October 2008
Date of Written Reasons          24 November 2008
Applicant was self-represented
Solicitor for the respondent      Clayton Utz Lawyers