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

[2008] AATA 417

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 417

ADMINISTRATIVE APPEALS TRIBUNAL      )           No 2007/2488

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREW RALPH HUNT

Applicant

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

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date21 May 2008

PlaceHobart

Decision The Tribunal sets aside the decision under review and directs, pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, that the applicant’s application to import a 1999 Mercedes Benz E300 motor vehicle be approved on condition that the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.  It further directs that a signed instrument to that effect be issued.

(Sgd) The Hon R J Groom

Deputy President

CATCHWORDS

Transport - motor vehicle importation - non-standard road vehicle - inheritance - policy considerations - particular circumstances - decision under review set aside

Motor Vehicle Standards Act 1989

Motor Vehicle Standards Regulations 1989, Regulation 11 and 13

Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457

Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592

Murase and Department of Transport and Regional Services [2005] AATA 705

Bastian and Department of Transport and Regional Services [2007] AATA 1646

Anthony Andrew Da Silva and Department of Transport and Regional  Services [2004] AATA 1355

REASONS FOR DECISION

21 May 2008 The Hon R J Groom (Deputy President)

1.      The applicant has sought a review of a decision made on 26 April 2007 by the Administrator of Vehicle Standards, a delegate of the Minister, to refuse the importation from the United Kingdom into Australia of a 1999 Mercedes Benz E300 motor vehicle ("the vehicle").

2.      The vehicle is owned by the applicant.  It formed part of the estate of his late father who, prior to his death, had expressed a wish that the vehicle eventually be shipped to Tasmania for the use of the applicant and his family.

3. The hearing of the application was held in Launceston on 14 February 2008. Mr D Foon appeared for the applicant and Mr A Klein (by video link) for the respondent. The "T Documents" lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and several other documents were received into evidence.

4.       Following the hearing of the matter, and at the request of the Tribunal, a written submission was made by the applicant's solicitors dated 10 April 2008.  The respondent's solicitors then made a written submission in reply dated 11 April 2008.

5.      There is no dispute in relation to the facts of this matter.  The respondent has accepted the applicant's version of events and did not seek to cross-examine him.  The applicant did not give evidence on oath.  Reliance was placed upon the information contained in the documents tendered in evidence.  The applicant provided additional factual information during the course of the hearing.  No objection was taken to the applicant providing information in this way at the hearing.   The Tribunal accepts the applicant’s statements as true and correct.

6. There is a general prohibition on the importation of "non-standard" motor vehicles into Australia (see section 18 of the Motor Vehicle Standards Act 1989 ("the Act"). A non-standard vehicle is a vehicle that does not comply with the National Standards and the Australian Design Rules (see section 5(1) of the Act). It is not in dispute in these proceedings that the vehicle concerned does not comply with the National Standards.

7. A person, however, may be allowed to import a non-standard used vehicle but only as prescribed in the Act or in the Motor Vehicle Standards Regulations 1989 (‘the regulations').

Regulation 11

8.      It is apparent from the facts of this application, and agreed by the parties, that the only regulation of relevance to this application is Regulation 11 of the regulations which gives to the Minister a wide discretion to approve the importation of a non-standard vehicle as follows:

“ (1)   The Minister may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate.

(2)   An approval may be given subject to conditions specified in the instrument of approval.

(3)   Without limiting the generality of sub-regulation (2), the Minister may require that a 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"

the decision

9.      The Administrator's decision of the 26 April 2007 was in the following terms:

"Dear Mr Hunt

I refer to your application dated 30 March 2007 to import a 1999 Mercedes Benz E300 VIN WDB2100252A868437.

Importation of vehicles that do not comply with national standards and are not fitted with an identification plate are prohibited under section 18 of the Motor Standards Act 1989. Certain non standard vehicles may be imported subject to certain provisions of the Motor Vehicle Standards Regulations as follows:

·The vehicle complied with national standards when it was first manufactured (Reg 12); or

·The vehicle was owned and used for a continuous period of at least 12 months (Reg 13); or

·The vehicle is of a type where an authority has been granted to make any modifications necessary to ensure the vehicle complies with the national standards (Reg 14); or

·The vehicle was manufactured prior to 1 January 1989 (Reg 17).

The information that you have provided indicates that the vehicle does not meet any of these provisions.

Motor Vehicle Standards Regulations are very specific in setting the criteria that must be met before a vehicle can be imported. The criteria are deliberately restrictive and there is no provision to allow vehicles to be imported on compassionate grounds. We receive many requests to consider circumstances similar to yours, but unless the criteria are met as set out in the legislation the requests have to be refused.

I realise that this is not the best news that you could hope for.  But, regrettably I am unable to agree to your request.

An application may be made to the Administrative Appeals Tribunal (AAT) for a review of this decision. Please note that this letter constitutes the reasons for my decision under section 28 of the Administrative Appeals Tribunal Act 1975. Any application to the AAT should be made within 28 days of this notice...”

10.     In a further letter to the applicant dated 25 May 2007 following a request for a reconsideration of the decision the Administrator stated as follows:

"Dear Mr Hunt

Thank you for your letter dated 15 May 2007 about the 1999 Mercedes Benz E300 VIN WDB2100252A868437 that has been left to you by your late father.

Vehicle import arrangements are governed by the Motor Vehicle Standards Regulations, which are very specific in determining the requirements that must be met. In brief the applicable requirements are:

·The vehicle complied with national standards when it was first manufactured (Reg 12); or

·The vehicle was owned and used for a continuous period of at least 12 months (Reg 13); or

·The vehicle is of a type where an authority has been granted to make any modifications necessary to ensure the vehicle complies with the national standards (Reg 14); or

·The vehicle was manufactured prior to 1 January 1989 (Reg 17).

The regulations, which are very rigidly enforced, do not make provisions for deceased estate vehicles.  I regret, therefore, that there would be no basis on which to approve your vehicle import application if at least one of these conditions has not been met…”

11.     It is noted by the Tribunal that no reference is made to Regulation 11 in the correspondence from the Administrator set out in paragraphs 9 and 10 above.

the issue

12.     The principal issue in these proceedings is whether the Tribunal, which now stands in place of the Minister as the decision-maker, should exercise the discretion in Regulation 11 in favour of the applicant.

The Facts

13.     The applicant's father, the late Mr Ralph Hunt, died in the United Kingdom in December 2006.  The applicant, who migrated from England to Australia in 1999 and is now an Australian citizen, became the owner of the vehicle on the distribution of his late father's estate.  After being diagnosed with cancer and on a visit to Tasmania Mr Ralph Hunt had expressed a personal wish that after his death the vehicle should be shipped to Australia so that the applicant and his family could enjoy the use of the vehicle.  In particular the father wished that it be driven to horse race meetings as Mr Ralph Hunt had done in the United Kingdom.  The applicant has a strong personal attachment to the vehicle because of its association with his late father.  It is not intended that this importation be for personal gain.   The vehicle which was purchased by Mr Ralph Hunt in 2002 is a right-hand drive 1999 Mercedes Benz E300.  It is a relatively late model car in good condition.  The vehicle has been registered in the United Kingdom and meets the relevant vehicle standards in the United Kingdom and more widely in Europe.

14.     The applicant’s strong emotional attachment to the vehicle is well expressed in the following passage in a letter he wrote to the Administrator of Vehicle Standards dated 15 January 2007 (T5).

“… Unfortunately my father lost his long term battle with Cancer on the 23 December 2006.  A year prior, he came to visit me here in Tasmania.  We did all the things that he loved like going to the horse racing, fishing etc.  While he spent time with me we spoke about his illness and what may happen in the future.  One day we were driving to the races in Launceston and were talking about his pride and joy, his Mercedes Benz.  How he goes to the races in it, drives to the members enclosure and feels like a million dollars.  He said that when he was to pass away that he would love me and my family to have his car and have it shipped out to us in Tasmania, then I and the family could go racing and his spirit lives on in his car...”

Should the Discretion be Exercised in the Applicant's Favour?

15. It was submitted on behalf of the respondent that allowing the importation of the vehicle in these circumstances would frustrate the policies and objectives of the legislation. It was further argued that the circumstances of this application are not so unusual and that quite often people are bequeathed cars and sometimes wish to import them. It was suggested that if Parliament had intended to allow importation in these circumstances it would have expressly provided for it in the Regulations. The respondent also argued that this was not a case of unfairness or injustice of the kind present in Anthony Andrew Da Silva and Department of Transport and Regional Services [2004] AATA 1355. In that case there was a history of ownership and also incorrect advice had been provided. It was contended that in the present case no injustice or unfairness has been caused. The circumstances are not sufficiently exceptional to justify the exercise of the discretion.

16.     Regulation 11 gives to the decision-maker a wide discretion to approve an application to import a non-standard road vehicle.  The discretion is obviously intended to allow a decision-make flexibility and to apply some justice and fairness in the many and varied circumstances which might arise.

17. In exercising the discretion, however, proper regard must be had to the policy and objectives of the Act and the Regulations made under it. Section 3 of the Act states that the main object of the Act in relation to used vehicles is to "... regulate the first supply to the market of used imported vehicles".  (see Re Trajkovski and Department of Transport and Regional Services (2000) 32 AAR 457, Re Van Duyker and Department of Transport and Regional Services [2004] AATA 592 and Murase and Department of Transport and Regional Services [2005] AATA 705).

18.     In a number of previous decisions various words have been used to describe the circumstances which must be present before the discretion is exercised.  These include “exceptional”, “extraordinary” and “special”.  I agree with the following statement by Member M J Allen in Anthony Andrew Da Silva and Department of Transport and Regional  Services [2004] AATA 1355:

“For my own part, I do not believe that it is particularly helpful to resort to adjectives of the kind referred to … 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.”

19. Part of the policy and objectives of the Act and Regulations is to establish National Standards to apply to the importation of used vehicles. Those standards include, in particular, appropriate road safety standards to protect the community. That purpose is evident from the Ministers’ second reading speech on the Motor Vehicles Standards Bill 1989.   (see re  Trajkovski at p 460).

20.     The respondent placed some reliance on the Tribunal’s decision in Bastian and Minister for Transport and Regional Services [2007] AATA 1646.  In that decision the vehicle concerned had also been inherited.  The applicant in Bastian had arranged to import the vehicle from England to Australia without approval.  It was said by the Tribunal to be an “imprudent” act.  There are, of course, no such circumstances in the present case.  In the present application Mr Ralph Hunt, when dying of cancer, had expressed a wish that the vehicle be brought to Australia to be used by his son.  That wish is the main source of the applicant’s sense of grievance  in the decision under review and his feeling that he has not being treated fairly.   There is more to this case than the mere inheritance of a vehicle.    The present case can therefore be distinguished from Bastian on the facts.  Each case must, of course, be treated on its own merits.

21. After considering all of the material before it the Tribunal concludes that in the circumstances of this case and taking into account the policy and objectives of the Act and regulations it would be fair and just to exercise the discretion in Regulation 11 in favour of the applicant.

22.     It so concludes because of the following circumstances:

(a)The vehicle was owned by the applicant's late father who, when dying of cancer, expressed a special wish that the vehicle should be brought to Australia for the personal use of the applicant and his family.

(b)The applicant, who settled in Australia in 1999 and is now an Australian citizen, has a very strong emotional attachment to the vehicle because of its association with his late father and family in England.

(c)The vehicle is a relatively late model right-hand drive 1999 Mercedes Benz which remains in good condition.  It meets the relevant vehicle standards applying in the United Kingdom and Europe.

(d)The importation would be for personal use and not for commercial gain.

(e)In this case the applicant has been open about the issue and has abided by the law.

23. The Tribunal is satisfied that allowing the importation, in these particular circumstances, of a single relatively late model vehicle which meets the relevant vehicle standards in the United Kingdom and in Europe will not frustrate the relevant policy considerations upon which the Act and regulations are based. It is equally satisfied that in the circumstances it is fair and just to the individual concerned to allow the importation.

It is not uncommon for the importation of non-standard vehicles to be allowed. For example, a person may import a non-standard vehicle which had been owned and used by that person for twelve months or more so long as he or she complies with any requirements as to road safety that are imposed in respect of the vehicle by the Minister. (see regulation 13 of the Regulations)

24.     It is necessary to give consideration as to whether the import approval should be subject to any special condition.  The Tribunal notes that the respondent has submitted that:

“… as a matter of practicality, because the Department of Infrastructure, Transport and Regional Services does not normally deal with vehicles imported on a conditional basis, there are no processes in place, or resources available, to ensure the conditions are complied with…”  (Respondent’s written submission dated 11 April 2008)

Regulation 11, of course, does envisage the possibility that conditions might be imposed by the decision maker.

It is noted that a condition of approving an application to import under regulation 13 is:

“(d)  the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister”

The Tribunal considers that in order to have proper regard to the policy and objectives of the Act and regulations a similar condition would be appropriate in this case. The applicant has said “I am happy for the vehicle to be brought up to Australian compliance if required”. (T11) This, of course, would be at the expense of the applicant.

Decision

25.      The Tribunal sets aside the decision under review and directs, pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, that the applicant’s application to import a 1999 Mercedes Benz E300 motor vehicle be approved on condition that the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister.  It further directs that a signed instrument to that effect be issued.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  H Healy (Administrative Assistant)

Date/s of Hearing  14 February 2008
Date of Decision  21 May 2008
Counsel for the Applicant         Mr R Foon
Solicitor for the Applicant          Douglas & Collins Lawyers
Counsel for the Respondent     Mr A Klein
Solicitor for the Respondent     DLA Phillips Fox