Re Trajkovski and Department of Transport and Regional Services
[2000] AATA 1073
•6 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1073
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/8
GENERAL ADMINISTRATIVE DIVISION )
Re PETAR TRAJKOVSKI
Applicant
And DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal The Hon Mr R N J Purvis, QC, Deputy President
Date6 December 2000
PlaceSydney
Decision The decision under review is affirmed
[Sgd] R N J Purvis
Deputy President
CATCHWORDS
TRANSPORT – import approval – non-standard vehicle – whether compassionate grounds for approval – financial hardship – health – whether discretion to be exercised – whether misrepresentation – whether Applicant bona fide – whether claims substantiated
Motor Vehicles Standards Act 1989
Motor Vehicles Standards Regulations
Minister for Aboriginal Affairs and Another v Peko- Wallsend Ltd and Others (1986) 162 CLR 24
Re Aston and Secretary, Department of Primary Industry (1985) 4 AAR 65
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331
REASONS FOR DECISION
The application:
This is an application by Petar Trajkovski ("the Applicant") seeking review of a decision made by the Administrator of Vehicle Standards, a delegate of the Minister for Transport and Regional Services ("the Respondent") on 21 December 1999. The decision inter alia was to the following effect:
"I refer to your application…in which you sought import approval for a 1987 Porsche 911 vin WPOZZZ91ZHS171859…Your application advises that you vehicle is non-standard and that it does not comply with national standards referred to in section 3 of the Motor Vehicles Standards Act 1989 ("the Act")
…
I have decided not to give an import approval under section 19 of the Act or regulation 9B for the Porsche…" (T16, p65)
In his reasons given in support of the decision the delegate as is relevant to this application stated:
"On 12 October 1999 Mr Trajkovski…submitted an application to import a 1987 Porsche…vehicle…to the Minister for Transport and Regional Services. In the covering letter to the application Mr Trajkovski asked the Minister to exercise his discretion under…the Act or under regulation 9B of the…regulations to approve the import on compassionate grounds…
Reasons for decision:
The object of the Act is to achieve uniform vehicle standards to apply to road vehicles when they begin to be used in transport in Australia…The Act prohibits knowing or reckless import of a vehicle that is non-standard or does not have an identification plate…Sections 19 and regulation 9B…give the Minister a discretion to give written approval allowing importation of a non-standard vehicle or a vehicle without an identification plate.
…
I have considered the particular circumstances of this application including the references to the Applicant's financial situation and health. Having regard to the object of the Act these circumstances do not provide sufficient reason for exercising my discretion in the Applicant's favour. I am also of the view that granting the import approval in this case may raise inappropriate expectations relating to exercise of discretion on compassionate grounds, notwithstanding that each application would be considered on its merits." (T16, p66)
The Applicant in his application to the Tribunal for review of the decision contended that it was "Unfair. Based on a lengthy history".
The hearing of the application:At the hearing of this application the Applicant appeared on his own behalf, the Respondent being represented by Mr GC McCarthy of Counsel with the Australian Government Solicitor. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T18. The Applicant and the Respondent tendered written evidence marked as exhibits namely:
Exhibit No. Description Date
A Fax to the Applicant from Mr McLennan 29 September 1995
B Letter to Mr Core from the Applicant 3 October 1995
C Letter "Diamond Porsche CPA Application" 4 October 1995
D Correspondence from Mr Core, Department of Transport, to the Applicant 5 October 1995
E Fax to the Applicant from Mr Core 30 June 2000
F Correspondence from Federal Office of Road Safety to the Applicant 16 June 1997
G Letter of compliance 20 August 1997
H Letter from Department of Transport and Regional Development to the Applicant 29 May 1998
J Compliance Plate Approval 25 August 1997Australian Securities & Investments Extract for ACN 071378839 11 October 2000
Bundle of documents produced by Respondent
Chain of correspondence, 36 Documents
Summary of evidence report 18 December 1998
Fax from Protech Developments Ltd 23 December 1998
Hand written note 28 January 1999
Fax from Protech Developments Ltd 20 January 1999
Document with photocopy of car attached 22 December 1998
E-mail from Umesh Shamdasani to Alan Gascoyne 21 January 1999
Letter from the Applicant to Stephen Oxley 19 August 1999
Letter from the Applicant to Stephen Oxley 29 August 1999
Letter from Anthony Jones to the Administrator of Vehicle Standards 9 April 1998
Letter from Mercury Insurance Group to Craig Petterd 15 June 1998
The legislative framework and regulation:
The Motor Vehicle Standards Act 1989 ("the Act") so far as here relevant provides:
S. 3
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.S. 18
Prohibition of importation of non-standard vehicles etc.(1) Subject to sections 19 and 20, a person must not knowingly
or recklessly import a road vehicle that:(a) is non-standard; or
(b) does not have an identification plate.…
(2) Subject to sections 19 and 20, a person must not knowingly or
recklessly import a non-standard prescribed vehicle component.…
S. 19
Importation of vehicles requiring modification(1) A person may import a non-standard road vehicle, a road
vehicle that does not have an identification plate or a non-standard
prescribed vehicle component with the written approval of the
Minister, which may be approval subject to written conditions
determined by the Minister.…
S.20
Approval to import certain non-standard vehicles(1) A person may import a non-standard road vehicle or a road
vehicle that does not have an identification 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.
(2) A person may import a non-standard prescribed vehicle component:
(a) where it is to be used in the manufacture of an export vehicle;
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:(a) with the written approval of the Minister; or
(b) with such approval subject to written conditions determined bythe Minister.
…"
The Motor Vehicles Standards Regulations by regulation 9B provides:
"(1) The Minister may approve an application to import a non-standard 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."
In the Second Reading Speech at the time of the introduction of the Motor Vehicles Standards Bill 1989 the then Minister stated inter alia:
"…a vital component of the Federal Government's road safety strategy is to make the motor vehicle as safe as possible. Our aim is to prevent the crash in the first and in the event that a crash occurs to protect the occupants.
To this end over the past 20 years a certification system for motor vehicles has been developed between Federal and State Governments and the vehicle industry. This is managed by the Federal Office of Road Safety and the cornerstone is the Australian design rule system…The system today includes a comprehensive program of audit and surveillance of manufacturers' performance against the design rules. This helps ensure that production vehicles continue to meet the standards…The principal objective of this bill then is to enable the Federal Government to establish and apply nationally uniform standards for motor vehicle safety and environmental quality expected by the community…the bill will underpin national uniformity. It includes provisions aimed at avoiding additional local requirements by applying the same standards to all vehicles at the time of their first sale. The bill will insure the maintenance of the levels of safety and environmental quality that the community rightfully expects. This represents a major improvement over the current situation particularly concerning second hand imported vehicles. As it happens this is a timely bill. Honourable Members will be aware that there have been increased imports of substandard motor vehicles. These do not have a number of major safety features and the fact that they are permitted registration in some states but not others is a vivid demonstration of the problems of non-uniformity. A truly national approach will avoid these situations…at the time of declaration the standards will automatically apply to all vehicles coming onto the market in Australia for the first time…the declared standards will apply to vehicles offered for sale in Australia prior to first registration…however, it is intended that the Australian design rules be the sole criteria for the supply of vehicles to the Australian market…In summary this bill will provide for the first time in Australia a single set of standards for the design and construction of motor vehicles and trailers. As a direct result of this national uniformity every Australian will benefit. The vehicle industry will not be faced with additional costs that have to be passed on to the buyer. The safety and environmental standards which we have all come to expect will be enforced and those few unscrupulous operators who are looking to make a quick profit at the expense of our community's safety will have to meet the same standards…"
The relevant factual situation:
Although as earlier mentioned in these reasons the application relates to one Porsche vehicle only, the Applicant sought to rely upon a course of conduct extending over not less than five years as being in aid of warranting the exercise of the discretion. Accordingly evidence was admitted relating to other Porsche vehicles as well as the subject vehicle.
On 10 October 1999 the Applicant applied on a Federal Office of Road Safety (FORS) form for approval to import into Australia a vehicle described as a "1987 Porsche Model 911". No further identification of the vehicle was then given. It was, however, stated that the vehicle had been manufactured not more then 15 years from the date of the application, that it did not have an Australian compliance plate fitted and that it had not been previously registered in Australia. The Applicant did not have a letter of compliance. It was also noted that the vehicle was not going to be converted to meet the requirements of the Australian design rules and have a compliance plate fitted.
In a letter of 12 October 1999, addressed to the Minister for Transport and Regional services, the Applicant inter alia stated:
"I seek your assistance on compassionate grounds in relation to the importation of a motor vehicle. I enclose a copy of a Vehicle Import Application.
On 22 November 1995 I purchased a 911 Porsche motor vehicle in the United States. The vehicle was purchased firstly for testing purposes, and secondly as a private vehicle for myself. I have now owned the vehicle for nearly 4 years and having spent an enormous amount of money, time and effort in restoring the vehicle to concourse condition. The financial hardship of this commitment is enormous. Storage fees at $120 per month over the past years have added up considerably and until an approval is granted expenses will only continue to escalate.
The vehicle is presently overseas and the company that was initially going to fit compliance plate no longer holds compliance plate approval.
The vehicle right hand conversion is in accordance with VSB4 or circular 0.2.1 attachment 2 appendix 1.
You are kindly requested to consider an exercise of discretion pursuant to the regulations made under 9B of the Motor Vehicles Standards Regulation and section 19(1) of the Act." (T9, p55)
A reply from the principal adviser to the Minister was forwarded to the Applicant on 29 October 1999 in which it was inter alia stated:
"You have indicated that you are seeking approval on compassionate grounds. You will need to provide detailed reasons to support you request. In preparing your statement of reasons you should be aware that these provisions are rarely used and have only been used in respect of applicants seeking personal importation of a vehicle owned and used overseas." (T13, p59)
According to a memorandum made at the time, in a telephone conversation on 12 November 1999 with the Administrator of Motor Vehicles, the Applicant said:
"…about nine cars had been imported with three being used for testing purposes of which two had been used for crash tests. He said that four had been imported under personal names and five had been imported under company names. He said they were ex-USA cars and he currently had four complete vehicles with three in storage and one which he had exported to NZ [this vehicle is said to be the subject vehicle]. Mr Trajkovski indicated that he had owned the cars for about five years.
I asked how the cars had been imported into Australia and he said that they did not require an import approval when they were imported. When I questioned this on the basis of our legal advice, he said that some had come in as components or damaged vehicles or spare parts. He said that the vehicles had been brought in in the expectation of Swissnet being recognised as a manufacturer.
…" (T14, p60)
On 22 November 1999 the Applicant, in a letter to the Administrator, expanded on the reasons given in support of his application:
"…
In November 1994 an Application for Compliance Plate Approval was lodged with the Federal Office of Road Safety. A certain number of motor vehicles and components were imported for testing purposes. Numerous vehicles were used for stringent testing, including crashing, whilst others used for receiving data remain in good condition. These remaining four vehicles were purchased in America less any interiors (as interiors need modifying) and new interiors complete dash and sheet metal were built up in Australia.
Although it has taken a considerable amount of time to obtain a Compliance Plate Approval the vehicles were not 100% complete. The approval lapsed in August 1997. In December 1998, a new application was submitted after numerous talks with the Federal Office of Road Safety. "F.O.R.S." then requested the outstanding ADR 69 test and an additional ADR 37 test be submitted.
After many months of development work the ADR 69 test had passed. Our next obstacle was ADR 37/01. Time was now of the essence as in order for F.O.R.S. to grant an approval, an ADR 37/01 was to be submitted prior to January 1 1999. It was currently December 1998. An insurmountable amount of pressure was now on Swissnet to conduct and comply with ADR 37/01.
Swissnet Pty Ltd is a small Australian company with limited resources. With the Christmas break now approaching, a fellow representative managed an extraordinary feat in having the Orbital Emission Laboratory agree to re-open on Boxing Day, December 26, 1998. This understandably proved to be an extremely expensive exercise. The Orbital Emission Laboratory is located in Western Australia. A vehicle was immediately freighted to Western Australia and preparations for the vehicles testing commenced. Difficulties were encountered when the arrival of the vehicle was delayed and the person conducting the procedure at Orbital was unable to complete the testing in the allocated time period. The timing restrictions prevented me from preparing the necessary documents for submission whilst allowing for any complications arising from the testing. The enormous amount of pressure placed on myself at that time resulted in me being admitted to the Royal Perth Hospital with chest pains at 3.30am on December 30, 1998 (as attached).
The Compliance Plate Approval was not granted. Swissnet Pty Ltd has dedicated many years and an enormous amount of finances towards obtaining the CPA. If Swissnet Pty Ltd had been issued with a Compliance Plate Approval, it would have been in business today, employing fellow Australians instead of enduring the financial hardship it currently finds itself in as a result of the above mentioned circumstances."(T15, pp61-62)
The Applicant in his oral evidence before the Tribunal spoke of vehicles, or more accurately vehicle components, being brought into Australia in 1994/1995 for testing purposes. Discussions had previously taken place with officers of the Respondent referable to an application for certification of used imported Porsche vehicles, the requirements of the Act, the procedures relating to certification of vehicles and information needed in support of a Compliance Plate Approval application. Testing was conducted and approval sought. It was the intent at that time for the vehicles after testing to be compliance plated and then sold.
Whilst not directly relevant to the circumstances pertaining to the one particular vehicle, the subject of this application, the Applicant sought to rely on events that had occurred over the years since 1995 in support of his request for the exercise of the Minister's (the Respondent Administrator's) discretion.
In 1995 the Applicant sought approval to bring into Australia Porsche vehicles for testing and possible release onto the market. Correspondence ensued with representatives of the Respondent. Compliance was to be had with relevant standards. The Applicant was said to be in the process of establishing a purpose built factory and time frames for testing were being negotiated. On 5 October 1995 the then Secretary of the Department of Transport wrote to the Applicant inter alia stating:
"Following our discussion on Tuesday, I thought it would be helpful to set out the position regarding your application for a "full volume" compliance plate approval covering 1986-89 Porsche 911 cars.
You have embarked on an undertaking which comes under the provisions of the Motor Vehicles Standards Act, and requires your enterprise to meet the same standards of performance as a major international car manufacturer. The Federal Office of Road Safety, in assessing your application, is obliged to ensure that the information you provide demonstrates that the vehicles you propose to sell will indeed meet all of the requirements of the legislation.
It was in recognition of your situation that the administrator…wrote to you last week setting out an arrangement which would allow you to import a number of vehicles under a limited approval. The limited approval would be contingent on you providing satisfactory evidence that the 911 models that you wish to import had been shown to meet the requirements of the relevant provisions of Federal Motor Vehicle Safety Standard 208 in the configuration that you propose to the market, and a test to demonstrate full compliance with Australian design rule 69 within a reasonable period during the life of the approval.
There is a community expectation that vehicles supplied to the market meet the safety and emission design rules. To meet the obligations set out under the Act, it would also be necessary for you to provide satisfactory evidence that your proposed vehicle models meet all of the other relevant design rules and that you had satisfactory arrangements to ensure that your production vehicles would also meet the requirements.
To facilitate a resolution it will also be necessary for you to provide full test reports to allow a proper assessment of the evidence of compliance with the requirements of the design rules.
…
I confirm that when FORS is satisfied that the evidence provided meets the requirements set out above the Administrator will issue an approval for a maximum of fifty vehicles. This approval will be contingent upon full evidence being supplied within a reasonable period during the life of the approval demonstrating compliance with ADR 69.
…" (Exhibit D)
In June 1996 an application for Compliance Plate Approval was lodged on behalf of Swissnet Pty Ltd (a company said to be controlled by the Applicant) in relation to model 911 as well as additional documentation. Extensive correspondence ensued, the officers of the Respondent seeking further information and advice of any program of testing to establish compliance with standards and design rules. On 11 October 1996 the Administrator informed the Applicant that:
"…
We have placed considerable resources over the past two weeks in examining this information to ensure that the vehicles will meet the requirements of the Motor Vehicles Standards Act 1989.
I am pleased to advise that five of the outstanding issues have been deemed acceptable…
The remaining items to be resolved are as follows.
…" (Exhibit B, No 11)
And on 23 October 1996 the Administrator communicated with the Applicant stating:
"The following items in Italics are extracts from our last fax…outlining the outstanding issues with your submission. The comments in normal print outline the current status of these items following examination of your additional evidence…
The remaining items to be resolved are as follows.
…" (Exhibit B, No 12)
On 29 November 1996 a Compliance Plate Approval was issued stating:
"…
This approval is valid for not more than fifty vehicles and is subject to conditions specified and approved by the Administrator of Vehicle Standards in Attachment A."(Exhibit B, No 13)
The attachment A inter alia stated:
"Under section 10A(2) of the Motor Vehicles Standards Act 1989 I approve the placing of identification plates on Swissnet 911 Series vehicles by Swissnet Pty Ltd ("Swissnet") subject to the conditions set out below. The national standard with which the vehicles have not been shown to comply with is an Australian Design Rule (ADR)69/00.
Conditions:(1)Swissnet may not place identification plates on more than fifty vehicles.
(2)Swissnet must obtain the identification plates it places on it's vehicles from the Federal Office of Road Safety (FORS).
(3)Swissnet is required to undertake a test or tests on right-hand drive vehicles at an appropriate facility to determine compliance with ADR69/00. That test or those tests are subject to the following conditions:
(a)The test or tests must be conducted within a reasonable time after the grant of this approval; and
(b)The test vehicle or vehicles must be representative of the vehicles supplied or intended to be supplied to the market; and
(c)Sufficient notice of the time and location of the test or tests must be provided to FORS to enable FORS officers to attend and observe the test or tests.
…" (Exhibit B, attachment A)
On 24 February 1997 in a letter from the Administrator it was stated:
"…
Also, you sought clarification on the reasonable time as stated in Attachment A of the Approval, by which tests to ADR 69/00 must be conducted. Having considered all the facts leading to the issue of this approval, I am of the view that proof of compliance with ADR 69/00 in accordance with the test procedures for the issue of a Full Volume CPA should be provided within six (6) months from the date of this approval (or prior to the supply to the market of the 50th vehicle, if sooner) subject to relevant factors which come to my attention in the meantime."
(Exhibit B, No 16)The Administrator, on 16 May 1997 in a letter to Swissnet Pty Ltd, said:
"The Administrator of vehicle standards issued full volume Compliance Plate Approval No. 10619…for not more than fifty vehicles to your company on 24 February 1997. One of the conditions of this approval was that proof of compliance with ADR 69/00 in accordance with the test procedures for the issue of a full volume Compliance Plate Approval should be provided within a reasonable time after the grant of the approval.
Further, you were advised at the time that the Administrator considered a "reasonable time" to be six months from the date of the approval or prior to the supply to the market of the 50th vehicle (if sooner).
As some time has passed since the issue of this approval, it would be appreciated of you provided me with details of the arrangements you have put in place to meet this condition. I also require sufficient notice of the time and location of the ADR 69/00 certification test or tests to enable FORS officers to attend.
Should the conditions of the compliance plate approval mot be met within the specified reasonable time, this approval will be suspended."(Exhibit B, No 17)
Further correspondence ensued, the Administrator on 25 August 1997 informing Swissnet that:
"…
This office has concerns about the risk to public safety and the exposure to liability that arises from vehicles supplied to the market which do not meet national standards.
For the above reasons you are advised that Compliance Plate Approval No. 10619 has now been suspended with effect from today's date. The instrument suspending the approval is attached.
The office will consider reinstating the approval on receipt of satisfactory evidence of compliance with ADR 69 and any new or amended ADRs which come into effect before the approval is reinstated.
As you have not responded to the letters sent from this office drawing the conditions of Compliance Plate Approval to your attention and seeking advice on Swissnet's intentions, you are now invited to show cause why your approval should not be cancelled. Please provide any comments, in writing, within 14 days of the date of this letter."(Exhibit B, No 23)
Thereafter, a meeting was held between interested parties in an endeavour to resolve the difficulties that had arisen. On 29 May 1998 the Administrator indicated a need to inspect the "six or seven vehicles you have consistently advised FORS that Swissnet have imported for test and evaluation purposes and the documentation in respect of those vehicles." A date for the proposed inspection was appointed. A meeting was held on 14 July 1998 between interested parties, a memo from the Assistant Secretary to the Respondent of 11 August 1998 noting:
"Following the meeting on 14 July 1998 it was agreed that the department would confirm in writing its stated position in respect of any new application from Swissnet Pty Ltd for Compliance Plate Approval for Swissnet 911 vehicles.
As discussed the original approval has lapsed. Accordingly Swissnet Pty Ltd must submit a new application for CPA to the Federal Office of Road Safety…for its Swissnet 911 vehicle model together with evidence of compliance with all applicable Australian design rules…however, Swissnet may "carry over" evidence used in it's previous application where that evidence is applicable to the vehicles to be manufactured under a new approval.
FORS will undertake to issue the CPA within 90 days of the last piece of complete and correct evidence being received ie within 90 days of the Administrator of vehicles standards…being satisfied that evidence of compliance with all applicable ADRs has been established.
FORS anticipates that Swissnet Pty Ltd will need to address the following matters in making a new application in making a new application for CPA…"(Exhibit 3, No 25)
The Tribunal at this stage interposes an observation to the effect that Swissnet Pty Ltd, the above-mentioned company with whom negotiations were being conducted, was registered on 2 November 1995, the Applicant being then appointed as a director. The Applicant in his evidence before the Tribunal stated that he has ceased to be a director of the company and has now no legal or financial interest in it. "My girlfriend, Ms Bebek, is the sole director and shareholder", he said.
On 20 November 1998, Swissnet was advised that it:
"must submit a new application for Compliance Plate Approval for Swissnet 911 vehicles",
and that:
"…FORS will process the application within 90 days of the last piece of complete and correct evidence being received".
The company was further advised that FORS was prepared to carry over evidence of ADR compliance from the lapsed application:
"Given the passage of time, I am writing to advise that you should assume that a new application, when submitted, will not be processed to completion by the end of 1998. As previously advised, unless a CPA is issued and a valid identification plate attached to a vehicle prior to 1 January 1999, then satisfactory evidence of compliance with ADR 72/00 will also have to be provided". (Exhibit 3, No 28)
On 24 December 1998 the Administrator informed the Applicant, Miss Bebek and a Mr A Jones on behalf of Swissnet Pty Ltd:
"…
However, as Administrator of Vehicle Standards I shall be available during normal business hours…to exercise my delegations…I have also arranged for the necessary support staff to be available to process any evidence that you may admit in support of your CPA application…the practical time limit for the submission of evidence which you wish to have considered prior to 1 January 1999 is 12 noon on Thursday 31 December 1998."
(Exhibit B, No 32)
On 28 January 1999 the Administrator wrote to Swissnet Pty Ltd confirming advice that he would not exercise his delegated power under section 10A of the Act to issue a Compliance Plate Approval to Swissnet Pty Ltd. He attached reasons for his decision. The Administrator identified three major issues which Swissnet then needed to address:
"…
First, on 18 December 1998 Swissnet submitted a summary of evidence in respect of an ADR 69 test conducted by Autoliv on 16 December 1998. I now have reason to believe that the vehicle used in that test may have been, essentially, an Australian specification Porsche 911 which had already been supplied to the Australian market rather than a Swissnet 911 series vehicle. If this is the case, then the evidence obtained from that test cannot be used to demonstrate ADR 69 compliance for Swissnet 911 series vehicles
…
Unless and until I am satisfied that the vehicle used for the ADR 69 test was a Swissnet 911 series vehicle, the evidence submitted for ADR 69 compliance will not be accepted.
Provision of the above build information, together with an inspection of a Swissnet 911 series vehicle prior to the issue of any compliance plate approval, should address my concerns set out in my reasons for decision about the "type" of vehicle for which compliance plate approval is being sought.
Second, in regard to ADR 37/01 compliance, a Swissnet 911 series certification vehicle must be tested and shown to comply with the provisions of ADR 37/01 including compliance with Table 2 of that ADR.
Third, as 1 January 1999 has now passed and ADR 72/00 is now an applicable ADR, evidence of compliance with ADR 72/00 is required before any compliance plate approval can be granted.
…" (Exhibit B, No 36)
In the above-mentioned reasons for his decision and with regard to the delegated discretionary powers vested in the Administrator, it was stated that the following matters had been considered:
"(1) The fact that I was not satisfied that Swissnet had clearly specified the vehicle type for which it was seeking an approval.
(2) The fact that in relation to compliance with ADR 37/01 Swissnet had explicitly been put on notice at least as early as 14 July 1998 of the necessity to supply evidence of compliance.
(3) The fact that Swissnet had previously been granted a conditional approval under section 10A(2) and that this approval had lapsed because Swissnet had failed to comply with a condition.
(4) While giving full consideration to representations from Swissnet as to Swissnet's particular circumstances I noted the way in which, to my knowledge, discretionary powers have previously been exercised under these subsections. In particular, to my knowledge no other manufacturer has ever been granted an approval under these provisions without demonstrating compliance with ADR 37/01".(Exhibit B, No 36)
The issue of approval was not earlier resolved and by September 1999 the Applicant was still answering queries raised by officers of the Respondent or the Minister. In a letter of 19 August 1999 to Mr S Oxley, of the office of the Minister, the Applicant stated:
"…in response to your query, the four vehicles we are seeking approval for were all brought into the country legally. All four vehicles have the necessary and relevant documentation and all are owned personally.
All vehicles were cleared by customs at time of importation but no permits were issued.
The vehicles are now right-hand drive and have been issued with certified engineer's reports and certificates of roadworthiness."
(Exhibit 10)
And again on 29 August 1999:
"To progress this matter, all vehicles were purchased in the United States of America. I have all the necessary titles etc.
As discussed, once the Department accepts to issue the necessary permits, I will make available the Vehicle Identification Numbers, purchase invoices/receipts and bills of lading as promised.
However I am able to provide you with a sample Certificate of Title confirming the vehicles origins, but would have to "black out" the vehicle identification number de to reasons previously discussed with yourself. The "VIN" will also serve to confirm the vehicles' country of origin.
Once again these vehicles were purchased personally and used for testing purposes. Of the initial seven purchased, three were wrecked in testing procedures".(Exhibit 11)
The Applicant was summonsed to produce evidence of his ownership of the relevant Porsche vehicle. In answer to the summons, he made available Exhibit 2, a bill of sale which, whilst making mention of a Porsche by identification number (the same as that recited in the subject application), giving a date of 22 November 1995 and specifying the Applicant as the transferee of the vehicle, did no more than describe the consideration as "value received". A shipping document also produced made mention of an "auto body shell" with an invoice price of $6,000. The Applicant said that the relevant Porsche was identical with the "body shell". There was not any further documentation produced in aid of establishing ownership or the condition of the Porsche "body shell" at the time of the alleged shipment to Australia. No approval was obtained for its importation.
It is not possible on the basis of the evidence before the Tribunal to identify the relevant "body shell" vehicle as being one of the vehicles, the centre of attention in the extensive correspondence and discussions above detailed. An assumption may be made but there is not any material identifying the "vehicle" as such. The Applicant said that apart from the cost of the component parts, the "auto body shell", monies had been expended on it and storage costs incurred. No evidence of a documentary nature was forthcoming as to these "monies expended" and "costs". He said the vehicle had been used for testing purposes but was now in "immaculate condition". No photograph was produced of the vehicle nor was there evidence as to its present whereabouts. In late 1999 the Applicant said he had arranged for it to be taken to New Zealand. No document was available to verify that the vehicle had left Australia, it had not been and was not insured and whilst initially the Applicant said it was in storage in New Zealand, he later corrected this to say "I think that it is in bond, it is not actually cleared".
Contentions of and by the Respondent:On the basis of the above evidentiary material the Respondent contends that:
(1) The Applicant knew that he could not register the Porsche vehicle in Australia.
(2) The Applicant misrepresented the situation when he said the vehicle had left Australia and that he was then obtaining import approval preparatory to registration.
(3) The whole arrangement propounded by the Applicant was part of a scheme to bring into Australia second-hand Porsches and sell them onto the Australian market without their meeting compliance standards
(4) The engine from a Porsche manufactured in Australia was used in a car for a crash test meant to be that of a USA vehicle. The Tribunal does not consider that this allegation was substantiated.
(5) The Applicant failed to provide a test report on account as such a report if available and produced would reveal that the vehicle tested was not a USA vehicle.
(6) The Applicant in correspondence represented that the vehicles were owned "personally" and "were purchased personally". The earlier correspondence evidenced the vehicles being those of Swissnet Pty Ltd. The Applicant maintained that he had three cars left out of the seven initially imported. This even be it that the documentation produced by the Applicant only referred to an "auto body shell". There was no identification of the subject vehicle being one of those remaining.
(7) The evidence was not such as to satisfactorily establish that the subject vehicle had been forwarded to or was presently in New Zealand, let alone that there was a vehicle in existence exhibiting the alleged identification number.
(8) The Applicant, whilst at one stage professing that Swissnet Pty Ltd was "my company, I bankrolled it", now disclaims any interest in that company. The evidence of the Applicant in relation to the company is unsatisfactory.
(9) Any expenditure incurred by the Applicant in relation to Porsche vehicles was without substantiation. The amounts of money mentioned by him "were plucked from the air".
(10) There is an insufficiency of evidence as to identification of the relevant vehicle and as to whether the Applicant is the owner of it or of any Porsche imported from the United States.
(11) The credibility of the Applicant is very much in doubt.
Submissions and decision:
The issue for determination in this application is whether the decision of the delegate of the Respondent of 21 December 1999 not to give an import approval for a Porsche vehicle 911 VIN WPOZZZ91ZHS171859 under section 19 of the Act or regulation 9B of the regulations is the correct or preferable decision. The financial situation and health of the Applicant are said to warrant a decision to approve the importation on compassionate grounds.
Section 19 of the Act empowers the Minister and so the Tribunal to approve the importation of a non-standard road vehicle or a road vehicle that does not have an identification plate. The regulations by regulation 9B empower the Minister and hence the Tribunal to approve the importation of a non-standard vehicle or a road vehicle that does not have a compliance plate. The terms "non-standard" and "national standard" are relevantly defined in the Act. Section 19 and regulation 9B provide an exception to the intent of the legislation namely the achieving of uniform standards to apply to relevant vehicles when they begin to be used in transport in Australia. The policy framework as seen in the legislation and referred to in the Second Readings Speech to the bill earlier detailed in these reasons, is to be considered in the context of the exception provisions. Regulations 9C to 9G envisage particular circumstances, no one of which is relevant to the present application. Thus the Applicant must rely upon regulation 9B, it being said on behalf of the Respondent that this regulation provides:
"for those rare and exceptional cases where it is appropriate to allow the importation of a road vehicle to be used for transport of people on Australian public roads despite its non-compliance with applicable vehicle standards and if not falling within any of the specified grounds for such exemption contemplated by the Parliament".
On a proper construction of the regulations, such a situation would be exceptional.
The described "vehicle", assuming for this purpose its existence, is admitted to be non-standard. It was said to have been brought into Australia as "auto body shell". No approval was given to import the body shell as a "vehicle". If there was or is such a vehicle it was in Australia in contravention of the legislation.
In order to consider whether approval pursuant to section 19 and/or regulation 9B should be granted, the Tribunal is to look at the facts and circumstances as revealed by the evidence placed before it. It was said on behalf of the Respondent that approval would constitute a departure from the stated objects of the Act and for a reason or reasons external to the possible reasons for such departure contemplated by the legislature. The primary position or policy as expressed by the legislature is that non-standard road vehicles should not be imported into Australia. Cogent reasons as to why the adoption of that policy would be unjust to the Applicant needs to be established. It was submitted that no injustice is apparent in this matter. The circumstances giving rise to the Applicant being in possession of the vehicle, if this be so, and Swissnet Pty Ltd being without authority to affix an identification plate to it are of the Applicant's and the company's own making.
It is true to say that the relevant factors to be taken into consideration by a decision maker in exercising the discretion permitted by section 19 of the Act are not expressly stated in the legislation, in the regulations or in the guidelines. The Respondent submits that in these circumstances, the relevant factors are to be determined by implication from the subject matter, scope and purpose of the Act (Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24 at 40). It is trite to say that the Tribunal is to exercise the powers and discretions vested in the delegate, the Administrator, for the purpose of making its decision and cannot confer powers upon itself which have not been specifically conferred by a statute or available by implication from a statute. It is true however, as was stated in Re Aston and Secretary, Department of Primary Industry (1985) 4 AAR 65 at 74, that:
"Whenever there is a discretion a policy may be developed for its exercise either because of the aims sought to be achieved by the policy as an end which is desired by the decision maker and is encompassed within the range of considerations which may be taken into account in the exercise of the discretion or because numerous decisions will be taken under the discretion and it is fair to persons affected by the exercise of the discretion that decisions be consistent".
As was stated in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639:
"Inconsistency is not merely inelegant: it brings the process of deciding into disrepute suggesting an arbitrariness which is incompatible with commonly accepted notions of justice".
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). This application is to then be considered having in mind the facts and circumstances before the Tribunal but in the context of a regime having been established for the importation of vehicles and the same not being allowed onto roads in Australia without safety being ensured. The exceptions as provided for in the regulations where variation from the scheme may be enabled apart from the circumstances therein specified must of necessity be exceptional. The Tribunal in making its decision is to give primary weight to the scheme and the intent of Parliament in enacting the legislation.
The contentions of the Respondent have earlier been detailed. It is apparent from them that measurable reservations are held as to the bona fides of the Applicant himself, the existence of a vehicle as described and the condition of such vehicle assuming it is in existence. These matters were clearly brought to the attention of the Applicant. Each of them if shown to exist would cause a decision maker to have reservations as to accepting the situation as propounded and would bear upon the weight if any to be given to the matters relied upon by an applicant in seeking the exercise of a discretion.
In this application the Applicant asks the Tribunal to exercise the discretion in his favour on the basis of financial and physical hardship caused to him. He did not place before the Tribunal any acceptable evidence as to the financial position of Swissnet Pty Ltd, let alone his own financial position. Whilst it was earlier said that these vehicles were in the possession of and perhaps owned by the company, at the time of the hearing and in some correspondence the Applicant claims that the vehicles, let alone the particular vehicle, were personally owned. There was no evidence placed before the Tribunal as to the Applicant being the personal owner of the Porsche vehicle said to be the subject of this application. Even be it that the Applicant was able to establish an adverse financial situation, it is, as was said by the Respondent, one that has come about by reason of the Applicant bringing vehicles or component parts of vehicles into Australia without authorisation and without a degree of certainty as to his being able to obtain compliance certification.
The Tribunal is not satisfied on the basis of the material placed before it that the Applicant personally has suffered financial hardship by reason of the "auto body part" having been brought into Australia and having remained here for a number of years and is not able to determine whether the interest held by the Applicant in Swissnet Pty Ltd resulted in his suffering financial hardship. There is just not any evidence to this effect.
The Applicant also seeks to rely upon the circumstances whereby he was admitted to hospital in December 1998. The material before the Tribunal evidences stress having been experienced by the Applicant. The relevant circumstances in which the Applicant sought to have a vehicle tested in Western Australia have been set forth in these reasons. The stress experienced by the Applicant was no doubt as a consequence of his endeavouring to have the test performed prior to a new procedure being introduced. In view of the time that had elapsed since 1995 this one isolated incident does not constitute a sufficient ground for the exercise of a discretion that relates to the safety issues addressed in the legislation. It is clear that a person such as the Applicant seeking approval is required to comply with the requirements of the legislation and regulations as they exist at the time approval is being sought and not otherwise.
On the whole of the evidence before it, the Tribunal is satisfied that the discretion vested in it should not be exercised in favour of the Applicant. There is no clear evidence of the Applicant having experienced financial hardship or prejudice in the absence of a favourable exercise of the discretion if the decision under review is affirmed. There is no evidence sufficient for the Tribunal to make a determination as to the financial position of the Applicant and the material before the Tribunal is not such as to warrant departure from the exceptions contemplated by the legislation.
It should be noted that even if there had been evidence of financial hardship, which there is not, and even if the adverse health situation of the Applicant had been maintained, which it has not, the whole of the history pertaining to the Porsche vehicles said to have been brought into Australia in 1994/1995 compounded with the concerns of the Respondent as noted in their contentions, together would preclude the exercise of the discretion.
For the reasons above set forth the decision under review is affirmed.
I certify that the preceding forty-one (42) paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 17, 18 October 2000
Date of Decision 6 December 2000
Representative for the Applicant Self-representedCounsel for the Respondent GC McCarthy
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