Ripszam and Minister for Infrastructure and Regional Development
[2013] AATA 918
•3 December 2013
[2013] AATA 918
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3788
Re
Stephen Ripszam
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date
Date of written reasons
3 December 2013
19 December 2013
Place Canberra The application is dismissed under s42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
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RM Creyke, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - dismissal – ‘frivolous or vexatious’ on grounds of futility– interests affected – no standing - vehicles in question sold to third party – applicant no longer has interest affected
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) sections 2A, 25, 42B(1)(a), s 27
Motor Vehicle Standards Act 1989 (Cth) sections 3, 5(1), 14, 14A, 20, 39(1)(f)
Motor Vehicle Standards Regulations 1989 (Cth) regulations 11, 20
CASES
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Alphafarm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519
Re Hinds and Australian National University (2012) 129 ALD 476
Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Transurban City Link v Allan (1999) 95 FCR 553
SECONDARY MATERIALS
Department of Infrastructure and Transport Consultation Paper on the Motor Vehicle Standards Act 1989 (May 2013)
REASONS FOR INTERLOCUTORY DECISION
RM Creyke, Senior Member
19 December 2013
The delegate of the Minister for Infrastructure and Regional Development refused a request by Mr Stephen Ripszam to import five ‘SWO1 electric chariots’, manufactured by Yongkang Kangying Industry and Trade Co Ltd. The vehicles are four-wheeled people transporter vehicles. The decision was made under the Motor Vehicle Standards Act 1989 (Cth) and its related regulations.
On 15 October 2013, at a preliminary conference, the Tribunal was advised that the vehicles, which had been held in New Zealand pending the outcome of an application to the Tribunal, had been sold. On 30 October 2013, the Minister submitted that the application should be dismissed under the Administrative Appeals Tribunal Act 1975 (Cth) section 42B(1)(a) as being ‘frivolous or vexatious’. The applicant opposed the request.
At an interlocutory hearing on 3 December 2013 the Tribunal acceded to that request and the application was dismissed. Mr Ripszam requested the Tribunal to provide its reasons for the decision.
Legislation
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the matters which may be considered by the Tribunal and the circumstances in which applications may be sought. Section 25 of the AAT Act provides that the Tribunal may only review matters for which jurisdiction is given to the Tribunal by an Act or regulations.
Consideration
There is no question that the Tribunal has jurisdiction to consider a claim of the kind made by Mr Ripszam. The Motor Vehicle Standards Act 1989 (Cth) provides that the Tribunal may review a decision of the Minister to refuse to approve the import of a non-standard vehicle as defined in the Motor Vehicle Standards Regulations 1989 (Cth).[1]
[1] Motor Vehicle Standards Act 1989 (Cth) ss 20, 39(1)(f).
At the same time, the AAT Act requires that those who wish to seek review by the Tribunal must have standing to bring an application. That means the person or corporation must have ‘interests … affected by the decision’.[2] The expression ‘interests affected’ has been interpreted broadly.[3] Nonetheless, ‘there must be some evidence to show that the interests are in truth affected’.[4] Whether that evidence is sufficient depends on the scope and purpose of the relevant legislation.[5]
[2] Administrative Appeals Tribunal Act 1975 (Cth) s 27.
[3] Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67.
[4] Id at 69-70.
[5] Allan v Transurban City Link Ltd (2001) 208 CLR 167; Alphafarm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 272 per Gummow J.
The principal purpose of the Motor Vehicle Standards Act 1989 (Cth), as relevant, is ‘(a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia’.[6] In that context, non-standard vehicles may only be imported with the approval of the Minister,[7] and vehicles which are road vehicles may be required to meet national standards or to comply with particular conditions.[8] Underpinning that purpose are road safety and environmental considerations.[9] Accordingly the legislation applies only to those whose interests relate to the import of vehicles, particularly non-standard vehicles, or whose applications to import vehicles are affected by the national road safety or environmental rules.
[6] Motor Vehicle Standards Act 1989 (Cth) s 3.
[7] Id ss 14, 14A; Motor Vehicle Standards Regulations 1989 (Cth) regs 11, 20.
[8] Motor Vehicle Standards Regulations 1989 (Cth) reg 20.
[9] Motor Vehicle Standards Act 1989 (Cth) s5(1) and see also Department of Infrastructure and Transport Consultation Paper on the Motor Vehicle Standards Act 1989 (May 2013), 1.
Mr Ripszam’s interests at the commencement of proceedings related to the refusal of permission for him to import five vehicles of a specific kind, make and specification, broadly described as electric chariot people transporters. He no longer owns those vehicles. So although Mr Ripszam had an interest affected at the commencement of the proceedings, once he had sold the vehicles he no longer had that interest. The case is analogous to others in which the interest that gave the person standing to commence the proceedings ceased to exist, so that the person had no interest in pursuing the issue and the proceedings, although not instituted vexatiously, had become vexatious.[10] For this reason the Tribunal has found that Mr Ripszam no longer has standing to bring an application.
[10] Transurban City Link v Allan (1999) 95 FCR 553; Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519; Re Williams and Australian Electoral Commission (1995) 38 ALD 366.
The Minister’s submission rested on six contentions:
·That following the sale of the vehicles, the application had been rendered futile;
·There were no issues of reputation at stake;
·The applicant had no standing;
·There was no precedential value in proceeding with the review;
·Costs considerations support dismissal; and
·Dismissal would be in accord with the Tribunal’s objectives and procedures.
Mr Ripszam denied the appropriateness of these contentions.
Futility
In the first instance Mr Ripszam’s view was that the vehicles could be replaced and import sought for the same type of vehicles and the Minister would not have been aware of the substitution. Mr Ripszam’s view was that it was specious to raise the sale of the vehicles as a reason for treating the application as vexatious. The Tribunal’s response is that at present, while to the knowledge of the Minister and of the Tribunal, there are no SW01 vehicles which Mr Ripszam is seeking permission to import, Mr Ripszam cannot establish a ‘live’ interest which gives him standing and as a result the Minister’s argument has substance.
In addition Mr Ripszam argued that the Minister made the decision to refuse permission to import under the wrong provision. That is an issue of law and also involves the application of the law as correctly construed to the facts of the case. In the present situation it would be futile for the Tribunal to make a finding in the absence of evidence of the facts as to, for example, the make, and specifications of specific vehicles for which an import request has been made. The Tribunal lacks the datum on which to reach any conclusion. Any such outcome would only be hypothetical and of no practical benefit.
A purpose of the standing provision in the AAT Act is to avoid decisions on hypothetical facts, and the AAT Act only gives the Tribunal authority to provide advisory opinions if that is provided for by the statute granting the Tribunal jurisdiction.[11] The Motor Vehicle Standards Act 1989 (Cth) and its related regulations do not grant such jurisdiction to the Tribunal. Practical reasons in this matter in support of the principles relating to standing and to providing advisory opinions is that it is possible that Yongkang Kangying Industry and Trade Co Ltd may go out of business or cease to make electric chariots, or only make electric chariots which have different specifications. In those events, Mr Ripszam would not be able to import identical vehicles to the ones he sold. Nor may Mr Ripszam or anyone else again seek to import these SW01 vehicles. In those circumstances, any decision by the Tribunal in relation relating to the SW01 electric chariots or to another make of vehicle, or a vehicle with different specifications would be otiose.
[11] Administrative Appeals Tribunal Act 1975 (Cth) s 59.
Mr Ripszam also contended that the Minister should have made a decision to permit the import of such vehicles with conditions, as the Act permits. Whether the Minister correctly exercises the discretions for which the Act provides may be an issue. However, in the absence of the vehicles, the make and specifications of which could be examined in the context of the legislation, there is no point in exploring this suggestion.
Remaining arguments
There are no reputational interests of the kind discussed in Re McHattan and Collector of Customs (NSW)[12] and neither party asserts to the contrary. The issue of standing has earlier been discussed in these reasons.
[12] Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67.
The argument as to precedential value is dealt with under the discussion of the hypothetical nature of any ruling. In addition, as explained at the interlocutory hearing, any precedential value of a decision by the Tribunal that SW01 electric chariots could be imported as non-standard vehicles may be overtaken by a change in the national standards, or the relevant legislation, as well as by modification of the specifications of the vehicles. In that event a decision by the Tribunal on a vehicle with different specifications or which may be sought to be imported under changed rules relating to such vehicles would have no precedential value. Further, as mentioned earlier, Mr Ripszam may never again attempt to import such vehicles and the hearing would therefore have been a waste of time and public money.
There are issues of costs involved. If Mr Ripszam decides again to seek approval to import the same or similar vehicles and his application is unsuccessful he would need to commence proceedings with the Tribunal and this would involve him in further costs. Against that, however, the principal costs involved in the current proceedings would have related to the hearing itself and Mr Ripszam no longer has to bear that cost. In addition, whether there are any future costs in another matters is speculative only.
In addition, the Tribunal has, as one of its statutory objectives,[13] that it conduct its proceedings in an economical fashion. It would not be economical for the Tribunal to provide a ruling on the import status of a vehicle which is no longer owned by the applicant, an in circumstances in which any application about identical vehicles in the future is unknown. These reasons account also for the contention about the Tribunal’s objectives and procedures, namely, that in order to be quick and economical in its conduct of application, it needs to deal with extant, not theoretical, matters.
[13] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
The Tribunal has accordingly dismissed the application under section 42B(1)(a) of the AAT Act. That provision permits the Tribunal to dismiss a proceeding if satisfied that it is ‘frivolous or vexatious’. The expression ‘frivolous or vexatious’ covers proceedings which have become futile due to a change in circumstances, as here, with the sale of the vehicles. The Tribunal accepts that the power to dismiss a proceeding under section 42B(1)(a) should be exercised cautiously and sparingly.[14] Nonetheless, in the circumstances which apply here, the decision to dismiss falls within the statutory expression in s 42B(1)(a).
[14] Re Williams and Australian Electoral Commission (1995) 38 ALD 366; Re Hinds and Australian National University (2012) 129 ALD 476.
Mr Ripszam does not have an ‘interest affected’ and hence does not have standing to bring an application. Substantively, to bring an action when the subject matter of the action is no longer owned by the applicant also renders futile any analysis by the Tribunal of the application and accordingly, the Tribunal has dismissed the application by Mr Ripszam under s 42B(1)(a) of the AAT Act.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, SM
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Associate
Dated 19 December 2013
Date(s) of hearing 3 December 2013 Advocate for the Applicant Trevor McPherson Advocate for the Respondent David McLaren Solicitors for the Respondent Sparke Helmore
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