Russell and Department of Infrastructure, Transport, Regional Development and Local Government

[2009] AATA 515

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2373

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RUTH RUSSELL

Applicant

And DEPARTMENT OF INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT

Respondent

DECISION

Tribunal Senior Member M D Allen

Date18 June 2009

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, the decision under review is set aside and remitted to the Respondent with the direction that the importation should be permitted subject to such conditions as are deemed appropriate.

....................[sgd]........................

M D Allen
  Senior Member

CATCHWORDS

APPLICATION TO IMPORT NON STANDARD VEHICLES: Applicants failed to meet time limits permitting importation by a few days – vehicle was used in United Kingdom and proposed to be used in Australia for domestic purposes only – exercise of discretion

CASE LAW

Williamson v Minister for Infrastructure, Transport, Regional Development and Local Government (2009) AATA 48

Da Silva v Transport and Regional Services (2004) AATA 1355

LEGISLATION

Motor Vehicle Standards Act (1989): S 3,18, 19(1)

Motor Vehicle Standards Regulations (1989): Reg 13, 11

REASONS FOR DECISION

18 June 2009 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act (1975), requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision,

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         .....................................................................................
           M. Corcoran, Associate

Date of Hearing  18 June 2009
Date of Decision  18 June 2009      
Solicitor for the Applicant          Appeared on own behalf            
Solicitor for the Respondent     Mr M Palfrey, Clayton Utz

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN: The Applicant’s seek review of a decision made on 31 October 2008 refusing permission to import a non-standard road vehicle. I would mention that the Respondent, very properly, did not opposed an extension of time in this matter in which to lodge an application for review. The decision background is set out, very succinctly, in a letter from an officer of the Respondent to the Applicant’s dated 12 December 2008. I quote:

“Your applications were originally refused on 31 October 2008 as you did not meet regulation 13(a) of the Motor Vehicle Standards Regulation 1989. Regulation 13(a) requires that the vehicle has been owned and used by you for a continuous period of at least 12 months. While I accept that you have now owned the vehicle for the required 12 months, you were refused on the basis that at the time you left the United Kingdom you had not owned and used the vehicles as required under the regulations.

Based on the information you provided in support of your application, you purchased both vehicles on 12 November 2008. On your application you stated that you stopped using the vehicle on 30 October 2008 and came to Australia on 8 November 2008.

As I understand the evidence in this matter, the Applicant’s placed the vehicle with export agents on or about 30 October 2008, as it was then handed to the export agents to be shipped to Australia. Mrs Russell, in her evidence, said that she was under a misapprehension and thought that by the time that the vehicle had arrived in Australia, she would have owned it for the requisite 12 months.

The regulation referred to refers back to sections 18 and 19 of the Motor Vehicle Standards Act (1989). Section 18 reads, inter alia:

“Subject to sections 19 and 20, a person must not import a road vehicle that;

(a)       is non-standard; or

(b)       does not have an identification plate.”

Section 19(1) then reads:

“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.”

The Motor Vehicle Standards Regulations (1989) are referrable to such imports. Regulation 13(a) reads:

“The Minister must approve an application to import a non-standard 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…”

The regulation, of course, refers to a vehicle which has been owned and used. The term “used” is defined in section 5 of the Act as use in relation to a road motor vehicle, meaning, drive.

So although a vehicle may well be in the ownership of a person, and contain some of their goods and chattels, if it is simply sitting on the docks waiting to be imported it is not in use and, hence, would not comply with regulation 13. I might say that in this matter there seems to have been nothing raised in the material for me which suggests, in any way, that the vehicle, which I have been informed is a variation of what is known as the Toyota Tarago, is in any way so sub-standard that it should not be permitted to be imported and, obviously, as provided by the Act, the Minister can impose conditions.

Regulation 11 of the Motor Vehicle Standards Regulations reads, inter alia:

“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.”

Sub-regulation 11(ii) then reads:

“An approval may be given subject to conditions specified in the instrument of approval.”

In Da Silva v Transport and Regional Services (2004) AATA 1355, Member Allen said in paragraph 55:

“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.”

He went on to state in paragraph 59:

“In my opinion, the exercise of the discretion in regulation 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…”

With respect, I agree, to some extent, with the remarks of the Member. However, I note that sub-regulation 11(i) simply reads:

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

There is no mention in the regulation itself that there is any fetter upon the absolute discretion of the Minister. On the other hand, I believe the learned member was totally correct where he said that what must be considered is whether the grant of approval would undermine or frustrate the policy and objects of the legislative scheme. The objects of the legislative scheme are set out at section 3 of the Motor Vehicle Standards Act and read:

“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.”

I would say, with regard to those objects as the pertain to this case, that it seems that at all times that the Applicant’s, as the owners of a vehicle, were importing the vehicle into Australia to be used by them in the normal course of their family affairs. In other words, there is no suggestion that it is going to be imported for the purpose of on-sale.

Although Senior Member McCabe said in Williamson v Minister for Infrastructure, Transport, Regional Development and Local Government (2009) AATA 48, that the discretion must be exercised sparingly, it still remains that there is a discretion.

I might mention, as an aside however, that in exercising any discretion I do not take into account any supervening events such as the illness of the Applicant’s parents. I accept that their decision to move from the United Kingdom back to Australia was caused by the factor that both sets of parents were, of course, aged and in indifferent health. There is no evidence of any sudden medical emergency requiring a sudden miscalculation of time limits and having regard to time limits, although it is a totally imperfect analogy, it would also have regard to the way the courts are now approaching time limits in matters of litigation. I refer, particularly, to the discussion as it occurs in Comcare v Ahearn (1994) 119 ALR 85 as opposed to the earlier cases where time limits were absolute.

In this matter the Applicant’s, through their imperfect understanding of the regulations, have rendered themselves out of time by a manner of a few days. As I said earlier, there seems to be no doubt that the vehicle sought to be imported is purely for their own domestic purposes and it is not of such an exotic nature as to render its use on Australian roads questionable. All in all the discretion, being at large, it seems to me that this is a case where the discretion should be exercised so that the decision under review is set aside and this matter remitted to the Respondent with the direction that the importation should be permitted, subject to such other conditions as are appropriate.

END OF EXTRACT  [3:10pm]