SELWAY and MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
[2010] AATA 595
•12 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0559
GENERAL ADMINISTRATIVE DIVISION ) Re MARK SELWAY Applicant
And
MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT AND LOCAL GOVERNMENT
Respondent
DECISION
Tribunal Senior Member R W Dunne Date12 August 2010
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
TRANSPORT – importation of motor vehicle – nonstandard vehicle – no identification plate – vehicle not owned and used for a continuous period of at least 12 months – vehicle did not comply with National Standards – discretion – no grounds for exercise of discretion – decision affirmed.
Motor Vehicles Standards Act 1989 (Cth) ss 3, 5, 18, 19, 20
Motor Vehicles Standards Regulations 1989 (Cth) Regulations 11, 13
Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073
Re Marra and Minister for Transport and Regional Services [2003] AATA 323
Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48
Re Brassington and Minister for Transport and Regional Services [2006] AATA 724
Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355
Re Hingston Surgical Limited and Anor and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 455
Re Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972
Re Murase and Department of Transport and Regional Services [2005] AATA 705
Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054
Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417
Re Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540
Re Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9
Re Anthony and Department of Transport and Regional Services [2001] AATA 543REASONS FOR DECISION
12 August 2010 Senior Member R W Dunne introduction
1. On 5 December 2009, the applicant (Mr Mark Selway) applied to import an Aston Martin DB9 Volante motor vehicle, first registered in the United Kingdom on 1 November 2007, which he had purchased on 6 March 2009 when he lived in Scotland.
2. On 14 January 2010, the Administrator of Vehicle Standards (“Administrator”) refused the applicant’s application under s 18 of the Motor Vehicles Standards Act 1989 (Cth) (“Act”) because Mr Selway had not satisfied the requirements of Regulation 13(ac) of the Motor Vehicles Standards Regulations 1989 (Cth) (“Regulations”) to have owned the vehicle while overseas for a continuous period of at least 12 months before arriving in Australia for the purpose of remaining in this country indefinitely.
3. On 10 February 2010, Mr Selway applied to this Tribunal for review of the Administrator’s decision. At the hearing, Ms E Reed appeared for the applicant and Mr D O’Donovan appeared for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence (Exhibit R1), together with the following exhibits:
·witness statement of the applicant dated 23 April 2010 (with annexures) (Exhibit A1);
·currency converter dated 6 March 2009 (Exhibit A2);
·currency converter dated 11 December 2009 (Exhibit A3);
·currency converter dated 9 July 2010 (Exhibit A4);
·undated statement of Mr P Hewitt (Exhibit A5);
·undated statement of Mr J Hooker (Exhibit A6);
·statement of Mr D Baines dated 18 March 2010 (Exhibit A7);
·paper from Bond University dated March 2010 entitled “Current Global Financial Crisis: The Great Recession and the Nascent Recovery” (Exhibit A8);
·Aston Martin DB9 brochure (Exhibit A9); and
·two coloured photos of the Aston Martin DB9 Volante (Exhibit A10).
issue before the tribunal
4. The issue before the Tribunal is whether the Tribunal should exercise its discretion under Regulation 11 of the Regulations to allow the applicant to import into Australia the nonstandard vehicle which is the subject of his application.
legislative scheme
5. The main object of the Act, with respect to new vehicles, is to achieve uniform vehicle standards which apply to road vehicles when they begin to be used in transport in Australia, and with respect to used vehicles, to regulate the first supply to the market (s 3 of the Act). Nonstandard vehicles are vehicles that do not comply with the National Standards or the Australian Design Rules. An identification plate affixed to a motor vehicle establishes that the vehicle complies with the National Standards.
6. The importation of nonstandard motor vehicles is prohibited under s 18 of the Act, which relevantly reads:
“18 Prohibition of importation of nonstandard vehicles etc.
(1)Subject to sections 19 and 20, a person must not import a road vehicle that:
(a) is nonstandard; or
(b) does not have an identification plate.
Penalty: 120 penalty units.
…”
7. Section 19 of the Act provides that a person may import a nonstandard road vehicle or a road vehicle that does not have an identification plate, with the written approval of the Minister. Section 20 of the Act permits a person to import a nonstandard road vehicle or a road vehicle that does not have an identification plate, in prescribed circumstances. The exceptions, or prescribed circumstances, are set out in the Regulations, specifically in Regulations 12 and 13. Regulation 12 is not presently relevant, but Regulation 13 relevantly reads:
“13 Approval to import vehicle without an identification plate if owned and used by applicant overseas
(1)The Minister may approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate if the Minister is satisfied that:
(aa)the applicant owns the vehicle at the time the application is made; and
(ab) the applicant acquired ownership of the vehicle overseas; and
(ac)the applicant owned the vehicle while overseas and owned it for a continuous period of at least 12 months immediately before arriving in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(ad)during that period of ownership the vehicle was available to the applicant for use in transport; and
(a)the application is made not later than 6 months after the applicant arrived in Australia for the purpose of remaining in Australia indefinitely as mentioned in paragraph (b); and
(b)at the time the application is received by the Minister, the applicant is:
(i)an Australian citizen or permanent resident and provides evidence that he or she intends to remain in Australia indefinitely; or
…
(c)the applicant is of an age that entitles him or her to hold a licence or a permit to drive a road vehicle of that type; and
(d)the applicant undertakes to comply with any requirements as to road safety that are imposed in respect of the vehicle by the Minister; and
…”
8. Section 19 of the Act, together with Regulation 11, confer on the Minister a general discretion to approve an application to import a nonstandard road vehicle or a road vehicle that does not have an identification plate. That approval may be given subject to conditions specified in the instrument of approval. The wording of Regulation 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it. Regulation 11 reads:
“11 Minister’s approval to import vehicles without identification plates
(1)The Minister may approve an application to import a nonstandard 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 subregulation (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.”
background and evidence
9. The factual background in this case is not in dispute and may be relevantly extracted from the applicant’s witness statement (Exhibit A1) and his statement of facts, issues and contentions.
10. Mr Selway was born and educated in Adelaide. In his early career he was trained in the automotive industry in South Australia as an engineer. In 1989, he left Adelaide to operate an automotive business in Detroit with car parts maker, Britax. In 1996 he relocated to the United Kingdom and joined the Board of Britax with responsibility for its automotive components division. In 2001, he was appointed the Chief Executive of Weir Group PLC, a Scottish headquartered business which specialises in the design, supply and service of engineered equipment for the oil and gas, mining, power and industrial sectors. Under the terms of his appointment with the Weir Group, he was expected to remain as its Chief Executive until at least August 2011.
11. In 2008, Mr Selway decided that he would purchase his “dream car” – an Aston Martin DB9 Volante – with the intention of bringing it home with him as part of his personal possessions when he eventually returned to Australia. After a year of searching in the United Kingdom, he found and purchased an Aston Martin DB9 5.9 Volante convertible, in Buckingham Green metallic with sandstorm hide and Parliament Green secondary hide, on 6 March 2009 for £77,950.
12. In August 2009, Mr Selway was approached by Boral Limited as a potential candidate to become its CEO. He was ultimately chosen by Boral’s Board to be its CEO and it was necessary for him to be prepared to start in Australia on 1 January 2010.
13. In his oral evidence, Mr Selway said he had a passion for cars, particularly Aston Martins. In his business when he moved to the United Kingdom, he lived with the DB9 and its development from the time it was clay in a styling studio, all the way through to the point that it hit production. It was a car that he loved from the design concept. The colour combination was important to him because the very first one that he was associated with in the clay styling studio of Aston Martin was, in fact, the same colour with the same interior as the Aston Martin DB9 he purchased. The Aston Martin was a complete bespoke vehicle that could be “specced-up” on the Aston Martin website, together with the desired colour and trim combinations. With his vehicle, the light interior trim with the British racing green was a unique combination. It was the only one that was of interest to him and was why he took the best part of 12 months chasing down and finding the vehicle.
14. After he purchased the Aston Martin, the approach by Boral later in the year came out of the blue. He was obligated to remain with the Weir Group through 2011, but in 2009 Boral was in crisis as it faced one of the worst global housing declines in Australia and the United States. Boral was an Australian icon company in very serious trouble and the number of opportunities that would come across his table, on that scale, would be very limited, particularly in Australia. It was not possible, when he accepted the position with Boral, to arrange his affairs so that he could stay longer in the United Kingdom. The Boral business was coming under severe pressure and he could not have acted as CEO from the United Kingdom. It was necessary for the CEO to be on the front foot, present in Australia, re-building the capability of the business.
15. His Aston Martin was currently stored and being looked after in a luxury heated warehouse in Glasgow. It was being kept on permanent charge and taken for a run every week to ensure that it continued to perform. He had to fund the storage and care of the vehicle and insure it, at a significant cost. If he brought the vehicle into Australia, he would have to pay luxury car tax and also South Australian stamp duty. He estimated that he would be paying into the “tax coffers” here probably the best part of $50,000 to bring the vehicle into Australia. If he could not import it into Australia, he would need to sell it in the United Kingdom. This would be problematic because he would have to try doing it remotely, which would mean getting it back into England to sell there, rather than in Scotland.
16. In cross-examination by Mr Donovan, Mr Selway thought the Tribunal should consider the fact that Boral was in desperate trouble and this required him not to be able to fulfil the 12 month ownership requirement overseas. When asked whether he had sought an extension from Boral, he said the longest lead time he could get was until 1 January 2010. He understood the restrictions on the importation of motor vehicles into Australia. If he was unable to import the vehicle, he acknowledged that there was no pressing need for him to sell it and bring the proceeds back to Australia at an unfavourable exchange rate.
17. In re-examination by Ms Reed, Mr Selway confirmed that one of the reasons why the Aston Martin was his dream car was because of his early career in the automotive industry and his keen interest in motor sport. The other reason for his attachment to his Aston Martin was its particular colour and that association with the British racing green colours. As to the possible sale of the vehicle in the United Kingdom, he said he was concerned about keeping the proceeds in England any longer than necessary. If he had to sell the vehicle, he would repatriate the proceeds back to Australia.
consideration
Should the Tribunal exercise its discretion under Regulation 11 of the Regulations to allow the applicant to import his Aston Martin DB9 Volante into Australia?
18. Given that Mr Selway in unable to comply with the requirements of Regulation 13, the sole issue in this case is the exercise of the discretion by the Minister under Regulation 11 of the Regulations. This confers an unfettered discretion on the Minister (and on this Tribunal, when it stands in the shoes of the Minister) to approve the importation into Australia of a nonstandard road vehicle or a road vehicle that does not have an identification plate. The wording of Regulation 11 is general and neither the Act nor the Regulations set out specific factors to be taken into account in applying it. However, as Deputy President RNJ Purvis QC said in Re Trajkovski and Department of Transport and Regional Services [2000] AATA 1073 (at paragraph 35):
“…
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.”
And in Re Marra and Minister for Transport and Regional Services [2003] AATA 323, Deputy President SD Hotop re-iterated what was said by Deputy President Purvis, when he said (at paragraph 20):
“…That discretionary power is, however, not at large - it must be exercised in accordance with the policy and objects of the Act and the Regulations, having regard to all relevant considerations, and disregarding any irrelevant considerations, as determined from a consideration of the subject matter, scope and purpose of that legislation: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.”
19. According to Re Trajkovski and Re Marra, the discretion in Regulation 11 should only be exercised in exceptional circumstances. Moreover, in Re Williamson and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 48, Senior Member B McCabe said (at paragraph 11):
“ … By its nature, the discretion must be exercised sparingly: there is no point having a national scheme if the discretion is used to make so many exceptions that the standards become meaningless. But the discretion can be exercised if there is a good reason to do so and the objectives of the legislative scheme are not compromised. The Act does not attempt to define what facts or circumstances might justify the exercise of the discretion. I must instead consider each application on its merits, while keeping a careful eye on the objects of the Act. …” (emphasis added)
20. Along the lines found by Member E Fice (as he then was) in Re Brassington and Minister for Transport and Regional Services [2006] AATA 724 at [28], I am satisfied that the Aston Martin DB9 Volante is a bona fide personal possession of Mr Selway who is an Australian citizen returning from a lengthy period of time spent overseas. He is seeking to import the vehicle for his personal use and has no intention of selling it. I accept that the vehicle is safe and that Mr Selway is prepared to make adjustments to it as required by the Australian Design Rules.
21. In her closing submissions, Ms Reed described the issues that should be considered by me in deciding whether to exercise the discretion in Regulation 11 to grant Mr Selway’s application. The issues, she said, should follow the reasoning of the Tribunal in Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355. In Re Da Silva, Member MJ Allen found on the evidence that affirming the decision under review would result in unfairness or injustice, although there was no suggestion (nor is there in the present case) that the applicant was subjected to any specifically unfair or unjustly discriminatory treatment by the respondent. It was the circumstances that made the situation unfair. To summarise, the issues described by Ms Reed were:
(a)the policy objectives of the Act and the Regulations;
(b)unfairness or injustice;
(c)financial loss;
(d)unique vehicle;
(e)unexpected events; and
(f)exceptional circumstances.
Policy Objectives
22. The object or purpose of the Act, which is set out in s 3, insofar as it applies to the supply to the market of used imported vehicles, is to regulate that supply. As far as new vehicles are concerned, the purpose is to achieve uniform vehicle standards to apply when new vehicles begin to be used in transport in Australia. It was Ms Reed’s contention that granting Mr Selway’s application would be consistent with, and would not undermine, the objects and policy intention of the Act and the Regulations. She referred to the policy intent allowing the importation of personal vehicles set out in the Second Reading Speech at the time of the introduction of the Motor Vehicles Standards Bill 1989 which, in part, reads:
“…
The Bill provides control over the import of vehicles, both new and second hand. There will be procedures to allow non-standard vehicles into Australia provided that the Minister is satisfied that proper arrangements exist to modify the vehicles to ensure they meet the standards. Provision will also be made in the Regulations for the importation of vehicles which are bona fide personal possessions. This will apply to migrants or Australian citizens returning from long periods overseas.”
On its own, it would seem that the importation of the Aston Martin, a single vehicle, would be consistent with and would not undermine the objects and purposes of the Act. However, having said this, I am conscious of the comments made by Senior Member McCabe in Re Williamson (supra), which I have emphasised in paragraph 19 above. As a discrete issue, the importation of the vehicle in Mr Selway’s circumstances would not undermine or frustrate the policy and objectives of the legislative scheme.
Unfairness or Injustice
23. Ms Reed submitted that some Tribunals have found that consideration should be given to whether the refusal to exercise the discretion in Regulation 11 would result in unfairness or injustice to the applicant. She referred to Re Da Silva, where Member Allen said (at paragraph 59):
“In my opinion, the exercise of the discretion in r 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 – including the reasons why an applicant "almost but not quite" satisfied one of the set of circumstances that would have required approval to be granted.”
Member Allen exercised the discretion in the applicant’s favour. The main factors that resulted in the exercise of the discretion were:
(a)the applicant relied on third parties for advice regarding his entitlement to import vehicles into Australia and the advice was incorrect;
(b)had the applicant been advised correctly, he would have arranged his affairs differently, with a successful outcome;
(c)the applicant did not seek to profit from the import of a vehicle; and
(d)based on advice, the applicant had brought the vehicle to Australia and would have no option but to return it to the United Kingdom for sale.
24. I note that the sorts of cases that meet the unfairness or injustice requirement are where the applicant has suffered significant financial hardship and received incorrect advice (ReHingston Surgical Limited and Anor and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 455), where there is an unexpected reduction in earnings resulting in the applicant returning to Australia earlier than planned to save his marriage (Re Burns and Secretary, Department of Infrastructure, Transport, Regional Development and Local Government [2009] AATA 972) and again where incorrect advice was given to the applicant and the necessary applications were not made by his agent at a sufficiently early stage for him to be aware of any problems (Re Da Silva).
25. In my view, Mr Selway’s case is different to earlier unfair or unjust cases where Tribunals have exercised Regulation 11 in favour of the applicants. There is nothing unfair or unjust or indeed unexpected about any of the consequences that followed from Mr Selway’s decision to accept the position with Boral that required him to return to Australia and commence employment on 1 January 2010. In August 2009, he was approached by Boral with, from his perspective, an outstanding business opportunity. He had particular skills that Boral wanted and he was interested in coming back to Australia to be with his family. It was an exceptionally attractive job offer to him at the time but, also at the time, he was aware that he had purchased a motor vehicle only four or five months earlier. He knew of the regime that existed in relation to the importation of motor vehicles, having experienced the regime previously, and of the specific requirements that would apply in relation to the importation of his motor vehicle. He was thus faced with a difficult choice. He could return to Australia and commence working for Boral in a job that uniquely suited his skills, or he could reject the job opportunity and remain in the United Kingdom for the remaining years of his tenure with Weir Group PLC. The choice that he made, having weighed up his interests, was that he preferred to come back to Australia to work as the CEO at Boral. What followed, certainly in relation to his Aston Martin, was an ordinary consequence of Mr Selway’s choice. He was an ex-patriot returning to Australia to take up an attractive job offer, in full knowledge that the regime that operated for the importation of motor vehicles into Australia was going to prevent him bringing his “dream car” home as a bona fide personal possession. In my view, in these circumstances, there is no basis for the favourable exercise of the discretion in Regulation 11 of the Regulations.
Financial Loss
26. Financial hardship (not mere financial loss) is not of itself enough to attract the exercise of the discretion in Regulation 11. For the applicant, Ms Reed acknowledged this when she said that it was clear from the evidence that there would not be significant financial hardship. However, she argued that there would be a significant financial loss to Mr Selway if he was not able to import the vehicle into Australia. Ms Reed referred to three cases. In Re Burns (supra) evidence was led and relied upon by Deputy President DG Jarvis that the applicant would suffer financial hardship. The learned Deputy President accepted the respondent’s submission that financial hardship was not a sufficient ground for granting approval under Regulation 11. However, he considered that aspect in conjunction with other facts that led to the application to import the vehicle in that case. Those other facts involved the further loss if the vehicle was sold in the United Kingdom and there were movements in the exchange rate because of the unavoidable delay in processing the application to import and the application to the Tribunal. There was also the unexpected reduction in the applicant’s earnings that made it necessary for him and his young wife to return to Australia earlier than planned to save their marriage, and the likely difficulties in selling the vehicle in the United Kingdom, having regard to the vehicle’s turbo engine and the economic conditions there. And finally, the dealer’s unwillingness to accept the vehicle for sale with the potential for further expense in appointing someone else to sell the vehicle in the United Kingdom. Thus, although a financial loss occurred, on my reading of his decision, there were a number of personal factors involved that influenced Deputy President Jarvis in reaching his decision to exercise the discretion in Regulation 11 in favour of the applicant.
27. Ms Reed referred to the rather exceptional circumstances that prevailed in Re Murase and Department of Transport and Regional Services [2005] AATA 705, where newly-imposed emissions regulations in Japan caused the diesel vehicle in that case to have an extremely low resale value. Those exceptional circumstances do not arise in Mr Selway’s case. Any financial loss here is tied to the depreciation of the vehicle’s value over time. But virtually all vehicles depreciate over time and Mr Selway would have suffered that loss regardless. There is no particular injustice or unfairness on account of the depreciation in the value of the vehicle.
28. Ms Reed also referred to Re Da Silva (supra) and Re Hingston (supra). She sought to rely on Re Da Silva to contend that a relevant consideration in that case was the fact that the applicant would need to return to the United Kingdom to sell his vehicle. In fact, the Tribunal in Re Da Silva was referring to the “additional expense and inconvenience” of returning the vehicle itself to the United Kingdom, as the applicant in that case had already imported the vehicle into Australia after receiving bad advice. That issue does not arise in the present case as Mr Selway may sell the vehicle in the United Kingdom. Moreover, although there would be inconvenience in having to sell the vehicle and the additional costs of transporting it to England from Scotland for sale, these factors, taken together, do not warrant the exercise of the discretion in Regulation 11. Then, in Re Hingston, the Tribunal found that the applicant was suffering financial hardship, not mere financial loss. He had:
“defaulted on his loan repayments, owes a large sum in professional fees and said that because of his financial situation he was compelled to appear in person, although he had engaged professional representation at earlier stages of the application. It is clear that he is suffering real financial embarrassment, besides losing the use of his car.”
There is no suggestion that Mr Selway would be subject to such hardship if he is unable to import the vehicle into Australia.
29. Ms Reed also pointed to movements against Mr Selway in the foreign exchange market which would impact upon his holding or sale of the vehicle. I am reminded that the vehicle has not been shipped to Australia. It was purchased in the United Kingdom and can be sold there when the applicant chooses to do so. Regulation 11 does not extend to those applicants caught by the vagaries of foreign markets. In his submissions, Mr Donovan accepted that there would be a financial loss if, for example, Mr Selway had to buy another British Racing Green Aston Martin DB9 at a cost of $439,000, or a second-hand Aston Martin in a different colour for $250,000. In those circumstances, one can see how some financial loss could be crystallised. But Mr Selway is not required to do either of these things. He has to sell a car in England for which he will get, presumably, a fair market price. He may see this as a financial loss but, once again, this does not warrant the exercise of the discretion in Regulation 11.
30. Mr Selway is exposed to some currency risk. However, that is not a consequence of him not being able to import the vehicle. It is a consequence of him having chosen to move jobs across jurisdictions where, inevitably, there is exposure to some kind of currency risk when these kinds of changes are made. These are not special circumstances. They are risks that Mr Selway simply assumed as part and parcel of taking up his job at Boral. In terms of financial loss, it is difficult to see any particular financial loss arising from his decision to return to Australia. Where the term “financial loss” has been used in the past in Tribunal decisions, it is where, as a direct consequence of the Tribunal’s decision, some kind of financial impost has been required. So, if the vehicle is already in Australia, a decision not to allow importation requires it to be exported. Thus, there is a direct relationship between the financial consequences and the decision. It is also clear that in cases like Re Burns and Re Hingston it was financial hardship that the Tribunals were concerned with, not just mere financial loss.
Unique Vehicle
31. Ms Reed contended that I should exercise the discretion in Regulation 11 in Mr Selway’s favour because the Aston Martin involved was his “dream car” and a “unique car”. It was a bespoke vehicle described in the Aston Martin brochure (Exhibit A9) in the following terms:
“Aston Martins are hand-built cars, made to order, and this bespoke approach enables the provision of any combination of paint and leather trim colours.”
It was Mr Selway’s evidence that, if there was a standard vehicle with Aston Martins, it was a silver or grey standard. A Buckingham Green vehicle with cream finish and walnut trim was not one that would be a bespoke standard vehicle for Aston Martins. In relation to the uniqueness of a vehicle, I note that a particular affinity for a vehicle, such as emotional attachment or sentimental reasons, is generally not enough for the favourable exercise of the discretion in Regulation 11. However, in some cases, Tribunals have shown a willingness to exercise the discretion in favour of applicants who can demonstrate a genuine personal connection to a particular vehicle. Ms Reed referred to two of these cases: Re Dunsby and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 1054 and Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417. In Re Dunsby the applicant made extensive modifications to the vehicle. Senior Member B McCabe said that the “creation he [the applicant] 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”. Senior Member McCabe regarded the vehicle as a “quintessential personal possession”. In Re Hunt, Deputy President The Hon RJ Groom allowed the importation of a Mercedes that had formed part of the estate of the applicant’s late father who, before his death after a diagnosis of cancer, had expressed a wish that the vehicle be shipped to the applicant. Deputy President Groom found that the applicant had a “strong personal attachment to the vehicle because of its association with his late father”.
32. In the present case, Mr Selway’s Aston Martin may be rare and exclusive, but it does not fall into the category considered in cases like Re Dunsby and Re Hunt. It was Mr Donovan’s contention (which I accept) that the vehicle is available in Australia. The vehicle can be purchased as a new vehicle with the same colour options, although there may not be any second-hand vehicles currently available with that colour scheme. In any case, the colour scheme of the vehicle is cosmetic only and does not mean that the vehicle cannot be purchased in Australia, either new or second hand. It is true to say that Aston Martins are difficult to obtain, especially if specific exterior and interior colour combinations are required. However, that does not make these vehicles unique. Having or wanting a particular colour combination vehicle is not unimportant, but is not sufficient to justify the exercise of a discretion that should only be used in the rarest of cases.
Unexpected Events
33. Ms Reed contended that there were unpredictable and unexpected events, beyond the applicant’s control, that intervened to thwart his plans to comply with the requirements of Regulation 13 and return to Australia bringing his vehicle, sometime after March 2010. The reason for the discretion in Regulation 11 was specifically to address these unexpected events and, in Mr Selway’s case, she was relying on the following:
·the global financial crisis that commenced in late 2008 and continued into 2009;
·the crisis suffered by Boral in 2009 that resulted from global housing declines; and
·the applicant’s recruitment by Boral in August 2009 as its new CEO.
34. There have been unexpected events that have been factors that the Tribunal has considered relevant in the exercise of its discretion under Regulation 11. Those events have generally been confined to a death in the family or some sort of physical illness. For example, in Re Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540, the applicant was the victim of a violent robbery in South Africa and needed to bring forward his plans to immigrate to Australia. In Re Heath and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] AATA 9, the applicant’s wife developed, for the first time, a disease that then seriously deteriorated, prompting an immediate move from Canada back to Australia. Finally, in Re Burns (supra), there was an unexpected reduction in the applicant’s earnings which significantly impacted his financial position and made it necessary for him and his young wife and daughter to live with his mother and stepfather, resulting in their return to Australia earlier than they had planned, to save their marriage. Mr Selway’s case is quite different to these sorts of cases. In reality, there was not a sufficient causal relationship between the global financial crisis and the fact that Mr Selway was unable to comply with the requirements of Regulation 13. When Boral experienced the financial crisis in 2009 and needed a new CEO, that event by itself did not create a problem for Mr Selway which directly affected the importation of his motor vehicle. And the recruitment by Boral of the applicant as its new CEO was not an element which, on its own, caused a problem for Mr Selway or his relationship with his motor vehicle. What created the problem was that Mr Selway accepted the position that was offered to him by Boral, which was not an unexpected event. It was an event over which he had complete control. He could have decided to stay on in Scotland and work out his contract with Weir Group PLC and retain his vehicle, or he could have chosen to return to Australia and work for Boral. He chose the latter, with the consequence that his vehicle could not be imported into Australia under Regulation 13. There is no particular injustice or unfairness in the applicant’s case as a result of the global financial crisis, the Boral offer of employment and the applicant’s decision to take up a job opportunity in Australia.
Exceptional Circumstances
35. Finally, Ms Reed referred again to the decision in Re Trajkovski (supra). As already mentioned, in that case Deputy President Purvis decided that, in the exercise of the discretion under Regulation 11, any departure from Government policy would have to be in circumstances found to be “exceptional”. Then, in Re Anthony and Department of Transport and Regional Services [2001] AATA 543, the Tribunal decided that the basis for departure from Government policy thereby exercising a discretion to allow a vehicle to be imported under Regulation 11 would have to be in circumstances that were “very exceptional, extraordinary or special circumstances”. In my view, having regard to the various authorities dealing with the application of Regulation 11, it is obvious that Tribunals have had regard to the intention on the part of the Commonwealth to ensure that its road safety standards are implemented and departure would be permitted only in “unusual”, or in circumstances beyond normal practice or expectation, that is to say “exceptional”. In all of the circumstances, I cannot find that there are exceptional circumstances with respect to the application made by Mr Selway and accordingly I am unable to exercise the discretion available under Regulation 11 in his favour.
conclusion
36. It is clear that Mr Selway cannot take advantage of the exception in Regulation 13 of the Regulations to obtain approval for the importation of his motor vehicle from the United Kingdom. Although I have found that the importation of the motor vehicle would not undermine or frustrate the policy and objectives of the legislative scheme, there are other factors I have considered above that lead me to conclude that Mr Selway’s application to import his motor vehicle cannot be approved through the exercise of the discretion under Regulation 11 of the Regulations.
decision
37. The Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member RW Dunne
Signed: ............J Coulthard............................................
AssociateDate of Hearing 9 July 2010
Date of Decision 12 August 2010
Counsel for the Applicant Ms E Reed
Solicitor for the Applicant Minter Ellison
Counsel for the Respondent Mr O'Donovan
Solicitor for the Respondent AGS (Canberra)
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