Van Riessen and Minister for Infrastructure, Tranpsort, Regional Development and Local Government

[2008] AATA 232

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 232

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/5053

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		HENDRIKUS VAN RIESSEN

Applicant

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

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:29 February 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sgd) G.D Friedman

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. V2007/5053

VAN RIESSEN

and

MINISTER FOR INFRASTRUCTURE,
TRANSPORT, REGIONAL DEVELOPMENT
AND LOCAL GOVERNMENT

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

10.08 AM, FRIDAY, 29 FEBRUARY 2008

MR A. VAN RIESSEN appears in person

MS A. LINACRE appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN: I indicated earlier, when the applicant was giving evidence, that there are two issues involved in this case and the first is whether he complied with regulation 13(a)(ii) of the Motor Vehicle Standards Regulations 1989 and if he hasn’t complied with that, then whether the general discretion ought to be exercised in this case to allow the importation of the vehicle. Now dealing with the first of those issues, the relevant regulation provides that:

…the vehicle has been owned and used by the applicant for a continuous period of at least -

subsection (ii), at any other case, that is not before May 2000 which is three months, in this case it’s “in any other case, 12 months”. And contrary to what was said by Mr van Riessen in his submission, the act does define the word use and the definition in section 5 of the Motor Vehicle Standards Act 1989 defines use, it states:

Use means:  (a) in relation to a road motor vehicle - drive.

So it’s clear from the act that to comply with section 13(a)(ii) the vehicle has to be driven by the applicant for a continuous period of 12 months and that 12 months, given the wording of that particular regulation, says:

The Minister must approve an application to import a non-standard road vehicle -

etcetera.  That to me suggests very strongly that it’s 12 months before the application to import the vehicle and that’s been the case with the decision before the tribunal.  So the question before me is in relation to the first issue, has the vehicle been owned and driven for a continuous period of 12 months?  There’s no dispute as to the facts of this case, in any real form, that Mr van Riessen purchased a non-turbo Nissan 300ZX in 2001 and he drove that as one of his cars.  He had an HSV as his second car while he was working as a golf professional in Rotorua in New Zealand and then in December 2005, he bought a second Nissan 300ZX from his employer at the golf club, Mr John Weston.  That vehicle was a turbo vehicle which was not in good condition and after making inquiries, Mr van Riessen decided that he would keep the turbo vehicle, because it had the turbo engine basically, and that he would use parts from the first vehicle and basically redesign the second vehicle to incorporate the parts from the first vehicle, from the non-turbo one.  There’s no dispute that, while he was organising the work to be done on the turbo vehicle, he was driving it and there’s no dispute also that he took it to a what is the equivalent, New Zealand equivalent, of a roadworthy certificate in June 2006 which had a small couple of faults that were rectified and in July 2006 it was passed as roadworthy.  He continued to drive it until December 2006 but he didn’t change the registered ownership until 27 February 2007. 

Now I accept the evidence from Mr van Riessen that when he was given the car it was in the form of a job well done, like a bonus from his employer who knew that he already had a similar vehicle and that Mr van Riessen had possession of that vehicle all the time and considered it his own vehicle.  However, he didn’t change the ownership, he said because when he went first to change the ownership he was told the number plates had to be changed first, it was too much for the computer system to handle to do both, so he changed the licence plates first but that was in July 2006 and it wasn’t until he was running around at the last  moment, having decided to accept a job offer in Australia, that he would change the ownership of the vehicle to himself.  Now whether he would’ve got round to doing it, that had he not moved to Australia, is not really relevant but what is relevant is that in early December 2006 he delivered the vehicle to Paul Lock, who is a spray-painter and the arrangement was that, although a lot of the work had already been done, the painting and the panels would be carried out by Mr Lock.  And as I understand the evidence, the car was actually delivered to Mr Lock about a week before 16 or 17 December, so it’s about 10 or 11 December, and then Mr van Riessen went on a holiday to Australia, Christmas came, Mr van Riessen went for a job interview in Australia, he was appointed assistant professional at a golf club in Melbourne and it was very important for him to do all he could to arrange to move his possessions, including personal possessions, his boat, a trailer and the vehicle to Australia. 

The vehicle was ready towards the end of February and that’s when he changed the ownership and loaded the car on to the ship about 7 or 8 March and it’s been sitting in the dock in Melbourne since it’s arrival in early April.  There’s no dispute also that Mr van Riessen had had no experience in shipping possessions, much less a motor vehicle, to anywhere, certainly not – well anywhere, and fortunately for him, as it seemed at the time, he had a friend, Ms Jackson, who worked at ANL in Melbourne so not surprisingly he enlisted her support.

Ms Jackson had had three years experience in the shipping industry working for ANL in Melbourne but as she said in her evidence, her experience was limited to export, and in this particular case it would be from the Australian end, an import situation that she didn’t have any real knowledge of.  However, given that she was working for a shipping company she obtained the advice from her colleagues as to what to do to import the car from New Zealand and was given the name of a customs agent or customs broker who she believed, and she was told, was a reliable person with a lot of experience in the field, and arrangements were subsequently made to import the vehicle under possessions. 

I accept Ms Jackson’s evidence that she herself didn’t have any knowledge, and it’s quite clear that being a friend and a conscientious person, evidenced by the fact that she’s here today supporting Mr van Riessen, that she did her best to assist him.  Unfortunately, in her efforts to assist him, for whatever reason - whether she was busy or she was reliant almost exclusively on the customs agent - she failed to complete the customs form which was signed by Mr van Riessen, without reading it, by the sound of things, and relying on Ms Jackson.  In not completing the form, Ms Jackson’s attention was not drawn to what I consider to be the fundamental issue, and that is the compliance issue.

I’ve said earlier, and I’m not being critical of Ms Jackson because she was endeavouring to help, and as far as she was concerned she was told that the customs agent knew what to do and the customs agent had basically said, there’s no real problem with the car, even though there was some concerns about the boat and the trailer, that the car was fine.  In fact, so reliant was Mr van Riessen on Ms Jackson and Ms Jackson on the customs agent, so it appears, that even when her attention was drawn to the website of the department, and she downloaded information from that website, she neglected to peruse the very document or the very part of that website that would’ve alerted her to the rather stringent requirements of the department concerning importing a motor vehicle. 

Particularly the section of the website that basically says, before you seek to import a vehicle read this and be aware of the requirements and the obligations that you have before you go ahead with the importation.  So, unfortunately for Mr van Riessen, the failure by Ms Jackson and himself, I’m not seeking to blame Ms Jackson, but unfortunately the circumstances that then occurred were that Ms Jackson didn’t realise that the requirements were there, Mr van Riessen was relying on Ms Jackson, and the importation occurred.  That’s basically what happened and the car is now sitting there accruing costs of $20 a day.  Now, whether the car has been owned or not is the first question I want to turn my mind to. 

I’ve already said that the change of ownership didn’t occur officially until 27 February 2007.  In my view, Ms Linacre’s submission is correct, that it’s one thing to have possession of an object, in this case the car, and to drive it around and believe you own it, and maybe Mr Weston thought it was owned by Mr van Riessen, but until the change of ownership form was completed and accepted and had been payed by Mr van Riessen, then in my view he didn’t own the car.  I did raise with him during the evidence that there might have been consequences when he was driving a car that wasn’t apparently officially his, and not surprisingly, because of the circumstances of him acquiring the car, it didn’t seem to worry him, and I’m sure it didn’t worry Mr Weston at that stage. 

Mr Weston had got his wheels and taken the personalised number plates back so Mr Weston didn’t really mind.  But it seems to me that there was a lack of ownership by Mr van Riessen until the time that he changed it on 27 February 2007.  The other question is the use.  I’ve already said that the definition of use in the Act is drive.  Ms Linacre submitted that he hadn’t driven the car for a continuous period of at least 12 months because the car had been sitting in Mr Lock’s workshop.  And Mr van Riessen said “Well, before that, I’d been driving it around for a couple of years and that’s really more important”, that was the gist of what he was saying. 

The regulation 13 is quite specific that the use, that is driving the vehicle, for a continuous period of, I’ve been referred to the case of Joanne Orr, which is a decision of this tribunal on 20 November 2007, and I agree with the submission by Ms Linacre that continuous is defined in the Macquarie Dictionary as an unbroken period:

Uninterrupted in time; without cessation, or unbroken.

That’s the Macquarie Dictionary definition.  There’s no dispute on the evidence that the vehicle was not driven from about 10 to 11 December until it was shipped on 7 or 8 March, because it was being painted and fixed up by Mr Lock.  And that to me as I’ve already indicated, is a continuous period up till the time of the application to import the vehicle.

So on the basis of a lack of ownership and lack of being driven by Mr van Riessen of a continuous period before the importation, a continuous period of 12 months, I find that he has not complied with regulation 13(a)(ii), which leaves the question of the general discretion in regulation 11.  Ms Linacre referred to a number of decisions of the tribunal, as set out in the statement of facts and contentions. 

The leading case seems to be Drajkovski, D-r-a-j-k-o-v-s-k-i, which was a 2000 decision.  And that decision referred to circumstances being exceptional; rare and exceptional cases.  And other cases that are cited in the statement of facts and contentions are consistent with the view that, for the general discretion to be exercised, there has to be something exceptional about the case.  In this particular matter, Mr van Riessen is saying it really wasn’t his fault that all this happened, and he didn’t directly blame Ms Jackson, and once again I’m not using the word blame, but as a result of the unfortunate oversight, if I can call it that, by Ms Jackson and what Mr van Riessen would call misinformation by the shipping agent or broker, that’s what’s caused the problem, that I think he said you go to a GP not the head of the health network. 

That’s all very well but I accept the submission of Ms Linacre that prompted by a customs agent on its own doesn’t necessarily mean that the case is exceptional, particularly as in this particular instance, there has been reference to the departments website.  Ms Jackson conceded that she saw the website and I’ve already mentioned in relation to the facts in this matter that the correct completion of the customs form would or should have alerted Mr van Riessen to the obligations under the Act and as set out by the department.  I haven’t heard evidence from the customs broker; I’m only going by what I’ve heard so far.  The customs broker might certainly have a different view as to its role in all this.  They may very well say, well nobody asked us, or they might say that there was some item of correspondence which should have alerted Mr van Riessen. 

I don’t know, and I’m not making any pronouncement, but all I’m saying is that it’s my conclusion that any lack of advice by the customs agent, if it exists, on its own is not sufficient to warrant exceptional circumstances.  The case of Winter was cited by Ms Linacre and I agree with her submission regarding that.  The other matters put forward by Mr van Riessen would include the cost that he has occurred so far, nearly 12 months of paying at a daily rate and moving the car from one place to another and the various other difficulties that they have had.  I know it’s a lot of money and the car’s probably not worth anything like that, but that on it’s own doesn’t represent, in my view, exceptional circumstances because one would expect that when the car is sitting on the dock, even for a short period, there’s going to be costs incurred, and in my view that does not constitute exceptional circumstances. 

Other matters raised by Mr van Riessen such as the circumstances of losing his job and having to work in Safeway and catch public transport to and from work at hours that are not convenient, I’ve taken that into account and I accept that it’s very inconvenient for him but once again, I don’t find that that constitutes exceptional circumstances.  It’s possible that Mr van Riessen will obtain employment as a golf professional in the future and hopefully that might alleviate some of the difficulties.  In all the circumstances there’s nothing that’s been presented to me that would persuade me that the general discretion should be exercised in this case.  On that basis I’m going to affirm the decision. 

Mr van Riessen, I do sympathise with you, unfortunately, as you would be aware, this tribunal is bound to uphold the law, and the Act, and the Regulations, and is guided by the precedent set by other cases, so that’s the reason that I haven’t been able to find in your favour today.  I don’t know whether there’s any possibility of you following up the suggestion by Ms Linacre about regulation 12, perhaps you could talk to her and Mr Jones before you leave today.

MATTER ADJOURNED at 1.11 pm INDEFINITELY