Authorities are bound at law to give all vital information to the public in order for the public to conform with regulations. This was held in a judgement delivered by the Court of Appeal, decided on 12 June 2020, presided by Mr Justice Lawrence Mintoff in Urs Schwinger -v- Transport Malta and Ministeru għall-Finanzi.
The Ministry of Finance had appealed from a judgement of the Administrative Review Tribunal, where the Tribunal had upheld a claim of Mr Schwinger.
Schwinger had told the Tribunal that he had imported a car from Ukraine when he moved to Malta from Ukraine. He filled in the necessary VEH07 exemption from registration tax form after downloading the form off the internet.
The form stated that it had to be presented no later than 12 months from the day he settled in Malta. He presented the form 37 days after residing in Malta. He then received a letter from the Ministry of Finance that the application was rejected because Schwinger used the wrong form and the new form gave a 30-day time-limit and not 12 months. Schwinger challenged this decision before the Administrative Review Tribunal.
The Tribunal held that according to Schwinger, he had received advice from persons working at the venue at which he performed his VRT test, to fill in a form, and they subsequently downloaded a form for him. Schwinger read the form and saw that he could apply within a year. Since he did not want to give a handwritten form, he googled the form and filled electronically the VEH07 form. When he took the form to the Ministry, he was immediately informed that it was the wrong form and was asked to fill in the correct form and submit both. He told the tribunal that before submitting he had contacted Transport Malta, who told him that it was easily accessible on the internet.
The Tribunal had entered into the issue whether Transport Malta had a legal standing in this action and had decided that it did not. As to the merits of the case, the Tribunal had pointed out that Article 19(3)(f) Motor Vehicles Registration and Licensing Act states that there is an exemption on registration tax when:
“Any M1 motor vehicle or a cycle which is the personal property of a private individual and is being brought permanently into Malta by the individual when he is transferring his normal residence from a place outside Malta to a place in Malta, provided that that vehicle qualifies for such exemption. The said exemption shall be given under those conditions, restrictions or limitations prescribed by the Minister responsible for finance.”
There is no contestation that Schwinger’s vehicle fell under the category of M1 and the dates when it entered Malta and when he transferred residence to Malta, were mentioned in his own application. The Form that he downloaded mentioned that he must apply for an exemption must be filed not before two months, but no later than 12 months from when he comes a resident. The old form does not mention that an applicant cannot file the application before two months from the transfer of residence.
Schwinger wrote to the Ministry to complain that the old application was available. The email explained what exactly happened, which explanation the Tribunal described as plausible and genuine. The Tribunal had concluded that Schwinger was misguided and therefore annulled the decision and asked the Ministry to reconsider its rejection of the application in the light of what happened.
The Ministry appealed this decision, as it argued that its decision was in fact legally correct. It argued that there were specific criteria and therefore, the Ministry had to apply those criteria.
Schwinger countered this by saying the Tribunal had to take into consideration both the law and the facts of the case and therefore, it delivered a just decision. Schwinger argued that he was misled by Transport Malta by its website.
The Court of Appeal held that the point of this case lies with when Transport Malta replaced the old form with the new one on its website. Schwinger managed to show that on the site transport.gov.mt, the old form was still showing. On the other hand, the Ministry produced a witness who could not say whether Transport Malta removed the old form.
Ideally, Transport Malta would have produced its technical officers who could explain the changes that took place on its site. But nobody turned up. It was the Ministry’s duty to make sure that Transport Malta is disseminating he correct information to the public. This is the duty of all public administration authorities.
The Ministry did not even show that they drew the attention of Transport Malta of this lack of correct information, because this is not the first time the issue of incorrect forms had been brought up in relation to both Transport Malta and the Ministry, but nothing was done.
The Court then moved to reject the appeal.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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