1. The Trans Am Series consists of seven race rounds that take place between February and November each year. The only cars that are eligible to race are Ford Mustangs, Chevrolet Camaros and Dodge Challengers. The 2023 Trans Am Series Sporting and Technical Regulations make provision for the equipment that may be fitted to cars. The aim of the regulations, and the spirit of the Series, is to ensure, as far as practicable, that the performance of each car from each manufacturer should be the same. Relevantly, certain “Controlled Components” must be fitted to each car. However, there is some leeway for modifications to be made. The regulations provide that “Optional Components” need not be fitted but may be fitted.

2. The following regulations are relevant.

    T2.1 Modification
2.1.1 Each Automobile must remain unmodified, in compliance with all aspects of these Technical Regulations and identical in all respects to the production make/model as supplied by the original vehicle manufacturer

2.1.2 Any aspect relating to the construction, modification and/or preparation of the Automobile including the location, fitment/mounting of any ancillary component that is not specifically
authorised in the present regulations is prohibited.

    T2.3 Automobile Component Requirements
2.3.1. In all cases, when interpreting the present regulations, any component on an Automobile eligible to compete must be original equipment supplied by the manufacturer or Controlled Component supplier unless otherwise specified in these regulations.

3. It can be seen that no component can be modified unless a regulation permits such modification. Motorsport Australia is the only authority that can make a regulation that authorises a modification.

4. The following facts are not in dispute.

5. Garry Rogers Motorsport (hereafter “GRM”) races cars in the Trans Am Series. In February 2023 GRM identified problems that some drivers encountered in the use of the standard pedal set-up. These problems only affected drivers who performed heel and toe operations. A representative of GRM approached Mr McGrath, who is the technical representative of Motorsport Australia, and Mr Sendall, who is employed by PBR Distributors, the importer of the cars used by GRM and, under the regulations, the deemed manufacturer of those cars. He is also the nominated Technical Adviser under the regulations. The representative of GRM explained the problem being encountered and suggested that the area of the bulkhead in the driver’s footwell could be strengthened to eliminate this problem. Both Mr McGrath and Mr Sendell agreed to the proposed modification. Mr Sendall said that he would issue a bulletin to that effect on behalf of the manufacturer and, in due course, he did so. He said that the modification could be tested at the next race at Symmons Plains.

6. The modifications were fitted to GRM’s cars that raced in round 1 of the Series at Symmons Plains in February 2023. The modifications were also used in round 2 at Phillip Island in May 2023.

7. GRM entered its cars in round 3 at Winton Motor Raceway in June 2023. The significance of the modifications in that round will be dealt with below.

8. In August, Motorsport Australia issued a regulation that authorised the use of the modification.

9. It is apparent that GRM, PBR and Motorsport Australia all acted openly and in good faith in relation to the use of the modifications.

10. In late July, another competitor, Mr Paul Morris, became aware of GBR’s use of these modifications and he raised his concern with Motorsport Australia. The issue was then referred to an Investigatory Tribunal.

11. The Investigatory Tribunal comprised Justice Peter Davis, Mr Steven Lisk and Mr Andrew Jones. GRM was represented at the hearing by Mr Stefan Millard. Motorsport Australia was represented by Mr Stephen Chopping. Mr Paul Morris appeared for his team.

12. It became apparent that the use of the modifications at Symmons Plains and at Phillip Island could not be made the subject of the investigation because the referral was made outside the time limit that would apply to those rounds under the regulations. That meant that the use of the modifications at Winton was the only matter that could be investigated.

13. Justice Davis opened the hearing by referring to the fact that “Garry Rogers Motorsport competed with the changed modifications in the three rounds of the competition … before the 2023 Technical Regulations were amended” in August 2023. He observed that ‘”It’s really the first three rounds that are relevant”.

14. At no time either before the hearing or during the first phase of the investigatory hearing, did GRM say to the Tribunal, or even suggest, that the team’s cars did not compete with the modifications in the cars. As a result, the whole proceeding was conducted upon the basis that there were only three issues for consideration and that the use of the modification at Winton was not an issue that had to be determined. The three issues were as follows.

15. The first issue was whether Mr McGrath’s and Mr Sendall’s approval of the use of the modifications, and the issue of a bulletin by PBR, rendered the use permissible. The Tribunal heard submissions about this matter and decided that their approval and the issue of the bulletin were irrelevant because only a regulation could authorise a modification. That conclusion was manifestly correct.

16. The second issue was whether the modification was or was not performance enhancing. The Tribunal decided that, on the evidence led before it, it could draw no conclusion. In any event, whether or not there was a performance advantage was irrelevant because rule 58 of the National Competition Rules provides that it is no defence to a case involving non-compliance with the technical regulations to show that there had been no performance advantage. This was also correct.

17. The third issue was whether it was relevant that the modification had been supplied by PBR, the deemed manufacturer. The Tribunal correctly held that this was irrelevant.

18. Having reached these conclusions, the Tribunal found that GRM’s cars had breached the regulations by racing the cars with unauthorised modifications.

19. If the modifications had not been fitted to the cars during qualifying and during the race, then it would be expected that GRM say so and then call evidence to that effect; but it neither raised this as an issue for consideration nor did it call any evidence about the issue.

20. Indeed, its denial of breach was based upon submissions that assumed that the modifications had been used. GRM’s answers to the contention that unauthorised modifications had been fitted to its cars were that Mr McGrath and Mr Sandell said they could be used, that it did not matter that the modifications were used because their use gave no advantage and that the parts should be taken to be original authorised parts because they had been supplied by the car’s manufacturer. Indeed, as appears from the transcript, during the hearing Mr Millard for GRM submitted that the team had in-car video that showed that its driver Dalton did not use heel and toe and that, consequently, he had gained no performance advantage from the modification. This could only be a submission that the use of the modification gave no advantage. It was an implicit admission that the modification had been used. Such a submission could scarcely have been relevant if there was no modification.

21. Unsurprisingly, having rejected the submissions referred to above, the Tribunal found that GRM had breached the regulations.

22. The Tribunal asked for submissions on penalty and, at that point, for the first time GRM said that the cars had raced at Winton with compliant components, notwithstanding that it was uncontested, and it remained uncontested, that GRM had used the modified components in the preceding two rounds. GRM now wanted to argue that the Tribunal should not have found that the cars had raced with non-compliant components in the Winton round. It submitted that it had been unfair for the Tribunal to find otherwise.

23. The Tribunal gave its reasons for rejecting that argument. It was in the context of a case conducted in the way described above that the Tribunal held that the only inference that was open to it was to find that the modifications had been used at Winton. In our opinion, the Tribunal was right to do so. The Tribunal disqualified the cars from all results in round 3 (the Winton round) of the 2023 Trans Am Series.

24. GRM has appealed against the finding of breach and also appealed against penalty.

25. The rules that govern appeals provide that an appeal can be conducted upon the basis of the evidence heard at first instance or it can be conducted upon the basis that the Appeal Tribunal hears evidence itself.

26. In general, appeals should be heard upon the basis of the evidence led at first instance because it would not be right to give a party two chances to prove its case. Hearings should generally result in finality and the availability of a second chance to improve a case that has gone badly would not benefit the sport. It follows that a hearing afresh on appeal should be unusual.

27. Consequently, if a losing party wishes to lead evidence on appeal it has to justify why that course should be adopted. There can be no automatic right to a second chance to lead evidence that was available but was not led.

28. The Appeal Tribunal invited the parties to make submissions about the way in which the appeal should be conducted.

29. GRM submitted that it wished to lead evidence on the appeal to prove that the modifications were not in the cars that raced at Winton.

30. The Appeal Tribunal invited GRM to explain why it did not lead this crucial evidence before the Investigative Tribunal. Mr Bracken, who appeared for GRM, explained that Mr Millard, who had appeared for GRM, had not appeared before a tribunal before and, lacking experience, he did his best by responding to the issues that appeared to be the ones that interested the tribunal rather than instigating issues for investigation himself.

31. The Appeal Tribunal also invited GRM to explain the nature of the evidence that it would tender if allowed to do so.

32. Mr Bracken said that he would call GRM’s chief mechanic who would say that the modifications were not in the cars during qualifying or racing at Winton. One of the drivers would also be called, Mr Moffat. He would give evidence to the same effect.

33. While it is surprising that this evidence was not called at first instance, if the evidence was accepted it would follow that, despite all appearances to the contrary at the first hearing, GRM had not breached the regulations in respect of the only relevant round, being round 3 at Winton in June.

34. The Appeal Tribunal reserved its decision about how the appeal should be run until after it had heard the proposed new evidence when it would be in a position to determine the cogency of the evidence.

35. GRM called Mr Geoffrey Marshall, who has worked for the team for 24 years and is now its head mechanic. He said that the modifications had been fitted to the cars in February and that the cars had come to Winton in that state. The cars had conducted practice with the modifications fitted. However, before qualifying on Saturday, Mr Millard instructed Mr Marshall to remove the modifications and to re-install the original assembly and he had ensured that that was done. Going to the cogency of that evidence, the reason given in submissions for Mr Millard so instructing was the emergence of a degree of what might be termed “paddock chatter” about the modified components. Unsurprisingly, a team faced with such a scenario will decide to remove the potential for controversy. As a result, the cars ran in qualifying and in the actual races with the original authorised components.

36. Mr Marshall was obviously a truthful and reliable witness and we accept his evidence.

37. Mr Moffat gave evidence that, while he did not actually look to see what was beneath his feet, he could recall that the pedals felt different to how they had felt at Symmons Plains and at Phillip Island. He attributed this difference in feeling to the difference between the original parts and the modified parts.

38. We accept Mr Moffat as a reliable and truthful witness.

39. Having regard to how GRM conducted its case, the members of the Investigatory Tribunal were right to decide the case in the way that they did. The inference they drew was clearly open to them and properly drawn on the evidence that was then before them. No other decision could have been made. However, it has now emerged that there is conclusive evidence that the cars were compliant when they qualified and raced at Winton. The reason why the case was conducted in the way it was conducted was due to the inexperience of GRM’s advocate. That is not a
criticism of Mr Millard, who obviously found himself in an unfamiliar environment in a role for which he had limited experience. Generally, a party to a proceeding must accept a result that comes about because of the way that party has conducted its case. But that general rule should not affect the fundamental principle that, ultimately, competitors and the sport’s supporters expect that the right decision should be made. The evidence that has now been led demonstrates beyond doubt that GRM’s failure to lead the evidence has resulted in a miscarriage of justice that cannot be permitted to stand.

40. As a consequence, we rule that the appeal should proceed as a rehearing, we admit the evidence of Mr Marshall and Mr Moffat and we find that the modifications were not in GRM’s cars during qualifying and racing at Winton. It follows that GRM was not in breach of the regulations at that event.

41. We set aside the finding that GRM was in breach of the regulations. We set aside the penalty of disqualification of car #34 (Moffat) and car #45 (Dalton). The original results for round 3 of the 2023 Trans Am Series are reinstated.