Osborne v Speedway New Zealand Incorporated
[2025] NZHC 858
•10 April 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-704 [2025] NZHC 858
UNDERthe Judicial Review Procedure Act 2016 and Part 30 High Court Rules 2016
IN THE MATTER of an application for Judicial Review BETWEEN ASHTON OSBORNE
Applicant
ANDSPEEDWAY NEW ZEALAND INCORPORATED
Respondent
Hearing: 3–4 February 2025
Counsel: G A Cooper and E L Pearce for Applicant
G A Hughes and R Williams for Respondent
Judgment: 10 April 2025
JUDGMENT OF ISAC J
[Application for judicial review]
Introduction
[1] For over 70 years, speedway racing has been conducted in New Zealand. Now, every week throughout the summer season, thousands of competitors across the country compete in classes ranging from motorcycles, sprint cars, saloon cars and stockcars. Each race class has its own National, Grand Prix and North and South Island titles allocated every season.
[2] The applicant, Ashton Osborne, is a young man who enjoys speedway racing. In the 2023–24 speedway season, he competed in the saloon car class run by the respondent, Speedway New Zealand Inc (SNZ).
OSBORNE v SPEEDWAY NEW ZEALAND INCORPORATED [2025] NZHC 858 [10 April 2025]
[3] Mr Osborne enjoyed considerable success. On 29 January 2024, he participated in the Saloon National Championship held at Kihikihi speedway, driving his saloon vehicle—“16C”. After he placed in the top five competitors, his vehicle engine was “sealed” for further inspection to ensure its compliance with SNZ’s rules.
[4] Subsequently, SNZ concluded that Mr Osborne’s saloon failed to comply with its rules. The Board of SNZ found Mr Osborne in breach of the vehicle requirements and stripped him of his titles. In a subsequent penalty decision, the board suspended Mr Osborne from racing until January 2025, and imposed a $1,000 fine.
[5] Mr Osborne’s subsequent appeal to the SNZ Appeal Panel was unsuccessful. He now seeks judicial review of the Panel’s decision, advancing three grounds:
(a)first, the decision finding 16C non-complaint was affected by an error of law. In particular, relevant decision-makers misinterpreted the rules;
(b)second, the procedures adopted by SNZ and the Appeal Panel failed to meet the requirements of natural justice;
(c)finally, the decisions were substantively unreasonable, and the only available decision was one finding 16C compliant with the rules.
[6] Mr Osborne seeks orders quashing the Appeal Panel’s decision and associated penalties and declaring that 16C complied with the relevant rules at all material times. In the alternative, he seeks remission of the matter to the Appeal Panel for fresh consideration.
The saloon car rules
[7] SNZ promulgates rules and regulations for the conduct of speedway racing.1 Mr Osborne’s participation in the relevant season was governed by the 2023 general rules and regulations.2 The rules are 241 pages and contain thousands of requirements for all forms of racing. As a result of their sheer number, the naming conventions used
1 Speedway New Zealand “2023 General Rules and Regulations” [SNZ Rules] at [3(d)].
2 Referred to throughout this judgment as the “rules”.
are long and complex. In this judgment I use simplified rule references, except where the rules are directly quoted.
[8] Under SNZ’s constitution, its Board holds a mandate to “fulfil the objects and powers of SNZ”.3 The SNZ Board is responsible for the provision of governance for the sport of speedway in New Zealand, the appointment of officials to preside at speedway competitions, and the “sanction[ing] and licenc[ing of]” speedway racing.4 The Board is also charged with the interpretation of the “bylaws” (or rules) of SNZ “as and when required”.5 It is required to address and rule on “any contingency” not provided for by the rules and to “address and rule on the original intent of a rule”.6
[9] The rules set out technical and racing rules for four classes of speedway racing, and within those classes there are several forms of racing.7 The saloon car class includes super saloon racing, production saloon, and youth saloon events. Mr Osborne sought registration to race the “saloon” category. This category is intended to provide control points limiting the extent to which a vehicle can be modified. This is reflected in rule 2 as follows:
T11-2-2INTENT OF THE SALOON CLASS: The Saloon specifications are to be interpreted in conjunction with the constitution to allow for cost effective, competitive racing without unfair advantage.
[10] Reflecting the underlying aims of the class (or the relevant “intent”), the rules go on to prescribe a default position. This was referred to at the hearing as the “paramount rule”, or rule 3, which provides:
T11-2-3 Only modifications specifically mentioned in Section T11-2 are permitted. No other modifications are allowed UNLESS IT SAYS YOU CAN THEN YOU MUST NOT!
(a)The use of Carbon Fibre materials is prohibited.
[11] In addition, the introductory clauses of the saloon specification section of the rules defines the meaning of “OEM” and “OE” engine parts as follows:
3 SNZ Rules, above n 1, at C11(a).
4 At C3(a).
5 At C11(i).
6 At C11(o).
7 Those classes being motorcycle, open wheel, saloon and contact.
T11-2-4OEM means Original Equipment Manufacturer. OEM parts must retain their original identification marks.
T11-2-5OE means Original Equipment as supplied when the road car was sold new.
[12] The balance of the saloon specifications are divided into seven “sections”, referring to different parts of the saloon car. Only two sections are relevant to this proceeding. The first is section one which sets out requirements for the “frame/chassis”, and the second relates to the requirements for the engine.
Starting with the requirements for the “frame/chassis”, rule 6 provides:
T11-2-6SNZ holds a database of all road car makes and models used in the Saloon class.
(a)The year, make and model of the road car that the Saloon is based upon will be declared at the time of CVI.
(b)If the road car hasn’t previously been registered by SNZ relevant details must be supplied before the Saloon can receive a CVI.
(c)At least 200 of the relevant road car must have been produced.
(d)The road car must have seating for at least two occupants.
(e)The road car must be a two or four door production saloon or sportscar. It cannot be a convertible, ute, SUV van, wagon or similar.
[14] The subsequent rules in section one then address requirements for matters such as road car measurements, wheel base, chassis, and roll cage.
[15] Section two sets out the engine requirements and is the most important section in terms of this proceeding. The overall scheme of the section is important; it moves from the general to the specific. Rule 34 sets out the basic requirements for the kinds of engine that can be used in saloon cars. It provides:
T11-2-34 Engine
(a)Same manufacturer as nominated road car
(b)Same number of cylinders as nominated road car
(c)Same configuration as nominated roadcar eg V8, inline 6
(d)OE engine can be modified except where prohibited in this Section.
[16] The subsequent rules then become more specific. Rule 35 addresses the engine’s location within the body of the road car. From this point, section two moves on to provide restrictions applying to engine capacity, and from there moves on to prescribe restrictions applying to specific elements or parts of an engine. These include the cylinder head, the engine block, the rockers, carburettors, electronic fuel injection, and radiators.
[17] The rules central to this proceeding are 36, 37 and 39. Rule 36 governs engine capacity and configuration in the following terms:
T11-2-36 Engine Capacity & Configuration Restrictions
(a)Cast iron block and head: maximum 5916cc (361ci)
(i) OE or OE replacement cylinder heads with no external modifications only.
(ii) Brodix, Bowtie, Dart type, Chevrolet ‘angle plug’ etc are not permitted.
(b)V8 engine over 3015cc (184ci): 2 valves per cylinder only.
(c)Aluminium block and/or cylinder heads: maximum 4592cc (280ci)
(d)Four valve per cylinder engine: maximum 3015cc (184ci)
(e)EFI engine: maximum 4212cc (257ci)
(f)Engine originally fitted with OE needle or roller and/or roller tip rockers that retains the OE needle/roller set up: maximum 4212cc (257ci).
(g)Engines in (d), (e) and (f) must be OE engines only, e.g. Cosworth, Gaerte not permitted. To prove compliance cylinder head identification part numbers under valve covers must be retained.
(h)Rotary engine: maximum two rotors, carburetted only.
(i)Turbocharging and/or supercharging not permitted.
(j)Titanium is not permitted, except where mentioned in this section.
[18] Rule 37 then sets out the rules related to the engine “block”. An engine block is the structure that contains the cylinders and other internal engine components. The rule restricts the types of engine blocks that can be used in saloon cars to one of three options:
T11-2-37 Engine Block
(a)Option One: OE road car block.
Tall deck or raised cam blocks are not permitted.
(b)Option Two: Approved GM blocks
(i) GM Block # 10066034 made in Mexico (check Mexico)
(ii) Dart SHP # 31161111
(iii) Dart SHP # 31161211
(c)Option Three: Approved Ford blocks
(i) Dart SHP # 31364175
(ii) Dart SHP # 31364275
(iii) Dart SHP # 31355135
(iv) Dart SHP # 31355235
(v) Ford Boss Block M-6010-BOSS302
[19]Finally, rule 39 sets out restrictions on rockers for the saloon class as follows:
T11-2-39 Rockers
(a)Rocker Configuration is to be as per OE
(i) shaft mounted must remain so,
(ii) stud mounted must remain so.
(b)Engines originally manufactured with pressed steel rockers:-
(i) can have the rocker stud slot lengthened.
(ii) no other modifications permitted.
(c)Roller Rockers not permitted.
(d)Titanium Valve Spring Retainers are permitted.
[20] Engine rockers are a central issue in this case. They are part of the valvetrain that transfers the motion of a pushrod in an engine to the corresponding intake or exhaust valve.8 An article in evidence explains the distinction between a traditional steel rocker and a “roller rocker” central to the issues between the parties:
RIGHTO, so we know what valves do, but what pushes them down?
In most traditional V8s it’s a rocker, which is like a seesaw that’s pushed up at one end by the cam-driven push rod so that it pushes down on the valve at the other. A roller rocker is different to a normal rocker because it has a roller that comes in contact with the end of the valve stem rather than a plain metal tip. While standard on some engines these days, earlier units have the traditional rockers and replacing them with roller rockers is an important step if you’re keen on performance.
As we mentioned, the normal rocker tip is made of pressed steel and as the rocker depresses the valve, this tip moves in a small arc causing it to slide across the end of the valve. This pushes and pulls the valve stem from side to side and causes uneven wear or ‘bell mouthing’ in the ends of the guide. In turn, this bell mouthing leads to uneven wear on the valve seat resulting in poor sealing and loss of performance. The small roller set into the end of a roller rocker reduces this lateral force to largely fix the problem.
[21] Other elements making up an engine such as the cylinder head, carburettors, electronic fuel injection, exhaust location and radiator are also controlled through rules within section 2.9
8 This is the definition discussed in the Appeal Pack provided to the SNZ Appeal Panel.
9 SNZ Rules, above n 1, at T11-2-38 (relating to the Cylinder Head); T11-2-42 (relating to Carburettors); T11-2-43 (relating to Electronic Fuel Injection); T11-2-44 (relating to Inlet Manifold); T11-2-46 (relating to Exhaust Location) and T11-2-48 (relating to the Radiator).
Mr Osborne’s saloon and the 2023-24 race season
[22] Mr Osborne’s 16C saloon was a modified Chevrolet Corvette manufactured by General Motors. The engine block was taken from a Chevrolet Silverado engine. The central disagreement between the parties is whether a Silverado is a “road car”, to use the term used in the speedway rules, a “ute”, as the applicant characterised it at the hearing (and therefore a form of “road car”), or a “truck” or “light truck”, as SNZ describes it.
[23] In its original state, a Silverado engine is fitted with roller rockers. As these are explicitly forbidden under rule 39(c), the engine builder responsible for putting together Mr Osborne’s engine, Mr Daryl Watkins, fitted “bushes” to the rockers.10 This gave rise to a further factual issue before the Board and the Appeal Panel, and now this Court, as to whether the modified rockers had ceased to be “roller rockers”.
[24] Although there was no direct evidence on the point, it also seems clear that the engine capacity for Mr Osborne’s saloon was less than 5,916cc (the maximum capacity permitted by rule 36), but greater than 4,212cc (the maximum capacity for an engine fitted with an “OE needle or roller and/or roller tip rockers that retains the OE needle/roller set up”).
[25] The season in question began with the 16C vehicle being “green-sheeted”. This involved a vehicle inspection by a Mr Matthew Greene on behalf of SNZ in a pre-season check on 1 December 2023. At the time, the SNZ official did not identify any irregularity with the vehicle, including its engine.11 It also appears that saloon 16C raced over the course of the previous season and at various times had been inspected by SNZ’s mechanics and inspectors, without anything of note being uncovered.
[26] On 29 January 2024, Mr Osborne competed in the Saloon National Championship at the Kihikihi speedway. He enjoyed a good measure of success and provisionally placed second in the championship. The second place was provisional
10 A bush is a protective liner that cushions friction.
11 However, at the subsequent appeal hearing, it seems Mr Osborne and Mr Watkins accepted that the inspection of the engine during the green-sheeting inspection would be limited to a view through the oil cap, which would not generally permit identification of the form of rockers present.
because the first five place getters are subject to rule inspection checks and controls on their vehicle for the race. Immediately following the championship, and in accordance with SNZ practices, the engine of his saloon was therefore “red sealed” for later inspection. These seals are different to those fitted during the green-sheeting process at the beginning of the season, and effectively mean that when the engine is inspected at a later date, SNZ can be assured that it remains unaltered from the time of the race.
[27] That is precisely what occurred to Mr Osborne’s vehicle at the conclusion of the National Championship. As I have already noted, Mr Osborne then went on to win the Grand Prix title, and the 1NZ South Island Saloon Title driving the same saloon, before it underwent full checks at the conclusion of the season.
The post season full engine inspection of car 16C
[28] On 20 May 2024, SNZ’s appointed technical officer, Mr Cathro, and Mr Hooper as senior SNZ Steward conducted a full engine seal inspection of 16C. Mr Osborne’s father, Mr Mark Osborne, himself an experienced race car competitor, and Mr Watkins also attended the inspection.
[29] The technical officer took photographs of the engine components during the disassembly. These photographs and preliminary comments were then provided to SNZ’s general manager, Mr Aaron Kirby. The officer’s report of the inspection noted that either Mr Watkins or Mr Osborne had identified the motor as a “gen 3 Chevrolet engine”. A google search of the engine block casting number had then identified it as an “out of truck block Q4”. The officer went on to record:
The engine has factory rollers rockers the needle bears have been removed from the roller rockers my eyes they are roller rockers they are not roller tip rockers but they are centre roller rockers (photos 1 to 7). There is also email from Watkins to Nelson Harley saying it has factory needle roller rocker reunions.
[30] Mr Kirby forwarded the photographs and comments to the SNZ Board’s appointed Technical Advisory Panel for their analysis and comments. The Advisory Panel members unanimously considered that 16C did not comply with various requirements of the SNZ rules.
[31] Consequently, Mr Kirby sent Mr Osborne a “Letter of Concern” on 27 May 2024 setting out the outcome of the engine inspection. It referred to a “detailed inspection report” and advised Mr Osborne that there were several “serious compliance concerns”. Briefly they were:
(a)the engine block had been taken from a Chevrolet Silverado, and could not therefore be considered an OE road car block on the basis that a Silverado is not a road car as required in rule 6(e). Accordingly, the engine did not comply with rule 37(a), relating to engine blocks;
(b)the Silverado engine had “die cast roller fulcrum rocker arms” that had been modified. As a result, the engine does not comply with rule 3, which provides that only modifications specifically provided for in section 2 are permitted. In addition, under rule 39(c) roller rockers are not permitted either;
(c)as the OE engine was originally fitted with OE needle or roller “and these remain (albeit in modified form) in the OE set up, the engine does not comply with T-11-2-36(f)”, which caps the maximum engine capacity at 4,212CC.
[32] Mr Osborne replied in a letter of 30 May 2024. His letter set out a different interpretation of SNZ’s saloon rules:
(a)his saloon car “body” was based on a Chevrolet Corvette, and Corvettes are fitted with an OEM General Motors “L” series V8 engine;
(b)rule 34(d) specifically provided that an OE engine “can be modified except where prohibited”;
(c)in relation to the roller rockers, Mr Osborne considered the engine:
…retains…the pedestal mount rocker assembly rocker assembly. There is no advantage gained in the use of this rocker mounting type and if anything [it] introduces a weak point disadvantage. The pedestal pivot bearing has been
replaced with a simple bronze bush, which further disadvantages engine performance if anything.
(d)Mr Osborne went on to argue that in rule 36(f), the use of the word “retains” meant that the “roller section” of the rockers had to be removed, as he had done (or had been done by Mr Watkins on his behalf).
The Board’s decision on liability and penalty
[33] Mr Osborne’s response to SNZ’s letter of concern was sent to the Advisory Panel for comment. The Panel’s response was a unanimous rejection of Mr Osborne’s arguments and confirmation of the original opinion that the engine was non-compliant. The principal views of the Panel were that the engine in the vehicle was from a truck, not a road car, and that modification of the rockers was simply not permitted.
[34] On 19 June 2024, the SNZ Board wrote a letter to Mr Osborne confirming it had found him in breach of rule 7, relating to the engine block, rule 39, relating to the rockers, and rule 3, preventing modification of the vehicle unless expressly permitted.12 The liability decision of the Board was supported by five of the seven members. The evidence also indicates that one Board member considered Mr Osborne’s modification of the vehicle fell within the rules, while another abstained from voting.13
[35] Subsequently, on 4 July 2024, SNZ advised Mr Osborne by letter the outcome of a penalty determination. He was stripped of his titles earned since 31 January 2024, fined $1,000 and suspended from racing for six months, until 2 January 2025.
Mr Osborne’s appeal and the decision under review
[36] Mr Osborne lodged an appeal under the rules. Both the rules and SNZ’s practice require appeals to be dealt with promptly using a process that is not unduly
12 The Board also found that he had breached rule 58 relating to the electronic ignition.
13 In an application to adduce fresh evidence, Mr Osborne sought to put before the Court emails suggesting that the Board member who had been noted as abstaining in evidence and the relevant minutes had in fact voted against the liability finding. Nothing turns on this evidence and I would not have admitted it as fresh in any case.
technical from a legal or procedural perspective. For instance, lawyers are not allowed to attend the hearings.
[37] The appeal was set down on 10 July 2024. It seems the date was set in part because the SNZ annual awards were due to take place later that month, and the final results for title winners needed to be settled before the awards ceremony could take place.
[38] The Appeal Panel comprised three SNZ members drawn from a committee established for that purpose.14 While the rules provide that one Appeal Panel member is nominated by the appellant, in the present case two members were ultimately chosen by Mr Osborne.
[39] Mr Kirby put together an electronic appeal pack, comprising the relevant documents needed for the appeal hearing. This included an eight-page written submission by Cavel Leitch, Mr Osborne’s solicitors, in support of the appeal. The appeal pack was initially provided to Mr Osborne (and the Advisory Panel members) on 1 July 2024. However, further materials were subsequently provided by both Mr Osborne (or his solicitors), and by SNZ and its legal adviser. The final materials were added to the pack on 8 July 2024, a full day in advance of the hearing.
[40] One of the Advisory Panel members, Mr Kuriger, has provided an affidavit addressing the process adopted both before and at the appeal hearing, and the decision the Panel reached. The appeal began at 9.25 am at a hotel in Christchurch. Mr Osborne appeared and was assisted at the hearing by Mr Watkins. Mr Osborne’s father was allowed to attend as a support person, but was not permitted to address the Panel. Mr Kirby was the sole representative at the hearing for SNZ.
[41] The hearing was conducted informally, with both Mr Osborne and Mr Watkins being provided an opportunity to address the Panel, and answer questions. As is its usual practice, the Panel deliberated following the conclusion of the hearing at
11.45 am, and issued a brief decision the same day. The operative part follows:
14 See SNZ Rules, above n 1, at M7-10-8.
11:45 The Appellant team and SNZ left the meeting, whereupon the Appeal Panel retired to adjudicate.
After adjudicating the appeal panel find the following:
Ashton Osborne has been given natural justice by an SNZ Board, and in-person appeal, even allowing his father as a support person at the appeal.
Regarding the time frames the appeal panel under rule M7-10-9 Hearing (a) An appeal should be heard at the first available opportunity
The engine in car 16c-2NZ is noncompliant as it breaches the following rules.
1T11-2-6(e) and T11-2-37 (a) as no evidence was presented at the appeal to prove otherwise.
2The engine also breaches rule T11-2-36(f) as the engine is originally fitted with roller rockers and the engine is over the cubic capacity for those
3As the rockers had been modified rule T11-2-34 Engine (d) has been breached
4As the rockers in the engine had been modified rule T11-2-39 Rockers
(a) had been breached, the rule T11-2-39 Rockers (c) also states roller rockers are not permitted.
[42] To summarise the decision under review, the Appeal Panel unanimously upheld the Board’s decision, finding three breaches of the rules made out:
(a)the engine block did not comply with rules 6(e) and 37(a), because the block comes from a Chevrolet truck and is not the original used in the Corvette saloon Mr Osborne was racing;
(b)the engine was originally fitted with roller rockers and the engine capacity was beyond that permitted for such engines in rule 36(f); and
(c)in any case, the rockers had been modified when they should not have been under rule 34(d). Rules 39(a) and (c) also require the rocker configuration to be “as per OE”, and roller rockers are not permitted.
The first ground of review: error of law in the Appeal Panel’s application of the Rules
[43] I begin with Mr Osborne’s challenge to the Appeal Panel’s decision based on an alleged error of law—namely the proper application of the saloon car rules. Of the three grounds of review advanced at the hearing, it has the greatest merit.
Mr Osborne’s argument
[44] Mr Cooper, counsel for Mr Osborne, first argued that there is no definition of “road car” within section two of the saloon car rules. The engine block in Mr Osborne’s racing car came from a Chevrolet Silverado, and a Silverado is a ute — like any other form of road car —driven on roads and often having a car engine.
[45] While rule 3, the “paramount rule”, makes it clear that modifications are only permitted if the rules say so, that rule is subsequently modified by rule 34, which contemplates that the entire engine can be swapped out and replaced if it meets the requirements of subparagraphs (a)–(c) (an engine produced by the same manufacturer, containing the same number of cylinders, and having the same engine configuration as the original equipment engine). This flexibility in relation to engine modification is reinforced by rule 34(d), which provides that “[an] OE engine can be modified except where prohibited in this [s]ection.” Mr Cooper says that the later clause turns on its head the paramount rule in the section of the rules governing engine specifications.
[46] The Advisory Panel, the SNZ Board and the Appeal Panel were wrong in their interpretation of the rules to the extent they relied on alleged non-compliance with rule
6(e). It is convenient to restate what it provides:
SECTIONONE: FRAME/CHASSIS BASE ROAD CAR
T11-2-6SNZ holds a database of all road car makes and models used in the Saloon class.
…
(e)The road car must be a two or four door production saloon or sportscar. It cannot be a convertible, ute, SUV, van, wagon or similar.
[47] Mr Cooper pointed out that this rule appears in the section of the saloon specifications dealing only with the frame and chassis of a vehicle. So it was plainly an error of interpretation for the SNZ decision-makers to take it into account when concluding the rules prevent the use of a ute engine block in a saloon.
[48] In Mr Cooper’s submission, the controlling provisions are rules 34 and 36(a) and (f). These provisions, when read together, make it clear that there is no requirement for an OE engine to be used. Different vehicle engines meeting the basic requirements of rule 34 were permitted.
[49] Turning to the requirements for engine blocks in rule 37(a), Mr Cooper argued that the Appeal Panel misinterpreted the provision by introducing the restriction in rule
6(e). Given the later provision relates only to the chassis and frame, the error of interpretation led the Panel to consider the engine did not comply with rule 37(a), when the block was in fact permitted under rule 34(a).
[50] As the roller rockers present on the original Silverado engine had been modified by the introduction of bushes, they were no longer roller rockers. The relevant decision-makers had fallen into error by failing to take account of the fact that the modification of the rockers meant the engine capacity could be up to 5,916cc (under rule 36(a)), as opposed to 4,212cc (under rule 36(f)).
[51] In addition, rule 39, and its requirements in relation to rockers, must be read consistently with rule 36(f), which, contrary to rule 39, contemplates roller rockers may be part of race engines:
Engine originally fitted with OE needle or roller and/or roller tip rockers that retains the OE needle/roller set up: maximum 4212cc (257ci)
[52] As rule 36(f) clearly contemplates OE engines with roller rockers, rule 39(c)’s apparent proscription of them is inapplicable. Moreover, rule 39(a)’s reference to “rocker configuration” relates specifically to the shaft and stud mounting, but no other part of a rocker. It follows that the SNZ decision-makers were also wrong to interpret the rule as proscribing any form of modification of the rockers. Modification of the rockers by the introduction of bushes was permitted, and took the engine out of the
capacity restriction in rule 36(f) and placed it squarely in rule 36(a). Mr Osborne’s engine complied with this requirement.
SNZ’s argument in response
[53] For SNZ, Mr Hughes made two essential points. First, the Appeal Panel had only to find one relevant breach of engine specifications for Mr Osborne’s application for judicial review to fail. There could be no doubt, whether as a matter of law or expert evaluation, that the Panel had correctly applied the engine block restrictions in rule 37(a) to Mr Osborne’s saloon. A Silverado is a pickup truck or a light truck, not a “road car”, so the Panel was correct to have found non-compliance with this aspect of Mr Osborne’s racing engine.
[54] Second, the decisions of both the SNZ Board and the Appeal Panel involved expert evaluation and the application of rules to an assessment of technical aspects of racing engines and their modification. In other words, the decisions involved findings of fact and law. Given this, it is wholly inappropriate for Mr Osborne to advance a full throated merits-based challenge to those expert evaluations in the guise of judicial review. Regardless, while there may be elements of ambiguity in the rules in so far as restrictions on rockers are concerned, there is no reason to find that there had been a material error in the decision under review, or a mistake that could result in relief.
Consideration
[55] To the extent the Appeal Panel’s decision was reliant on rule 6(e) to support a conclusion that Mr Osborne’s engine was non-compliant, that was an error of interpretation. In particular, I accept Mr Cooper’s submission that the rule is located within section one of the saloon specifications, which are directed to the vehicle frame and chassis. Restrictions on engine components and capacity are dealt with separately in section two. However, the error of interpretation is not material to the outcome. That is because I consider the Board and the Appeal Panel were correct in their interpretation of rule 37, dealing with engine blocks.
[56] Despite elements of ambiguity within the section two engine rules, the scheme of the section is clear enough. Rule 34 is, as Mr Hughes argued, a gateway provision.
If an engine does not collectively meet the requirements of (a), (b) and (c), or alternatively (d), then it is non-compliant and there is no need to consider further the balance of engine specifications in the section.
[57] However, once through the gateway provision, a competitor’s engine must meet, cumulatively, the requirements set out in the following 15 rules. Those rules also have a coherent structure. After dealing with the location of an engine within the chassis and frame, and overall engine capacity and configuration (in rules 35 and 36), seven of the remaining rules govern specific components of an engine, including the cylinder head, the engine block, the rockers, carburettors, electronic fuel injection systems, inlet manifolds, exhausts, and radiators. An engine must be fully compliant with all of the individual component requirements in order to race.
[58] The fundamental difficulty for Mr Osborne’s argument is rule 37(a). As Mr Cooper appeared to accept, rule 37 limits permissible engine blocks to one of three types:
(a)relevant to this case, an “OE car block”;
(b)approved General Motors blocks; and
(c)approved Ford engine blocks.
[59] I do not accept Mr Cooper’s argument that in applying rule 37, the Appeal Panel misinterpreted rule 37(a) by introducing the restriction in rule 6(e). In determining the scope of the phrase “road car block”, the SNZ decision-makers were entitled to refer to rule 6(e) to determine, for the purposes of rule 37, that a “road car block” cannot come from “a convertible, ute, SUV, van, wagon or similar”. The Appeal Panel was doing no more than determining the scope of the term “road car” in rule 37 by reference to other provisions within the saloon specification that provide guidance on the meaning of the term.
[60] I consider both the Board and Appeal Panel were correct when interpreting the rules to find that an engine block taken from a Silverado pickup truck is not an “OE
road car block” as required by rule 37(a). If the relevant restrictions were solely those set out in rule 34, as Mr Cooper argued, absurd results would follow. A jet boat engine produced by the same manufacturer as a nominated road car, having the same number of cylinders and in the same configuration would be a permissible engine. In fact, Mr Cooper was unable to identify any permissible limits to the kinds of engine that might be permitted. What is clear from section two of the rules, and indeed the wider saloon specifications, is that saloons are built based on a two or four door road car. The necessary link to road cars is not limited to the frame or the chassis, and clearly extends to engines. I am reinforced in that conclusion by the fact that the alternative form of engine blocks in rule 37 (General Motors and Ford engine blocks), are limited to road car racing engines.
[61] It follows that not only was the interpretation of rule 37(a) and its application to Mr Osborne’s engine open to the Appeal Panel, I in fact agree with their conclusion.
[62] In addition, I accept Mr Hughes’ submission that ultimately the determination of whether a Silverado truck engine is a “road car block” is not simply a matter of legal interpretation of the rules. It requires an evaluative and factual judgment about the characterisation of a Silverado engine. That is quintessentially a matter for an expert determination within an amateur sporting context, and an area where the courts have, quite rightly, reserved a significant element of discretion for the decision-maker.15
[63] For the foregoing reasons, Mr Osborne’s challenge to the legality of the Appeal Panel’s decision must be dismissed. But as Mr Osborne advanced argument on the other grounds of engine non-compliance, I will deal with them, albeit briefly.
Non-compliance of the rockers under rule 39?
[64]It is helpful to begin by restating rule 39, relating to engine rockers:
T11-2-39 Rockers
(a)Rocker Configuration is to be as per OE
(i) shaft mounted must remain so,
(ii) stud mounted must remain so.
15 Tracey v Speedway Control Board of New Zealand Inc HC Hamilton A179/86, 3 February 1988.
(b)Engines originally manufactured with pressed steel rockers:-
(i) can have the rocker stud slot lengthened.
(ii) no other modifications permitted.
(c)Roller Rockers not permitted.
[65] Mr Osborne’s first argument is that the requirement that “rocker configuration” in rule 39(a) is to be “as per OE” is limited by the subclauses that follow at rules 39(a)(i) and (ii). In other words, the expression “rocker configuration” is limited only to the requirement that shaft and stud mounted rockers “must remain so”. On this interpretation, any other form of modification is permitted. Accordingly, the introduction of bushes to the roller rockers was authorised, and the Appeal Panel was wrong to find their modification was a breach of rule 39.
[66] I am unable to accept this argument. The Appeal Panel and SNZ’s decision-makers generally were correct to find the introduction of bushes failed to comply with the rules. The expression “rocker configuration” is not defined. However, the term “configuration” is commonly taken to refer to “an arrangement of parts or elements in a particular form, figure or combination”.16 This suggests that the ordinary meaning of “rocker configuration” is not limited only to shaft and stud mountings.
[67] It follows that the illustrations of impermissible configurations that follow at rules 39(a)(i) and (ii) are simply that; examples of impermissible modifications. I am reinforced in this conclusion because, if Mr Osborne’s submission were correct, the operative words of rule 39(a)—“rocker configuration is to be as per OE”, would be entirely redundant. The rule could simply have said it is limited to the OE requirement for shaft and stud mountings. The applicant’s interpretation also creates an illogical and unnecessary tension between the illustrations of impermissible modification at rules 39(i) and (ii), and the plain and ordinary meaning of the operative provision at rule 39(a).
[68] Accordingly, I consider the interpretation adopted by the Appeal Panel was correct as a matter of law.
16 Oxford English Dictionary, “Configuration” (Oxford University Press).
[69] One of the additional issues identified by Mr Osborne is whether the requirements of rule 39 are modified, or inconsistent with, rule 36—dealing with engine capacity and configuration restrictions. Mr Osborne’s second argument rests on an apparent inconsistency between rule 39(c)—"roller rockers not permitted”—and rule 36(f), which appears to contemplate “roller tip rockers” and “roller setup” being permissible in an OE engine with a capacity of up to 4,212cc.
[70] It is not clear if the reference in rule 36(f) to an “OE needle or roller” and “roller tip rockers” is necessarily the same thing as “roller rockers” referred to in rule
39(c). However, it would seem possible they are references to the same basic rocker element—namely roller rockers. Taking the most generous view of the rules available to Mr Osborne, it would seem that the restriction at rule 39(c) is irreconcilable with rule 36(f). But even assuming there is a conflict, I am unable to accept Mr Osborne’s claim that the Appeal Panel was wrong to interpret the rules the way it did. This is for two reasons.
[71] First, if there is a direct inconsistency, I would consider the specific proscription at rule 39(c) must prevail over the apparent general permission at rule 36(f).17 Rule 39(a) must be read in conjunction with rule 39(c). They are cumulative requirements. Their effect is, quite simply, that the rocker configuration must be “as per OE”. That configuration does not include roller rockers. This clear prohibition must hold out ahead of any apparent permission in a rule dealing with engine capacity.
[72] Rule 36(f) could only permit an engine “originally fitted with OE needle or roller… that retains the OE needle/roller set up”. Only where those requirements have been met is an engine of capacity of less than 4,212cc allowed. But Mr Osborne’s engine capacity exceeded that, and on this argument the originally fitted OE roller or roller tip rockers had been impermissibly modified contrary to rule 39(a). So, while
17 See Ross Carter Burrows and Carter Statute Law in New Zealand 96th ed, LexisNexis, Wellington, 2021) at 406, in the context of two conflicting provisions within the same statute, “[i]f one of the sections is specific and one general, the rule of generalia specialibus non derogant (general provisions do not derogate from specific ones) applies”. See also Jennings Roadfreight Ltd (in liq) v Commissioner of Inland Revenue [2015] 1 NZLR 573, [2014] NZSC 2 at [13], [17] and [18];
AZ Hobson Liquor Ltd v Galloway [2012] NZAR 930, [2012] NZHC 2331 at [25]; New Zealand
Law Society v B [2013] NZAR 970, [2013] NZCA 156; Fitzgerald vrule[2020] NZCA 292.
highlighting a clear tension between the two rules, Mr Osborne’s case is not assisted by it.
[73] The second reason why Mr Osborne’s challenge to the Panel’s findings on roller rockers cannot succeed is that it involved an expert factual evaluation and a mixed question of fact and “law”. As noted above at [31], the Advisory Panel, and SNZ, had concluded that the “die cast roller fulcrum rocker arms” had been “modified”. SNZ’s letter of concern went on to record that the engine “retains the roller rocker set up (albeit modified)”. Similarly, the Appeal Panel found that the rockers “had been modified”.
[74] Mr Osborne’s challenge to the Appeal Panel’s decision in reality asks this Court to find, as a matter of fact, that the mechanical modification of the roller rockers by the introduction of bushes means his engine no longer had “roller rockers”. As I have said, that is a matter of technical judgment involving a factual evaluation reserved to the specialist decision-makers. Even if it were permissible for the Court to engage in a merits based factual reconsideration of the decision-maker’s assessment, there is simply no evidential foundation to do so. Both the Board and the Appeal Panel concluded that the roller rockers had been “modified”. Neither of them found the modification altered the type of rockers that were present. That was an evaluation clearly open to the decision-makers on the evidence. It is not appropriate for the Court on review to second guess their assessment.
Second ground of review: breach of natural justice before the Appeal Panel
[75] Mr Osborne’s primary contention is that material relevant to the appeal by SNZ was not disclosed either to him, or the Appeal Panel. The relevant rule provides:18
M7-10-3
M7-10-3 All appeals shall be conducted within the rules of natural justice, to which end the parties to the appeal will receive all information pertinent to the subject matter of the appeal, they will be given a fair opportunity to respond to the subject matter of the appeal and they will be heard by an unbiased Tribunal.
18 Emphasis added.
[76] Mr Cooper argued that rule 3 imposed a clear and unequivocal duty on SNZ to ensure that all material relevant to the appeal, whether adverse to the Board’s decision or not, had to be disclosed both to Mr Osborne and the Appeal Panel. Natural justice requires a decision-making body which relies on specific information to reach a conclusion to afford the affected party a reasonable opportunity to respond to that information.19 Mr Osborne’s solicitors made repeated requests for key documents, including internal SNZ Board communications, inspection records, and Board meeting minutes. Mr Osborne’s requests were dismissed by SNZ and the documents were not provided to the Appeal Panel. He says the missing material “would likely shed light on how certain conclusions were reached” by SNZ, and would have confirmed that at least one Board member believed the engine in Mr Osborne’s saloon was compliant”. Alternatively, they would “reveal the extended disagreement” within SNZ’s “ranks”.
[77] Mr Cooper identified three items which he argued were critical to a fair hearing but were not provided to the Appeal Panel.
[78] First, the pre-season “green-sheeting”, undertaken by SNZ official, Mr Greene, did not form part of the appeal pack. The absence of a green-sheet record deprived Mr Osborne of evidence suggesting engine compliance confirmed by SNZ’s own officials at the start of the season. The prejudice arising from the missing green-sheet was then compounded by the fact that on 8 July 2024, just over a day before the appeal hearing, Mr Greene provided a letter—included in the appeal pack—in which he expressed the view that following the red seal inspection, Mr Osborne’s engine was non-compliant. The Panel needed to see the inconsistency in the positions Mr Greene had adopted about compliance.
[79] I do not accept this point. Crucially, the Appeal Panel put to one side Mr Greene’s letter at the hearing, following objection by Mr Osborne to its lateness. Further, the evidence indicates that the pre-season green-sheeting is not the same as a red seal inspection. The pre-season inspection only inspects the parts of the engine which can be observed without breaking it down. For instance, the evidence clearly indicates that it would not be possible during a green-sheet inspection to ascertain
19 Relying on Daganayasi v Minister of Immigration [1982] NZLR 130 (CA).
whether the engine contained roller rockers. It is only during a red seal inspection, where the engine is taken apart, that there is opportunity for detailed assessment of compliance. Finally, the evidence also establishes that Mr Osborne raised with the Appeal Panel the fact that the engine had been inspected previously and was found to be compliant. It follows that the absence of the green-sheet did not constitute a breach of natural justice.
[80] Second, Mr Cooper submitted that the Advisory Panel’s emails, setting out what he submitted were “dissenting” views about compliance, should have been provided to the Appeal Panel (or Mr Osborne) as part of the appeal pack. There are two problems with this submission. First, the evidence establishes that the relevant emails were included in the appeal pack prior to the hearing.20 Second, contrary to Mr Osborne’s submission, the Advisory Panel’s emails reveal that they were unanimous in their view that Mr Osborne’s engine failed to comply with the rules. While there was a range of views about the effect of the rules in relation to rocker configuration and roller rockers, all of the Advisory Panel were satisfied that the engine was non-compliant in terms of the engine block requirements and its characterisation as a truck engine.
[81] Mr Osborne’s third point is that emails to and from one of the SNZ Board members involved in the original decision, Mr Hartley, did not form part of the appeal pack. The emails in question indicate that Mr Hartley’s opinion was that Mr Osborne’s engine complied with the rules. Mr Cooper’s essential argument is that the Appeal Panel were deprived of a different view within the SNZ Board, and it was the view of the only qualified engine builder involved in the decision.
[82] Again, there is nothing in this point. The SNZ Board involved a decision by the majority of its members. Five of the seven members were satisfied there had been a breach of the rules. They based that view on photographic evidence and advice from the Advisory Panel. The collective decision of the Advisory Panel is not contained within internal communications leading it to a decision, but rather the Board’s decision
20 I took Mr Cooper to accept when challenged by Mr Hughes on the point, that his submission on this count was not accurate.
finding Mr Osborne in breach, contained in the letter of 19 June 2024. That letter was before the Appeal Panel.
[83] Ultimately, Mr Cooper’s submission both in respect of Mr Hartley’s view, and the “missing” green-sheet is not consistent with the nature of the Advisory Panel’s decision-making. Rather than choosing between the different opinions Mr Osborne has identified, the Advisory Panel itself, like the Board, was required to form its own view about the effect of the relevant rules, and make an evaluation of the nature of the modifications made to Mr Osborne’s engine, and its component parts. They clearly did so. The fact that Mr Hartley, or any number of other members of SNZ (whether on its Board or otherwise) might hold a different view is irrelevant. It certainly does not sound in a breach of natural justice. Mr Osborne was aware of the case he had to face. He was provided with the relevant information on which the Appeal Panel could base a decision. And he was provided with a fair opportunity to be heard. For these reasons, the second ground of review cannot succeed.
[84] Finally, I briefly address an argument made in written submissions but not pursued with enthusiasm at the hearing, of a disparity between the level of legal preparedness of the two parties before the Appeal Panel.
[85] While the appeal process was described as informal, SNZ filed lengthy and complex legal submissions, whereas Mr Osborne was not permitted to have legal counsel physically present at the hearing. Mr Osborne says this transformed what was intended to be an informal process into a “mini trial scenario” in which Mr Osborne lacked the assistance and preparation time such formal advocacy would typically warrant. The imbalance this created is said to have resulted in “a manifestly disadvantaged position”.
[86] The evidence leaves me satisfied that the reason the material before the Appeal Panel became complex and increasingly legalistic is because Mr Osborne engaged his solicitors to provide detailed written submissions to the Panel in support of his appeal. Having done so it is little surprise that SNZ wished to respond in kind. The fairness of the hearing process is confirmed by the opportunity Mr Osborne’s solicitors were
afforded to provide further submissions in reply. Again, none of this sounds in a breach of natural justice or a hearing process that was unfair to Mr Osborne.
Third ground of review: substantively unfair and unreasonable Panel decision
[87] Mr Cooper argued that the Appeal Panel’s decision, taken as a whole, was so fundamentally flawed that it could not meet the Wednesbury standard of reasonableness. He argued the combination of procedural defects and “substantive errors” met the high threshold.21 Relying on this court’s decision in Le Roux v The New Zealand Rugby Football Union, it is said that a sporting tribunal’s decision can be set aside if it is grossly disproportionate, or beyond the limits within which a reasonable Tribunal could operate.22 The misapplication of rules 36, 37 and 39, combined with 11th hour technical submissions and “withheld documents”, is said to raise serious doubts about the rationality of the outcome.
[88] There is no merit in this challenge, and I deal with it only briefly. It is plain from the evidence that the decision the Appeal Panel reached was supported by evidence and one reasonably open to them. Given the facts which were not in dispute before me, and in particular the engine block used by Mr Osborne and the vehicle from which it came, I consider the Appeal Panel was plainly correct to find Mr Osborne’s vehicle failed to comply with the rules.
Relief
[89] Given my findings above, it is unnecessary to address relief in any detail. Mr Osborne is clearly very passionate about his chosen sport. He follows in his father’s footsteps. Losing national titles that were hard won would be extremely disappointing. However, I would not have been inclined to grant relief even if a ground of review had been made out. SNZ is an amateur sporting body. Despite significant pressures, its processes were robust and thorough. Ultimately, it was open to Mr Osborne under the rules to have his engine inspected and approved before racing.23 The fact that he chose not to do so suggests he took a risk. That was a choice open to
21 Relying on Waitakere City Council v Waitemata Electricity Shareholders Society Inc [1996] 7 NZLR 735 (HC), and Le Roux v The New Zealand Rugby Football Union [2006] NZAR 434 (HC).
22 At [20].
23 SNZ Rules, above n 1, at E2–5.
him, but where a competitor is contemplating challenging the boundaries of what is permissible, and chooses not to avail themselves of an opportunity to obtain a definitive ruling, it will be a rare case for a court to intervene in technical matters involving a sporting body operated by volunteers.
[90] In addition, there has been relatively significant delay in advancing the judicial review application. The Appeal Panel’s decision was made on 15 July 2024. Proceedings were not filed until 31 October 2024. I am left with the impression that the delay has resulted in relevant titles being awarded to other race competitors. If the Court were to set aside the Appeal Panel’s decision, it would create significant prejudice to competitors who are not before the Court. It would be unfair to do so, in my view.
Conclusion and Result
[91] For the foregoing reasons, Mr Osborne’s application for judicial review is dismissed.
[92] Costs should follow the event. My preliminary view is that costs on a 2B basis are payable to the respondent. If the parties are unable to agree, I reserve leave to file memoranda. However, in light of previous decisions of this Court, I would be inclined to make an adverse order for costs relating to costs issues.24
Isac J
Solicitors:
CavellLeitch, Christchurch for Appellant Ford Sumner, Wellington for Respondent
24 Strata Title Administration Ltd v Body Corporate Administration Ltd [2014] NZCA 96 at [10]–
[14]; Booth v Poplar Road Farms Ltd [2019] NZHC 1889 at [25]; North Eastern Investments Ltd v Auckland Council [2018] NZHC 1805 at [20].
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