Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Knight v Oztrack Pty Ltd [2015] NSWCATAP 119 Hearing dates: 12 May 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Jurisdiction: Appeal Panel Before: A Britton, Principal Member D Goldstein, Senior Member Decision: The appeal is dismissed. Catchwords: ADMINISTRATIVE LAW — appeal from Consumer and Commercial Division of NCAT –– whether question of law is raised — whether leave to appeal should be granted –– whether decision under appeal was against the weight of evidence — whether significant new evidence has arisen PRACTICE AND PROCEDURE — Expert Evidence —obligations of expert to be impartial — weight to be given to an expert's opinion Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 Texts Cited: Not applicable Category: Principal judgment Parties: Keirah Knight (Appellant) Oztrack Pty Ltd (Respondent) Representation: Counsel J Simpkins (Respondent) In person (Appellant) Curwood Solicitors (Respondent) File Number(s): AP 15/05995 Publication restriction: None Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 2 January 2015 Before: General Member SF Smith File Number(s): MV 14/29646 REASONS FOR DECISION 1. Mrs Keira Knight is the owner of a 2010 Holden Commodore (the vehicle). In late 2012, she entered into a contact with Oztrack Pty Ltd for the supply and fit of a "lumpy cam", a package of engine parts designed to enhance the vehicle's performance. The work was undertaken and the vehicle delivered to Mrs Knight in December 2012. In January 2014 Mrs Knight noticed an unusual sound in the engine and took the vehicle to a mechanic who advised that one of the "spring valves" was broken. After inspecting the vehicle Oztrack fitted a new set of spring valves. 2. In March 2014 the engine of the vehicle "seized" about a block from the Knights' home. 3. In June 2014 Mrs Knight made an application to the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking compensation from Oztrack in the sum of $12,000. Following a hearing, the Tribunal (constituted by Member SF Smith), dismissed Mrs Knight's application and gave written reasons for that decision (the Reasons). Mrs Knight now appeals that decision. The decision under appeal 1. The decision under appeal turned on three main issues: Whether as claimed by Mrs Knight and denied by Oztrack whether it was a term of their agreement (the agreement), that only Walkinshaw parts would be supplied and fitted and not, as Mrs Knight later discovered, a combination of Walkinshaw and other brand parts. Whether the parts actually supplied and fitted were "fit for purpose". What caused the engine to "seize". 1. The Tribunal rejected Mrs Knight's claim that Oztrack had agreed to supply and fit only Walkinshaw parts; found that the parts supplied and fitted were "fit for purpose" and that the cause of the vehicle's malfunction was unrelated to the parts supplied and fitted by Oztrack. Scope and nature of the appeal 1. Part 6, Division 2 of the Civil and Administrative Tribunal Act 2013 (NSW) deals with appeals from "internally reviewable decisions", as defined by s 32(4) of that Act. A party may appeal an internally reviewable decision as of right on any question of law or with the leave of the Appeal Panel on any other grounds (s 80(2)(b) of the Civil and Administrative Tribunal Act). 2. Where, as in this case, the internally reviewable decision is a decision of the Consumer and Commercial Division, cl 12 to Schedule 4 of the Civil and Administrative Tribunal Act limits the circumstances in which an Appeal Panel may grant leave to cases where the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable or against the weight of evidence, or significant new evidence has arisen: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. Grounds of appeal 1. After reviewing the Notice of Appeal and Mrs Knight's written and oral submissions, we understand the following grounds of appeal to be raised: Grounds raising questions of law That the Tribunal denied Mrs Knight procedural fairness, by: failing to have regard the evidence of her expert witness, Mr Gregory Organ of Diesel Engineering permitting Oztrack to be legally represented. Grounds requiring leave That Mrs Knight may have suffered a substantial miscarriage of justice because: A. The following findings made by the Tribunal were against the weight of evidence: Oztrack supplied and fitted the goods as ordered by Mrs Knight the "proximate cause" of the engine damage was the original valve supplied by Holden that the vehicle had been driven at excessive speeds by the Knights B. Significant new evidence has arisen, namely the report prepared by Mr Organ, 1 March 2015, the Camspec report, the photograph of the odometer and the statutory declaration prepared by Steven Stapley. Did the Tribunal fail to afford Mrs Knight procedural fairness by failing to have regard to her expert evidence? 1. In support of her initiating claim Mrs Knight relied on the opinion of licensed mechanic, Mr Gregory Organ of Diesel Engineering Pty Ltd. Mr Organ prepared two reports for the purpose of the proceedings and also gave oral evidence. Mrs Knight contends that the Tribunal ignored or failed to have proper regard to Mr Organ's opinion. She contends that Mr Organ was in a better position to comment on the cause of the engine failure because in contrast to Oztrack's expert he had the immeasurable advantage of having inspected the vehicle. 2. As Mrs Knight correctly points out as a person whose interests were affected by the outcome of the proceedings, the Tribunal was obliged to afford her procedural fairness. Among other things the Tribunal was required to take such measures as are "reasonably practicable" to ensure that Mrs Knight (and Oztrack) had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c) of the Civil and Administrative Tribunal Act). Failing to have regard to relevant and material evidence could constitute a denial of procedural fairness. 3. It is apparent from the Reasons that one of the reasons the Tribunal preferred the opinion of Oztrack's expert over that of Mr Organ was because the Tribunal had misgivings about Mr Organ's objectivity. In its Reasons the Tribunal explained why it approached Mr Organ's evidence with a "high degree of scepticism": 14 The expert for the applicant was Mr Gregory Organ of Diesel Green Pty Ltd. His report was 20 pages long and referred to the independent expert witness code of conduct. 15 However the document on the top of the correspondence file was a letter from Mr Organ written on behalf of Mrs Knight requesting the issue of a summons and complaining about an earlier grant of leave to be legally represented to the respondent. 16 At the opening of the hearing I put it to Mr Organ that he had "descended into the forum" and prejudiced his independence. I also noted that his report was prone to making observations on matters not within his expertise. 17 Moreover, as the hearing progressed it was clear that Mr Organ was both an expert and a 'McKenzie friend' to the applicant in relation to the whole of her case. 18 The outcome of course was that I had to approach Mr Organ's expert report with a high degree of scepticism. 1. While not bound by the rules of evidence, the Tribunal may nonetheless have regard to the rules. Under the Evidence Act 1995 (NSW), evidence of an opinion is generally inadmissible (s 76 of the Evidence Act). An exception to that rule is where an opinion is based on a person's specialised knowledge. Section 79 provides that if a person has specialised knowledge based on their training, study or experience (often called "the expert"), the opinion rule does not apply to evidence of their opinion that is wholly or substantially based on that knowledge. 2. The President of NCAT has issued a Procedural Direction under s 26 of the Civil and Administrative Tribunal Act dealing with expert witnesses (Procedural Direction 3, issued 3 February 2014). The Direction explains the role and duties of an expert: General duty to the Tribunal 11. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 12. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings (including the person retaining the expert witness). 13. An expert witness is not an advocate for a party. … 1. There was no issue that Mr Organ possessed knowledge and training in the field of motor mechanics and therefore was able to provide an opinion about the cause of the engine failure. The Tribunal's concern related to his impartiality. It raised those concerns in the course of the hearing. Following a discussion where Mr Organ made submissions about a summons issued at the request of Mrs Knight and Oztrack's application to be legally represented, the following exchange occurred (Transcript of proceedings, Knight v Oztrack Pty Ltd, Member Smith, 10/12/14 at pp 4,5): MEMBER Mr Organ your position is compromised already if you don't mind me saying so because you're supposed to be an expert witness but you have what we call descended into the forum and you are taking up the case on behalf of one of the parties. ORGAN I … MEMBER If you would just let me finish you're doing two contradictory things. Has your expert report acknowledged the Chair Person's direction. ORGAN Yeah. MEMBER What's happened since is just a contradiction of that. ORGAN Uh mm. MEMBER Then how come you are assisting Ms Knight in the matter to this degree, how can I have confidence that your report is completely objective and is not tainted by a desire to advance her interests? ORGAN Because the Applicant was not capable at the time of doing it, the report, she was stressed out and she asked me to write this letter asking for … MEMBER I think that's … ORGAN Determination that … MEMBER I don't think that's appropriate to be quite honest. ORGAN Well we had a couple of things that we need an answer for that's why we wrote the letter. MEMBER Uh hm. ORGAN We need an extension of time for Summons one of the insurance Assessors who carried out the first inspection which we cannot get a copy of that report, we've also wanted a review done on the legal representation on some reasons, one being that the Member refused it to start with and the Member didn't see comments from the other party prior to making that decision on the legal representation. It was just a few things we wanted to get straightened out. They asked me to do it for you. 1. The role of an expert witness is to assist the tribunal in understanding evidence or factual material which is more complex than a layperson can ordinarily understand without the expert's specialist knowledge and experience being brought to bear. As the Practice Direction states, the expert's overriding duty is to assist the Tribunal impartially and not to act as an advocate for a party. Where, as in this case, the conduct of the expert raises concerns about their impartiality, it is open to the Tribunal to determine what if any weight to give to their opinion. 2. The Reasons reveal that while the Tribunal had misgivings about the evidence given by Mr Organ it nonetheless considered that evidence. The Tribunal was not obliged to accept that evidence and did not err in finding that Mr Organ was not impartial and on that basis deciding to give his opinion lesser weight. Did the Tribunal fail to afford Mrs Knight procedural fairness by permitting Oztrack to be legally represented? 1. Mrs Knight contends that the Member erred by permitting Oztrack to be legally represented. She submits that as a consequence she was disadvantaged. She believes that the reason Oztrack decided to engage a lawyer was to intimidate her. 2. Section 45 of the Civil and Administrative Tribunal Act deals with the representation of parties in proceedings: Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner-for a particular or any Australian legal practitioner to represent the party. … 1. The Act does not prescribe the factors to be taken into account in deciding whether to grant leave to a party to be represented by a legal practitioner (cf. where the representative is not a legal practitioner: reg 32(1) of the Civil and Administrative Tribunal Rules 2014 (NSW)). That only one of the parties to the proceedings was legally represented, while relevant, was not determinative of the question of whether to grant leave. 2. Mrs Knight believed that she was at a disadvantage when presenting her case against an opponent who had legal representation. That belief was not without basis given that her claim raised complex questions of fact. While the Tribunal was required to afford each party a reasonable opportunity to present their case and to ensure that they understood the nature of the proceedings (s38(5)(a) of the Civil and Administrative Tribunal Act), it was not obliged to ensure that each party was adequately or equally represented. The Tribunal did not err in deciding to permit Oztrack to be legally represented. Was the decision against the weight of evidence? 1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel considered the meaning of the phrase "against the weight of evidence" in cl12(b) of Schedule 4 to the Act, and stated at [77]: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach (citations omitted). 1. The ultimate decision made by the Tribunal turned on three key factual issues, identified at [4] above. If any were "against the weight of evidence" it follows that the decision itself would also be against the "weight of evidence". Was the finding that "Oztrack supplied the correct goods" against the weight of evidence? 1. A critical fact in dispute was whether, as claimed by Mrs Knight and denied by Oztrack, it was a term of the agreement that Oztrack would supply and fit only Walkinshaw parts (the offending finding). In its reason for decision the Tribunal explained why it rejected Mrs Knight's claim: 8 It did not seem to be disputed that one of the items requested by Mr and Mrs Knight was a "lumpy" cam. Following discussion with Mr Bennett of the 1st respondent several items were ordered including a Walkinshaw performance exhaust system, a higher lift camshaft, a premium valve spring kit, Molybdenum pushrods and a dynamometer tune up. It was Mr Bennett's evidence that the camshaft was selected by or on behalf of Mrs Knight from listening to the recorded exhaust notes of available items. … 19 One of the issues was just what parts had been ordered. The original invoice referred to a Walkinshaw exhaust system and the camshaft as "HPS". Then there was an invoice for the same amount and the same date referring to "Walkinshaw Performance Pack" for the stated amount. It was the applicant's case that she had ordered a wholly Walkinshaw sponsored pack and that she had been supplied with a Walkinshaw exhaust but inferior valve train parts. 20 It seems that the applicant sought finance for the purchase amount of nearly $7,500.00 through some Walkinshaw appointed entity, Morris Finance Ltd. Mr Bennett for Oztrack said that the second invoice indicated that the system was for all Walkinshaw parts as this was the only basis upon which Morris would advance the money. 21 He also pointed out that the original written quote accepted by Mrs Knight also mentioned the HPS camshaft. Mr Andrew Bennett was adamant that the Knights were specifically told that the camshaft was an Oztrack HPS product when they selected it from the recordings. 22 Having considered the totality of the evidence, I accept the accounts of Mr Steven and Mr Andrew Bennett that the applicant knew that the deal was for a mixture of Walkinshaw and other products when the contract was made. 23 It follows that the respondent supplied the correct goods as ordered by the applicant. 1. In support of her contention that the offending finding was against the weight of evidence Mrs Knight points to: (i) the invoice issued by Walkinshaw on 28 November 2012 (described by the Tribunal as the "second invoice" at par [20]), which carried the following description of the goods suppled: Supply and fit one (1) new "Walkinshaw Performance Power Pack" (ii) the subsequent finance agreement entered into with Morris Finance arranged by Oztrack dated 4 December 2012, which also carried the description "Walkinshaw Performance Power Pack" (iii) her account of her discussions with Oztrack's sales staff that she had requested only "genuine Walkinshaw" parts (iv) her testimony that (a) prior to entering into the agreement with Oztrack she had done her research and decided to have Walkinshaw parts installed because Walkinshaw was "part of Holden" and guaranteed the parts (b) that she and her husband both placed great significance on maintaining the vehicle in its original state as it was intended to be "a hand-me-down" for their children. 1. Mrs Knight submits that it was simply implausible that she would have entered into an agreement for anything but genuine Walkinshaw parts. 2. Mr Simpkin for Oztrack contends that it could not be said that the offending finding was against the weight of evidence. He points to the evidence given by Oztrack's witnesses which contradicts Mrs Knight's account of the pre-sale discussions, together with the two invoices that were before the Tribunal, dated 14 November 2012 and 6 December 2012, which he contends makes plain that it was agreed that of the parts, only "the cam", would be Walkinshaw. Consideration 1. Before the Tribunal was conflicting evidence about whether it was a term of the agreement between the parties that only Walkinshaw parts would be supplied and fitted. 2. Mrs Knight's account of her pre-contact discussions with Oztrack was not without support and was consistent with a number of contemporaneous documents. As she points out, the Tribunal's finding was based in part on accepting the explanation proffered by Oztrack's staff that the reason for the discrepancy between the invoice issued on 28 November 2012 and that issued a week later, was that the former had been "doctored". This issue was raised by the Member in the proceedings (Transcript of proceedings, Knight v Oztrack Pty Ltd, Member Smith, 10/12/14 at p 43): If I can paraphrase Mr Bennett's [Oztrack director] report it is that the quote is correct but that the Invoice was doctored to ensure that the Applicants got their finance through Morris [emphasis added] 1. The Solicitor responded (Transcript of proceedings, Knight v Oztrack Pty Ltd, Member Smith, 10/12/14 at p 43): All right in a sense Member that's one way of putting of what has occurred. And went on to say: [W]e say that it is not relevant what the finance arrangements were at that time, there are a number of documents included in the Applicant's bundle which refer to terms and conditions and emails and things indicating that the Respondent has breached various terms. If you refer to that correspondence the only reference to the specific terms is actually dated from the beginning of 2013. This transaction occurred in 2012. Those terms and conditions were not current at the time that this arrangement was entered into. In any event we say that this issue is a side issue and is not actually relevant in the direct issue in these proceedings. 1. The evidence given by Mrs Knight was supported, internally consistent and inherently plausible. She makes a powerful argument that the actions of Oztrack personnel in "doctoring" sales documents, raises concerns about their credit and the reliability of their testimony. The Tribunal's task was to weigh up that evidence and that given by Oztrack and make a finding of fact. Unarguably it was open to the Tribunal to accept Mrs Knight's account that it had been agreed that only Walkinshaw parts would be supplied and fitted. Our role as the Appeal Panel however is not to decide which evidence we find more persuasive but after considering all of the evidence evaluating whether the finding made by the Tribunal is "against the weight of evidence". The Tribunal had the immeasurable advantage of being able to assess the witnesses first hand. While the evidence was finely balanced, in our opinion it could not be said that the "evidence in its totality preponderates so strongly against the Tribunal's conclusion that it appears to be objectively unreasonable": Collins v Urban at [77]. Was the finding that the camshaft supplied was fit for purpose against the weight of evidence? 1. Section 54 of the Competition and Consumer Act 2010 (Cth)(the Act) creates a statutory guarantee that goods supplied to consumers will be of "acceptable quality". Section 61 of the Act creates a statutory guarantee that any service provided to a consumer, and any product resulting from these services, will be reasonably fit for the purpose the consumer, expressly or by implication, made known to the supplier for which the services are being acquired. 2. The Tribunal concluded (at [47]): "I am not persuaded that the goods or services provided by Oztrack were not reasonably fit". Central to that decision was the finding (at [33]) that "the immediate cause" of the engine damage was "not in any component supplied by the respondent. It was in the valve supplied by Holden". 3. The Tribunal in its Reasons outlined the opinions of both experts. While, as discussed above, the Tribunal had concerns about Mr Organ's impartiality it nonetheless went on to consider his opinion that the cause of the engine failure was the unsuitable camshaft fitted by Oztrack (at [28],[29]), [30]). 4. The Tribunal preferred the opinion given by Oztrack's expert, Mr Phil Scott that the "head of the valve had separated from the stem". Mr Scott pointed out that the valves were original Holden parts which had not been changed since the manufacture of the engine (at [26]). The Tribunal wrote: 31 Again, I prefer Mr Scott's conclusion of valve failure. The photos clearly show that the head of the valve has parted from the stem. Part of it can still be seen in the inlet port. The damage to the piston is consistent with a disintegrated valve let loose in the cylinder. 32 Mr Scott also points out that the original workshop observation on first strip down was that one valve stem was proud of (higher than) the others. Had the failure been at the stem end, the whole valve would have dropped and all the others would have been higher. In this case the stem was still retained in the spring by the intact split collet. It must have been the head that failed. 1. The evidence before the Tribunal could not be described as overwhelming one way or the other. The Tribunal had before it differing hypotheses advanced by two experts. The Tribunal considered both opinions and concluded that the hypothesis advanced by Mr Scott provided the more probable explanation for the engine failure. It may be, as Mr Organ believes, that the cause of the engine failure was the installation of an unsuitable camshaft. However it could not be said that the finding made by the Tribunal was against the weight of evidence. Was the finding that over-revving was most likely cause of the head separation was against the weight of evidence? 1. Mrs Knight contends that the finding made by the Tribunal that was the engine over-revved was against the weight of evidence. (See [33] to [36] of the Reasons.) She vigorously denied that the car had been mistreated or used to perform "donuts". 2. The Tribunal did not make a positive finding that the vehicle had been used to perform "donuts". The Tribunal merely referred to a "suspicion" that this had been the case. That suspicion was based solely on tyre fragments being found under the rear wheel arches. It is implicit in the Tribunal's failure to draw an inference that it understood that there was insufficient positive evidence and that there may be other innocent explanations for this phenomenon. That speculation must be left aside. 3. There was no direct evidence of the vehicle being over-revved. Nevertheless, the Tribunal had before it evidence that the vehicle had been taken to Eastern Creek and driven by a race driver to make sure that the engine was performing properly, Mrs Knight's statement in her email to the Tribunal dated 16 July 2014 that the car would have to be test run at 'Sydney motorsports track and that the car had been deliberately "hotted up". In addition Mr Scott's evidence included his opinion that the engine had been operated 'according to a higher engine rpm' (Transcript of proceedings, Knight v Oztrack Pty Ltd, Member Smith, 10/12/14 at p 51.) When combined with all the other evidence, including Mr Scott's expert evidence, as well as the demeanour of the witnesses, which only the Tribunal had the advantage of assessing, we conclude that the finding of over-revving contributing to the failure of the head could not be said to be against the weight of evidence. Has significant new evidence arisen? 1. To fall within cl 12(1)(c) and (b) Mrs Knight must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. (see Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29) 1. We must decide whether the following documents on which Mrs Knight relies meets both criteria: Report prepared by Mr Organ, 1 March 2015 1. In a report dated 1 March 2015 (the new report) Mr Organ elaborated on his original opinion that the cause of the engine malfunction was the camshaft supplied by Oztrack. 2. In his new report Mr Organ provided further detail about the assumptions on which his original opinion was based. He also challenged many of the assumptions on which Mr Scott's opinion was based. He stated in the new report that the pushrods (a component of a camshaft) were the wrong size and this contributed to the failure of the engine. It is not entirely clear from the material before us whether Mr Organ had addressed the issue of pushrod size in the evidence he gave to the Tribunal. 3. In his new report Mr Organ states that he inspected the engine components in July 2014. (The hearing was held in December 2014). There is nothing before us to indicate that he failed to, or it was not open to him, to examine the pushrods during that inspection. 4. In our opinion cl 12(c) to Schedule 4 of the Civil and Administrative Tribunal Act does not permit the losing party to simply address shortcomings in or bolster the evidence on which they relied in the original proceedings. The Tribunal gave Mr Organ the opportunity to respond to the report prepared by Mr Scott (see supplementary report prepared by Mr Organ dated 5 November 2014). Even if accepted, as we understand Mrs Knight to contend that the new report is more persuasive than the earlier reports prepared by Mr Organ, in our opinion it could not be said that it constitutes "new" evidence. We are not satisfied that the new report satisfied that requirement was not reasonably available at the time the proceedings under appeal were being dealt with. The Camspec report 1. Mrs Knight contends that the document headed "Cam Pro Plus Lift Report" 1 April 2015 (the new camshaft report) supports Mr Organ's opinion that Oztrack fitted an unsuitable camshaft into the vehicle, which was the ultimate cause of the engine's failure. 2. To put the submissions made by the parties in context it is necessary to briefly outline the point of difference between the experts about the camshaft issue. As noted, Mr Organ was of the opinion that the cause of the engine failure was the unsuitable camshaft fitted by Oztrack. That opinion was premised on the assertion that the camshaft fitted by Oztrack had a 0.675 inch "lift" which the parties agreed was unsuitable for the vehicle's engine type. Mr Scott on the other hand was of the opinion that the camshaft supplied had a lower, 0.615 inch, camshaft lift and met the manufacturer's specifications. 3. According to Mrs Knight, the new camshaft report was provided by Sam's Performance, Greenacre. Mrs Knight stated that prior to the hearing she had obtained a "cam report" from camshaft supplier, CAM Tech, but decided not to submit that report because she had concerns about its reliability on account of Oztrack's solicitor having been in touch with CAM Tech. 4. The new camshaft report is computer generated. It contains detailed technical data. While it contains various figures relating to "lift" — 0.622 "lift at TDC"; 0.62317 "peak valve lift" — it is not apparent on its face that it supports Mr Organ's opinion that the camshaft installed in the vehicle had a lift of 0.675 inches. More significantly perhaps, there is nothing on its face to indicate that the data contained in the report bear any relationship to either the disputed camshaft or the manufacturer's specification. 5. We are not persuaded that the report constitutes significant new evidence or that it was not reasonably available at the time of the hearing. Photograph of the odometer 1. Mrs Knight relies on a photograph of the vehicle which shows an odometer reading of 042818 and the odometer's "red line" starting at 6,000 RPMs. Mrs Knight contends that this evidence contradicts Mr Scott's claim that after the camshaft was installed the RPM increased to 6,700. She submits that this new evidence is significant and reveals that the Oztrack failed to exercise "due care and skill". 2. Even if assumed that this evidence is significant in some way there is nothing before us which might explain why the photograph of the odometer was not reasonably available at the time of the proceedings. Statutory declaration prepared by Steven Stapley 1. In a statutory declaration made on 8 April 2015 car mechanic Mr Stapley, , stated: [W]hen measuring the pushrods to obtain the correct valve geometry [he found that] the pushrods measured 0.050 and this caused too much downward pressure on inlet and exhaust valve tips. 1. Mr Stapley's finding lends support to Mr Organ's opinion outlined in his new report. It has not been explained however why the former was not reasonably available at the time of the original proceedings. Summary 1. We are not persuaded that the material on which Mrs Knight seeks to rely is significant new evidence within the meaning of cl 12(c) to Schedule 4 of the Civil and Administrative Tribunal Act. Conclusion 1. Not being satisfied that Mrs Knight may have suffered a miscarriage of justice because of any of the grounds set out in cl 12(1)(a) or (c) of Schedule 4 to the Act application for leave to appeal must be dismissed. The appeal is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2015