Hamod v Suncorp Metway Insurance Ltd - [2006] NSWCA 243

New South Wales

Court of Appeal

CITATION: HAMOD v SUNCORP METWAY INSURANCE LTD [2006] NSWCA 243

HEARING DATE(S): 30 August 2006

JUDGMENT DATE:
1 September 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Basten JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: EVIDENCE – expert evidence – admissibility – Evidence Act 1995 (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form - JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome

LEGISLATION CITED: Evidence Act 1995 (NSW), ss 76, 77, 78, 79
Local Courts Act 1982 (NSW), s 73
Local Courts (Civil Claims) Act 1970 (NSW), s 69
Supreme Court Rules 1970 (NSW), Part 51, r23

CASES CITED: Balenzuela v De Gail (1959) 101 CLR 226
HG v The Queen (1999) 197 CLR 414
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Vidal v NRMA Insurance Ltd [2005] NSWCA 390
Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156

PARTIES: Anthony Hamod - Appellant
Suncorp Metway Insurance Limited - Respondent

FILE NUMBER(S): CA 41084/04

COUNSEL: Mr D. E. Baran - Appellant
Mr R. A. Cavanagh - Respondent

SOLICITORS: Stephen Smart & Associates - Appellant
A.R. Connolly & Co - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 10982/04

LOWER COURT JUDICIAL OFFICER: Malpass AsJ

LOWER COURT DATE OF DECISION: 25 October 2004

LOWER COURT MEDIUM NEUTRAL CITATION: Hamod v Suncorp Metway Insurance Ltd [2004] NSWSC 975

CA 41084/04
SC 10982/04

BEAZLEY JA
SANTOW JA
BASTEN JA
1 September 2006

HAMOD v SUNCORP METWAY INSURANCE LTD

Judgment

1 BEAZLEY JA: I agree with Basten JA.

2 SANTOW JA: I agree with Basten JA.

3 BASTEN JA: In October 2000 the Appellant was the owner of a 1999 Mitsubishi Magna, which was taken from the car park of the Brookvale Travelodge Motel, where it had been left overnight by the Appellant’s son.

4 A video security camera in the car park recorded two men entering the vehicle and, after a short delay, driving off in it. The fate of the vehicle is not known, but the Appellant made a claim on the Respondent, under an insurance policy which included cover for theft of the vehicle. The Respondent declined the claim and the Appellant commenced proceedings in the Local Court seeking a judgment for the value of the vehicle, against the Respondent.

5 In a judgment delivered on 19 March 2004, the Magistrate, Ms J. Huber, concluded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWCA 243
Decision Date: 1 September 2006

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Hamod and Suncorp Metway Insurance Ltd regarding a claim for a stolen vehicle. Mr Hamod appealed to the Supreme Court of New South Wales from a decision of the Local Court, which had rejected an expert report tendered on his behalf.

The primary legal issues before the Court of Appeal were whether the Local Court had erred in rejecting the expert report, and whether such a rejection constituted an appealable error "in point of law" under section 69(2) of the *Local Courts (Civil Claims) Act 1970* (NSW). Central to this was the question of whether the expert possessed the requisite expertise to give evidence concerning the failure of a car's engine immobiliser, and whether their opinion was based on that expertise, rather than on internet research and personal investigations.

The Court of Appeal held that the determination of an expert's qualifications and the admissibility of their evidence under section 79 of the *Evidence Act 1995* (NSW) were questions of fact, not law. The expert's lack of direct experience with immobiliser systems, and their reliance on secondary sources for their opinion, meant that the Local Court was entitled to find that the expert did not have the necessary expertise to provide admissible evidence on the specific issue. Consequently, the rejection of the report was not an error of law, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	HAMOD v SUNCORP METWAY INSURANCE LTD [2006] NSWCA 243
HEARING DATE(S):	30 August 2006
JUDGMENT DATE:	1 September 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Basten JA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	EVIDENCE – expert evidence – admissibility – Evidence Act 1995 (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form - JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome
LEGISLATION CITED:	Evidence Act 1995 (NSW), ss 76, 77, 78, 79 Local Courts Act 1982 (NSW), s 73 Local Courts (Civil Claims) Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW), Part 51, r23
CASES CITED:	Balenzuela v De Gail (1959) 101 CLR 226 HG v The Queen (1999) 197 CLR 414 Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156
PARTIES:	Anthony Hamod - Appellant Suncorp Metway Insurance Limited - Respondent
FILE NUMBER(S):	CA 41084/04
COUNSEL:	Mr D. E. Baran - Appellant Mr R. A. Cavanagh - Respondent
SOLICITORS:	Stephen Smart & Associates - Appellant A.R. Connolly & Co - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 10982/04
LOWER COURT JUDICIAL OFFICER:	Malpass AsJ
LOWER COURT DATE OF DECISION:	25 October 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Hamod v Suncorp Metway Insurance Ltd [2004] NSWSC 975