Hamod v Suncorp Metway Insurance Ltd

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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…

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Details
Case
[2006] NSWCA 243
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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