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 Evidence Act 1995 (NSW), ss 76, 77, 78, 79 LEGISLATION CITED: Local Courts Act 1982 (NSW), s 73 Local Courts (Civil Claims) Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW), Part 51, r23 Balenzuela v De Gail (1959) 101 CLR 226 HG v The Queen (1999) 197 CLR 414 CASES CITED: 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 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 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 that the men who took the vehicle, without triggering the alarm, could only have done so in one of three circumstances. The first was that they used a key belonging to the Appellant. The second was that the vehicle was taken using a key issued for the vehicle, which the plaintiff had not received; the third possibility was that the vehicle had been taken by someone with a device which reprogrammed the key to allow the vehicle to be started, despite the existence of an immobiliser which would have prevented the engine being started otherwise than with a key registered for the vehicle. 6 The magistrate rejected the second and third possibilities as highly implausible. It followed that the Appellant had failed to demonstrate that the vehicle had not been taken using a key belonging to him. Accordingly, he had not demonstrated, on the balance of probabilities, that the vehicle had been stolen. (As to his burden of proof in that regard, see Vidal v NRMA Insurance Ltd [2005] NSWCA 390.) 7 From this decision the Appellant brought an appeal heard in the Common Law Division. The right of appeal was available to a person dissatisfied with the judgment or order of the Local Court as being "erroneous in point of law", pursuant to s 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW). (That Act has since been repealed but a right of appeal in similar terms is now found in s 73(1) of the Local Courts Act 1982 (NSW), although nothing turns on that fact.) 8 On 25 October 2004, Master Malpass handed down judgment in Hamod v Suncorp Metway Insurance Ltd [2004] NSWSC 975, dismissing the summons brought by the Appellant and ordering him to pay the Respondent's costs. An application was brought by summons seeking leave to appeal from that judgment, which leave was granted by this Court on 13 December 2005, but on terms which limited the appeal to a specific ground, namely that the magistrate had erred in rejecting a report of Mr Ashley James Beard, tendered by the Appellant, on the basis that he lacked relevant expertise. Jurisdiction of this Court 9 Statutory provisions conferring jurisdiction to appeal on a point of law vary in form. Some of the differences in terminology and the possible consequences of such differences were addressed in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [148]-[168]. The provision in issue in that case expressly provided that a right of appeal was conferred not only "in point of law" but also "on a question as to the admission or rejection of evidence". The provision relevant to the present case lacks that express extension, but it may be accepted that an erroneous rejection of relevant evidence may constitute a basis for dissatisfaction with the ultimate judgment or order of the Court as being erroneous in point of law. Thus McHugh J stated in HG v The Queen (1999) 197 CLR 414 at [97]: "Denying a person the right to call admissible evidence which that person wishes to call to rebut a claim or charge is a denial of natural justice." The same principle applies in relation to a plaintiff in civil proceedings who is denied the right to tender admissible evidence in support of his or her claim. Such a denial would give rise to dissatisfaction in point of law. 10 However, to decide a factual question adversely to one party is not as such a denial of procedural fairness. Nor does every evidential ruling involve a question of law. Thus a statutory right of appeal with respect to evidential rulings may well be broader than an appeal limited to a question of law. In the present case the Appellant needed to demonstrate legal error, not merely an erroneous ruling. 11 Further, the error must be material to the outcome or, as is sometimes stated, the decision must be one which is "vitiated by the error": see Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 (Moffitt P), cited with approval in Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177 (Handley JA). In HG, McHugh J explained the consequence of an assumed error in refusing an adjournment at [100]: "Even on this assumption, however, the appeal must fail unless this Court is satisfied that the effect of the refusal of the adjournment has probably resulted in the wrongful conviction of the appellant. Without such a finding there can be no basis for concluding that the refusal of the adjournment brought about a miscarriage of justice. Where a jury has convicted an appellant, it is enough that the relevant error may have affected the outcome. But where a judge has convicted the appellant and given reasons, the appellate court is in a position to examine the likely effect of the error. If the court is not satisfied that the error affected the outcome, it should dismiss the appeal." These principles apply in relation to civil trials. Both under the general law, and under Part 51, r 23 of the Supreme Court Rules 1970 (NSW) a new trial should not be ordered unless it appears to the Court that "some substantial wrong or miscarriage has been … occasioned" by the identified error of law: see also Balenzuela v De Gail (1959) 101 CLR 226 at 232-233 (Dixon CJ). The expert report 12 Before considering Mr Beard's expertise, it is convenient to summarise the nature of the opinions expressed in his report. Whilst the report itself is only nine pages long, the material annexed to the report extends the document to some 127 pages. The materials annexed to the report are described in the following terms by the author: "I annexed to this report materials that is available to the public in hard copies and on the internet about the theft of vehicles. I note that the material annexed to this report includes findings and reports and statistics of stolen vehicles in Australia and also includes the availability of computerized units to decode and code the keys and the OEM [original equipment manufacturer] engine immobilisers. The materials provided overwhelming evidence that the Mitsubishi Magna can be and have been stolen by armatures [presumably, amateurs] and by professional thieves. I also note that the materials annexed to this report provided evidence which indicates that thieves would require between four and seven minutes to decode and recode the OEM engine mobilisers and; or to cut and rewire and by pass the engine immobilizer." 13 The annexures included a wide variety of publicly available documents, including newspaper articles and material published by the National Motor Vehicle Theft Reduction Council. The admissibility of that material was not discussed at the hearing in the Local Court, but it appears to provide a basis for some of the conclusions reached by Mr Beard. For example, he stated (report, p 3): "I note that the article in the Advertiser newspaper and the information that I received from police officers at Campbelltown police station about copying keys and stealing vehicles, would indicate that tradesmen working on the service of vehicles have and could copy the keys of customers' vehicles without the authority of the customers and/or the authority of the manufacturer as alleged by Mitsubishi." That statement of opinion did not depend upon expertise. 14 The author made other statements in similar form. Thus, after summarising the annexures, he continued (report, p 6): "In addition to the above materials, I was informed by a tradesman who was working for Mitsubishi Australia Ltd in Adelaide that there are eight (8) different keys that would open the doors of all of the vehicles produced by Mitsubishi in Australia. I note that there was an article in the news on television few months ago that the police in Victoria had arrested a person who had possession of number of keys for the Mitsubishi models of vehicles." 15 On the following page the author stated: "I note that the vehicle was serviced at Paul Wakeling Pty Ltd on a regular basis and the owners' master key of the vehicle was left with the service men of the company and servicemen of the company were arrested and charged for copying keys and stealing vehicles." He then stated: "From my knowledge and experience in the mechanical and electronic fields and from the materials annexed to this report and my observation of the edited security video of the Travel Lodge, I assume that the first person entered the subject vehicle by using a copy of the key of the subject vehicle." 16 The author made other statements is similar form, based on viewing the security video, for example: "The person sitting in the driver seat leaned over towards the left side for considerable time and performed certain tasks. I assume that the person in the driver seat may have assisted the person in the passenger seat in removing the panels of the central console and accessing the engine immobiliser situated in the central console." 17 As is apparent from such a statement, his opinions depended to a large extent on viewing an edited copy of the security video taken in the car park at the Travelodge. But at p 2 of his report, he stated: "I note that I do require the original security video tape of the Travel Lodge Hotel and the original keys of the vehicle to conduct further investigation about the possibility of duplication of the key prior to the theft of the vehicle." At the end of his report he noted: "If I have an access to the original video in sufficient time prior to the hearing of the matter, I may be able to offer a final report with reasonable accuracy in my conclusion." 18 The report itself thus conceded that the copy of the video with which he had been provided was far from satisfactory. He was asked in evidence (Tcpt, 1 October 2003, p 62(36)): "Q. … How good is the copy? Is this a good copy or a bad copy? A. It's shocking. When I saw the video this morning that the gentleman brought in, I thought geez, that's a lot better than the one I got. It's very fuzzy, very hazy." 19 His conclusion should be set out in full and read as follows: "From my knowledge and experience in the mechanical and electronic fields and from the materials annexed to this report and my observation of the edited security video of the travel lodge hotel, I conclude that the first person may have used a copied transponder and disarmed the alarm system of the vehicle, and may have used the copied key to open the driver' side door of the vehicle. I also conclude that the person leaned over the passenger seat and opened the passenger door for the second person to enter the vehicle and the two persons participated in the removal of the panels of the central console and accessed the OEM engine immobilizer. I also conclude that the OEM engine immobilizer was decoded and reprogrammed to accept the copied key and; or in the alternative the persons by passed the engine immobilizer by cutting and rewiring the unit and used the copied key to start the engine of the vehicle." 20 It may readily be seen that this evidence is little more than speculation and surmise. It expressly depends upon documentary materials of no great technical complexity, but which might, if properly proved, have demonstrated the availability of mechanisms in the public arena, which would have permitted the theft of the motor vehicle in question. The admissibility of that material was never established. 21 Perhaps recognising the difficulty of demonstrating admissibility with respect to the bulk of the report, counsel for the Appellant, in oral argument, restricted his application to two specific statements of opinion. The first passage read as follows (report, p 8): "I note that the wiring of the engine immobiliser in the Mitsubishi Magna are colour coded and do not meet the current Australia Standard for wiring of immobilizer. An experienced car mechanic and; or an experienced auto-electrician can connect the wires to the engine immobilizer and program the unit to accept a copied key and; or cut and re-join the wires and by pass the engine immobiliser from the passenger seat and; or from the driver seat. I note that this process would take approximately five to seven minutes pending the experience of the person and the speed of the programming unit." 22 The second passage relied upon was the last sentence of the conclusion set out at [19] above. Legal principles 23 To the extent that this case turns on opinion evidence, the evidence will be inadmissible to prove the existence of a fact, pursuant to s 76(1) of the Evidence Act 1995 (NSW), unless one of the statutory exceptions applies. In written submissions, the Appellant sought to rely upon ss 77, 78 and 79. Section 77 deals with evidence of an opinion which is relevant otherwise than to prove the existence of a fact about which the opinion was expressed; it has no present operation. Section 78 permits opinions to be expressed by non-experts where, as for example with identification evidence, it may not be reasonably possible for the witness to give an adequate explanation of his or her perceptions without expressing an opinion. That provision is not relevant for present purposes. 24 The only basis upon which Mr Beard's evidence was sought to be admitted below was as expert evidence, pursuant to s 79 of the Evidence Act. That section states: 79 If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 25 For reasons which will be apparent, it is doubtful whether - (a) Mr Beard expressed relevant opinions; (b) if he did, whether they were based on his expertise, and (c) whether they were expressed in an admissible form. 26 It may be accepted for present purposes that the possibility of a thief, who did not have a key to the vehicle issued by the manufacturer, could nevertheless bypass the immobiliser and start the vehicle. It may also be accepted that an explanation of the method or methods available to achieve this end required specialised knowledge based on training, study or experience. 27 One aspect of that question involved an assessment of how long the exercise might take. The security video showed that a period of approximately 7 minutes had elapsed between the time the men entered the car and the time at which they drove away. An issue of potential relevance was whether, without a registered key, they could have bypassed the immobiliser in that time. An experienced motor mechanic with knowledge of the relevant electrical system could no doubt give an opinion about that matter. Mr Beard's expertise 28 Annexed to the report, was a curriculum vitae for Mr Beard which described his occupations as "motor mechanic" and "information technology consultant". His qualifications were summarised as "qualified motor mechanic", "advanced diploma information and technology", and "master degree in computer science". 29 His professional experience is recorded as involving some 10 years as a motor mechanic, during which time he also completed his apprenticeship. In the year 2000 he moved to the business of supplying and servicing computers. 30 In evidence given on the voir dire, as to his expertise, it became apparent that his period of work as a motor mechanic was about eight years. His diploma in information technology involved a three-year course at RMIT, in Victoria. He claimed to have a masters degree in computer science, without revealing its source. He added (Tcpt, 1 October 2003, p 54(32)): "It actually gives me a doctorate, but I don't use that title in full … ." 31 On the voir dire, Mr Beard was asked a number of questions as to the expertise upon which he relied. He said the issue presented to him was the "different ways that you could override" the engine immobiliser system with which the vehicle was fitted: Tcpt, 1 October 2003, p 55(25). He described the system as electronic. The examination in chief continued: "Q. What is your expertise? A. Computers mainly and motor vehicles. Q. The immobiliser system is? A. Is virtually computerised. It's an electronic component. Q. Have you had any experience with electronic components of that style? A. Not such as immobilisers but ECU and telemetry in motor vehicles, I have, yes. Q. What's an ECU? A. Engine control unit. Q. What was the other thing? A. And telemetry is like a radio control for a car but tells the pit crew what's going on with a car at any certain time, temperatures, speeds, RPMs and so forth." 32 In cross-examination, Mr Beard was asked further questions about his experience (Tcpt, p 57): "Q. You've never, never spent any time working on Mitsubishis have you? A. I've done the odd Mitsubishi from time to time, when I was doing my apprenticeship. … Q. When you were doing your apprenticeship that would mean prior to 1995 you worked on the odd Mitsubishi? A. Yep. Q. You have no experience, do you, Mr Beard in the differences between the early Mitsubishi Magna models, such as those around 1991 and the 1999 Magna sports? A. I do know the differences, yes. … Q. You've never worked on a 1999 Magna Sports have you? A. No, I haven't. Q. You haven't worked on any Magnas at all since prior to 1995? A. No. … Q. Your investigation consisted of, looking up the internet and printing material off the internet, is that right? A. And visiting Paul Wakeling and McGrath's Mitsubishi, talking to mechanics. Q. Sitting in a car at McGrath Mitsubishi and pulling something off was that the investigation, the practical hands-on investigation, Mr Beard? A. No, because a friend of mine has a '99 Mitsubishi Magna Sports and I pulled her car apart. … Q. As you said to my friend Mr Lee you have no experience with immobilisers. A. Not an immobiliser, no." 33 The matter was left with the trial judge, by counsel for the Appellant, in the following terms (Tcpt, 1 October 2003, p 61(10): "In essence, I suppose, just to clarify what's happened there were some things that were unobtainable in such a short time and were fairly expensive but unattainable and as such we didn't get to the enth stage of actually taking the vehicle. So all we could get to was the stage of we needed someone who could read a wiring diagram, who could read the car manual, and as an expert could do both of those things and then show how it could be done in accordance with what was on the video." Decision on admissibility 34 Her Honour rejected the tender of the report on the basis that Mr Beard lacked the relevant expertise to explain how to bypass an immobiliser in a 1999 Mitsubishi Magna. The rejection of the evidence may have involved the application of legal principles; the finding that Mr Beard lacked the relevant expertise was, however, a finding of fact. To succeed on this narrow point, putting to one side the other difficulties faced by the Appellant, he needed to demonstrate that a trained motor mechanic must, as a matter of law, be an acceptable expert in relation to the operation of an immobiliser in a car, regardless of the fact that he had had no experience with immobilisers. Further, although her Honour may not have been aware of the fact, he needed to have the relevant expertise to state that the wires could be disconnected and rejoined in no longer than 7 minutes. He claimed that he had conducted an exercise at McGrath Mitsubishi on a Mitsubishi Magna similar to the stolen vehicle, and had "removed the panels and accessed the engine immobiliser in about 30 seconds". However, it is clear that he took the exercise no further. 35 A point was taken on the application for leave that the magistrate had not read the report of Mr Beard, before rejecting it. That point was not pressed in this Court, but assuming it to be true (as appears to be the fact from the transcript of 1 October 2003, p 60(30)), one can only conclude that her Honour's doubts as to admissibility might have been enhanced, rather than diminished, given the qualifications which diminished the weight of the conclusions and the forms of expression used throughout the report, examples of which are set out above. 36 The form of Mr Beard's opinion is relevant for several reasons. First, unless the precise opinion expressed can be identified, it is not possible to be sure whether it was based on his expertise. Secondly, identifying the precise opinion expressed is relevant to the question whether it was material to the outcome of the case. Thirdly, it is necessary to consider whether the report was otherwise in admissible form. These questions are inter-related. 37 Questions as to the form of an expert opinion were discussed in HG v The Queen (1999) 197 CLR 414. In particular, at [39] Gleeson CJ made the following comments: "An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question." His Honour concluded at [44]: "This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions', (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted." 38 The Magistrate decided the question of admissibility on the basis on which it was presented to her by counsel. The opinions now sought to be relied upon required an assessment of Mr Beard's expertise, of the kind undertaken in the Local Court. The case was presented on the basis that experience with a particular model car was significant and that experience with immobilisers was significant. The Appellant did not suggest that these things were not significant. Her Honour assessed those matters, in relation to both of which Mr Beard had limited or no training, study or experience, and rejected the claim of expertise, in a brief judgment: Tcpt, 1 October 2003, p 61. 39 The expertise of Mr Beard was a question of fact. Her Honour so addressed it. It is not possible to discern any error of principle underlying the reasons given. No error of law was demonstrated. Accordingly, the rejection of the report was not attended by any error of law and the appeal from the Magistrate was properly dismissed. The issue at trial 40 Even had there been legal error, the Appellant would not have succeeded on the appeal. Accepting that a person with relevant expertise would have been qualified to explain how the immobiliser on a vehicle could be bypassed, so as to allow the engine to be started without a properly coded key, nevertheless, the thief would have needed a key to enter the vehicle without activating the alarm. The critical question identified by the Magistrate was how the person who took the vehicle had obtained such a key. Discussion as to how the engine might be started was a consequential issue which was not reached. 41 Mr Robilliard, who gave evidence for the Respondent, accepted that it was possible to disarm or overcome the immobiliser. However, he also gave evidence to the following effect (Tcpt, 2 October 2003, p 5): "Q. So at the time of theft, someone would have to break into the vehicle. Assume the alarm didn't go off. A. Yes. Q. Does that suggest to you then that the person must have been using a key? A. Absolutely, that's the only way to properly disarm the alarm. Q. Then someone got into the vehicle and then you were saying that one would have to replace some parts, is that right? A. That's correct." 42 In the circumstances of the case, it is not clear, and it was not demonstrated to this Court, that Mr Beard's report, if admitted, could have had a material effect on the outcome. 43 No doubt at the time of the tender of the report, it would not have been possible to be sure how relevant the opinions expressed might be in determining the case. It is now possible to say that, even if tendered in an admissible form and assuming that relevant expertise had been established, there is no real chance that they would have affected the outcome. 44 So far as the documentary material which was annexed to the report is concerned, it could no doubt have been used to obtain admissions from Mr Robilliard, as to the availability in the public domain of multi-use testers, capable of reprogramming a key. It could also have been used to establish the possibility that a key could have been copied by a mechanic at the service yard. None of these elementary matters depended upon any expert opinion expressed by Mr Beard. The rejection of his report, for lack of expertise, did not preclude the separate tender of the documentary materials. Whether they were admissible was not considered because they were not tendered. 45 The appeal should be dismissed with costs. ********** 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.