New South Wales Supreme Court CITATION : Hamod v Suncorp Metway Insurance Ltd [2004] NSWSC 975 HEARING DATE(S) : 19 October 2004 JUDGMENT DATE : 25 October 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibits may be returned. CATCHWORDS : Appeal, alleged erroneous rejection of expert's report - alleged failure to deal with pleaded issues - alleged misunderstanding of evidence and misdirection - sufficiency of reasons. LEGISLATION CITED : Evidence Act 1995, ss79, 135 PARTIES : Anthony Hamod (Plaintiff) Suncorp Metway Insurance Limited (Defendant) FILE NUMBER(S) : SC 10982 of 2004 COUNSEL : Mr S Gardiner (Plaintiff) Mr R A Cavanagh (Defendant) SOLICITORS : IC Legal (Plaintiff) A R Connolly & Company (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 197 of 2003 FILE NUMBER(S) : LOWER COURT Huber LCM JUDICIAL OFFICER : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 25 October 2004 10982 of 2004 Anthony Hamod v Suncorp Metway Insurance Limited JUDGMENT 1 Master: The plaintiff was the owner of a 1999 Mitsubishi Magna (registration number VSP 752). It is his contention that on or about 23 October 2000, the vehicle was stolen from the carpark of the Travelodge Hotel at Brookvale. 2 The vehicle was insured with the defendant. The plaintiff made a claim under the policy. The defendant refused to indemnify the plaintiff. 3 On 29 May 2001, the plaintiff brought proceedings in the Local Court. He claimed the sum of $35,000 (said to be the market value of the vehicle as at the date of the alleged theft), interest and the costs of hire of another vehicle during the period between 30 November 2000 and 31 March 2001. 4 The proceedings were defended. By way of special defence, the defendant contended that the plaintiff was involved in the alleged theft of the vehicle. 5 The proceedings were heard by Huber LCM. Judgment was delivered on 19 March 2004. The learned magistrate found in favour of the defendant. 6 The plaintiff now challenges that decision by way of appeal in this court. Such an appeal is available where error in point of law is demonstrated. The plaintiff bears the onus of demonstrating that there is such an error which justifies the disturbing of such a decision. 7 Shortly prior to the hearing of the appeal, the plaintiff gave notice of intention to argue the following three grounds of appeal:- (a) That Huber LCM erred in law by not admitting into evidence the reports of George Tall & Co dated 16 July 2002 and 9 May 2002 and the report of Mr AJ Beard of Westernport Computer Works Pty Limited (undated); (b) That Huber LCM erred in law in failing to determine the issues as pleaded and in dispute between the parties; (c) That Huber LCM erred in law by failing to give adequate reasons for Her Worship's decision and in failing in the reasons given to correctly state and apply the facts as presented in the evidence before the Court. 8 The defendant had been given late notice of the proposed amended summons. It was filed in court on the date of the hearing of the appeal (19 October 2004). The plaintiff's case has taken on the character of a movable feast. Thereafter, further changes in stance took place. Nearly an hour of valuable hearing time was occupied by argument on preliminary matters concerning what was to be argued on the appeal. 9 At this stage, it is convenient to look at certain of the relevant matters of fact. The vehicle was fitted with an immobiliser. Although it was owned by the plaintiff, it seems to have been used by and at all relevant times was under the control of his son. At the time of its acquisition, the vehicle was supplied with what have been described as three registered keys. The vehicle had been left by the son at the Travelodge Hotel at or about 7.30pm. The evidence of the son is that he came to collect it on the following day and found that it was no longer there. He was given a lift to the place of his employment by the manager of the hotel (Mr Stock). During that journey, conversation took place between them. What was said during the journey later became the subject of some dispute during the course of the hearing. Be that as it may, the son then became aware that the removal of the vehicle from the carpark had been recorded, at least in part, on video. 10 At the trial, the plaintiff did not give evidence. Oral evidence was given by the son. Oral evidence was given by Mr Beard. A report prepared by Mr Beard was objected to by the defendant and rejected by the learned magistrate. The video was shown in the plaintiff's case. 11 There is common ground as to what was shown by the film. Two unidentified persons effected entry to the vehicle. It was undamaged and there was no evidence of any forced entry. The persons remained in the vehicle for at least about seven minutes. The vehicle was driven from the hotel. One of the two persons may have alighted before that took place. 12 The defendant called Mr Stock. It sought to tender reports from George Tall & Co. The plaintiff objected to the tender. The tender was rejected by the learned magistrate. The defendant was successful in tendering a report from an expert (Mr Robilliard). He was subjected to a lengthy cross-examination during which his evidence was tested in the light of the earlier evidence given by Mr Beard. 13 Subsequent to the filing of the amended summons, the first of the three grounds of appeal underwent a change. It was only pressed to the extent that there was a rejection of the report of Mr Beard. 14 The reports of George Tall & Co had been prepared on instruction from the plaintiff. They had been provided by him to Mr Beard for the purposes of the preparation of his report. As earlier mentioned, the tender of those reports had been made by the defendant and not the plaintiff. The tender was rejected following objection from the plaintiff. 15 It is now convenient to move to the second of the three grounds of appeal. It appears to have been formulated on a misunderstanding as to what the learned magistrate had been asked to decide and what was in fact decided by her. Attempts to refine the ground ultimately proved to be futile. 16 At the trial, both parties were represented by counsel. At its commencement, counsel informed the court of what had been agreed between the parties as the issue for determination. 17 At page 2 of the transcript, the court was informed as follows:- The parties have agreed that the issue for determination by this Court is whether the plaintiff satisfies your Worship that the vehicle was stolen, as referred to in the policy and the plaintiff bears the onus of doing that. 18 This was the issue addressed by the learned magistrate. She found that she was not satisfied that the plaintiff had discharged the onus (on the balance of probabilities) of establishing that his motor vehicle was stolen. There was no need to address the question raised by the defendant's special defence (which threw up the issue of fraud) and she did not do so. 19 There was evidence before the learned magistrate that supported this decision (inter alia evidence from the plaintiff's son, the video and evidence from Mr Robilliard). 20 The plaintiff's son was adamant that when the vehicle was acquired, it was supplied with only two registered keys. He was cross-examined on this matter. This court has been informed that a third key has been found. Exhibit 1 (which is a letter dated 14 January 2003 from the plaintiff's then solicitors to the plaintiff) which was an annexure to an affidavit sworn by the plaintiff (for the purposes of but not used in these proceedings) demonstrates that the plaintiff was aware prior to the giving of that evidence that there was a third key. 21 The effect of the evidence given by Mr Robilliard was that the vehicle could not be moved without the overcoming of the immobiliser (there could be no access to the vehicle and it could not be started). 22 In addressing the issue to be decided, the learned magistrate did refer to three possible scenarios. The plaintiff erroneously presents this as a misdirection. The court has been informed that the learned magistrate took this approach because that is how the case had been presented to her for decision by the parties. 23 It was said that there was a misunderstanding as to evidence given by Mr Robilliard. It is unnecessary to determine whether or not that was the case. Even if that be so assumed, any such misunderstanding had no bearing on the decision reached by the court. 24 The third ground of appeal contends that there was a failure to give adequate reasons. It may be that the disclosure of the reasoning process could have been more expansive. Be that as it may, in my view, what was said sufficiently discloses the learned magistrate's reasoning process. 25 I return to what remains of the first of the three grounds of appeal. The report of Mr Beard was rejected because, in the view of the learned magistrate, there was in effect a failure to satisfy the requirements of s79 of the Evidence Act 1995. A principal thrust of the report was to present a view that the immobiliser could be overcome without the use of a key. To make the report admissible, it needed to be demonstrated that Mr Beard had specialised knowledge in that area. In my view, the learned magistrate correctly determined that he did not have such specialised knowledge. Little more was shown than that he had experience and training as a motor mechanic and in the area of office computers. His experience as a motor mechanic was limited and largely related to Nissan vehicles. He had not had experience with immobilisers and he had had very little experience with Mitsubishi vehicles. 26 The defendant contends that even if the report had been admitted into evidence it could not be accorded weight. In my view, there is force in that contention. The report was founded on information said to have been provided by others and assumptions, and that this material was not established by evidence led at the trial. On the question of "Entry to the subject vehicle", Mr Beard's view was founded on the assumption that the first person who entered the subject vehicle was using a copy of its key. 27 What has already been said does not bring an end to the problems thrown up by the content of the report. It contains an abundance of irrelevant material, which the learned magistrate would have been entitled to deal with pursuant to s135 of the Evidence Act. I need not pursue that consideration. It suffices to say that she may have been entitled to exclude all or part of the report pursuant to that section. 28 For completeness, I should add that one aspect of complaint concerning the learned magistrate's dealing with this report is that she failed to read it prior to its rejection. It emerged during the appeal that she had not been asked to read it by the plaintiff for the purposes of considering its admissibility. 29 In my view, the plaintiff has failed to demonstrate error in point of law that justifies the disturbing of the decision of the Local Court. Accordingly, the appeal must fail. 30 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned. ********** Last Modified: 10/25/2004 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.