HAMOD v SUNCORP METWAY INSURANCE LTD

HAMOD v SUNCORP METWAY INSURANCE LTD - [2006] NSWCA 243 - NSWCA 2006 case summary — Zoe

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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 (That Act has since been repealed but a right of appeal in similar terms is now found in s 73(1) of the Local Courts Act 1982 (NSW), although nothing turns on that fact.) 8 On 25 October 2004,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.

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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.

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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."

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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."

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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. **********

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