Giesinger v Youi Pty Ltd

1. [1]

   The plaintiff, Otto Giesinger, says that on 4 May 2019 he was involved in a motor vehicle accident with a truck. The defendant, Youi, had issued a third-party fire and theft policy covering Mr Giesinger’s motor vehicle for the period May 2018 to May 2019.

2. [2]

   Mr Giesinger makes claims against Youi, said to be in tort, framed as “duty of care relief” and “professional indemnity relief”, for the manner in which Youi allegedly dealt with Mr Giesinger’s report to it of the accident.

3. [3]

   Mr Giesinger claims some $40.3 million in damages in his most recent amended statement of claim filed on 6 November 2024. This amended statement of claim was filed pursuant to leave granted by Garling J on 19 September 2024, his Honour having struck out Mr Giesinger’s four previous statements of claim.

4. [4]

   On 13 November 2024, Youi filed a notice of motion seeking orders that the amended statement of claim filed on 6 November 2024 be struck out and that the proceedings be dismissed.

5. [5]

   For the reasons that follow, I grant the orders sought by Youi, with costs.

Procedural history

1. [6]

   Mr Giesinger filed two statements of claim on 26 February 2024. The first claimed a sum of $40.3 million, the second - substantially in the same form - claimed a sum of $42.4 million (including interest and filing fees). To the extent I can understand the narrative in those documents, Mr Giesinger feels aggrieved about the way the defendant insurance company responded to his request for assistance after his car accident on 4 May 2019.

2. [7]

   On 12 July 2024, Youi filed a notice of motion seeking that the statement of claim be struck out, supported by an affidavit of its solicitor, Mr Spencer Pascal, which set out a chronology of correspondence between the parties.

3. [8]

   Mr Giesinger affirmed an affidavit on 27 July 2024, which he filed on 28 July 2024. This affidavit is difficult to follow but appears to allege Mr Giesinger’s brakes failed and that he “went blind” and did not have time to avoid the truck. He also, without leave, filed an amended statement of claim on that date.

4. [9]

   On 30 July 2024, the Court made orders in advance of hearing the notice of motion, including an order that any draft amended statement of claim be filed and served by 6 September 2024.

5. [10]

   On 25 August 2024, Mr Giesinger filed another amended statement of claim.

6. [11]

   The amended statements of claim filed on 28 July and 25 August 2024 respectively pleaded different content, and each claimed $42.4 million including interest and filing fees.

7. [12]

   Youi’s notice of motion was heard by Garling J on 19 September 2024. He made orders striking out each of the four statements of claim but granting leave for Mr Giesinger to file and serve any further amended statement of claim by 8 November 2024: Giesinger v Youi Pty Ltd [2024] NSWSC 1256.

8. [13]

   His Honour concluded:

9. [14]

   His Honour also noted that Mr Giesinger would benefit from consulting a lawyer as the cause of action he apparently wishes to advance, to the extent his Honour was able to discern from the discussion in Court, has “legal complexities”, and that it is a matter for Mr Giesinger whether he retains a lawyer or not.

This hearing

1. [15]

   Mr Giesinger appears today unassisted by a lawyer. Judging from the amended statement of claim dated 6 November 2024, it seems Mr Giesinger has not had any legal assistance.

2. [16]

   Mr Giesinger is clearly an intelligent man. Unfortunately his allegations do not correspond to any available cause of action. In exchange with the Court it is clear that he has formed the opinion that his insurer, Youi, did not adequately respond to his request for assistance from them about his accident on 2 May 2018. He also feels that they were cavalier in their response, and that they “misled” him into accepting their interpretation of the insurance policy.

3. [17]

   Tendered on the application at my request was a copy of the relevant insurance policy. It is limited to third party, fire and theft. The scenario Mr Giesinger outlined involved him running into the back of a truck. He confirmed in exchange with the Court that the truck had no damage to it and that Youi “waived” any excess fee, although he alleged in the amended statement of claim this was excess fee was initially requested.

4. [18]

   An affidavit of Mr Giesinger affirmed 23 November 2024 did nothing to advance the case he seeks to make. Written submissions filed on 13 December 2024 focussed on matters of no relevance to the cause of action which in essence is an insured person complaining about his insurer’s failure to act in a certain unspecified way in response to the insurance policy.

5. [19]

   Mr Giesinger also without leave emailed further written submissions on 19 December 2024. These submissions do not advance his case.

UCPR rules and legal principles

1. [20]

   Youi relies on rr 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), asserting that the pleading discloses no reasonable cause of action. Under r 13.4 Youi also seeks dismissal of the proceedings as Mr Giesinger has not, despite five attempts, articulated any reasonable cause of action.

2. [21]

   Rule 14.28 provides for the circumstances in which the Court may strike out a pleading:

3. [22]

   Rule 13.4 provides for dismissal of proceedings generally in certain circumstances:

4. [23]

   The test for summary dismissal is set out at General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 (“General Steel”). Barwick CJ stated (at 129):

5. [24]

   Various expressions of the test to be applied were then listed by Barwick CJ including, “so obviously untenable that it cannot possible succeed”, “manifestly groundless”, “so manifestly faulty that it does not admit of argument”, “discloses a case which the Court is satisfied cannot succeed”, “no possibility can there be a good cause of action”, it is “manifest that to allow [the pleadings] to stand would involve useless expense” (General Steel at 129). And further:

6. [25]

   Argument can still be necessary to determine the application. As Barwick CJ stated at 130:

Decision

1. [26]

   When exercising any power given to it under the Civil Procedure Act 2005 (NSW) and rules of Court, the Court must seek to give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act.

2. [27]

   Having read Mr Giesinger’s (fifth) amended statement of claim filed in November 2024, and his written submissions and having carefully listened to his argument on 18 December 2024 and reviewed the relevant insurance policy, I have concluded Mr Giesinger’s case is manifestly hopeless and obviously untenable.

3. [28]

   I understand no claim was made by the other vehicle that would activate Mr Giesinger’s insurance policy for a third-party response. There was no fire and no theft.

4. [29]

   There is no cause of action available to Mr Giesinger along the lines he has alleged, or at all. The claim must be dismissed.

Orders

1. [30]

   I make the following orders:

   1. (1)

      Pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW), the Amended Statement of Claim filed 6 November 2024 is struck out.

   2. (2)

      Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

   3. (3)

      The plaintiff is to pay the defendant’s costs of the proceedings.