Giesinger v Youi Pty Ltd

[2024] NSWSC 1256

Supreme Court

New South Wales

Medium Neutral Citation:

Giesinger v Youi Pty Ltd [2024] NSWSC 1256

Hearing dates:

19 September 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that each of the two Statements of Claim filed on 26 February 2024, being bar code ending WONN1 and bar code ending WO2Y2 be struck out.

(2) Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim dated 28 July 2024 be struck out.

(3) Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim filed 25 August 2024 be struck out.

(4)   Grant leave to the plaintiff to file a Further Amended Statement of Claim providing that any such Further Amended Statement of Claim be filed and served by 8 November 2024.

(5)   Reserve all questions of costs.

Catchwords:

CIVIL PROCEDURE – Pleadings – Striking out – No reasonable cause of action pleaded – Application for the plaintiff’s Statements of Claim to be struck out granted.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Otto Giesinger (P)
Youi Pty Ltd (D)

Representation:

Counsel:
Self-Represented (P)
A Djurdjevic (D)

Solicitors:
Ligeti Partners (D)

File Number(s):

2024/74505

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. On 26 February 2024, Mr Otto Giesinger commenced proceedings in this Court against Youi Pty Ltd, an insurance company (“Youi”). Youi has appeared and appointed solicitors to act for it.

2. On 12 July 2024, Youi filed a Notice of Motion seeking orders pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (the “UCPR”) that the Plaintiff's Statements of Claim be struck out because it did not adequately identify and plead all of the facts necessary to establish any cause of action known to the law. As well, Youi contended that the Statements of Claim did not comply with any of the to pleading obligations contained in the UCPR.

3. It seems that at about the same time on 26 February 2024, two Statements of Claim were filed. One was allocated a barcode, the last five numbers or digits, which was WONN1. It contained no specific pleading but attached copies of another Statement of Claim from 2022. The claim made was for a total of $40.3 million.

4. The second Statement of Claim filed at that time, which had the last five numbers or digits WO2Y2, made a claim in substantially an identical way by attaching copies of the 2022 Statement of Claim but claiming an amended sum of $42.4 million.

5. On 5 June 2024, the Court made orders that the Plaintiff have leave to file an Amended Statement of Claim and serve it by 28 June 2024, and that the defendant either file a Defence or any Notice of Motion seeking to strike out the pleading by 26 July 2024.

6. Since the Notice of Motion has been filed by Youi on 12 July 2024, two Further Amended Statements of Claim have been filed by the plaintiff. The first on 28 July 2024, and the second on 25 August 2024. They each claim the same amount of money, being a total of $42.4 million, but contain different word content, although in part covering the same subject matter.

7. When the Motion came on for hearing this morning, counsel for Youi informed the Court that it would be appropriate for the Court to deal with all of the Statements of Claim because the submissions which it made were, in substance, to the same effect. Mr Giesinger accepted that this Court today should deal with the form of each of the Statements of Claim and determine the Motion on that basis.

8. In an attempt to examine whether any of the Statements of Claim set out a sufficient basis for a claim for damages, I explored with the plaintiff, in the course of discussion between the bench and Mr Giesinger at the Bar table, what the substance of his claim was.

9. So far as I am able to understand it, and I accept that my understanding may not be completely accurate, Mr Giesinger explained that he contended that Youi, because it had issued two policies of insurance limited to some circumstances, owed him a duty of care to deal with him in a reasonable and accurate manner when he contacted them with respect to either of those insurance policies.

10. Mr Giesinger told the Court that on 4 May 2019, he had been involved in a collision with a truck whilst he was driving his motor vehicle, in respect of which Youi had issued two policies. One, a Compulsory Third‑Party insurance policy, and the other, a Third-Party Property Damage policy.

11. Mr Giesinger said that on the day of the accident he had had made contact with, and spoken to, an officer of Youi. He said that the way in which that conversation had been conducted amounted to a breach of the duty of care that Youi owed to him, and as a consequence he had suffered damage, and was entitled to significant damages.

12. It seems to be clear that the owner of the other vehicle involved in the collision has not made a claim for damage to it as a consequence of the accident. Nor has any individual, including the driver of that vehicle, made a claim for personal injury against Mr Giesinger arising out of that accident to which claims, had they been made, the policies issued by Youi would have responded.

13. However, Mr Giesinger did inform the Court that he felt that he had a claim which could be made against the owner or driver of the truck for the way in which they had negligently caused the accident and had caused Mr Giesinger personal injury and loss. He said that he felt, amongst other things, that one consequence of the telephone interaction that he had with the officer of Youi, was that he was unable to, or perhaps was deterred or prevented from, pursuing any such claim. So, it seems as best I can understand it, that Mr Giesinger wishes to include in any claim the lost opportunity of making such a claim for damages.

14. However, these are remarks which merely outline my current understanding of what the nature of the claim is that Mr Giesinger wishes to bring against Youi.

15. Ultimately, it is a matter for Mr Giesinger to describe, in accordance with the rules of pleading relevant in this Court, what the relationship is between him and Youi which gives rise to a duty of care, the nature and content of the duty of care, the factual circumstances which occurred in, as it seems to me, May 2019, and to plead how those circumstances could be regarded as being in breach of any duty of care giving rise to a legal cause of action which caused or else contributed to the consequences which Mr Giesinger seeks to rely upon.

16. The four Statements of Claim which I have identified do not contain anything which in any way could be regarded as falling within the minimum requirements of a pleading as the UCPR and the authorities provide. Mr Giesinger seeks, in those circumstances, an opportunity to reframe his Statement of Claim and file an Amended Statement of Claim. I will give him such opportunity and that will reserve to the defendant the opportunity to bring any further proceedings with respect to whatever document is filed.

17. I would simply add to my reasons some remarks for the benefit of Mr Giesinger, which are that the cause of action which he seeks to raise has legal complexities attached to it. I do not say, at the moment, whether any such cause of action may or may not be viable, appropriate or reasonable. That is because I have not yet read a proper and adequate pleading. But it may be of benefit to Mr Giesinger in pleading what I would regard as a cause of action that has legal complexities to seek advice from a lawyer who may be able to assist him in that task. However, whether or not he does is a matter entirely for him.

18. In light of these comments, and the contents of the documents, my formal orders are:

1. Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that each of the two Statements of Claim filed on 26 February 2024, being bar code ending WONN1 and bar code ending WO2Y2 be struck out.

2. Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim dated 28 July 2024 be struck out.

3. Order pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim filed 25 August 2024 be struck out.

4. Grant leave to the plaintiff to file a Further Amended Statement of Claim providing that any such Further Amended Statement of Claim be filed and served by 8 November 2024.

5. Reserve all questions of costs.

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Decision last updated: 09 October 2024