I got asked recently a rather simple question. So simple in fact that I thought my questioner was pulling my leg. “How do you sue someone?”. Innocent enough right? And a brilliant question too. Obviously this is not legal advice, I’m just demystifying the whole process for you. It’s not rocket science, but it’s a whole lot of procedure…
How do you sue someone? Well that depends in what state you’re in and what you’re suing them about. Firstly though, to sue someone is making a legal a civil (so, not criminal) claim against a person; which may be a true blood and bone breathing human being or a company or an organisation or even government, and seek some remedy for a wrong or breach or damage you claim to have suffered.
There are a number of courts and tribunals in Australia and they’re all in a hierarchy with the High Court of Australia as the top and all the others under that in descending order. Let’s keep this super simple, I’m going to focus on courts in Victoria in a purely Victorian jurisdiction, because that’s what I know best.
First of all, you need to have a claim, in civil cases they’re usually about money. So if you’re suing someone you want money from them because they owe you money, or you’ve suffered some loss or damage and want compensation. Depending on how much money you’re after will depend on what court you go to. If it’s a small amount of money (under 100k) you’ll sue in the Magistrates’ Court, if it’s more than that then you’re off to the County Court if it’s a lot of money then you’re going to the Supreme Court.
Lawyers love forms, and they love process and procedure. Once you’ve established what court you are going to sue in you need to go and read that respective court’s rules. The rules set out everything from the type of paper you have to use to lodge the complaint (yep- seriously) to how to adduce evidence. The rules will tell you what process to follow and most importantly what forms to fill out. Usually it goes a bit like this:
You need to submit your claim in the required Statement of Claim form, pay the required fees and you also need to have filled out the form to have a writ or summons issued about your matter. Issuing the summons or the writ is a fancy way of saying that the court will officially seal it with a stamp and give it back to you. As if by magic once that document is sealed it is now official and carries a fair bit of weight behind it.
The writ or the summons is an official court document that requires the person you are suing to show themselves in court. It only becomes official once it’s sealed, because not only does the court registrar seal the document, they also give you a time, date and place that your case will come to court. You’ll obviously need to be there, and so will the person you’re suing.
How do they find out that they need to be there? Well you need to give them a copy of your sealed statement of claim or complaint with the sealed summons or the writ. This is called ‘service’ of the documents. (YOU'VE BEEN SERVED!). There are very strict rules for service of documents and they’re enforced strictly.
Once the person you are suing is served with the documents then they are deemed to be officially aware that they have to be at court because someone is suing them and the reasons why. They then should rush off to get a lawyer because they have to be in court. If they don’t turn up then the court will give you what you’re after without hearing the other side of the story.
You then turn up to court when your case is listed to be heard and bang, there you go. You’ve just sued someone. Obviously the process is a little bit more nuanced than that but basically that’s what happens.
You don’t need to be a lawyer or have a lawyer to sue someone, but trust me, you don’t want to be going through this process on your own. Not only is it super procedure heavy but you will do yourself no favours representing yourself.