Got a question? Ask Lawmail

Send your questions to Lawmail

Can't find the info you are looking for?Got a problem you can’t solve?

If you're under 25, or an adult asking on behalf of a person under 18, you can send your questions to Lawmail and we will email an answer to you in under 10 days. Urgent matters are dealt with more quickly.

Go to Lawmail. It’s free and confidential.

All donations over $2 are tax deductible.

Suing and Being Sued

1    Civil Law vs Criminal Law  
2    What happens if I sue someone?  
3    What happens if I am sued?  
4    What can I sue or be sued for?
5    Alternatives  
6    Contacts


1    Civil Law vs Criminal Law

Criminal law: Criminal laws are the laws enforced by police to keep society peaceful and safe.  Crimes can include minor things like having a fake ID, all the way through to more serious offences like assault.

You can’t sue or be sued under criminal law. Instead, if you commit a crime you may be charged by the police and be sentenced by a judge following a court hearing.

For more information on criminal law see:
When can I be interviewed by police?
When can I be convicted of a criminal offence?

Civil law: Civil law deals with the rights and obligations that people have towards each other. It is not enforced by the police, but directly by individuals.

That means you can use civil laws to protect yourself when someone has done something wrong to you. It also means that if you do something wrong to another person, they might be able to take you to court.

You can break both the criminal and the civil law at the same time.

Breach of contract and negligence are common examples of how someone might break civil laws.


2    What happens if I sue someone?

Suing is bringing a civil claim against someone though the courts. There are a number of rights that exist which can be explored below.The process of suing someone can be long, expensive and is often difficult to understand. Considering all non-legal resolutions [See ‘Alternatives’] before court action may simplify the process.

If you cannot resolve the issue through non-legal channels, it’s a good idea to talk to or hire a solicitor before starting a court case because they can tell you if you have a good case and can lead you through the court processes. Contact details for groups who might be able to give legal advice can be found below [See ‘Contacts’].

Real Life:

Charlie, who is 12, contacted Lawstuff through Lawmail because students in his school were spreading rumours that he was violent and had been kicked out of his last school. Lawstuff explained that the rumours about him might be defamation but a court case wasn’t the best way to deal with the rumours because it was unlikely that the court would find the students guilty of defamation. Lawstuff suggested that Charlie talk to the school or his parents about trying to stop the rumours.

Before suing someone, you need to consider whether you fall within the ‘limitation period’. A limitation period is a time period within which you have a legal right to sue based on something that happened. A limitation period generally only begins to run after you turn 18.

If you are under 18 and want to sue someone, you may need a “litigation guardian” who will help you conduct the case.  This is someone who can act in your place in any court case and will be responsible for the conduct of the case on your behalf.

Basic court process when suing:
•    Initiating Processes – This is where you start the court case by filing documents that explain what legal right was infringed and what you want to happen to resolve the issue.  The person or organisation you are suing may agree or disagree with you. If they disagree, they will file documents to defend themselves.

•    Trial – If neither party decides to end the case, both parties will have to present their cases to a judge who will decide which part is right or which party has the stronger case.

•    Judgment – The judge will make a decision on the information provided. If you are successful, then the judge may order that the other person or organisation pay you money.


3 What happens if I am sued?

When a person wants to enforce their legal rights against you, they may start a court case. If you have injured them, broken a contract with them, broken or damaged their property or said something defamatory about them, they may want to sue you for money or to make you do something.

Being involved in a court case can be time consuming, expensive and confusing. If you have done what is alleged against you, you should talk to your parents or a lawyer about your options and consider ways of dealing with the issue out of court.

Good to know:

You should not ignore documents sent to you from the court. You may be penalised if you do that and might even lose the case by default!

If you are sued, the court may appoint you a “litigation guardian” who will run the case on your behalf.


Basic court process when being sued:
•    Initiating Processes – You will receive a document setting out what the other person is claiming you did and what they want from you. If you disagree with what the person says, you will have to file a document where you defend yourself.

•    Trial – If neither party decides to end the case, both parties will have to present their cases to a judge who will decide whether you breached a right of the other party.

•    Judgment – The judge will make a decision and will notify you of the outcome. If you are unsuccessful, you may need to pay the other party the money requested.


4    What can I sue or be sued for?

a    Property Damage and Injury

If a person has been injured or their property has been damaged by someone else, they may sue for negligence.

Generally speaking, negligence is when someone acts in a careless way and as a result causes harm to another person. If you have been negligent and someone is injured physically or psychologically, had their property damaged or suffered financial loss, they may be able to sue you for money to compensate them for their injury or loss.

Is it negligence?

We are all expected to act with "reasonable care" but the standard may be different depending on how old you are, your relationship with the injured person and how capable you are of understanding the consequences of your actions.

Example:
If you’re hosting a party, you need to take reasonable care and provide a safe environment for your guests. If you allow too many people into the party and someone is trampled, the injured person could sue you and you might be liable for paying their medical expenses.

Example:
If you trip over a puddle of water in your local grocery store and there were no signs to warn you that it was slippery, you might be able to sue the store for any medical costs to treat your injuries. You might also be able to claim lost wages if your injuries prevented you from working.

Sometimes, it’s hard to say that one person is entirely responsible for the injury or damage caused. Contributory negligence is where the person who suffered an injury or damage was also negligent in some way.  The law takes this into account by reducing the amount of money the person being sued has to pay.

Example:
If you cross a road and you’re hit by a driver who is driving too fast, the driver may be negligent. But if you cross the road without looking (for example because you were texting on your phone), the driver may still be negligent but you may also be contributorily negligent. The result is that you may receive less compensation than if you looked before crossing the road.

b    Breach of contract

Breach of contract is when you sign or agree to a contract but then you don't do what you promised to do in the contract. You can be sued for breach of contract.

A contract is a legally binding agreement between two people who promise to do certain things. We make contracts every day, sometimes without even knowing we’ve entered into one.  Contract can be written, like when you’re buying a mobile phone or getting a credit card, or they can be made orally.

In general, you should not sign any document unless you have read it, understood it, agree with it and want to be legally bound by it. If you are not sure, ensure that you get legal advice before you sign a document that may have legal consequences.

Check out the Contracts Lawstuff page for more information.

c    Defamation

Defamation occurs where someone hurts the reputation of another by publishing false information about them.

Check out our Defamation Lawstuff page for more information.  If someone has posted something mean or untrue about you online, check out our Cyberbullying Lawstuff page, which has tips on how to get stuff removed.


5    Alternatives

If you don’t want to sue someone, there are alternative ways to seek compensation.

•    Letter of Demand – You can send a letter telling the other person that they owe you money. For more information and examples visit [:  https://www.liv.asn.au/PDF/For-Lawyers/Ethics/151012-Letters-of-Demand-Guidelines-approved-by

•    Negotiation or Mediation – it is a good idea to discuss the damage or injury with the others involved and try to reach a solution that everyone is satisfied with.

•    Insurance – Drivers and organisations often have insurance to pay for damage or injury that occurs in connection with their car or organisation.

•    Other Services – Human Services may provide assistance for medical expenses through Medicare or for loss of income through Centrelink. Contact Human Services for more information.


6    Contacts

Nationwide
•    Kids Helpline
Kids Helpline is a free and confidential counselling service that is available 24/7, where you can talk about what’s going on with a counsellor. You can speak to Kids Helpline on 1800 55 1800 (there can sometimes be a wait, but we encourage you to wait on the line), or via email or WebChat here: https://kidshelpline.com.au/teens/
•    Headspace
Headspace are also a free and confidential support service for young people up to 25 going through a tough time. Their number is 1800 650 890 or you can chat online here: https://www.eheadspace.org.au/

State
•    Victoria Legal Aid
Victoria Legal Aid is a statewide organisation that helps people with their legal problems. Their focus is on helping and protecting the rights of socially and economically disadvantaged Victorians. If you want help, call 1300 792 387.
•    The Federation of Community Legal Centres Victoria

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Hannah Coleman, Liqing Mao, Bethany Rowlands, Ingrid Wright.

This page was last updated in January 2017.