10 Myths of Being Sued

Mar 6, 2024 | Publication

If you or your business are sued, there are many myths about how the legal process will pan out.  Here are 10 myths about the legal process – all are incorrect.

Myth #1: The matter will definitely go to a hearing

Most matters settle before a Judge decides them.  The reasons for this are many including the time and expense involved in litigation.  Also litigation is inherently risky.  How the matter will pan out in court is unpredictable.  A wise Senior Counsel once said that the best case in the world is only 80% winnable.

Myth #2: If there is no settlement at mediation the matter will not settle

Matters may settle at mediation, but may not.  Some matters will be mediated twice.  Other matters will settle after the mediation.  Or even in the lead up to the hearing or during the hearing.

Myth #3: When the matter is first listed this is when it will be decided

The court usually lists a matter two or three weeks after it is filed for a “directions hearing”.  This is when a Registrar (or sometimes a Judge) will look at the matter on a preliminary basis.  Usually the parties will agree to a timetable for pleadings and evidence.  Many matters are dealt with via the online court and do not require a physical appearance.

Myth #4: The matter will resolve quickly

Litigation generally takes time.  The courts have lots of matters and generally the process is not fast.

Myth #5: All evidence is given orally

Often evidence is produced in documentary form.  Affidavits are like statements and can often be relied upon in court.

Myth #6: There is no way to get documents from the other side

If a party does not voluntarily produce documents, a process of what is called discovery may be embarked upon.  Sometimes a subpoena can also be issued or a notice to produce documents.

Myth #7: You do not need to work out your case early on

A defence often needs to be filed very early on in the matter.  This is normally one of the first documents that a Judge will look at in the matter.

Myth #8: Judges will handle the matter throughout the process

Registrars usually handle preliminary matters not Judges.

Myth #9: You will not eyeball the other side

You may see the other side at a mediation or at court.  If you have a lawyer acting for you or your business, this can minimise the direct contact.

Myth #10: Once the Judge decides the matter it is all over

There are two main reasons why this is wrong.  The first is that the losing party may appeal to a higher court.  The second is that even if you win, you need to recover the judgment sum (assuming it is, for instance, an award of damages) plus costs and interest from the other side.  There are various options for enforcing a judgment.  But the process is not guaranteed to be smooth.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

7 Ways to Enforce a Judgment

After a judgment is obtained for an amount of money, there are numerous options open to a judgment creditor in relation to how to enforce the judgment (i.e. how to obtain the money which is owed pursuant to the judgment). Option #1: Issue a Bankruptcy Notice If the...

Who Can Bring a Compensation to Relatives Claim?

In the unfortunate event of a loved one's passing due to negligence or wrongful act, the Compensation to Relatives Act 1897 in New South Wales outlines the parameters for pursuing compensation on behalf of the deceased. Understanding who has the legal standing to...

How can my business sue someone to recover money?

Lawyers are often asked about the process of recovering money owed as a result of, for instance, a failure to pay for goods or services or a breach of contract. Normally a business (or an individual) will issue a letter of demand as a precursor to suing someone to...

Can a Will be done electronically – not on paper?

Can a Will be valid if it is found on a computer (i.e. not signed with pen and in a hard copy form)? The Supreme Court of South Australia recently examined the validity of an electronic Will created on an iPad and signed using an iPad pen. The decision of In the...

Landmark Decision: Melenewycz v Whitfield [2015] NSWSC 1482

In a significant legal precedent, the New South Wales Supreme Court addressed the applicability of blameless accident provisions in motor accident compensation cases, specifically concerning single-vehicle accidents. The case of Melenewycz v Whitfield [2015] NSWSC...