What Not to Do If You Are Served With a Summons
I often get asked by clients who are expecting to be sued-
‘Can he/she sue me?’
Often the reason that the question is asked in the first place is because the client thinks that the person that they are expecting to be sued by just hasn’t got a case.
Whatever the client believes, the answer to that question is, ‘Of course he/she can’.
However, it isn’t the right question. Anyone who genuinely believes that they have a legitimate claim can sue the person they think that that claim lies against. The question should be-
‘If they sue me, what are their chances?’
Any responsible lawyer will baulk at giving a definitive answer to that question, particularly in the very early stages before the full story is known, but he or she should be able to give you an idea whether you at least have an arguable defence.
What you should definitely NOT do is ignore the summons because you think the claim is a load of rubbish with no chance of getting up. If you do that then there is every chance that the court will enter judgment against you, regardless of the merits of the claim, in default of you taking the appropriate action in response to the claim immediately you are served with a summons or a writ.
A judgment in default can be set aside but you must apply to do so promptly; the later you leave it the harder it will be to convince the court that it should be set aside. You will have to offer some explanation as to why you didn’t respond initially and give the court sufficient evidence on affidavit to show that there is a possible defence to the claim. Even if you can successfully have the claim set aside, and there is no guarantee of that, at the very least you are likely to have to pay the costs your opponent has wasted up to that point and the court might impose conditions upon your right to defend, such as requiring you to pay the disputed sum into court pending the outcome of the case.
If you genuinely believe that the claim is without foundation there are steps that you can take at an early stage in the proceedings to test your opponent. These include an application for summary dismissal (if you are the Defendant) or summary judgment (if you are the Plaintiff). If the claim is brought against you by a company or someone who lives elsewhere than within Australia, then consideration should be given as to whether an application for security for costs is appropriate.
If you are sued, Summers Legal can assist you with the appropriate response as well as advising you whether any of the applications I have mentioned should be brought.