Applying to the Federal Circuit Court

There are five steps to follow when you make a small claim in the Federal Circuit Court: ​

  Applying to the Federal Circuit Court - Step by step guide

Step 1: Get t​he forms

You will need two forms:

• Application - Fair Work Division (the 'application form')
• Form 5 - Small claim under the Fair Work Act 2009 (the 'small claims form')

You can get copies of the forms from the:

• Federal Circuit​ Court or
• Federal Circuit Court ​website.

If you want to claim more than $20 000 in the Federal Circuit Court, you cannot use the small claims form. You need to file an affidavit with the application form instead. You should get legal advice if your claim is more than $20 000.    

Step 2: Fill out th​​e forms

You can fill out the forms by hand using a blue or black pen (make sure it's neat). You can also fill them out online and then print them. When filling them out, you will need to provide information about:

• your job, such as who you worked for, how long you were employed, what you did and where you worked
• your lawyer or union (if you are represented)
• the address that you want the court to use to send things to you (usually your postal address)
• the source of the entitlement you say your employer has breached (for example, an award or an enterprise agreement)
• what you want the court to order (this is called a 'remedy'), for example an order that your employer pay you unpaid wages, overtime, an allowance, or payment in lieu of notice.

Once you have filled out all the information, you need to sign the form.

Instructions: For help completing the forms, see:

• Instructions for filling out an application form
• Instructions for filling out a small claim form

Samples: For sample forms, see:

• Sample application form
• Sample small claim form         

Step 3: File ​the forms

W​​​here are they filed?

Once you have completed the forms, you need to file them at the Federal Circuit Court. To find the court closest to you, go to the Federal Circuit Court website.

If you can't get to the court to file your documents, you can file them by post. You should contact the Federal Circuit Court to find out where to send your documents.

How much does i​​t cost?

The filing fee (as at 1 July 2018​) is:

• $235 if the claim is less than $10,000
• $385 if the claim is between $10,000 and $20,000.

If you do not have the money to pay the filing fee, you receive a Centrelink payment or you are under 18 you may not have to pay the fee. For more information, go to the 'Exemption From Paying Court Fees' page on the Federal Court ​website.

If you win your claim against your employer, you may, in limited circumstances, be awarded costs. This means the court could order the other side to pay your filing fee. For more information, see Costs.

How many copies should be fil​​ed?

You should file at least four copies of each form, including the originals.The court will keep the originals and return the copies to you with the court stamp on them. You will need to:

• serve (give) one copy of each form on your employer
• attach one copy of each form to the Affidavit of Service (this is proof the claim was served on your employer)
• keep one copy for your records.

When you file the form, the court will write the date for the first directions hearing underneath 'First court date' in the application form. You will need to attend court on this date.

Step 4: Serve the for​​ms

What does 'serve​​' mean?

Serve means to give the forms to your employer.

If your employer is an individual, this means personally giving them the application and claim form, or if they won't take them, putting the documents down in their presence and telling them what they are.

If your employer is a company, you can serve them by:

• posting the forms to their registered office (addressing it to the 'Proper Officer')
• taking the forms to the registered office and leaving them with someone who works for the company
• handing the forms to a director of the company.

When do the forms have to be serv​​ed?

The forms need to be served at least seven days before the date set for the first directions hearing.

Who can serve the fo​rms?

You can serve the forms yourself or you can get someone else to do it for you. There are professionals, called 'process servers' who can serve them for you. However, you will have to pay them.

 If you have to pay a process server you may be able to, in limited circumstances, claim this back from your employer if you win your case.

What if I can't serve t​hem?

You may not be able to serve the forms because, for example, you can't find your employer or they are avoiding you. It is possible to apply to the court for 'substituted service'. Substituted service means that you can use another way to make sure your employer knows about your application (for example, by email).

You should get legal advice if you are having trouble serving the forms.

How does the court know that I​​ served the forms?

If you served the forms, you will need to fill out ​another form called an 'Affidavit of Service'. The Affidavit of Service is evidence that you served the application and small claim form on your employer. This tells the court that the employer knows about the case. You can get a copy of the Affidavit of Service form from:

• the Federal Circuit Court, or​
• the Federal Circuit Court website​.

Instructions: For help completing the form, see Inst​ructions for filling out an Affidavit of Service.

Sample: To see what a completed form could look like, see Sample Affidavit of Service​.

 If you used a process server to serve the application and claim, make sure they give you an Affidavit of Service.      

Step 5: Wait for​ the employer's response

After you have served the application and small claim forms on your employer, they may:

• admit you are entitled to the wages and/or entitlements
• pay you what you are owed
• try to negotiate with you
• file a Response
• do nothing.

 If your employer wants to negotiate with you, you should get legal advice about their offer of settlement.

What is the 'Respo​​nse'?

The Response is a form filed by your employer and given to you. It says what parts of your claim your employer agrees with, what parts they disagree with, and why. If your employer also wants the court to make any other orders, they can ask for this in the Response.

If your employer is going to file a Response, they should do so within 14 days of getting your application and claim forms. The Response should also be given to you within this time.

Sample: To see what an employer's Response might look like, see Sample Employer's Response.

If your employer files a Response, or does nothing, you should check the date for the first directions hearing on the application form. You should go to this hearing even if you don't get a Response from your employer.

For more information, see Directions hearings.

What should I do if my employer pays me?

If, after filing and serving your application and claim, your employer pays you what you say you are owed, you may decide to stop your case. This is called 'discontinuing your case'.

For more information, see Stopping your case.

 You should get legal advice before stopping your case.