Step by step guide: Making a small claims application to the Federal Circuit and Family Court of Australia
Step 1: Get the forms
To make a small claims application to the Federal Circuit and Family Court of Australia, you will need two forms:
- Application - Fair Work Division
- Form 5 - Small claim under the Fair Work Act 2009.
You will also need:
- an Application for exemption from fees – General, if you have a Commonwealth concession card or Centrelink benefit and are applying for a fee exemption, or
- an Application for exemption from fees – financial hardship, if you are applying for a fee exemption or reduction because of financial hardship.
If your application relates to the conversion of casual employment, you must use the Form 5A: Small claim under the Fair Work Act 2009 – casual conversion dispute.
You can get copies of these forms from:
- your nearest Federal Circuit and Family Court of Australia registry, or
- the General federal law forms page on the Federal Circuit and Family Court of Australia website.
If you want to claim more than $20,000, you cannot use the Form 5 small claims form.
For more information, see Fair work: I want to apply on the Federal Circuit and Family Court of Australia website.
Before you apply to the Court, you should get legal advice.
Step 2: Fill out the 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.
You do not need to get your forms witnessed.
Step 3: File the forms
You can file your forms:
- in person, are your nearest Federal Circuit and Family Court of Australia registry, or
- by post.
To find your nearest court registry, see Court locations on the Federal Circuit and Family Court website.
If you are going to file your forms in person, you will need 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.
How much does it cost?
The filing fee (as at 1 July 2022) is:
- $265.00, if the claim is less than $10,000
- $425.00, if the claim is between $10,000 and $20,000.
If you are going to pay the filing fee by cheque or money order, you should make it payable to ‘Federal Court of Australia’.
For more information, see General federal law fees on the Federal Circuit and Family Court of Australia website.
If you are unable to pay the filing fee, you may be able to apply for an exemption or reduction. For more information, see Exemption From Paying Court Fees on the
Federal Court of Australia 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
Step 4: Serve the forms
What does 'serve' mean?
Serve means to give the forms to your employer.
If your employer is an individual, you must:
- give them your 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 served?
The forms need to be served at least seven days before the date set for the first directions hearing.
Who can serve the forms?
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 them?
If you cannot serve the forms because, for example, you can't find your employer or they are avoiding you, you may be able 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?
Once you serve the forms, you will need to fill out 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:
Instructions: Instructions for filling out an Affidavit of Service
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 'Response'?
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: Response - General Federal Law
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
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.