Evidence

Evidence is information or things that help to prove or disprove the existence of a fact. For example, a letter from an employer offering you a job at a certain wage could be used as evidence of what you should have been paid. Evidence can be a testimony by a witness, or documents such as letters, emails, text messages, pay slips and time sheets.

Who can give evi​dence for ​my case?

You should work out who you need to be a witness in your case. Witnesses could be:

• work colleagues
• your manager or managers
• anyone else who can give evidence about why or how you were underpaid or not given your correct entitlements.

In small claims cases, evidence from witnesses may be in the form of a statement or an affidavit. An affidavit is a written statement where the contents are sworn or affirmed to be true. You will need to prepare your own affidavit, because you will be your main witness. 

If a witness provides an affidavit for your case, it is likely they will also need to give evidence at the hearing. It is a good idea to subpoena your witnesses to make sure they turn up. A subpoena is a court order requiring someone to attend a hearing or produce documents related to the case.

For information on how to prepare a subpoena, see Subpoenas.​

 Small claims (claims for $20,000 or less) in the Federal Circuit and Family Court of Australia may be dealt with less formally than other types of cases. The Judge may order you and your employer to prepare written statements instead of affidavits. Unlike affidavits, written statements are not usually sworn or affirmed, but they are signed.   

How do I prepare a witness s​tatement or an affidavit?

You can get a copy of an affidavit form from the General federal law forms page on the Federal Circuit and Family Court of Australia ​website.

When preparing an affidavit, you need to consider what evidence you or your witness can give that is relevant to your case. For example, an affidavit that supports your case might include evidence about:

• the award or enterprise agreement you were covered by
• the length of your employment
• your work hours and pay
• any leave you have taken in the past.

You can also attach documents to your affidavit (called annexures) as evidence to support your case, such as:

• pay slips
• timesheets
• a copy of the award or enterprise agreement you say covers you
• correspondence, such as emails and letters from colleagues, managers and your employer.

For more information, see Affidavits and statements.

If you have been ordered to prepare witness statements, there is no particular form the statements need to be in. Ma​ke sure that each witness:

• includes the case details (such as the parties’ names and the case number)
• includes their name and address
• signs their statement.

How can I get docum​​​ents I don't have?

If you don't have the documents that you need for your case, you may be able to get an order from the Court telling the person who has the documents to produce them to the Court. This is called a ‘Subpoena to Produce’. Once the documents are produced, the Court will usually let you see them and make copies of what you need.

If you think you will need to subpoena documents, it is a good idea to mention this at the first directions hearing, or at any further directions hearings.​

 You may be able to request information under the Government Information (Public Access) Act (GIPA - previously Freedom of Information) if the documents or evidence you want are held by a NSW government department. For more information about making a request under GIPA, go to the Information and Privacy Commission​ website.

For information on how to prepare a subpoena, see Subpoenas.

What do I do once I've completed my affidavits or state​ments?

Once you have completed your affidavit, you need to file it with the Court.

You can do this:

• online via eLodgment, or
• in person at the registry of the Court that is hearing your case.

For more information, see eLodgment on the Federal Court of Australia website.        

If you cannot file your affidavit online, you can file it in person at the registry of the Court that is hearing your case. You will need to file each affidavit or statement with at least three other copies. The Court will seal (stamp) the originals and the copies. You must then serve (give) a copy of each on your employer. You can serve them at your employer's address for service, which should be on their Response. If they have a lawyer, then the address for service will usually be the lawyer's address. You can serve them in person, by post or by fax.

 Make sure you file and serve your affidavits or statements by the date ordered by the Court. You may not be allowed to use evidence if you file and serve it after the due date.

What happens n​ext?

After you have served your evidence, your employer will usually have to file and serve their affidavits or statements. They will need to be served on you by the date ordered by the Court.

If the Court made an order about you serving further evidence in reply, this means you can prepare further affidavits or statements that deal specifically with the evidence in your employer's affidavits or statements.

For more information, see Affidavits and statements.

 Make sure you serve any affidavit in reply by the date ordered by the Court.​