Step by step guide: Preparing for the hearing

If you apply to recover unpaid wages and entitlements using the small claims procedure in the Federal Circuit and Family Court of Australia, the Judge may want to hear your case on the first court date. If this happens, some of the information that follows may still apply to your case and you should read it before you go to court.

If th​e C​ourt m​​ade orders that you do not have to attend a hearing ​in person, you will not need to present your case at court, but y​ou will still n​​eed to prepare, file and serve evidence. The Judge​​ will look at the evid​ence and make a decision without the parties being present. This is sometimes called having your case 'heard on the papers'. ​​​If you are not sure if you have to go to a hearing, you should get legal advice.

Step 1: Complete the Statement of claim or 'points o​​f claim'

You only need to follow this step if the Court made an order about you filing and serving a Statement of claim or 'points of claim'. You should check the orders made by the Court at the directions hearings for your case. If you are not sure whether you need to file and serve a Statement of claim or 'points of claim', you should contact the Court to find out what orders were made.

A Statement of claim is a document that provides further details of what the applicant (you) says the issues are, and what laws they say the employer broke. It is sometimes called 'points of claim'. A Statement of claim should explain your case and what you want (the 'remedy').

Preparing a Statement of Claim can be complicated so you should get legal advice first.

For information on completing a Statement of claim, see Statement of claim.

Take the Statement of clai​m to the registry

Once you have completed the Statement of claim, make two extra copies. You will need to file the original and the two copies at the court registry. The registry will stamp them with the seal of the Court.

Serve the Statement of​ claim

You then have to serve (give) a sealed (stamped) copy to your employer by the date that the Court ordered you to at a directions hearing. You can serve it on them at their address for service, which should be on their Response. If they have a lawyer, the address for service will usually be the lawyer's address. You can serve it in person, by post or by fax.

Make sure you serve the Statement of claim or 'points of claim' by the date ordered by the Court.

Wait for the employe​r's Response

After you have served the Statement of claim, your employer will usually have to file and serve a Defence, or a Response to your Points of claim. They will need to serve it on you by the date ordered by the Court at the first or further directions hearing. If they don't, you should get legal advice.

For more information on what is in a Defence, see Statement of claim.

Step 2: Prepare​​ your evidence

The Court will usually make an order that you have to 'serve evidence' on your employer by a particular date. Evidence will usually be given in writing in the form of a written statement or affidavit. An affidavit is like a statement, but you also swear or affirm, in front of a lawyer or Justice of the Peace (JP), that what you say in it is true.

Your statements or affidavits should include any documents that support your case, for example, pay slips and time sheets. If you think you need to get documents from a third party, or from your employer, you can subpoena them. A subpoena is a court order that requires a person or company to give documents to the court.

For more information, see Evide​nce​.

Step 3: Plan what to take to court

You will need to take these things with you to the hearing:

• your application and claim form
• your employer's Response
• your Statement of claim (if you had to prepare one)
• your employer's Defence (if they had to prepare one)
• copies of any orders made at directions hearings
• your affidavits or statements
• affidavits or statements served on you by your employer
• annexures and exhibits to any of the affidavits or statements being used in the case
• your notes for speaking to the Judge
• a notebook and pen to make notes during the hearing
• highlighters and post-it notes to mark important information
• your witnesses.

Step 4: Plan what you are going to say in court

When you are at the hearing, you will have to show the Court:

• what award or enterprise agreement applies to your employment
• what you should be paid or what you are entitled to
• that your employer did not pay your correct wage or other entitlements.

To do this you will need to:

• state briefly why you have made your claim (including under which award or enterprise agreement you should have received your wage or entitlement)
• mention the names of the witnesses who have prepared affidavits or statements and identify any documents, such as pay slips or letters which support your case
• explain what part of the employer's evidence you disagree with and why.

To help you prepare, you could practice saying what you want to say with a friend or relative. You could also go to the Federal Circuit and Family Court of Australia and watch some hearings. If you phone the Court, you can find out the dates and times that small claim hearings are held. Courts are open to the public (except if a case involves a child) and you can sit in the public area at the back of any court and watch.

For more information, see Step by step guide: Presenting your case at the hearing.