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Discrimination toolkit

The Federal Courts

The Federal Court of Australia (FCA) and the Federal Circuit Court of Australia (FCC) deal with cases of discrimination, harassment, vilification or victimisation that are not resolved at the AHRC.

These courts can hold a hearing and decide whether or not unlawful discrimination happened, and if it did, what should be done about it.

The FCA usually deals with more complicated cases, because it is a higher level court than the FCC. It is usually cheaper to run your case in the FCC than the FCA, because if you lose and have to pay the other side's legal fees, the amount is likely to be less in the FCC.

We are only going to deal with the FCC in this section because the majority (around 70%) of AHRC complaints which go to court go to the FCC, not the FCA. Processes in the FCA are similar to those in the FCC but the FCA has different forms, procedures and rules. If you do take your case to the FCA make sure that you get current information from the FCA website and the FCA registry.

Before you decide to take your AHRC complaint to either the FCC or the FCA, you should definitely get legal advice.

How does my AHRC complaint get to the Federal Circuit Court?

First, your complaint must have been terminated by the AHRC. You will know if it has been terminated because the AHRC will send you a document called a 'Notice of Termination'. The AHRC will also tell you (in writing) why your complaint has been terminated.

You then have to decide whether you want take your complaint further. If you do, you can take your case to the FCC. You start the process by filing an Application in the FCC.

How long do I have to decide whether to go to court?

You have 60 days from the date on the Notice of Termination to file your Application in the FCC.

If your 60 day time limit has expired, you have to ask the court's permission to hear your case. You will need to have very good reasons for being late - being too ill to file your Application, for example. You will have to give these reasons in writing to the court when you file your Application. Include any documents that help explain why you were late, such as letters from your doctor. You should also tell the court in your Application why it will not disadvantage ('prejudice') the other side if your Application is filed late.

Story iconYumi's story

Yumi makes a sex discrimination complaint to the AHRC that does not settle at conciliation. The AHRC terminates the complaint and Yumi is advised that she has 60 days to apply to the FCC.

Yumi decides to go home to Japan for 3 weeks. She plans to deal with her discrimination case when she gets back. She decides to extend her holiday to catch up with some old friends, and misses her court deadline.

By the time she applies to the FCC it is three weeks past the time limit. The court will not accept her Application because she cannot give a good enough reason why it was late.

Do I need a lawyer to represent me in the FCC?

Not necessarily. You can represent yourself in the FCC, but it's a very good idea to have a lawyer representing you.

Discrimination law is technical and complex. There are many rules about the court process, including what happens at a hearing, what evidence you are allowed to present to the court and the way it is presented. The judge can't give you legal advice or help you present your case.

We strongly recommend that you try to find a lawyer to represent you in court. If you can't get one, it is very important to at least get some legal advice about your case. Try to do this before you file your initial Application. Remember that you can get free legal advice (and sometimes representation) from Legal Aid NSW or community legal centres (see Legal advice and representation).

The types of things you could ask a lawyer are:

  • How much will it cost for you to represent me and can I apply for legal aid?
  • What are my chances of winning the case?
  • If I lose, what are the chances that I will have to pay the respondent's legal fees? How much are they likely to be?
  • How do I correctly describe the type of discrimination in my case?
  • Have I named the correct respondents (see Complaints checklist)?
  • What evidence do I need to prove my case?
  • How do I prepare court documents, such as an Application, affidavits, and subpoenas?
  • What orders should I ask the judge to make if I win (including how much money can I ask for)?

How do I file my initial Application?

You start your case by filing a document called 'Application- Human Rights' ('Application') at the court registry closest to where you live. You can find a list of all the registries on the FCC website.

You can download and print a blank Application from the FCC website.

You have to file one (1) original copy of the Application and any documents attached to it, plus a photocopy of the entire Application for each respondent, for the Australian Human Rights Commission and for yourself.

How do I prepare my Application?

The front page of the Application has instructions on how to fill it in. The information you ('the Applicant') have to provide on the form includes:

Part A - Orders sought
  • what outcome ('remedy') you want from your case if you win ('final orders sought by applicant'). See What kinds of decisions can the FCC judge make? for the types of orders you can ask the court to make.
  • any orders you want the court to make now or before the end of the hearing ('interlocutory, interim or procedural orders sought by the applicant'). If your case involves discrimination at work, and you are about to lose your job for example, you might want to ask the court to make orders that your employer is not allowed to fire you while your case is being decided by the court.
Part B - Grounds of Application
  • what type of discrimination you are complaining about. Write here if the discrimination is: direct and/or indirect; the ground (race, sex, disability, age, victimisation etc); the area (employment; goods and services etc).
  • the sections of the law that relate to your case. Write the legislation that applies to your case (eg. the Racial Discrimination Act), and the relevant sections of that legislation. The AHRC will usually have sent you copies of these sections after you first made your complaint. If you think that the AHRC might have missed something that you included in your original complaint to them, make sure you include this is in your Application.
Part C - The applicant/s
  • your personal details (full name, contact details, any special help you need at court such as wheelchair access, a personal assistant or an interpreter).
Part D - The respondent/s
  • your relationship to the respondent (eg. employee, customer etc).

Note iconNote:

There is also a section at the bottom of the first page of the Application where you need to write in all your contact details, or your lawyer's contact details if you have a lawyer representing you.

Part E - Extension of time
  • whether you need an extension of time (if you are filing your Application after the 60 day time limit), and if you do, the reasons why. Remember to attach a piece of a paper to the Application with detailed information about why you are late, as well as attaching any medical or other documents that help explain why you are late.
Part F - Required documents
  • confirmation that you have attached to your Application a copy of the original complaint you made to the AHRC and the Notice of Termination the AHRC sent you.
'Important Notice to Respondent'
  • You must write the respondents' names and addresses for service in here. Remember it is very important that you name all the respondents (all the individuals who treated you badly) as well as the organisation they work for.
  • If you're naming any companies as respondents, make sure you use the correct company name, which could be different from the business's name (see Complaint checklist).

Note iconNote:

Don't forget that you must also sign and date the Application form.

Do I need to file anything else with the FCC when I file my Application?

Yes. You must also prepare, and file with the court registry at the same time that you file your Application, a document called the 'Applicant's Genuine Steps Statement'.

The Genuine Steps Statement is a way of telling the court what steps, if any, you and the respondent have taken up until then to try to resolve your complaint.

You can print this form from the FCC website or contact the court registry to ask how to get one.

In the part of the form where it says ‘The following steps have been taken to try to resolve the issues in dispute between the applicant and the respondent in the proceeding:’ and ‘specify the steps taken’, you should write something like:

"Australian Human Rights Commission complaint resolution procedures were undertaken, and a conciliation conference was held, but the complaint did not resolve".

If you have taken any other steps to try and sort it out with the respondent apart from the AHRC processes (for example, you lodged an internal grievance at your workplace), you should also write those down on the form.

What happens when I file my Application and Genuine Steps Statement?

When you file your Application and Genuine Steps Statement at the court registry, they will stamp all the copies you give them. The registry will keep the original copy of your documents and give you back the other stamped copies.

The registry will also write the address of the court and a date on the Application. This tells you the place where you have to go to court and the date you need to attend for the first time. This is called the 'first court date' (see from When do I have to go to court?).

When do I serve my Application and Genuine Steps Statement?

After your Application and Genuine Steps Statement are filed, and the stamped copies sent back to you, you have to organise personal service of the Application (and any attachments) on the respondent. You can do this yourself or get someone else to do it for you (see from What do 'filing' and 'serving' mean? for how to serve documents).

There are some other rules about serving court documents on the respondent:

  • you must serve your Application on the respondent at least seven (7) days before the first court date; and
  • the person who serves the court documents on the respondent should prepare an 'affidavit of service', which will say who the Application (and Genuine Steps Statement) was served on, and when and where they were served. This affidavit is proof for the court that you have served these documents on the respondent.

Note iconNote:

A copy of your Application must also be served on the AHRC.

What happens after I serve my Application and Genuine Steps Statement?

The respondent will probably file two documents - a 'Response Form' and a 'Respondent's Genuine Steps Statement'.

Response form

The respondent has 14 days after being served with the Application to file a Response with the court, and must then serve a copy of the Response on you.

The Response will include the following information:

  • the respondent's contact details (including an address for the service of documents);
  • the orders listed in your Application that the respondent does not agree to, and why;
  • the orders listed in your Application that the respondent agrees to;
  • the orders the respondent wants the court to make, and why.
Respondent's Genuine Steps Statement

If you have filed and served on the respondent an 'Applicant's Genuine Steps Statement', the respondent must also file a 'Respondent's Genuine Steps Statement', and serve it on you. This document will say whether the respondent agrees with your Genuine Steps Statement, and if not, why they disagree with it.

After the respondent files and serves the Response (and their Genuine Steps Statement) on you, the next step in the process will usually be the first court date.

When do I have to go to court?

You (or your lawyer, if you have one) have to go to court in person for the first court date. This is the date that was written on your Application by the court when you filed it. The respondent (or their lawyer) has to go to court on that date too. This first court date is also called a 'directions hearing'.

In certain circumstances, for example if you live in a regional area, you might be able to ask the court if you can participate in the first court date by telephone. If you want to make that request you should speak to the court registry about how to do so.

If you don't go to court, and have not arranged to participate by telephone, the court might dismiss your Application and your case won't go ahead. You might also have to pay the other side's legal fees (costs).

Can I get an interpreter?

Yes. If you need an interpreter, the court will organise one for you (it won't cost you anything). You might have already let the court know that you need an interpreter in the Application you filed. If you didn't let the court know when you filed your Application, you should let the court registry know before the first court date.

What happens at the first court date?

A FCC judge will run things on the first court date. It is usually the same judge who will later hear and decide your case.

The judge will expect you to tell them, briefly:

  • what your case is about;
  • what witnesses will be giving evidence for you at the hearing; and
  • how long you think the hearing will take.

The judge will expect the respondent to tell them, briefly:

  • whether they are defending your Application (arguing against you), and if so, why, and whether they have filed a Response and a Genuine Steps Statement;
  • what witnesses will be giving evidence for them; and
  • how long they think the hearing will take.

The judge will also ask you and the respondent:

  • whether you are going to file any more documents (such as affidavits from you and any other witnesses); and
  • whether you want any subpoenas issued (see What is a 'summons' and a 'subpoena'?).

The judge might also make an order that you and the respondent attend mediation. If the judge does this then you and the respondent will be asked where you want the mediation to take place (either at the court itself or at another location if you don't live in the city).

What orders can be made at the first court date?

The judge will use all this information to make orders for your case. For example, they might:

  • set a date for mediation, if mediation was ordered, or give you instructions about how you can get a date;
  • approve the subpoenas you and the respondent asked for;
  • set a timetable for when you and the respondent have to file and serve evidence (such as affidavits from witnesses and documents);
  • set a date for another directions hearing in the court; and
  • set a date for your hearing.

If at the first court date the judge made orders that you and the respondent try mediation, you probably won't be given a hearing date at this stage. Instead the judge might give you a date for another directions hearing that will happen after mediation.

If you have applied for 'interlocutory, interim or procedural orders', the judge will either:

  • make a decision about them; or
  • give you another court date when they will make a decision about them.

It is very important to prepare properly for your first court date. This includes being ready to answer all the questions listed above.

Is mediation in the FCC useful?

Yes. Mediation is a chance to resolve your case without spending the time, energy and money a court hearing requires. Respondents are often more willing to settle when a court date is coming closer. Mediation for discrimination cases in the FCC is free. Many cases settle at mediation.

What happens at mediation?

Mediation at the FCC is a meeting where you and the respondent try to agree on a settlement of the case. Mediation in the FCC is not run by the judge who will hear your case. The mediator is usually a FCA registrar - a senior officer of the court. The mediator cannot take sides, and will not make a decision about who is right or wrong. They are just there to help you and the respondent to resolve your case.

How do I prepare for mediation?

You prepare in the same way you prepared for conciliation at the AHRC (see What happens before conciliation?). This includes preparing 'proposed terms of settlement' and giving them to the respondent before or at the mediation.

Again, it is a good idea to at least get some legal advice.

What happens if I settle my case at mediation?

If you come to an agreement with the respondent at mediation, it will be recorded in a 'settlement agreement' (see What is a settlement agreement?).

It is very important that you know what you are agreeing to before you sign. If you are not sure, ask for some time to see a lawyer and get the lawyer to explain the agreement to you.

Once the settlement agreement is signed, you and the respondent have to do what you agreed to.

The respondent will normally only settle the case at mediation if you agree to withdraw your FCC case. The agreement should say that you will withdraw your case only after the respondent has done everything they promised to do.

To withdraw your case, you must file a 'Notice of Discontinuance' in the court registry. You can get a Notice of Discontinuance form from the FCC website or by phoning the court registry. You must file an original copy with the court registry and serve the court stamped copies on each respondent. Also keep a copy for yourself.

At the directions hearing before the mediation, you would have been given a date for a second directions hearing after the mediation. If you have filed your Notice of Discontinuance before the date of the second directions hearing, the court will cancel that second directions hearing.

If you have not filed your Notice of Discontinuance before the second directions hearing, you will have to go to court again to tell the judge if you settled your case at mediation and, if yes, when you will be filing your Notice of Discontinuance.

Tip icon Tip

The side that loses in a court hearing usually has to pay the winner's legal fees (costs). If you settle your case in mediation, make sure that the written settlement agreement says who has to pay costs.

You can ask the respondent to pay your costs. If they don't agree to this, include something in the settlement agreement that says each side will pay their own costs.

What happens if I don't settle my case at mediation or I don't have mediation?

You and the respondent will have to prepare for the hearing. What's involved in preparing for a hearing is different in every case.

How do I prepare for my hearing?

At the first court date, the judge will have given you and the respondent a timetable, and told you what you have to do to prepare for the hearing.

It is very important that you stick to the timetable. If you don't do everything you're supposed to do, the respondent might apply to the court to have your case dismissed and an order that you to pay their legal costs.

If for some reason you can't stick to the timetable, you must ask the court's permission for an extension. The court will only give you one if you have very good reasons. Also, the court is more likely to say yes to an extension if the respondent has agreed to it. You should contact the respondent before you apply for an extension to see if they'll agree to it. Let the court know, when you are asking for the extension, what the respondent's answer was.

The timetable will tell you and the respondent to file and serve your evidence by a certain date. If mediation is part of the timetable, the judge might order you and the respondent to prepare your evidence after the mediation takes place. This is to avoid unnecessary work and expense in circumstances where the case might settle at mediation.

One kind of evidence you should file is documents that help you prove you've been discriminated against (such as a letter of termination from your employer).

You should also file evidence (for example medical or psychological reports ) to show how the discrimination has affected you. This might include documents about:

  • out-of-pocket expenses (such as receipts for medical bills or medication);
  • lost wages (pay slips showing how much you earned);
  • future expenses you are likely to have (such as a medical report saying you need ongoing counselling and an estimate of how much this will cost);
  • lost earning capacity (such as a medical report saying that the discrimination has affected your ability to work or find work); and
  • hurt, humiliation and distress - called 'general damages' (such as psychological reports).

Another kind of evidence you should file is affidavits from you and any other witnesses you have (see How do I prepare an Affidavit?). These witnesses will also have to come to court to give their evidence verbally at your hearing. You should ask the court for subpoenas for these witnesses. Do this as soon as you can, then make sure the subpoenas are issued by the court and properly served on the witnesses (see What is a 'summons' and a 'subpoena'?).

You will also need to follow up any subpoenas for documents that the court has approved - you have to get the subpoenas issued, serve them, and then make sure the documents the subpoenas ask for are provided to the court.

The other thing that can happen before the hearing is that the respondent might write to you to ask for more detail about your case. This is called a 'request for particulars'. You can do the same: ask the respondent to give you details about their defence. You don't have to give any information that is not relevant to the case. If you're not sure whether you should provide the information or not, get legal advice.

How do I prepare an Affidavit?

An affidavit is a written statement of the facts that you are using to prove your case, and it has to be witnessed (someone has to see you sign it) by an 'authorised person' (a justice of the peace, solicitor or barrister). It describes what happened to you in detail and how it has affected you. The information you put in your affidavit must be correct.

The person who writes the affidavit (in this case you) is called the 'deponent'.

The person who witnesses you signing the affidavit is called the 'authorised person' (see below).

There is no standard format for an affidavit, but it's probably best if you use the model form on the FCC website. There is also a sample affidavit in this Toolkit.

Your affidavit needs to tell the story of what happened to you in chronological (time) order. Try to write it all in a clear and logical way. For example:

  • use headings and sub-headings; and
  • use numbered paragraphs, and start a new paragraph for each new idea or event.
  • What you write in an affidavit must be the facts about what happened, about what you saw or heard, not your opinions. For example:
    Write: Meena said to me, "I am going now." I saw that she had an angry expression on her face.
    Don't write: Meena left because she was angry at how she had been treated.
    And if you write that someone said something, use direct speech - the exact words the person said:
    Write: Boris said to me, "You're fired. Your leg is injured, mate, and I don't think you can do the job."
    Don't write: Boris told me he was firing me because my leg was injured and he thought I couldn't do the job.
    If you're not 100 per cent sure that you remember the exact words said:
    Write: My boss said something like, "Your leg is injured, mate. I don't think you can keep working here."
  • If you mention any documents, attach a copy of them to your affidavit. These attached documents are called 'annexures' and should be numbered Annexure 1, Annexure 2, etc. They should all be copies - keep the originals of all the documents yourself.
  • If you mention an annexure in your affidavit you need to say what number it is and state that it is a true and correct copy of the document. Here's an example of how to do that:
    My employer sent me a letter dated 1 June 2014 saying that I was fired. Attached to this affidavit and marked 'Annexure 1' is a true and correct copy of this letter.
  • Each annexure attached to your affidavit should have a front page saying:
    This and the following [insert number] pages is Annexure 1 referred to in the affidavit of [insert deponent's name] sworn on the [insert the date the affidavit was signed] before me [insert name and signature of the authorised person who witnessed your affidavit].
    The blanks get filled in by you and the authorised person when the affidavit is signed (see below).
  • On the last page of the affidavit, you need to have the following words:
    Sworn /affirmed by the deponent [insert name]
    at [insert place]
    on the [insert date] day of [insert month] of [insert year]
    Signature of deponent
    Before me [insert name of authorised person]
    Signature and title of person before whom affidavit sworn
    This affidavit was prepared/settled by [insert name of counsel, solicitor or party filing the affidavit]

The blanks get filled in by you and the authorised person when the affidavit is signed.

'Sworn / affirmed' means that you must swear on the book of your religion (such as the Bible or Koran) or affirm (promise) that everything in your affidavit is true and correct.

  • Make sure you number each page of your affidavit, including the attachments.
  • Once your affidavit is finished, take it to an authorised person to have it properly signed and witnessed. If this is not done properly, the court will not accept the affidavit.

In NSW there are five things that must be done to have your affidavit properly signed and witnessed:

  1. The authorised person will ask you to swear or affirm that the information in the affidavit is true and correct, and you have to do it.
  2. You must sign the bottom of every page of your affidavit (except the annexures) in front of the authorised person; the authorised person must then sign every page as well.
  3. The authorised person must fill in and sign the front page of each annexure.
  4. You must fill in and sign the last page of the affidavit in front of the authorised person; the authorised person must then sign that page.
  5. If you are swearing or affirming your affidavit in front of a JP, solicitor or barrister in NSW, the authorised person has an obligation to confirm your identity. That means they will usually stamp or write on the affidavit that they have known you for 12 months or more, or have seen your identification. Make sure you take your ID with you when you see the authorised person.

Note iconNote:

If your English language skills are limited, you might also need to involve an interpreter in swearing/affirming your affidavit. If this applies to you, get some advice on what you need to do.

The information in your affidavit is very important. It is worth spending time on getting it right.

What happens at a hearing?

Your hearing will be held in the FCC. A judge will hear the case and then decide whether or not you have been unlawfully discriminated against.

The usual order in a hearing is:

Step 1: You (or your lawyer) make an opening statement.

Step 2: The respondent (or their lawyer) makes an opening statement.

Step 3: One at a time, all your witnesses give evidence in the witness box (you will usually be one of them). There are three stages to giving evidence:

  • the witness answers any questions that you (or your lawyer) ask. This is called 'examination-in-chief';
  • the respondent (or their lawyer) gets to ask the witness questions. This is called 'cross-examination'; and
  • you (or your lawyer) can ask your witness questions about information that came up in cross-examination. This called 're-examination'.

Step 4: The respondents' witnesses give evidence in the witness box and they go through the same process. This time you (or your lawyer) are the one doing the cross-examination.

Step 5: You (or your lawyer) can make a closing statement summing up your case.

Step 6: The respondent (or their lawyer) can make a closing statement summing up their case.

If you are representing yourself, the judge will try to make sure you understand what is going on.

The Federal Circuit Court and the NSW Civil and Administrative Appeals Tribunal run discrimination cases differently. NCAT does not have to follow technical rules about what things are allowed to be evidence and what aren't, but the FCC does. These are called 'the rules of evidence'. They are complex, and they change quite often. The court will usually give you some guidance about these rules as they come up, but they cannot give you legal advice.

Once both sides have put forward all their evidence and made their statements, the judge will make a decision. They might give their decision on the spot, but that is unlikely. They will usually take some time (sometimes months) before they give their decision.

What kinds of decisions can the FCC judge make?

If the judge decides that you have been unlawfully discriminated against, they will decide whether to make the orders you asked for in your Application. The judge can order the respondent to:

  • do certain things to make up for the loss or damage you have suffered;
  • not continue or repeat the behaviour;
  • employ, re-employ or transfer you (although this is uncommon);
  • pay you compensation; and/or
  • publish an apology or a retraction.

How much compensation will I get?

Compensation for discrimination is different in every case. The amount you get largely depends on what evidence you present about how the discrimination has affected you. It will also be influenced by how much has been awarded in past cases.

Unlike in NCAT, there is no upper limit on how much compensation you can get in the FCC. But compensation amounts paid in discrimination cases are still not high. Look at past cases to get an idea of the amounts courts have given people in other cases. The online AHRC publication Federal Discrimination Law can give you some guidance on this. You can find it on the Australian Human Rights Commission website.

Will I have to pay the other side's legal fees if I lose?

The general rule in the FCC and the FCA is that 'costs follow the event'. This means that if you lose your case, the judge will usually order that you pay all or some of the respondent's legal fees.

If your case is in the FCC, the amount of costs the loser will pay will be a lump sum that depends on how many stages the case has gone through. You can get a list of costs from the court registry or on the FCC website. If you have any questions about it, contact the court registry, or ask a lawyer.

Costs in the FCA are calculated differently. The FCA website has information on costs and links to the costs' rules. Costs in the FCA will usually be higher than in the FCC. There is an option to ask the FCA at a directions hearing if they can put a maximum limit on the amount of costs you might have to pay. If your case is in the FCA you should ask a lawyer about this.

If you are being represented by Legal Aid NSW and you lose your case, the first $15,000 of the respondent's legal costs that you are ordered to pay, will be paid for by Legal Aid. You will have to pay the balance of any higher amount.

If you win your case, you can ask the judge to order the respondent to pay your costs. Be aware, though, that the amount they are ordered to pay won't cover all of your legal fees and you will probably still be out of pocket.

If you are not represented by a lawyer, you are not entitled to an order for legal fees.

Can I withdraw my case if I want to?

Yes, you can stop your case at any stage before the end of the hearing. This is called 'discontinuing proceedings'. To do this, you need to file a Notice of Discontinuance in the court registry and serve a copy of it on the respondent. You can get a Notice of Discontinuance from the FCC website or by calling the court registry.

If you withdraw your case, the court will probably order you to pay the legal fees the respondent has already spent on the case. How much this is will depend on how far your case has gone when you discontinue. Again, get a copy of the list of costs from the court registry.

You might be able to negotiate with the respondent so that you discontinue your case in exchange for them not asking the court for an order that you pay their legal fees. If you and the respondent agree to this, you should get them to put it in writing for you.

How long will the court process take?

Every case is different, but generally it will take between twelve to eighteen months from the time you file your Application with the registry to when you get a decision.

If you agree to mediation then the mediation will usually take place about three to six months after you file your Application.

What if I lose? Can I appeal?

If you lose your case in the FCC, you can appeal to the FCA. The appeal will be decided by a single Federal Court judge or in some circumstances by three Federal Court judges. You have 21 days from the date you receive the FCC decision to appeal to the FCA.

Appealing to the FCA is a big step, so get legal advice before you do it. The FCA is very technical and formal. If you lose, you are likely to have to pay a lot of money for the other side's legal costs.

Federal Circuit Court (FCC) Flowchart

This flow chart shows how a case usually runs in the FCC. Not all cases follow this exact order.

Flowchart detailing the steps a typical case will take in the FCC