Going to the Federal Circuit and Family Court

In some cases, the Judge may want to decide the case on the first court date, or the next court date after you have been to mediation. If both you and your employer are at court, and your employer filed a response to your claim, the Judge may decide that sufficient information has been provided to make a decision.

If the Judge wants to decide the case on the first court date, you may be asked to either give evidence from the witness box or to make submissions about your case. If you are asked to give evidence from the witness box you may be asked to swear or affirm that the evidence is true.

You should bring to court all the evidence you have to support your case. For example, you should bring:

• pay slips
• emails, text messages or letters between you and your employer
• a copy of your award, enterprise agreement or contract of employment
• a copy of your application, your claim and your employer's response.

You should be as prepared as possible for your case to be decided at the first court date or a further directions hearing.

For more information about how to prepare for a hearing and what to do at a hearing, see:

• Step by step guide: Preparing for the hearing 
• Step by step guide: Presenting your case at the hearing.

Directions are orders made by the Court about what should happen next in a case. If the Judge dealing with your case believes that your case is not ready to be decided on the first court date, they may make further orders about:

• arranging mediation
• finalising the case if an agreement was reached at mediation
• the parties filing and serving 'pleadings' (more details about their case) in the form of a Statement of claim (or 'points of claim') and a Defence. For more information, see Statement of claim and defence.
• the parties filing and serving affidavit or statement evidence on each other
• whether the case can be decided without a hearing
• the date of any further directions hearings
• the date of a hearing
• whether any witnesses are required to attend for cross-examination.

A further directions hearing usually happens after your case has been to mediation. It might also happen if one party hasn't followed orders made by the Court at a previous directions hearing.

At the first court date or a further directions hearing, the Judge may ask if you and the employer want to have your case 'heard on the papers'. This means that the Judge can decide your case based on all the evidence and other documents that are filed, without the need for a hearing.

You should get legal advice about whether your case could, or should, be heard without a hearing, before you go to court.

You should be prepared for your case to be heard on the first court date.

You might also want to contact the employer (or their representative if they have one) and talk about what the next step should be if the case isn't decided on the first court date. If you both agree about what should happen, you can prepare 'short minutes of orders' to hand up in court. Short minutes of orders are court orders that list the things the parties need to do before the case is next back in court.

Sample:

• Short Minutes of Order - First court date
• Short Minutes of Order - Further directions hearing.

The Judge may want you and your employer to attend mediation before the case goes any further. Mediation is an informal way of solving a problem and is similar to conciliation. The mediator helps people understand the problem, talk to each other and come up with solutions.

The mediation could be on the same day as your first court date or could be a later date. The court may also order that you attend mediation even if you already attended mediation arranged by the Fair Work Ombudsman.

You may already have some of the evidence you need to support your case, such as pay slips and correspondence between you and your employer, but there may be other evidence you need but don't have.

If you don't have all the documents you need to support your case and the Judge does not decide the case on the first court date, you may be able to get an order from the court telling the person who has the documents to produce (give) them to the court. This is a called a 'subpoena'. The documents you subpoena can be used as evidence to support your case.

For more information, see Subpoenas​.

The first court date and any further directions hearings are held in a courtroom at the Federal Circuit and Family Court of Australia. When you file the application, the date, time and place of the first court date will be written by the Court on your application and the copies that you file. The details of court dates are also published on the Daily court lists page on the Federal Circuit and Family Court of Australia website​, usually the day before.

You should bring a notepad and a few pens so you can write down the orders made by the court. You should also take with you, all the court documents you have filed or been given in the case including the original and 2 copies of each document, such as:

• your application and claim
• the Affidavit of Service
• your employer's Response
• any reports from the Fair Work Ombudsman (if you have already made a complaint)
• any draft short minutes of order you have agreed on with your employer
• any short minutes of order from previous court appearances or directions hearings for your case.

If no one turns up to represent your employer, the Judge might want you to prove the application was served. To do this, you may need to provide the original Affidavit of Service, if you have not already filed it prior to your directions hearing. The Affidavit of Service is proof that you have served the application.

It is a good idea to get to court as early as possible. You should be there at least half an hour before your case is meant to start. Wait until your courtroom opens. When it does, go in and see if the Judge's Associate (assistant) is there.

Tell the Associate your name. The Associate will then check the court list and note that you are there. The court list is a numbered list of all the cases that will be heard by the Judge on that day. After you have spoken to the Associate, sit down in the courtroom and wait until your name and case is called. The Associate will check to see if anyone is there for your employer.

Once your case is called, you and your employer (or their representative) will go and sit at the bar table. The bar table is the table in front of the Judge where the lawyers usually sit. You will have to tell the Judge who you are. You should stand when talking to the Judge and you should call the Judge 'Your Honour'. 

At the first court date, the Court may order that you and your employer attend mediation. You and your employer will need to contact the the Court registry or the Fair Work Commission to arrange a date, time and place for mediation. Make sure it's a date that you are able to attend.

To find the contact details of the registry, see:

• Court locations on the Federal Circuit and Family Court of Australia website, or
• Commission offices on the Fair Work Commission website​.

In some cases, you may be able to attend mediation on your first court date.

To prepare for mediation, you should:

• work out what you want
• understand your legal rights
• think about the options for ending the dispute
• gather documents and information.

For more information, see Step by step guide: Preparing for mediation.

When you contact the Federal Circuit and Family Court of Australia or the Fair Work Commission to arrange mediation, they will tell you where it is being held. If you are unsure, contact the Court or Commission again and ask where you need to go.

Although every mediation is different, generally mediation will follow a set format. You and the employer will each tell your side of the story and then there will be time for discussion with each other and also with the mediator in private sessions.

For more information, see Going to mediation.

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.   

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. 

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.

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.

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.​ 

If the Judge finds that you proved your case, the Judge must then decide what orders to make. The Judge may order that your employer pays:

• the money owed to you
• a penalty.

The money owed to you

If the Judge finds that your employer has not paid you your correct wages or given you your entitlements, they will usually calculate a dollar figure and order your employer to pay you that sum.

The amount may be exactly the same as the amount you claimed, but it could be more or less depending on the evidence given at court.

A penalty

If the Judge finds that your employer broke laws about paying you the right wage or entitlements, your employer could receive a penalty. The maximum penalty a Judge can order is $18,780 (or $93,900 if your employer is a company) (as at 1 July 2023). If a Judge makes an order about your employer paying a penalty, the Judge can order that the amount payable be paid to you in some cases.

The Judge generally will not order that the penalty be paid to you if it would result in you receiving a 'windfall'. Windfall means that you would be in a better position than you would have been if you hadn't been incorrectly paid.

If you have proved your case, you may be able to ask that a costs order be made against your employer. This is an order that your employer must pay your legal costs.

If the Judge finds that you didn't prove your case, the orders you asked for will not be made. That means you won't be paid what you believe you are owed and your employer won't be given a penalty.

If you lost your case, it may be possible to appeal. For more information, see After court below.

If you haven’t proved your case, your employer may ask that a costs order be made against you.

The losing side can be ordered to pay the legal costs of the other side, however this happens only in limited circumstances.  

Costs are:

• lawyers fees, and
• the expenses involved in running a case, such as filing fees, fees for subpoenas, witnesses, and getting copies of records and expert reports.

If someone wins a case, they may ask for an order that the other side pay their costs. However, it is rare for the Court to make this order.

When can the Federal Circuit and Family Court of Australia order costs?

The Federal Circuit and Family Court of Australia can only make a costs order where:

• someone went ahead with a case when it was clearly weak and they had no chance of winning (this is called a 'frivolous or vexatious' case). For this reason, it is a good idea to get legal advice about the strength of your case before you start your case in court.
• a party did something that was unreasonable (or unreasonably failed to do something) and caused the other side to incur costs. For example, where one party kept unreasonably asking to adjourn (postpone) the case.

You should also get legal advice if your employer tells you they are going to ask the Court for a costs order.

Applying to be paid your costs

If you want to ask the Court for orders that your employer pay your costs, you should do this at the time that the Judge tells you that you have won the case. You should prepare an itemised list of your costs and expenses.

You must apply for costs within 28 days of a final order being made in your case. You should contact the Court about getting your case listed before the Judge again if you forgot to ask about costs when they made their decision.

If you and your employer agreed to settle your case, and your employer is not doing what they agreed, for example, pay you an amount of money, you may be able to enforce the agreement if the terms of settlement are in writing and are signed.

Generally, if you and your employer come to an agreement, you will put the terms of the agreement in writing and sign the agreement. This is call a 'settlement agreement'. The terms of the settlement agreement can also be made into court orders. These are called 'consent orders'.

If your employer is not doing what they agreed to do, you may be able to rely on the agreement as evidence of a contract. If your settlement agreement is a contract, you can take your employer to court if they don't do what they agreed to do. The settlement agreement is written evidence of the terms of the contract.

If you have a written agreement settling your case, you should get legal advice about whether you can enforce it as a contract or recover what is owed as a debt.

If some or all of the terms of the agreement were also made as orders of the court, called 'Consent Orders', you may be able to have your case brought back to the court. This is called having your case 'relisted'. You should get legal advice about any orders made by the court.

What if there is no written agreement or consent orders?

If you and your employer agreed to end the case, but you did not put the terms in a signed settlement agreement or consent orders, you may still be able to enforce the agreement. You would need to have evidence of what the terms of the agreement were. Evidence of the terms could come from:

• any unsigned or draft settlement agreement
• records of conversations between you and your employer about settlement
• emails, faxes, letters or other correspondence about settlement.

You should get legal advice before trying to enforce an unsigned or verbal settlement agreement.

If the court has made orders in your case and your employer has not followed them, there are things you can do to try and force them to follow the orders. This process is called 'enforcement'.

There are different types of enforcement options, including:

• a writ / warrant for seizure and sale of property
• order for possession of land or delivery of goods
• charging order (eg charge over shares or money in a financial institution)
• redirection / attachment / garnishee of debts or earnings / instalment order
• enforcement hearing / oral examination / means of inquiry

To enforce a judgment of a Federal Circuit and Family Court of Australia, you need to:

• apply to the Federal Court of Australia
• take action through the Supreme Court of NSW.

Apply to the Federal Court of Australia

To apply to the Federal Court of Australia, you need to file:

• a Request for Enforcement (Form NCF6)
• an Affidavit (Form 59)
• supporting documents.

You can get a copy of the:

• Request for Enforcement form from the National Court Framework (NCF) Forms page on the Federal Court of Australia website, and
• Affidavit on the Forms under the Federal Court Rules 2011 page on the Federal Court of Australia website.

The Request for Enforcement and supporting documents should be filed via eLodgment.

You don't have to pay a filing fee.

A registrar will consider the Request for Enforcement and, if satisfied that the request and supporting documents are in an appropriate form, issue the enforcement process.

For more information, see the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF) on the Federal Court of Australia website.

Take action through the Supreme Court of NSW

Once the enforcement process is issued any further steps to enforce and execute the judgment should then be taken in the Sheriff's office of the Supreme Court of NSW.

If the judgment debt is more than $10,000 and your employer is an individual, you can apply to a court to have them declared bankrupt. Before taking this action you should get legal advice. This is an expensive and complex way of enforcing the judgment. 

If your employer is a company, it can be wound up. To wind up a company you must show that it is insolvent (unable to pay its debts). This can be done by issuing a statutory demand. If the judgment debtor company does not respond to a statutory demand within 21 days you can file an application for a winding up order. Before taking this action you should get legal advice. This is an expensive and complex way of enforcing the debt.

Enforcing court decisions is complicated and you should get legal advice about the best steps to take.