Preparing for small claims

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Learn more about the small claims process and how to prepare a claim.

Starting a small claims application

Before making a small claims application, you need to:

gather relevant information and evidence
check the legal minimum entitlements that apply
calculate what’s owed.

Tip: Timeframe for a claim

The time limit for making a small claim is 6 years from the date the entitlement should’ve been paid.

It’s best to make a small claims application as soon as possible though. As time passes, it can become harder for you to contact the employer and gather the required evidence.

Prepare supporting information and evidence

It’s important to gather information for the court and the employer to understand the claim. This includes having evidence to support the claim.

Relevant information could include:

start and end dates of employment
dates and times worked
description of the role and job duties
relevant award or agreement
details of entitlements paid
details of entitlements owed.

Evidence for a small claim could include:

an employment contract or any written offer of employment
rosters or timesheets
hours recorded in a diary
pay slips
calculations showing what entitlements are owed
text messages, emails or letters between the parties
any other documents that back up an underpayment claim.

Example: Employee preparing to make a small claims application

Breeana is making a small claims application to the Federal Circuit and Family Court of Australia. She is the applicant.

Breeana asks her cousin who’s good with calculations to help her with preparing the information and supporting documents for her claim.

Breeana and her cousin gather the following information to back up Breeana’s underpayment claim of $3,000:

emails between her and her employer
pay slips
her employment contract
hours worked that Breeana had recorded on the Record My Hours app
calculations of what she believes is owed.

Breeana and her cousin prepare a folder of evidence with all the relevant documents clearly marked and organised in a logical order. They also create a timeline which clearly sets out the key dates and the related events. This will help Breeanna with filling out her application and when she attends court.

Check the legal minimum entitlements

A small claims application needs to be based on the legal minimum entitlements under:

This could include entitlements such as minimum wages, penalties, allowances or leave entitlements.

A small claims application can also be based on safety net contractual entitlements.

A safety net contractual entitlement is an entitlement that an employee has in their employment contract and that relates to an entitlement from the NES or an award.

For more information, visit Library - Enforcing safety net contractual entitlements.

You need to be able to explain to the court what your minimum entitlements are and how they apply.

Calculate what’s owed

You’ll need to calculate the exact amount that’s owed before making a claim. If more than one entitlement is owed, then each entitlement needs to be calculated separately.

It’s helpful for the court to see:

what’s owed for each entitlement
how the amount for each entitlement has been calculated.

You can use our Pay and Conditions Tool and Leave calculator to assist.

Filling in the forms

To make a small claims application, you’ll need to fill in the appropriate forms.

A small claim can be made in:

the Federal Circuit and Family Court of Australia
a state or territory magistrate’s court, or
a state-based tribunal.

The small claims form that needs to be filled out depends on which court the claim is made in. The correct forms can be found on the relevant court’s website. The court registry can also help with locating the correct forms for making an application. When preparing an application you need to:

identify the correct party
explain the claim
explain what you want the court to order (for example, an order that unpaid wages are paid by the employer).

Tip: Help with making a claim

The process and rules for making an application can be different between the courts, so it’s important to check the specific rules that will apply to the application.

For help with choosing which court to apply to or filling out court forms, speak to the relevant court registry or seek independent legal advice. Find out more about getting legal advice at Legal help.

Identifying the parties

It’s important to make sure the application correctly identifies the employer (or former employer). This could be a company, sole trader or partnership.

The application needs to list the legal name of the employer, not the business trading name.

It can be helpful to check pay slips, payment summaries, or an employment contract to confirm the legal name of the employer.

ABN Lookup and ASIC can also help you find a legal name or ABN.

The employer is referred to in the application as the respondent.

Explaining the claim

The application will usually have a section for the relevant details of the claim.

The claim should describe what happened in your own words. It’s important to include enough information so that the court and the respondent can understand the claim.

Filing with the court

After filling out the forms for an application, it needs to be filed with the court. You’ll also need to include any evidence that supports your claim when filing an application.

Depending on which court the claim is made through, the application can be filed:

online
in person,
or by mail.

If you’re lodging an application in person or by mail, you’ll need to make at least 3 copies of the application and any supporting documents.

When the application is filed, the details of the time and location for the hearing are usually written on the application.

Application fees

When the application is filed, there may be an application fee that needs to be paid.

The fee that applies and the payment methods will depend on the specific court that the claim is made through. The court registry will be able to confirm the correct fees and payment methods that are accepted.

Fee exemptions

In some cases, an application can be made to the court for an exemption from paying court fees.

To check eligibility for an exemption, you’ll need to contact the court registry to check the process that applies and any supporting documents that are needed.

Serving the respondent

The court will have strict rules about service of documents, including the method and timeframes for service.

After the application is filed, it needs to be served on the respondent. This means that the respondent needs to be given the forms and supporting documents that were filed with the court.

Different rules for service can apply depending on whether the respondent is an individual or a company.

Proof of service

After serving the forms, an affidavit of service will need to be filled out. The affidavit of service is a legal document which provides proof of service.

The affidavit needs to be sworn by someone who is authorised to witness affidavits. This could be a lawyer or Justice of the Peace.

The affidavit provides evidence to the court that the employer knows about the claim.

After completing an affidavit of service, it needs to be filed with the court. You should also take a copy of the affidavit when you attend court.

For more information, visit Affidavit of service - Federal Circuit and Family Court of Australia.

Tip: Make notes about serving the respondent

After serving the documents it can be helpful to make notes about:

the date and time you served the documents
what documents were served
how the documents were served
who was served with the documents
everything that was said when the documents were served.

Having a record of these details will make it easier to prepare the affidavit of service and provide the court with the details.

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