Frequently Asked Questions (FAQs)
DISCLAIMER: The contents of this website should be used as a general guide only. Precautions have been taken to ensure that the information is accurate, but the Court does not guarantee, and accepts no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of any material contained on the website or any linked site. This website is not to be taken to be a substitute for independent professional advice and users should obtain any appropriate professional advice relevant to their particular outcomes.
Are there currently any COVID-19 special procedures in effect? |
Currently there are no COVID-19 special procedures in effect. If you are feeling unwell or have any concerns about attending in person, please contact the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au as soon as possible. |
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The Court is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and Inclusion page or contact the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au.
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Where can I get help? |
The Court’s Registry can be contacted on (08) 9420 4467 or registry@wairc.wa.gov.au. Court staff cannot give legal advice or opinion on the merits of any claim or potential claim. However, they can give information on: the processes of the Court; how to lodge forms; and other organisations that may be able to assist you.
Other organisations that may be able to assist you include:
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Do I need representation? |
You do not need to be represented in making or responding to a claim or when appearing at the Court. If representing yourself in the Court, you may like to obtain some legal advice ahead of time to make sure you are doing the right thing. Legal advice includes deciding which option is best for you. Some lawyers provide advice on how to represent yourself and run your own matter. If you do want to be represented, you will need to inform the Court by lodging a Form 23 – Notice of Appointment of Lawyer or Agent. The Court must also be informed if you cease being represented or change representatives. Completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. If you do want to be represented and you have elected to have the small claims procedure apply to your claim, you must get permission of the Court first. Regarding representation by industrial agents, please take note of Practice Direction No. 1 of 2022.
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How do I advise the Court that my email address has changed? |
Providing an email address to the Court will enable us to communicate with you by email for listings and general correspondence. It can also allow parties to serve documents to each other by email. You must advise the Court by lodging a Form 26 – Notice of Change of Email or Fax Address for Service if you change your email address to ensure you do not miss out on important communications from the Court or other party. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. |
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It is important to correctly name parties when making a claim. This means using an entity’s legal name. An entity’s legal name may be different to its business trading name or the name of a company director. Incorrectly naming a party can cause delays with a claim or result in an order being unenforceable. Searches can be made on the Australian Business Register and the Australian Securities & Investment Commission public registers to try to find out the legal name of an entity. These searches can be done using a business name, an Australian Business Number (ABN) or an Australian Company Number (ACN). Some searches may require a fee to be paid. |
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How do I know if my employment is covered by the state system or the national system of employment laws? |
There are two systems of employment law in Western Australia. The state system of employment laws are created by the Western Australian state government. This is often referred to as the ‘state system’. The national system of employment laws are created by the federal government. This is often referred to as the ‘national system’. The legal nature of the employing entity will determine which system of employment laws covers the employment relationship in question. For more information, please see Circle Green Community Legal’s Q&A: State or national system for WA employees. Please note the Court is not responsible for the content of external publications or the services of external providers. |
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How can I find out if I am covered by an award or an agreement? |
An award sets minimum employment entitlements for employees working in a specific industry or occupation. An industrial or enterprise agreement sets minimum employment entitlements for employees employed by a particular employer or group of employers. Awards and agreements need to be registered with either the Fair Work Commission or the Western Australian Industrial Relations Commission and are published on the relevant commission’s website. Awards and agreements are enforceable through the Court. If you are unsure if you are covered by an award or an agreement, you can contact Wageline on 1300 655 266 if you are employed in the state system or the Fair Work Ombudsman on 13 13 94 if you are employed in the national system. |
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You should provide enough relevant detail about your claim or your response so that both the Court and the other party know what you are saying has happened. If there is insufficient space on the relevant form, you may attach a separate document providing the additional details. For a claim, this is sometimes called a ‘statement of claim’ or ‘claim particulars’. For a response, this is sometimes called a ‘statement in response’ or ‘full particulars of response’. It is generally helpful to use paragraphs that place information in chronological order. The paragraphs should be numbered, and each paragraph should only describe one action or one event. It is also helpful to provide the details of any calculations relevant to your claim or response. If you wish to attach any other documents (for example: a payslip or a contract of employment) to your claim or response, you should refer to each document in the statement of claim or statement in response explaining the nature of the document and how it is relevant to what you are saying has happened. The Industrial Magistrates Courts Practice Direction No. 1 of 2017 may provide some helpful guidance at point [1] on the type of information that can be useful to include and how it should be structured. |
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What happens if no response is filed in response to a claim? |
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Documents can be lodged with the Court by:
Filing fees can be paid by credit card, cheque, money order or cash. |
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Service of documents is the process of giving documents that have been filed with the Court to another party. There are strict rules about how this can be done and about proving to the Court that it has been done in compliance with the law. This is to ensure the Court can be confident that parties have received documents in a matter. It is important to note that originating claims (such as a Form 1.3) cannot be served by email or fax. It is only once a respondent has filed a response to the claim with the Court that provides email or fax details as the address for service, that you can serve the respondent by email or fax. There are different rules of service depending on the nature of the entity being served: Corporation Documents can be served on a corporation in one of the following ways:
Natural person Documents can be served on a natural person in one of the following ways:
Public authority Documents can be served on a public authority in one of the following ways:
You do not personally have to serve documents. A friend, family member or process server can serve documents for you. The person who serves the document must be the one who completes the affidavit of service. |
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An affidavit of service is a written statement that a person has successfully served (given) a legal document or documents to another party in a matter. It needs to be made on an approved form. The approved form required will depend on the nature of the entity that has been served and will be one of the following:
The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. |
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How do I make an affidavit for use in Court? |
An affidavit is a written statement which can be used as evidence in the Court. The purpose of an affidavit is to ‘tell a story’, by explaining what has occurred, what has been done and what is now sought. The paragraphs should be numbered, and each paragraph should only describe one action or one event. An affidavit needs to be made on approved form Form 7 - Affidavit and sworn or affirmed before an authorised witness in accordance with the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). For those in Western Australia, an authorised witness can be:
The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. For more information, please see The Making of Affidavits for use in the Industrial Magistrates Court of Western Australia. Please note there are different forms for making an affidavit of service. |
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What is a witness statement? | A witness statement is a document that sets out the evidence of a witness. It is a written record stating a person’s account of what has happened. It should be written in numbered paragraphs, state the identity of the person making the statement and their relationship to the parties, and detail the evidence being given (attaching copies of any documents referred to in the statement). The witness should sign and date the witness statement. A witness statement will need to be sworn or affirmed if it is to be taken into evidence at a hearing.
A witness statement is a document that sets out the evidence of a witness. It is a written record stating a person’s account of what has happened. It should be written in numbered paragraphs, state the identity of the person making the statement and their relationship to the parties, and detail the evidence being given (attaching copies of any documents referred to in the statement). The witness should sign and date the witness statement. A witness statement will need to be sworn or affirmed if it is to be taken into evidence at a hearing. A witness statement is lodged by attaching it to a Form 29 – Multipurpose Form. The completed form and attached witness statement can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The Industrial Magistrates Courts Practice Direction No. 1 of 2017 provides some helpful guidance at point [2] on the type of information that should be included in a witness statement and how it should be structured. |
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Do I have to attend in person for a pre-trial conference or a hearing? | The Court does require parties to attend pre-trial conferences and hearings in person. If you believe in person attendance is not appropriate in your circumstances, you can make an application to the Court for remote attendance. Please contact the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au for guidance on this. | |
What do I need to know about appearing at Court? | When appearing before the Court dress as neatly as possible.
You must be respectful to everyone in the Court. This includes the Industrial Magistrates, Court staff, the other party involved in your matter and witnesses. Please let the Court know well before the date of your hearing or pre-trial conference if you require any special assistance (such as an interpreter, hearing loop or wheelchair access). The Court has a very busy schedule, so you must be on time. If you are late, your matter might be adjourned, or heard without you there. It is a good idea to arrive at the Court at least 15 minutes early and allow time for traffic and parking if relevant. Make sure you bring all the documents you need for your matter, pens and paper, and that you are fully prepared to present your case. |
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How long will the whole process take? |
The time span of a claim process highly depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the parties reach settlement at the pre-trial conference or the claim proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter. |
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What if I want to discontinue my claim? | You can discontinue your claim in whole by filing a Form 18 – Notice of Discontinuance – Whole of Claim or in part by filing a Form 19 – Notice of Discontinuance – Part of Claim. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. | |
What is damaging action? | Damaging action refers to a type of protected employee right. It is where an employer covered by the state system of employment laws has taken damaging action against an employee because the employee has made, or is able to make, an employment related inquiry or complaint.
Damaging action can be doing, or threatening to do, the following:
For prospective employees, damaging action can also be doing, or threatening to do, the following:
The employment related inquiry or complaint has to be based on an entitlement or right that comes from a contract of employment or industrial legislation or instrument (such as an award or agreement). If the Court finds an employer has taken damaging action against an employee because the employee has made, or is able to make, an employment related inquiry or complaint, it can make orders for:
External publications that may provide guidance with this type of claim include:
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Employees covered by the national system of employment laws making a claim for an amount up to $100,000 can elect to have the small claims procedure apply to the proceedings. The small claims procedure is designed to be a quicker and more informal process than regular court proceedings. It is a simpler process where lawyers are generally not needed, and penalties cannot be sought. If a party does wish to be represented in a small claims procedure, it must get permission from the Court first by lodging a Form 6 – Application and a Form 7 - Affidavit. The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. |
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The rules of evidence are strict rules about:
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Onus of proof refers to who is responsible for proving something has happened to the Court. In most situations, the person making a claim will be the one who is responsible for proving what has happened to the Court (this is often expressed as ‘the claimant bears the onus of proof’). There are some situations where the onus of proof is reversed (this is often expressed as ‘reverse onus of proof’). In these situations, at a certain point in the proceedings, it will be the respondent who has the responsibility of proving something to the Court. There is a reverse onus of proof in a claim for damaging action. |
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Where can I find copies of relevant legislation |
Copies of Western Australian Acts and subsidiary legislation can be found at the Parliamentary Counsel’s Office website . Copies of Commonwealth Acts and subsidiary legislation can be found at the Federal Register of Legislation website. Legislation relevant to the Court includes:
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