Frequently Asked Questions

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.

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.

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:

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 1 of 2022 (PDF) .

 

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.

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.

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.

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.

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 1 of 2017(PDF) 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.

The respondent must respond to a claim within 21 days of being served with the claim. The respondent, in the response, can wholly deny the claim, admit part of the claim or wholly admit the claim.

If the respondent has not filed a response, it is open to the claimant to make an application to the Court for default judgment. Applying for default judgment means applying to the Court for judgment to be entered in the absence of the other party. To make this application, the claimant needs to lodge 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. Once the application has been filed, the Court will list the matter for a preliminary hearing.

All claims, submissions and other documents can be lodged with the Court via one of the following methods:

  • Electronically by emailing it as a PDF attachment to electroniclodgementIMC@wairc.wa.gov.au; or
  • Post to Locked Bag No. 1, Cloisters Square PERTH WA 6850; or
  • In person at Level 17, 111 St Georges Terrace, PERTH WA 6000.

Filing fees can be paid by credit card, cheque, money order or cash.

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 - Originating Claim (Respondent's Copy) 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:

  • Delivering in person to a director, manager or secretary (within the meaning of the Corporations Act 2001 (Cth)) of the named party
  • By posting the documents to the registered office of the named party - Please note you must be able to provide a copy of the Current Company Extract to the Court, upon request
  • In person at the principal place of business to an employee of the named party over 16 years of age
  • In person at the registered office to an employee of the named party over 16 years of age
  • By email at the address for service
  • By fax at the address for service
     

Natural person

Documents can be served on a natural person in one of the following ways:

  • In person at the named party’s address
  • Leaving it with someone over the age of 16 years old at the named party’s last/usual place of residence
  • Leaving it with someone over the age of 16 years old at the named party’s last/usual place of business
  • By email at the address for service
  • By fax at the address for service
     

Public authority

Documents can be served on a public authority in one of the following ways:

  • In person at the office of the public authority to an employee of the public authority over 16 years of age
  • By posting the documents to the the office of the public authority
  • By email at the address for service
  • By fax at the address for service
     

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.

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:

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:

  • a Justice of the Peace
  • a legal practitioner who is, and has been, practising for at least two years but who has not participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used
  • a public notary within the meaning of the Public Notaries Act 1979
  • or any registrar or clerk of the court, and any mining registrar appointed under the Mining Act 1979

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 (PDF).

Please note there are different forms for making an affidavit of service.

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 of 2017 (PDF) 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.

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.

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.

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.

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. 

If a final order is not complied with, an application for enforcement can be made 21 days from the date of the order.

 To do this, you first need to contact the Court on (08) 9420 4467 or registry@wairc.wa.gov.au to request a certified copy of the final order. Once you have obtained this, you will need to attend your local Magistrates Court and provide a copy of the certified order and an affidavit stating to what extent the order has not been complied with. The affidavit form will not be the same as the Court’s forms.

If you have any questions regarding the processes involved with the Magistrates Court, please contact the Magistrates Court directly on (08) 9425 2222. The Court is a separate court to the Magistrates Court and cannot answer any questions relating to the processes involved in enforcing orders.

You may be able to appeal a decision of the Court to the Full Bench of the Western Australian Industrial Relations Commission or to the Federal Court of Australia. Please note, timeframes for appealing may apply and can be as short as 21 days. It is suggested that you seek legal advice to determine which commission or court is appropriate for your appeal.

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 actions:

  • dismissal
  • altering the employee’s position to their disadvantage
  • refusing a promotion or transfer
  • injuring in relation to employment

For prospective employees, damaging action can also be doing, or threatening to do, the following actions:

  • refusal to employ
  • discrimination in terms or conditions offered for employment

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:

  • financial penalties
  • reinstatement (or employment for a prospective employee)
  • compensation

 

External publications that may provide guidance with this type of claim include:

Please note the Court is not responsible for the content of external publications or the services of external providers.

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.

The rules of evidence are strict rules about:

  • how parties present information to a court (adducing evidence)
  • what information a court will permit a party to present (admitting evidence)
  • how much importance will be given to that information by a court in reaching its decision (weight of evidence)

The Court is not bound by the rules of evidence and may act in an informal manner and without regard to legal forms and technicalities in a small claims procedure.

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.

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: