Taking action

Step 1: Before you start

Going to court can be a complex, time consuming and costly process. You may wish to seek legal advice prior to commencing a matter in the Industrial Division.

You should try to resolve your dispute before coming to court, by negotiation or by sending a letter of demand.

If the matter remains unresolved, you may issue proceedings in court.

All parties are expected to comply with Practice Direction 4 of 2022 and Order 13 of the Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 with respect to the conduct of proceedings in the Industrial Division.

The Fair Work Ombudsman small claims guide provides detailed information if you are considering making a small claim or responding to one under Section 548 Fair Work Act 2009.

If you plan to represent yourself, you can contact the court’s self-represented litigant coordinators by emailing srlcoordinator@courts.vic.gov.au. They can assist you in identifying, utilising and filing the necessary forms.  

Step 2: Lodging a claim

All claims made in the Industrial Division must be lodged on a Form 13A Complaint. For more details refer to paragraphs [12]-[15] of Practice Direction 4 of 2022. 

The Complaint contains a section whereby a party with a small claim under Section 548 Fair Work Act 2009 may elect to have the proceeding dealt with as a small claim. For more details on the procedure in small claims proceedings, go to paragraphs [48]-[55] of Practice Direction 4 of 2022.

 A filing fee is payable to the court to lodge your Form 13A Complaint. Subject to Section 570 Fair Work Act 2009, where applicable, the fee can be claimed as costs in addition to the amount sought in your claim if you are successful. Fees for your application can be found on the court fees ready reckoner.

Step 3: Serve the complaint

There are legal rules about the way in which you must give documents to the defendant. This is called service. Information about service can be found on the service of court documents page.

The claim is valid for service when the court case number and filing date is written on the Form 13A Complaint and returned to you.

To complete service, a copy of the Form 13A Complaint and two blank copies of a Form 13B Response must be served on the defendant.

The documents must be served personally. For more on how to do this, go to the service of court documents page.

The person who served the documents must complete an Affidavit of service - Form 6A. This provides information to the court about how and when the documents were served.

The Affidavit of service - Form 6A must be witnessed and sworn or affirmed in the presence of an authorised person. You may also need to file the affidavit to prove service. Refer to the witnessing documents page for more information.

If documents are not served correctly, it may cause delays.

Step 4: Responding to a claim

To respond to a claim, you must file a Form 13B Response.

For more details refer to paragraphs [20]-[21] of Practice Direction 4 of 2022.   

If a Form 13B Response is not filed within 14 days, the plaintiff may apply for a default judgment against the defendant using a Form 13C Application for order in default of response together with a Form 13D Affidavit in Support.

For information on the order in default process refer to see paragraph [22] of Practice Direction 4 of 2022.

Step 5: Pre-hearing conference

If the claim is defended, the court will send a notice to both parties advising the date you must attend a pre-hearing conference before a judicial registrar.

For information on Pre-Hearing Conference process refer to paragraphs [23]-[24] of Practice Direction 4 of 2022.

Step 6: Directions hearing notice

If the proceeding is not resolved at the pre-hearing conference, the court will send a notice to both parties for a directions hearing. The purpose of the hearing is to set down a timetable to ensure the proceeding is ready for final hearing.

Orders made at a directions hearing will be tailored to suit the nature of the proceeding, its complexity and the amount in dispute.

For more information on Directions Hearings refer to paragraphs [25]-[27] of Practice Direction 4 of 2022.

Parties are encouraged to review the standard directions contained in Practice Direction 4 of 2022 and attempt to agree upon them at the end of the pre-hearing conference.

Any mutually agreed directions should then be submitted prior to the directions Hearing.

The court may excuse parties from attendance if satisfied with the content of the orders.

Step 7: Hearing readiness certificate

An important new feature of the Industrial Division is the Form 13E Hearing Readiness Certificate. It must be filed by the date set in the orders made at the directions hearing.  

For more information on the Hearing Readiness Certificate refer to paragraphs [39]-[42] of Practice Direction 4 of 2022.

Step 8: Final hearing

After receipt of the hearing readiness certificate, the court will advise the parties of a hearing date.

Complaint resolved?  

If a complaint is settled at any stage of the process, terms of settlement and consent orders signed by both parties must be filed with the court.

Orders will then be made to discontinue proceedings. 

Enforcement procedures  

If your claim is successful and the respondent does not pay the amount ordered by the court, you have a right to start legal proceedings to enforce the payment.  

Find out more about enforcement procedures.