Resource ● Last updated 30 October 2024 ● 8 min read
How to make a discrimination claim in the Federal Court or Federal Circuit Court
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What is this resource?
This resource provides some information on discrimination claims in the Federal Circuit and Family Court and Federal Court.
If you think that you have experienced a violation of your rights as prohibited by the federal anti-discrimination laws, you may be eligible to take your claim to court.
What is a discrimination claim?
A discrimination claim is a claim made under any of the following federal discrimination laws:
- Sex Discrimination Act 1984 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Age Discrimination Act 2004 (Cth)
When can I commence a discrimination claim in court?
To commence a discrimination proceeding in court you must first lodge a claim with the Australian Human Rights Commission (AHRC).
If you can’t resolve your claim through the AHRC because your complaint has been terminated, you can start legal proceedings in court. Commence legal proceedings in a court by stating that:
- The President of the AHRC has terminated your application; and
- The President has given you a “Notice to Terminate” which is a notice that the complaint has been terminated.
You have 60 days to commence a claim in the Federal Circuit and Family Court of Australia (FCFCoA) or the Federal Court of Australia (FCA) from receiving a “Notice to Terminate” from the AHRC.
If you take any longer than this, you will need to complete an extension of time request explaining the reasons for your delay. This is part of the initiating form.
Initiating forms:
Time limit – initiating claims in court
You have 60 days from receiving the “Notice of Termination” to commence a court claim.
Which court should I apply to?
You can apply to either the Federal Circuit and Family Court (FCFCoA) or the Federal Court (FCA).
The Federal Circuit and Family Court is less formal, and you may not have to wait as long before your matter is heard by a judge.
Federal Circuit and Family Court: Current fees are on the General federal law fees page.
Federal Court: Current fees are on the Court Fees Payable page.
You may not have to pay the filing fee if you:
- hold a government concession card;
- are suffering financial hardship; or
- are under the age of 18.
More information about exemptions is available on:
- Federal Circuit and Family Court: Application for exemption from paying Court fees – general (general federal law) has information about fee exemptions if you have a Health Care Card, Legal Aid or legal assistance provider letter or Native Title funding letter.
- Federal Circuit and Family Court: Application for exemption from paying Court fees or reduction – financial hardship (general federal law) | Federal Circuit and Family Court of Australia has information about how to show that your income, day-to-day living expenses, liabilities and assets are at such that payment of the fee would cause you financial hardship.
- Federal Court: Exemption from paying court fees has information about general exemptions and financial hardship exemptions.
How do I apply?
Federal Circuit and Family Court:
- Application form: Application – Human Rights.
This is your initiating application. In completing the Application, you will need to attach a copy of the complaint that you made to the AHRC and a copy of the notice of termination of the complaint.
- The Application form and instructions in relation to the form can be found on the Federal Circuit Court website.
Federal Court:
- Application form: Form 116.
- Other form: Form 16.
Form 116 is your initiating application and you will need to attach a copy of the complaint that you made to the AHRC and a copy of the notice of termination of the complaint. Form 116 and instructions in relation to the form can be found on the Federal Court website.
Form 16 – Applicant’s genuine steps statement can be found on the Federal Court website. In completing the form, you must specify the steps you have taken to try to resolve the issues in dispute. If no steps have been taken, you must state why.
- You need to file (lodge) your forms with the court registry
- You need to pay the filing fee when you file your documents
When your application is accepted, the court will insert a ‘Notice of Filing and Hearing’ and/or a ‘Notice of Filing’ time. An example of what this looks like is on the Federal Court website.
Federal Circuit and Family Court:
- Online using the e-lodgement facility (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
Federal Court:
- Online using the e-lodgement facility or by fax (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
- By post, including a cover letter with your contact details and instructions for the court to file your forms.
Federal Circuit and Family Court and Federal Court (both):
Once you have filed your forms with the court, you need to give a stamped copy of the forms to the respondent(s) so they can respond to your claim, and to the Australian Human Rights Commission (AHRC). The respondent is the person or company you are making a claim against.
Person
If the respondent is a person, you need to:
- give the forms to them in person; or
- if they will not accept the forms, put them down in their presence and explain what they are.
Company
If the respondent is a company, you need to:
- post the forms to the company’s registered office (address it to the “Proper Officer”);
- take the forms to the registered office and leave it with an employee; or
- hand the forms personally to a director of the company.
You can check the company’s registered address by searching the ASIC Register.
Australian Human Rights Commission (AHRC)
You must also give a stamped copy of the application form, and any other documents filed with the court, to the AHRC at least five days before the date fixed for the hearing.
Federal Circuit and Family Court (only):
If you have started your case in the Federal Circuit and Family Court, then once you have served the respondent (the person or company you are making a claim against), you need to let the Court know.
Fill in the Affidavit of Service form (available on the Federal Circuit and Family Court website) and file this form in the court registry.
The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
Time limits – serving forms on the responden
- If filing in the Federal Circuit and Family Court: at least 7 days before the date of the first hearing.
- If filing in the Federal Court: at least 5 days before the date of the first directions hearing.
You must also give a stamped copy of the application form, and any other documents filed with the court to the Australian Human Rights Commission (AHRC) at least 5 days before the date fixed for the hearing.
What orders can the Court make?
Both the Federal Circuit and Family Court and Federal Court can make orders, such as:
- declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue the unlawful discrimination;
- requiring a respondent to do something to make up for any loss or damage you have suffered;
- requiring a respondent to employ or re-employ you;
- requiring a respondent to pay money compensating you for any loss or damage you have suffered because of their conduct, noting that there is no monetary cap on orders that can be made by the courts in proceedings under the AHRC Act;
- requiring a respondent to vary the termination of a contract or agreement to make up for any loss or damage you have suffered; and / or
- declaring that it would be inappropriate for any further action to be taken in the matter.
- award costs (who has to pay the legal fees) – in very limited circumstances.
Costs orders
A costs order is where the Court orders one party to pay the other party’s legal costs.
The Court may make a costs order against you if you are unsuccessful in your claim. This may happen in circumstances where you have acted unreasonably or where the main purpose of your claim was to harass or embarrass the other party.
Useful Information
This resource was last updated on 30 October 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.
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