Table of Contents

1. Purpose
2. Bankruptcy Matters before a Registrar
3. Commencing proceedings
4. Filing documents in Registrar Bankruptcy Matters
5. First Court Date and Time Standards
6. Documents to be filed pre-hearing
7. Open Court
8. Sequence in which matters will be called in a Registrars' Bankruptcy List
9. Telephone appearances
10. Where no appearance may be required
11. Adjournments
12. Written notification of adjournments to non-appearing parties
13. Allocation of a new hearing date of an unserved application/ Creditor's Petition
14. Amendments to Court Documents
15. Court Orders
16. Standard Form of Orders
17. Costs Orders
18. Substituted Service Applications
19. Further practice information
20. Communications in a Registrar Matter
21. Publication of the Registrar Court List
22. Enquiries and Contact Information
23. Self-Represented Litigants
24. Information on the Federal Court's Online Services for Federal Circuit Court – General Federal Law matters

1. Purpose

1.1. This Guide summarises the arrangements for Bankruptcy matters listed before a Registrar. Bankruptcy matters are listed before Registrars who sit in both the Federal Court of Australia ('FCA ') and the Federal Circuit Court of Australia ('FCC').

1.2. The arrangements set out in this Guide are designed to streamline and promote a consistent and efficient case management practice in the Registrars' Court Lists nationally and to facilitate the just resolution of disputes with a minimum of delay and expense. However, nothing in this Guide affects the Court's discretion to conduct the List in a manner it considers appropriate.

1.3. Amendments will appear on the Guide online as appropriate and practitioners should check the website for the current version of the Guide. Practitioners can also subscribe to the Court's email notification service.

2. Bankruptcy Matters before a Registrar

2.1. Bankruptcy matters that may be heard and determined by a Registrar whether exercising the Judge delegated powers of the Federal Court or Federal Circuit Court include Creditors' Petitions, applications to set aside, or to extend time in which to comply with, a Bankruptcy Notice, applications to administer a deceased estate in bankruptcy under the Bankruptcy Act 1966 ('Bankruptcy Act') and applications for substituted service orders.

2.2. Bankruptcy matters within the delegated jurisdiction of a Registrar are set out in schedule 1 of the Federal Circuit Court (Bankruptcy) Rules 2016 (the 'Bankruptcy Rules').

3. Commencing proceedings

3.1. All new bankruptcy applications that are within a Registrar's delegated jurisdiction should be commenced using the forms approved under the Bankruptcy Rules. Both the Bankruptcy Rules and the general Court rules apply to the commencement of bankruptcy proceedings. All applications can be filed with the Registry (refer to paragraph [4] of this Guide on how to file a document with the Registry).

  1. Applications for a sequestration order are made by presenting a creditor's petition using Form B6, supported by affidavits in compliance with Rule 4.02 of the Bankruptcy Rules. Information on how to present a Creditor's Petition is available in Information Sheet 1.
  2. Applications to set aside bankruptcy notice and/or to extend time within which to comply with the bankruptcy notice are made by filing a Form B2, supported by an affidavit in compliance with Rule 3.02 and/or Rule 3.03 of the Bankruptcy Rules.Information on how to complete a Form B2 application to set aside a bankruptcy is available at Information Sheet 4.
  3. Formal requirements for documents filed in bankruptcy proceedings in the FCC are set out in Rule 1.07(5) and Form B1 of the Bankruptcy Rules and Rules 2.01 to 2.04 of the Federal Circuit Court Rules 2001. Formal requirements for Affidavits filed in the FCC are set out in Rules 15.25 to 15.26 of the Federal Circuit Court Rules 2001 but modified to include the heading in approved Form B1 prescribed by rule 1.07(5). The forms used in bankruptcy proceedings in the FCC are available in Forms.

3.2. For the convenience of practitioners, the following general information is released with this Guide:

3.3. The information sheets and checklist are intended to provide practical assistance for litigants and have been prepared as a guide only. They do not summarise the legislative requirements or the applicable bankruptcy rules and should not be regarded as a substitute for them.

4. Filing documents in Registrar Bankruptcy Matters

4.1. Documents commencing or relevant to an existing bankruptcy Registrar matter can be lodged for filing electronically online by eLodging the documents with the Registry using the eLodgment facility (see paragraph [24] of this Guide for more information on eLodgment). Parties may also eLodge in Registrar matters documents regarding a proceeding including draft orders, consent orders, and case management correspondence.

4.2. eLodgment is the preferred method of filing documents in all Registrar matters rather than filing documents in paper format in person at the Registry or by fax filing. This is because the court file for all Registrar bankruptcy matters will be electronic (the 'Electronic Court File' or 'ECF'). The ECF has replaced paper based files. All documents accepted for filing in Registrar bankruptcy matters will be received (and managed) electronically through the Court's eLodgment system.

4.3. Where paper documents are filed in hard copy with the Registry in person, by post, or by facsimile, the documents will need to be scanned and eLodged by Registry staff to form part of the court file. For those documents filed in person or in court, parties are encouraged to eLodge these documents themselves at the eLodgment kiosk at the Registry.

5. First court date and time standards

5.1. Parties can generally expect a first hearing date to be listed within 2-6 weeks of filing an application, depending on the nature of the application.

5.2. Parties may request a hearing on a particular date on which a List is conducted. This request can be made via eLodgment. The Registry will endeavour to accommodate the request depending on the number of matters already listed on the date requested. Arrangements for hearing bankruptcy matters by Registrars and relevant listing information for Registrar Court Lists in each registry is available (see paragraph [21] of this Guide).

5.3. The Court aims to have all Registrar matters that are appropriately dealt with to conclusion by a Registrar completed within 3 months of the first return date. Practitioners are expected to assist the Court to meet this standard.

6. Documents to be filed pre-hearing

6.1. The Court requests that all documents which a party will ask the Court to consider should be filed no later than 2pm the day before the court listing. eLodgment is the preferred method of filing. The early filing of documents will generally allow the Court sufficient time to pre-read the file so as to ensure that court time is used efficiently.

6.2. For an applicant, the Court requests that no later than 2pm the day before the appointed court date the following material will be eLodged:

  1. All affidavit evidence required to be filed in support of the application under the court rules
  2. Any other documents or material to be relied upon at the hearing including any affidavit proving notification of the adjourned court date to the other parties
  3. A draft order using, where applicable, the standard form of orders
  4. Where an order for lump sum costs will be sought, a statement of costs and disbursements lodged in accordance with paragraph [17] of this Guide, and
  5. Written notification to the Legal Case Manager to the Registrar hearing the matter (or, if there is no Legal Case Manager, the Registry) (and copied to other parties) as to whether the matter is likely to proceed unopposed, whether an appearance from any other party is expected, whether the matter is likely to be adjourned, be contested, be dismissed/ withdrawn or the nature of other orders likely to be requested If not provided under paragraph d) above). Parties should also indicate where it is expected that a matter will take more than 30 minutes to hear (refer to paragraph [20] of this Guide on the protocols for emailing the registry about a matter listed before a Registrar).

6.3. Prior to court, practitioners are expected to communicate with each other to see if an agreement can be reached on the orders the Court will be asked to make. Generally a party should not ask the Court to make an order before conferring with the other party/parties.

7. Open court

7.1. Except for the matters referred to in paragraphs 7.2 and 7.4 of this Guide, all Registrar bankruptcy matters are dealt with in open court.

7.2. Applications for substituted service orders of Bankruptcy Notices and Creditor's Petitions are generally dealt with in eCourtroom (refer to paragraphs [18] and [24] of this Guide).

7.3. Applications to issue an examination summons pursuant to s 81 of the Bankruptcy Act are also dealt with in eCourtroom or 'on the papers' in chambers.

7.4. Applications for extensions of time for compliance with a bankruptcy notice before the first court date (pursuant to s 41(6A) and s 41(6C) of the Bankruptcy Act and rule 3.03(4) of the Bankruptcy Rules) are usually dealt with on an ex parte basis 'on the papers' in chambers.

8. Sequence in which matters will be called in a Registrars' Bankruptcy List

8.1. The Registrar will order the List to deal with matters in the most efficient way. Priority will usually be given to short matters or straightforward matters that can be disposed of within 5 minutes and that do not require significant reading before moving to the other matters. Short matters may include consent adjournments and unopposed matters where the necessary supporting material has been filed by 2pm the previous day. In appropriate circumstances, a Registrar may dispense with any requirement for a party to take the Court through the evidence.

8.2. While a Registrar will generally hear a matter on the day it is listed, matters which are estimated to last for more than 30 minutes may need to be listed at another time. It is the responsibility of the parties to notify the Legal Case Manager by 2pm the day before a matter is listed where the estimated hearing time is more than 30 minutes.

8.3. It is expected that parties will give the Court a realistic estimate of the time required to hear the application and that all the documents relevant to the application are eLodged by 2pm the day before the appointed court date. (Refer to paragraph [6.2] of this Guide on the documents to be filed pre-hearing).

8.4. With a Creditor's Petition, the supporting material that should be eLodged by 2pm the day before the court date where the applying party wishes to proceed to obtain a sequestration order includes:

  1. proof of the matters required to be given on affidavit referred to in rules 4.05 and 4.06 of the Bankruptcy Rules (which includes the updated affidavits of search and debt);
  2. A statement of costs and disbursements under the Bankruptcy Rules;
  3. Where a petition has been adjourned, the applying party must have proof that the respondent(s) has been notified of the adjourned court date.

8.5. Where a party seeks leave to file documents in court, the Registrar may direct that party to eLodge the document at the eLodgment kiosk in the Registry before dealing with the matter or before making any orders. In all other instances the filing party will be directed to eLodge any document filed in court by no later than 4.30pm on the next business day, either from their own computer or from the eLodgment kiosk in the Registry.

9. Telephone appearances

9.1. Appearing by telephone is available in some circumstances at the discretion of the Registrar. A request to appear by phone should be made in writing no later than 2pm the day before the court date. The basis for the request should be set out in the written request.

9.2. If the request is granted, the party should ensure that all documents that the Court will be asked to consider are eLodged by 2pm the day before the court date. The Court will also require the party to be available at a designated time or during a designated period of time. If the party approved by the Registrar to appear by telephone is not able to be contacted at the designated time or during the designated period of time, the hearing may proceed in the absence of that party.

10. Where no appearance may be required

10.1. In appropriate circumstances, a Registrar may make orders in open court without the need for the parties or the practitioners to be present when the matter is listed. Upon receiving a request from the parties (see [10.9] – [10.11] of this Guide), the Registrar will consider whether the application can be dealt with in their absence. Parties should not assume that an order will be made without attendance as requested. Examples of suitable matters where the Court may be prepared to make orders without attendance by the parties follow. 

No orders - where a new hearing date has been allocated by the Registry

10.2. Where a Creditor's Petition has not been served, no notice of appearance has been filed (for example, by a supporting creditor) and where the applicant has obtained a new hearing date at least 24 hours before the hearing date, the Creditor's Petition will remain in the List and where approved by the Registrar dealt with in the applicant's absence. The Registrar will announce in open court that the Creditor's Petition has not been served, make 'no order' and announce the new hearing date (refer to paragraph [13] of this Guide on the procedure for obtaining a new court date on an unserved petition). However, if a new hearing date has not been obtained within 24 hours of the List, it is expected that the applicant will appear and request that the Court make 'no order'. The Registrar may relist the petition on a subsequent date and direct the applicant to eLodge with the Registry an amended petition to record the new hearing date.

10.3. Where a Creditor's Petition or originating application has not been served, the Court may grant leave to withdraw the petition or the application without attendance by the parties.

Consent adjournments / Case Management Orders

10.4. Where, after a Creditor's Petition or originating application has been served, the parties reach agreement that the proceeding should be adjourned, the Court may (on approval of the Registrar) adjourn the proceeding without the parties having to attend provided that a notice of appearance has been filed by all consenting parties, the consent order is eLodged no later than 2pm the day prior to the hearing, and the order is not opposed, at the hearing, by any supporting creditor or other interested party (refer to paragraph [11] of this Guide on adjournment applications). Parties should not expect that the Court will adjourn a matter more than once in their absence.

10.5. Where all parties consent to orders varying directions previously made, a Registrar may agree to make those orders in open court without the parties having to attend in person. However, should the Registrar decline to make the proposed orders, the parties are expected to appear when the matter is listed before the Court.

Dismissals / Leave to withdraw

10.6. Where, after a Creditor's Petition or originating application has been served, the parties reach agreement that the proceeding should be dismissed, the Court may (on approval of the Registrar) dismiss the application (with or without costs) without the parties having to attend provided that the proposed (or agreed) order is eLodged no later than 2pm the day prior to the hearing and the order (including any costs order) is not opposed, at the hearing, by any supporting creditor or other interested party.

Other orders made without attendance

10.7. Where a matter has been referred to a Judge's Docket and allocated a different court date, the Registrar may announce the new listing in open court without the parties having to attend.

10.8. Where proceedings have been adjourned for the purpose of making final costs orders which are not opposed (refer to paragraph [17] of this Guide).

Submitting a request for an order without attendance  

10.9. These arrangements are designed to save expense to the parties, the time of the Court, and for the convenience of practitioners and are subject to the overriding discretion of the Registrar as to whether it is appropriate to deal with a matter in the absence of the parties.

10.10. Any request to be excused from appearing when a matter is listed before the Court should be made in writing no later than 2pm the day before the proceeding is listed. The Registrar will endeavour to review the request to consider whether to make the proposed orders without the parties having to appear in court when the matter is next listed.

Note: Parties are to put their requests in writing by eLodging the request as correspondence and sending an email to the Legal Case Manager copying in each other party to the proceeding confirming that the request has been eLodged. Protocols for emailing a Registrar are set out below at paragraph [20].

10.11. It is the responsibility of the parties (and lawyers representing each party) to enquire of the relevant Registry whether the Registrar will agree to make orders in their absence in open court. In the absence of confirmation from the Registry the parties are expected to attend court when the matter is listed.

11. Adjournments

11.1. There is no automatic entitlement to an adjournment in bankruptcy matters listed before a Registrar. A party who seeks an adjournment is expected to confer with the other parties with a view to reaching agreement in advance of a court listing on the orders the Court will be asked to make.

11.2. Generally, a party applying for an adjournment or for orders varying or amending previous orders would be expected to satisfy the Court of the basis of the adjournment or other order, and the Court may require the party to file and serve an affidavit setting out the factual basis, and explain the reasons, for the adjournment and any other matters the court will be asked to consider.

11.3. Parties should not expect that the Court will adjourn a Creditor's Petition or originating application, even if by consent, more than once. Unless the Registrar agrees, practitioners are expected to attend court in person where an adjournment is sought.

12. Written notification of adjournments to non-appearing parties

12.1. On any adjourned hearing where a Sequestration Order is sought or other final order, including a costs order, the applying party will be required to file evidence of the date, manner and address to which written notice of the adjournment order has been sent to a party who was not present when the adjournment order was made.

12.2. Where the absent party is self-represented, written notice of the adjourned orders must be sent to his/her last known address or where he/ she has filed a Notice of Appearance, at the address referred to in that Notice. A party seeking to send the written notice to the absent party's 'last known address' may be required to establish to the Court the nexus between the absent party and that address. Where a represented party has filed a Notice of Appearance, the written notice can be sent to the address for service referred to in the Notice.

12.3. The written notice must inform the absent party of the details of the adjourned date, time and place (including address) of the next court date and of any other orders made by the Registrar. Where the Applicant intends to proceed on its application at the next court date, it may be prudent to state in the written notification that if the debtor is not present or represented at the adjourned court date, the Court may make a sequestration in their absence without further notice.

12.4. An Affidavit of Service of the written notification will generally be required where orders including costs orders are sought at the adjourned hearing. Where written notification is sent by prepaid post, the Affidavit must state whether the document was sent by Express Post; Priority Post; Registered Post; Regular Post or other method of post that was used.

12.5. Practitioners must allow sufficient time for documents which are sent by prepaid post to be delivered. General Information on Australia Post's Delivery timeframes can be found at the Australia Post website.

13. Allocation of a new hearing date of an unserved application/ Creditor's Petition

13.1.Where an originating application such as a Creditor's Petition is unserved before the Court hearing date, an application to extend the hearing date can be made of the Registry by eLodging an amended Creditor's Petition with a request for a new hearing date. The applicant will need to select the amended document option, using an unsealed copy of the application/ petition (NOT the sealed court copy) with a request for a new listing including any request for a particular date. The practitioner can obtain a copy of the amended application/ Creditor's Petition bearing the new court date once accepted by the Registry by printing a sealed copy from eLodgment or via the Commonwealth Courts Portal (CCP) (refer to paragraph [10.2] of this Guide in relation to appearing in court at the return date of an unserved application/ Creditor's Petition).

14. Amendments to Court Documents

14.1. Handwritten amendments to court documents (including a Creditor's Petition) are not considered appropriate now that court files are electronic. All amendments to court documents should be lodged electronically through the eLodgment facility.

14.2. Parties and practitioners must also ensure that the listing information on a creditor's petition and any other originating process records the correct court date, time and location where the petition or proceeding is listed. The procedure for amending an application or creditor's petition is outlined above at paragraph [13].

15. Court Orders

15.1. Orders are produced by the Court electronically and can be accessed directly by parties via the Federal Law Search or through the Commonwealth Courts Portal (CCP). Parties can view and print a sealed copy of all orders from the CCP. Parties can expect that sealed sequestration orders will be available within 1 day of the order being made, and all other court orders within 2 days of the order being made.

16. Standard Form of Orders

16.1. The Court uses a standard form of order in most Registrar bankruptcy matters including standard form of sequestration and adjournment orders. Wherever appropriate, the Court will use the standard form of orders.

16.2. Standard orders are available on the Federal Circuit Court’s website.

17. Costs Orders

17.1. Generally, the Court will make a lump sum order unless it is not appropriate to do so. 

17.2. In matters where a Sequestration Order is made, the Court will generally fix costs in accordance with the short form amount. This will include any costs reserved on adjournment. Parties are to eLodge, as correspondence, a statement of costs and disbursements in accordance with the short form amount in advance of the court hearing. The statement of costs should not be eLodged as a short form bill as this will attract a filing fee.

17.3. The short form amount allowed for Sequestration Orders can be found in schedule 3 of the Federal Court Rules 2011.

17.4. Where a Creditor's Petition is dismissed, the Court may in appropriate circumstances, on application, make a costs order in accordance with (or consistent with) the short form amount. The Court will generally require proof that the statement of costs and disbursements has been served on all relevant parties/ persons. Parties applying for a costs order should lodge through eLodgment a statement of costs and disbursements and any affidavit of service of the statement in advance of the hearing.

17.5. Where proceedings are to be dismissed because the debt has been repaid at very short notice, and a statement of costs and disbursements has not been served or the costs agreed by the other party, a Registrar may, in appropriate circumstances, consider fixing costs with a direction that the costs orders be served with leave granted to any interested party to apply to have the costs order set aside or varied within seven days of receiving the order. Alternatively the parties may request that a Registrar adjourn the matter for a short period so that the statement of costs and disbursements can be served and any other steps taken to finalise the matter. If not opposed, the Registrar may announce the final costs order on the adjourned date in open court without the parties having to attend.

17.6. Where a debtor's petition was accepted shortly before the court date and a statement of costs and disbursements has not been served on the Official Receiver or Trustee, the Court may, in appropriate circumstances, order fixed costs with a direction that the applicant serve a copy of the order upon the Official Receiver or Trustee (as the costs respondent) within 7 days with leave given to the Official Receiver or Trustee to apply to the Court to vary or set aside the costs order within 7 days.

17.7. These can be found in the Registrar's Bankruptcy and General Matters – Standing Orders document.

18. Substituted Service Applications

18.1. Where personal service of a Creditor's Petition or delivery of a Bankruptcy Notice cannot be effected, an applicant may apply to the Court for an order for substituted service.

18.2. All applications for substituted service in bankruptcy matters will be determined on eCourtroom (refer to paragraph [18.3] of this Guide).

18.3. After a substituted service application is filed, the application will be allocated to a Registrar and listed in eCourtroom. It is anticipated that the Registrar will consider the application within 10 business days of filing.

18.4. Bankruptcy Information Sheet 5 gives an overview on how to apply for a substituted service order of a petition or Bankruptcy Notice; on what evidence would generally be required before such an order is made and on procedural matters relating to these applications is available.

19. Further practice information

19.1. This Guide applies to all Registrar Bankruptcy matters.

19.2. Practice information on matters commenced in the FCC is available on the Federal Circuit Court's website

20. Communications in a Registrar Matter

20.1. In communicating with the Registry about a Registrar matter, practitioners are to put their requests in writing by eLodging the request as correspondence and sending an email to the Legal Case Manager to the Registrar hearing the matter (or to the Registry if there is no Legal Case Manager) copying in each other party to the proceeding confirming that the request has been eLodged.

20.2. When sending an email message in a Registrar matter, it is expected that a party will:

  1. Address the email to the relevant Legal Case Manager and not to the Registrar directly
  2. Clearly state the Court's action number, parties' names and any Court dates in the subject heading
  3. Provide a clear description of any attached documents in the body of the email message, and
  4. Copy the message to all other parties (if applicable).

Note:

  • Parties should wherever practicable eLodge any documents (including correspondence) relevant to a Registrar matter.
  • Applications which require a fee to be paid are to be eLodged.
  • A party may not file a document by email; documents submitted by email will not be accepted for filing by the Registry and will not form part of the court file.

21. Publication of the Registrar Court List

21.1. Listing information for a Registrars' bankruptcy list is available in the Daily Court Lists.

21.2. The Registry aims to publish the Registrar's List for the following day by 4.30pm.

22. Enquiries and Contact Information

22.1 Contact details for the Court's registries are available on the Court's website.

23. Self-Represented Litigants

23.1. Self-Represented Litigants will be supported by the Registry to assist them through the court process efficiently. Further information to assist Self-Represented Litigants is available on the Court's website.

23.2. A Self-Representation Service is available to litigants in each registry. The service provides free, confidential and impartial legal advice and assistance with FCA and FCC proceedings for individuals and community groups.

24. Information on the Federal Court's Online Services for Federal Circuit Court – General Federal Law matters

eLodgment  

24.1. The Federal Court provides an electronic lodgement (eLodgment) facility through which a document that commences a proceeding or is relevant to an existing proceeding may be lodged for filing online. The use of eLodgment provides many benefits to court users. It is available from each user's computer at any time and provides a complete record of all lodgement transactions with the Court.

24.2. eLodgment also allows court users to lodge other documents regarding a proceeding, for example: a draft order, terms of consent and case management correspondence.

24.3. A party must be registered to use eLodgment. Information about registering, preparing and lodging documents using eLodgment can be found in Online Services.

eCourtroom

24.4. eCourtroom is a virtual courtroom that assists in the management of matters by allowing directions and final orders to be made online.

24.5. Once lodged applications will be given a return date with the location as 'eCourtroom'. Practitioners must ensure that when an application is lodged, the full name and email address of the practitioner who will be conducting the eCourtroom hearing is provided at the foot of the first page of the application. More than one practitioner's name and email address may be provided.

24.6. For each application, practitioners will receive a further email notifying them that the particular matter has been set up in eCourtroom. The Registrar allocated to deal with the matter will then communicate with each practitioner.

24.7. Before or on the eCourtroom return date the Registrar will:

  1. consider the filed evidence, any communications and the draft orders forwarded by the applicant, and
  2. make appropriate orders, notify parties (applicant in these ex parte matters) and provide a sealed copy of the order.

Commonwealth Courts Portal

24.8. Filed documents in a matter can be viewed by parties or those authorised by a party on the Commonwealth Courts Portal (CCP). The CCP provides web-based services for court users to access information about cases before the Court. Parties may register for the CCP to gain access to documents which have been eLodged, as well as orders of the Court, judgments and listing events (past or future).

Federal Law Search

24.9. Alternatively, stamped court orders are also available on Federal Law Search. The Federal Law Search facility provides selected information on cases to members of the public.