Bankruptcy - Application for summons to examine relevant person or examinable person

Under s 81 of the Bankruptcy Act 1966, on the application of a creditor, the trustee or the Official Receiver, the court may summon the bankrupt (the relevant person) or an examinable person for examination about the bankruptcy, and may require them to produce books. In family law bankruptcy proceedings, Divisions 6.2 and 6.3 of the Division 2 Bankruptcy Rules apply through r 1.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Those rules require the application to be accompanied by a draft summons and an affidavit stating the applicant's capacity and, if books are to be produced, identifying them (rr 6.06, 6.12). For an examinable person, the affidavit must also state the facts showing why they are one (r 6.12(3)(b)).

When you need it

• You are the trustee, or a creditor with a provable debt, in a bankruptcy being dealt with in the court's family law jurisdiction.
• You want the bankrupt, or another person with information about the bankrupt's affairs, examined on oath.
• You also want them to bring specified documents to the examination.

1. 1

   Filing details

   Tick the court division, give the name of the bankrupt estate and the person filing, and tick trustee or other.

2. 2

   Part A - the parties

   Names of applicants and respondents in the proceeding.

3. 3

   Part B - who seeks the summons

   Name, address for service, phone and email, and your capacity under s 81(1), such as creditor or trustee.

4. 4

   Part C - the persons to be summoned

   List each relevant person and examinable person with their address, and tick whether each is to give evidence only or also produce documents. List the documents for each person on an attached page.

5. 5

   Part D - signature

   Sign and date, and show who signed and prepared it.

• File the application with a draft of each summons and a supporting affidavit (rr 6.06(2), 6.12(2)). The court's page says to use an Affidavit - Family law and child support.
• In the family law jurisdiction the application may be heard in the absence of a party or in chambers (rr 6.07, 6.13 as modified by r 1.23).
• If the summons is issued, serve it by personal service at least 8 days before the examination and give written notice of the examination to each known creditor (rr 6.09, 6.15 as modified by r 1.23).
• Read the court's Practice Direction - Bankruptcy Act proceedings before filing.

• Identify the books to be produced precisely and describe any earlier attempts to get them, which r 6.06(3)(b) requires in the affidavit.
• One application can cover several people (notes to rr 6.06 and 6.12).
• If a summonsed person fails to attend, the court may issue an apprehension warrant under s 264B of the Bankruptcy Act.