Bankruptcy - Apprehension warrant

Section 264B of the Bankruptcy Act 1966 allows the court or a registrar, on proof by affidavit that a summons was served, to issue a warrant for the apprehension of a person who failed to attend as the summons required. For a person summoned for examination or as a witness, the court must also be satisfied by affidavit that they were tendered a reasonable sum for expenses (s 264B(2)). The warrant authorises the person's arrest, being brought before the court and detention until the court orders release (s 264B(3)). A constable executing it may break and enter any place or building to do so (s 264B(4)), and the person may be ordered to pay the costs of the apprehension (s 264B(5)). This is the form of warrant approved for the court's family law bankruptcy jurisdiction.

When you need it

• A person was served with a summons in a family law bankruptcy proceeding, such as a summons for examination under s 81, and did not attend without reasonable excuse.
• You can prove service of the summons by affidavit, and where required that conduct money was tendered.
• The warrant is issued and signed by the court or a registrar, not by a party.

1. 1

   Filing details and parties

   Tick the court division, add the file number, the name of the bankrupt estate and the court date, and the names of the parties in Part A.

2. 2

   Part B - who the warrant is directed to

   Tick the addressees: the Marshal, Australian Federal Police officers, police constables, and the keeper of a named gaol or any gaol within the Commonwealth.

3. 3

   The summons and service

   Give the date of the summons, the name and address of the person summoned, the time and address they were to appear, who was served and when. Complete the expenses tender line, which the form says to omit for a relevant person summoned under s 81.

4. 4

   Directions to arrest and detain

   Insert the person's name where the warrant authorises them to be taken and brought up for examination, and the gaol where they are to be held if they cannot be brought before the court immediately.

5. 5

   Date and registrar's signature

   The warrant is dated and signed by the Registrar when issued.

• The court can only issue the warrant on proof by affidavit of service of the summons (s 264B(1)), so have an affidavit of service ready.
• Where s 264B(2) applies, file affidavit evidence that a reasonable sum for expenses was tendered.
• Read the court's Practice Direction - Bankruptcy Act proceedings for how the court manages these proceedings.

• For an examinable person, the applicant for the summons must pay conduct money a reasonable time before the examination (r 6.17 of the Division 2 Bankruptcy Rules, as applied). Record the tender in the affidavit of service so s 264B(2) can be satisfied.
• Arrest does not release the person from any other liability for failing to attend (s 264B(6)).