Apprehension warrant under section 264B of the Bankruptcy Act 1966 (Form B17)

Section 264B of the Bankruptcy Act 1966 lets the Court, a Registrar or a magistrate issue a warrant for the apprehension of a person served with a summons of a kind referred to in section 264A(1) (for example, to attend an examination or to appear as a witness) who fails to attend or to report from day to day as required. It is issued on proof by affidavit of service of the summons and, where section 264B(2) applies, proof by affidavit that the person was tendered a reasonable sum for expenses. Rule 12.02 of the Federal Court (Bankruptcy) Rules 2016 requires the warrant to be in accordance with Form B17.

When you need it

• A bankrupt or examinable person served with a section 81 or section 50 examination summons did not attend the examination.
• A person summoned as a witness in a bankruptcy proceeding failed to attend, or failed to keep reporting from day to day as required.
• You can prove service of the summons by affidavit and, where required, the tender of a reasonable sum for expenses.

1. 1

   Heading

   Use the proceeding details: District Registry, the 'In the matter of' line and the parties.

2. 2

   The person to be apprehended

   Give their name, address (or 'address unknown') and date of birth (or 'unknown'). The warrant is addressed to the Sheriff and all constables.

3. 3

   Where they are to be brought

   Choose whether the person is to be brought before the Federal Court at a registry, or before the named Registrar or magistrate issuing the warrant. The warrant authorises detention until released by order.

4. 4

   The failure and the proof

   Select whether the person failed to appear as required by the summons or failed to report from day to day. Keep the statement that service was proved by affidavit and, if needed, the statement about tender of expenses.

5. 5

   Issue

   The warrant is dated and signed by the Judge, Registrar or magistrate who issues it.

• The party who obtained the summons usually seeks the warrant when the person fails to attend. Have the affidavit of service, and of tender of expenses where section 264B(2) applies, ready to file.
• The Court or a Registrar may order that the warrant be kept in the Registry for a stated time and on conditions (r 12.02(2)).
• If the person is apprehended, the person who carried out the apprehension must immediately notify a Registrar in the issuing Registry (r 12.02(3)).
• The person apprehended may be ordered to pay the costs of the apprehension (s 264B(5)).

• Pay conduct money on time. For an examinable person, conduct money must be paid a reasonable time before the examination (r 6.17), and without proof of tender the warrant may be refused (s 264B(2)).
• Keep the affidavit of service precise about when, where and how the summons was served.
• Apprehension does not remove the person's liability for the failure to attend (s 264B(6)).