This notice replaces the notice of the same title issued
24 July 2002.
Creditors petitions
As from Wednesday 28 August 2002 creditors' petitions
filed in the Federal Court and Federal Magistrates Court
will be listed at 9.30 am on either Wednesdays or Fridays.
Ordinarily, a hearing date for a creditor's petition
will be allocated about 3 weeks from the date of filing
the petition. If an earlier or later date is sought,
the documents must be accompanied by a letter that sets
out the reason for the request.
If a petition has not been served prior to the first
return date, a later hearing date may be obtained without
the need for an appearance before the Registrar on that
return date. In that case, a request for an adjournment
on the papers must be made in writing (no later than
24 hours before the return date) and set out the reasons
for the request. Such a request may be made only once.
An appearance will be required on the second or subsequent
allocated hearing date. The applicant's solicitor must
return the sealed service copies of the petition to the
Registry immediately to enable a new return date to be
inserted on the documents.
If a petition has been served prior to the first return
date, a later hearing date may be obtained without the
need for an appearance before the Registrar on that return
date. In that case a consent order signed by both parties
needs to be filed no later than 24 hours before the first
return date. Such a request may be made only once. An
appearance will be required on the second or subsequent
allocated hearing date.
Notes of File Review will continue to be prepared by
a Registrar and made available to parties.
An affidavit of service of a creditor's petition should
be filed as soon as possible after service and preferably
at least 5 working days before the hearing date. Presentation
of and request for leave to file the affidavit of service
to the Registrar on the date for hearing should be avoided.
All applications for an adjournment of the hearing of
a petition after the first appearance before the Court
must be supported by an affidavit that sets out the facts
and grounds relied upon for the adjournment.
An affidavit will be required whether or not the application
for the adjournment is opposed. When the petition has
been served and an adjournment has been granted in the
absence of a respondent or his/her solicitor, the "usual
order" for notification to the respondent will be
made. The usual order requires the following steps to
be taken -
(a) When the respondent is not legally represented,
the solicitor for the applicant will send a letter to
the respondent by pre-paid ordinary post at his or her
last known address, which letter must inform the respondent
of the order and of the adjourned date, time and place
of hearing;
(b) When the respondent is represented by a solicitor
and that solicitor is not present in Court, the solicitor
for the applicant will notify the respondent's solicitor
of the order and of the adjourned date, time and place
of the hearing;
(c) The solicitor for the applicant will file an affidavit
of posting/notification on or before the new hearing
date.
If an applicant does not wish to proceed with a creditor's
petition, then an order may be sought that the petition
be dismissed or that leave be granted to withdraw the
petition. Section 31 of the Bankruptcy
Act 1966 states
that in exercising jurisdiction under the Act the Court
shall hear and determine a creditor's petition in open
court. An order for dismissal of a petition needs to
be made in open court. It is not appropriate for a notice
of discontinuance to be filed in a creditor's petition
proceeding.
Applications under the Bankruptcy Act 1966
The arrangements for listing applications under the
Bankruptcy Act 1966 will be the same as those for creditors'
petitions.
Matters that fall outside a Registrar's delegation will
be listed only for directions on the first occasion to
enable directions to be given for the future conduct
of the application. The matter will then be adjourned
for hearing before a Federal Court Judge or a Federal
Magistrate as the case may be when all directions orders
have been complied with.
Right of Audience
Practitioners are reminded that only those solicitors
and barristers whose names have been entered on the Register
of Practitioners kept by the High Court are entitled
to practise in the Federal Court of Australia or Federal
Magistrates Court. Appearances may not be by articled
clerks or other persons having no right of appearance
under the Judiciary Act
1903 (Cth) .
