Federal Court of Australia - information for practitioners

Search: website | cases | judgments | library catalogues

Bankruptcy - Guide to application for substituted service

Steps to be taken in applying for substituted service or bankruptcy notice or creditor's petition

This guide has been prepared for litigants who wish to apply for substituted service of a bankruptcy notice or creditor's petition. As the party making the application (the applicant), you are responsible for making sure all your paperwork is in order. Although the Court's Registry staff can check your forms and other court papers for completeness and give you information about the Court's procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents. A full list of what Registry staff can and cannot do is available from the Court website.

When can I apply for substituted service?

The ordinary rule is that you must serve a bankruptcy notice or creditor's petition by leaving a copy of the document with the debtor, or, if the person refuses to accept service, putting the document down in his or her presence and telling him or her what the document is.

However if you are able to demonstrate that it is impractical to serve a document in this way, the Court may order that certain steps be taken instead. For example the Court may order that the document be sent to the debtor or given to another person who will bring the document to the attention of the debtor.

[Note: Bankruptcy Regulation 16 also applies to service of Bankruptcy Notices in appropriate circumstances]

How do I apply for substituted service?

Note : You can get copies of all the forms referred to in this guide and instructions on how to fill them out from the Registry or download them from the Court's website.

1. If you are applying for substituted service of a bankruptcy notice you will use a Bankruptcy Form 2 (found in Schedule 1 to the Bankruptcy Rules). This is the application to the Court. Paragraph A of Form 2 asks you to write each order that you want the Court to make. Use the appropriate orders based on the draft short minutes of order at attachment A below.

2. If you are applying for substituted service of a creditor's petition use a Bankruptcy Form 3 (as found in Schedule 1 of the Bankruptcy Rules). This is the interim application to the Court and will be filed in a Creditors Petition file. The form asks you to write each order that you want the Court to make. Use the orders based on the draft short minutes at attachment B below

3. In either case you will need an affidavit or affidavits. An affidavit can be in Form 20 to the Federal Court Rules. An affidavit is a written statement, affirmed or sworn before a solicitor or Justice of the Peace. The affidavit must set out the facts that support the reasons for your application.

It is suggested that you include at least the following information in the affidavit, if known:

• the debtor's last known address, occupation and business address or last known place of employment;

• whether the debtor has been served with a process on any previous occasion at a specific address;

• whether substituted service has been ordered against the debtor on any previous occasion;

• details of any specific enquiries made to locate the debtor, all attempts at service and the direct conversations with persons at the address;

• how the proposed methods of substituted service are likely to bring the documents to the attention of the debtor – for example:

• details of the names and addresses of relatives or friends who are believed to be in contact with the debtor and any record of actual conversations with these people, and

• details of enquiries made to locate the debtor through searches of public databases (electoral rolls, phone directories etc);

• any other relevant matter.

The person who undertook the attempts at service should swear/affirm the affidavit and any evidence of conversations should be given by the person involved in the conversation and recording the actual words spoken in direct speech.

The affidavit should not be more than 4 to 6 weeks old at the time of the hearing of the application for substituted service (not the date of filing).

4. The original application or interim application and affidavit must be delivered to the Court Registry with the appropriate filing fee. You can do this by bringing the documents to the Registry, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court's website.

Make sure you have a copy of the documents for yourself.

5. Pay the applicable filing fee. If you cannot afford this fee you can ask the Court to waive it. Some people are also exempt from paying fees (for example, if you have been granted Legal Aid or are the holder of a health care card). You can get a form to ask the Court to waive or grant an exemption from the fee from the Registry or download a copy from the Court's website.

6. Prepare draft short minutes of order. Use Attachment A if you are applying for substituted service of a bankruptcy notice. Use Attachment B if you are applying for substituted service of a creditor's petition. You can prepare the orders by retyping them and inserting the required information. Leave references to hearing dates blank – these will be completed by the Registrar. You will need the draft short minutes at the hearing.

7. The procedures for arranging hearings of applications for substituted service vary between the Registries. The Registry where you file your documents will give you information about the hearing date and endorse it on the application form.

Attachment A (PDF | RTF)

Attachment B (PDF | (RTF)