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 on this 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 Forms section of this website or from the Registry.

1. If you are applying for substituted service of a bankruptcy notice you will use a Bankruptcy Form B2. This is the application to the Court. Form B2 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.

2. If you are applying for substituted service of a creditor's petition use a Bankruptcy Form B3. 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 appropriate orders based on the draft short minutes at attachment B.

3. In either case you will need an affidavit or affidavits. An affidavit can be in Form 59 the Federal Court Rules 2011. 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 the Filing section of the Court's website or from the Registry.

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

5. Pay the applicable filing fee. If you cannot afford this fee you may be able to ask the Court to exempt you from having to pay it or to defer the time for its payment. You can get a form to ask the Court to either exempt or defer payment and information about the circumstances where an exemption or deferral can be given on the Exemption and reduction of fees pages or from the Registry.

6. The procedures for arranging hearings of applications for substituted service vary between the Registries. In NSW and Victorian Registries most substituted service applications are determined online through eCourt. Further information about this can be obtained from Practice Note CM 20: Ex parte applications for substituted service in bankruptcy proceedings and applications for examination summons under section 18 Bankruptcy Act 1966 and sections 596A and 596B Corporations Act 2011. The Registry where you file your documents will give you more information about how substituted service applications are listed and heard in that Registry.

Other steps to be taken before the hearing:

7. 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.