Federal Court of Australia

Listing arrangement of the Queensland District Registry in matters under the Bankruptcy Act 1966 (3 May 2000)
NB: This Notice to Practitioners is superseded by Listing arrangement of the Queensland District Registry in matters under the Bankruptcy Act 1966 dated 23 February 2005)

From 3 May 2000 listing arrangements of the Queensland District Registry in matters under the Bankruptcy Act 1966 are as follows:

Creditors – Petitions

1. Creditors' Petitions will be listed for hearing before a registrar on wednesdays at 9.30am. Ordinarily, hearing dates will be allocated about three weeks from date of filing. If an earlier or later date is sought, the documents must be accompanied by a letter that sets out the reasons for the request.

2. 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, provided that the service copies of the petition are returned to the registry not later than 24 hours before the first return date for endorsement of the new hearing date. The service copies must be accompanied by a letter that sets out the request and the reasons for it. Such a request may be made only once. An appearance will be required on a second or subsequent hearing date.

Ordinarily, matters will be heard in the following sequence:

a. First Call through the List: All matters on a list will be called over with a view to dealing with short, non-contentious matters as quickly as possible. Orders may be made for adjournment by consent, or when only one party appears, or when an adjournment is not opposed.

Unopposed applications for an order dismissing a petition will also be dealt with on the first call.

The registrar will deal with matters in the order in which they appear in the list and will not accept from practitioners mentions out of sequence.

b. Second Call through the List: Creditors' petitions that are unopposed and contain no defects or only minor defects will have been noted by the registrar on the first call and will now be heard. Contested applications for adjournment, unopposed applications for sequestration orders that will require some argument (eg proceedings contain defects that might invalidate the proceedings) and other matters will then be heard.

4. Notes of file reviews will continue to be prepared by a registrar and made available to practitioners. Ordinarily, copies will be available for collection at the registry no later than 2 days before the date for hearing. The notes of file reviews are not filed and are not to be read into evidence. They will contain notes of matters that may need to be addressed upon the hearing of a petition. The notes of file review replace the certificates that were issued under Rule 22 of the former Bankruptcy Rules.

5. Appearance slips will need to be completed and handed to the court officer before 9.30am on the day of hearing.

6. 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. Appearances may not be by articled clerks or other persons having no right of audience under the Judiciary Act 1903 (Cth) .

7. An affidavit of service of a creditor's petition should be filed as soon as possible after service and preferably at least five 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.

8. When a petition has been served, an adjournment has been granted and a new hearing date has been allocated, the following steps are required to be taken:

a. When the respondent debtor is not legally represented;

i. The solicitor for the applicant creditor will send a letter to the debtor by pre-paid ordinary post at his or her last known address which letter must inform the debtor of the order and of the adjourned date, time and place of hearing;

ii. Not later than two working days before the new hearing date, the applicant creditor will file an affidavit of posting of the letter referred to in paragraph 8(a)(i); and

iii. If such letter has been returned unclaimed, that fact must be brought to the attention of the Court.

b. When the debtor is represented by a solicitor and that solicitor is not present in Court, the solicitor for the applicant creditor will notify the debtor's solicitor of the order and of the adjourned date, time and place of the hearing. Not later than two working days before the new hearing date, the solicitor for the creditor will file an affidavit in respect of such notification.

The above mentioned steps are required to be taken in the event that the registrar orders "usual order for notification to the respondent debtor".

9. 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. Whilst applications for an adjournment may be made orally, submissions in the absence of affidavit material will not be sufficient. An affidavit of an articled clerk or other employee of the solicitor for a party will not be sufficient for the purpose.

10. In the event that a creditor's petition is opposed, the registrar ordinarily will make directions orders that will include the filing of affidavits. If the petition is adjourned to a later date for review or for further directions it will usually be adjourned to a Friday list at 9.30am. Further reference will be made to contested creditors' petitions under the following heading "Applications".

Applications

1. Applications (Form 5) under the Bankruptcy Act will be listed before a registrar on Fridays at 9.30am. Ordinarily, dates for directions hearings will be allocated about three weeks from the date of filing, except in the case of applications for substituted service of creditor's petitions and bankruptcy notices which usually will be listed on the Friday following the date of filing. Applications for substituted service will not be heard in Chambers and, instead, will be heard in open Court. If an earlier or later date is sought, the documents must be accompanied by a letter that sets out the reasons for the request.

2. New applications will be listed for directions only on the first return date unless an endorsement on the application states otherwise.

3. The registrar will deal with matters in the following sequence

a. First Call through the List: Orders may be made for adjournment by consent, or when only one party appears or when an adjournment is not opposed. If an adjournment is sought after the first return date, an application for an adjournment may be made orally, but 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. An affidavit of an articled clerk or other employee of the solicitor for a party will not be sufficient for the purpose.

Unopposed applications for orders dismissing an application will also be dealt with on the first call provided the registrar has power to make the order having regard to the subject-matter of the application. If the registrar does not have power to order the dismissal of a particular application, legal representatives may choose to adopt the provisions of Order 35 rule 10 Federal Court Rules and submit to the registrar consent minutes of order signed and dated by them. The registrar will then refer the consent minutes of order to a Judge for consideration pursuant to the rule. The legal representatives will be notified by telephone of the outcome of the referral to the Judge.

The registrar will deal with matters in the order in which they appear in the list and will not accept from practitioners mentions out of sequence.

b. Second Call through the List: Ordinarily, applications that are not opposed and are within the power of the registrar to hear will be dealt with now. Contested applications for adjournment and other matters within the power of the registrar to hear will then be heard unless the registrar determines that the application is one that is appropriate to be heard by a Judge. Ordinarily, in matters that need to be referred to a Judge for hearing, the registrar will make directions orders that will include the filing of affidavits. The registrar may then adjourn the application to a later date for review by a registrar or, instead, refer the application to a Judge for allocation of a hearing date.

4. In contested applications that will need to be heard by a Judge and in which directions orders have been made, the registrar, before referring the matter to a Judge for allocation of a hearing date, will require the solicitors for the parties to certify in the form attached as to the following matters:

a . That all affidavits intended to be relied upon have been filed;

b . That all steps required to be taken pursuant to directions orders have been completed.

c. That no further interlocutory steps are contemplated or will be taken;

d. That the matter is ready for hearing in all respects;

e. The likely duration of the hearing;

f. The number and names of deponents to affidavits whom a party intends to cross-examine;

g. The estimated duration of cross-examination of each such deponent;

h. The number and names of any other persons intended to be called as witnesses who have not sworn affidavits and the reason for affidavits not having been sworn;

i. The likely duration of evidence in chief and anticipated cross-examination of such other persons;

j. Whether counsel will be briefed on the hearing and the name of counsel if then known;

k. Any other information relevant to the fixing of the date/s for hearing.

A case review conference will be held by the registrar at which the solicitors or counsel for the parties will be required to attend for the purpose of discussing matters relevant to certification of readiness for hearing and completion of the certificate. Ordinarily, the time and date of such case review conference will be fixed at the last directions hearing. The solicitors for the parties are required to prepare a joint statement of facts and issues and to submit that statement to the registrar five (5) business days prior to the date for the case review conference. In the event that solicitors are unable to reach agreement on all the terms of the statement of facts and issues, each is required to submit a statement that sets out the agreed facts and issues and those not agreed.

When the registrar is satisfied that the matter is ready for allocation of a hearing date it will be placed on a Judge's docket and a hearing date will be requested.

5. Appearance slips will need to be completed and handed to the court officer before the matter is called.

6. 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. Appearances may not be by articled clerks or other persons having no right of audience under the Judiciary Act 1903 (Cth) .

G K Ramsey
District Registrar
February 2000