This factsheet sets out the process to make a claim in the Federal Circuit Court (“the FCC”) under the:

• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)

In most cases any claim under these laws must be started in the Australian Human Rights Commission (“the Commission”). The Commission will organise a mediation between you and the person you are complaining about to try to resolve your complaint. If no agreement is reached through mediation, the Commission will terminate your complaint and give you a Notice of Termination that will let you make an application to the FCC if you want to continue.

It is important to understand that the acceptance and mediation of a complaint by the Commission does not necessarily mean that the complaint has a good chance of succeeding. Pursuing a case beyond the Commission stage and going to court is time consuming. If you don’t have a good case and go to court anyway, you may be ordered to pay the other party’s legal costs, which can be very high. Therefore, before you go to court you should think about whether you have the evidence to prove your cause of action.

Time limits

An application to the FCC must be made within 60 days of the date on the Notice of Termination you receive from the Commission.

How to apply

To apply to the FCC under one of the above discrimination acts, you will need to prepare:

1. Application – Human Rights; and
2. Applicant’s Genuine Steps Statement.

Application – Human Rights

The Application – Human Rights has a number of different parts. Below are specific comments about some of the sections, but generally:

• You will be the Applicant and the Respondent will be the person or company who you allege has committed unlawful discrimination against you;
• At the bottom of the first page of the Application, you will need to set out your details, including a street address within Australia that you are happy for the other party and the court to send any relevant documents to; and
• Before you lodge your Application with the court you will need to attach a copy of the complaint you made to the Commission and a copy of the Commission’s Notice of Termination.

Part A – Final and Interim Orders

Under Part A of the Application, you will need to list the final and interim orders you are asking the court to make.

An interim order is an order you want the court to make straight away, before deciding your overall claim. This might include an order that you can have an extension of time to lodge your claim with the FCC if you did not file your Application within the 60 day time period.

Final orders are the orders you want the court to make after hearing your case, such as an apology or compensation.

It is important to note that damages in discrimination claims are designed to place applicants in the position in which they would have been if there had not been an act of unlawful discrimination committed against them – they are not designed to impose punishment on the Respondent. Generally, there are three types of damages you can claim:

• Special damages, which includes economic loss. An example would be loss of earning capacity if a person left their job because of sexual harassment. They could claim damages for the time between when they left the job and when they found an alternative job;
• General damages, which includes non-economic loss for hurt and humiliation; and
• Exemplary or aggravated damages. Exemplary damages are only awarded in limited circumstances where there is evidence of malevolence, spite or ill will.

It is essential that you have evidence of the loss and damage you say you have suffered.

Part B – Grounds of Application

In this section, you will need to set out the factual basis for your claim (that is, you will need to list the facts that demonstrate you have a cause of action). The purpose of this section is to tell the court your story and explain why you should get the orders you are asking for. Try to be as clear and concise as possible and relate the facts without emotion or personal comment.

The facts you will need to include will vary depending on what breach of the discrimination law you say has happened.

For example, if your complaint is that you were subject to age discrimination during an employment recruitment process, the facts you are relying on could look something like this:

On 1 March 2013 I saw the position of salesperson at Bob Egg Pty Ltd (“the Respondent”) advertised in The Courier-Mail.

On 12 March 2013 I forwarded my completed application for the position to the Respondent via email.

On 30 March 2013 I attended an interview at the Respondent’s premises at 100 Bob Egg Lane, Brisbane.

On 12 April 2013, I spoke to Susan Egg, a representative of the Respondent, by telephone. We had the following conversation:

Susan said: “Hi Larry, this is Susan. I’m calling to tell you that you have been unsuccessful in your application as salesperson at Bob Egg Pty Ltd.”

I said: “I’m sorry to hear that, can you give me any feedback about my application?”

Susan replied: “You had all the necessary qualifications but we were looking for someone younger than you to fill the position so we went with a different candidate.”

Since that time, I have applied for five other jobs but have been unable to secure a position.

Genuine Steps Statement

The Civil Dispute Resolution Act 2011 (Cth) requires that parties to court proceedings take genuine steps to resolve a dispute before commencing proceedings. For discrimination matters, this requirement is fulfilled by the mediation process you would have completed with the Commission as long as you genuinely participated in that process and did not unreasonably refuse any offers made by the other party.

Failure to take genuine steps to resolve a dispute before coming to court will not invalidate the court proceedings but may impact on what orders the court makes about costs at the end of the proceedings.

The Applicant’s Genuine Steps Statement requires you to list the steps you have taken to resolve the dispute before filing proceedings. For example, you might say:

• Attempts have been made to mediate through the Australian Human Rights Commission.
• The Australian Human Rights Commission has issued a Notice of Termination for matter [INSERT THE COMMISSION REFERENCE], which is the matter dealing with the dispute between myself and the Respondent which is the subject of this Application, on the basis that there was no reasonable prospect of the matter being resolved.
• The Respondent refused to participate in the mediation process before the Australian Human Rights Commission.

Filing and serving your documents

Once you have completed both forms you will need to lodge them with the court (called filing). You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application (currently $55 but check current fees here). In certain circumstances you can apply for a waiver of this fee. See our Fee waiver guide – Federal Circuit Court factsheet for more information.

A sealed copy (which is a copy stamped by the court) will then need to be personally served on all the people you have named as Respondents at least seven days before the first court date.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is. If you are not comfortable serving the creditor yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company’s registered address.

In addition to serving any Respondents, you will need to give a sealed copy of your court documents to the Commission at least five days before the first court date.

Progress of proceedings

When you file your documents, you will be given a time and date for the first hearing of your Application, which will be a directions hearing. At the directions hearing, the FCC will give you and the Respondents a timeline to complete all the necessary documents and meetings needed to get the proceedings ready for a trial. Throughout the proceeding you can expect:

• To be served with a Response from the Respondent or a Notice of Address for Service – see rules 4.03 and 6.01(2) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules);
• To be required to file and serve affidavit material which will contain your evidence and that of your witnesses – see Division 15.4 of the FCC Rules;
• To receive affidavit material from any Respondents;
• To attend a mediation; and
• To attend a final hearing at which all your witnesses must be present to be cross-examined.

Useful links

You can get further information about discrimination from the following organisations:

Australian Human Rights Commission
P: 1300 656 419
W: http://www.humanrights.gov.au

Basic Rights Queensland (for disability discrimination)
P: 1800 358 511
W: http://www.brq.org.au

A bankruptcy notice is a demand for payment of money, issued by the Australian Financial Security Authority (AFSA) at the request of a creditor. A creditor is a person who is owed money.

The AFSA will issue a bankruptcy notice to a creditor who has obtained a final judgment, or two or more final judgments, worth $10,000 or more.

If you receive a bankruptcy notice, you will commit an “act of bankruptcy” if you fail to:

• comply with the bankruptcy notice within the time stated on the notice (usually 21 days); or
• apply to the court to have the bankruptcy notice set aside (cancelled) within the time stated on the notice (usually 21 days).

If you commit an act of bankruptcy, you give the creditor grounds to apply to the Federal Circuit Court for an order that you be made bankrupt (a sequestration order).

In this factsheet:

• “court” means the Federal Circuit Court.
• “the Act” is the Bankruptcy Act 1966 (Cth).
• “the Rules” are the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth).
• the FCC Rules” are the Federal Circuit Court Rules 2001 (Cth).
• “the Regulations” are the Bankruptcy Regulations 2021 (Cth).

Proper service of a bankruptcy notice

It is not necessary for a bankruptcy notice to be personally served. A bankruptcy notice may be validly served personally, by ordinary pre-paid post or by hand delivery to your address, as last known to the creditor. In some circumstances a bankruptcy notice can also be sent electronically (eg fax or email).

If the creditor can’t serve the bankruptcy notice in one of these ways, they could get an order from the court that will let them serve the bankruptcy notice a different way.

How to comply with a bankruptcy notice

There are two ways to comply with a bankruptcy notice:

1. Pay the amount set out in the bankruptcy notice in full in cash or its equivalent; or
2. Come to an arrangement to the creditor’s satisfaction, such as a payment plan. It is up to the creditor whether they accept a payment arrangement. It is always best to put the agreement in writing so you have evidence of the agreement.

Either of these must be done within the time for compliance set out in the bankruptcy notice (usually 21 days from the date of service).

Setting aside the bankruptcy notice

If grounds exist, you can apply to the court for the bankruptcy notice to be set aside (cancelled). If you make an application without grounds then you may be ordered to pay the creditor’s legal costs of answering your application, which will only increase the amount of your debt to them.

At the same time as you apply to set aside the bankruptcy notice, you should also request that the court extends the time for compliance with the bankruptcy notice, so that you don’t commit an act of bankruptcy while you wait for the court to hear your application.

A bankruptcy notice can be set aside on the following grounds:

1. There is a defect in the bankruptcy notice;
2. The debt on which the bankruptcy notice is based does not exist;
3. You have a counter-claim, set-off or cross demand, equal to or exceeding the amount claimed in the bankruptcy notice; or
4. The bankruptcy notice is an abuse of process.

Defect in the form or content of the bankruptcy notice

If the creditor has not complied with the requirements of the Act you may have grounds to apply for the notice to be set aside. Not every defect will make a bankruptcy notice invalid because some defects can, at the discretion of the court, be fixed under s 306(1) of the Act.

Generally, to be able to get the bankruptcy notice set aside because of a defect you will have to show that the defect has caused substantial injustice or confusion about what you must do to comply with the bankruptcy notice.

The following are examples of requirements which the court has found to be essential so a failure to adhere to these requirements may cause a bankruptcy notice to be invalid:

• The debtor’s and creditor’s name in the bankruptcy notice should be the same as the debtor’s and creditor’s name in the judgment;
• The bankruptcy notice needs to contain the address of the creditor and that address needs to be one at which it is reasonably practicable for the debtor to make payment (for example, a PO Box may not be sufficient);
• The bankruptcy notice must include a time limit for compliance;
• A copy of the judgment or order on which the bankruptcy notice is based must be attached to the notice;
• If post judgment interest is being claimed, details of the calculation must be set out in a document attached to the notice; and
• If payments have been made by the debtor or other reductions allowed to the amount, the total amount of these must be set out in a document attached to the notice.

The following have been found not to be substantial defects:

• The failure to include the ACN of the creditor if it is a company; and
• The creditor’s address to be listed as care of its solicitors (as long as payment can be reasonably made at the address shown).

Other general legal requirements to keep in mind include:

• The judgment or order relied upon must be worth at least $10,000 in and of itself – post judgment interest does not count towards the threshold amount;
• A bankruptcy notice may be issued for an amount less than $10,000 provided that the judgments or orders when pronounced were for an amount in excess of $10,000;
• A bankruptcy notice must be served within 6 months of its issue unless that time has been extended by the Official Receiver (reg 10 the Regulations);
• A bankruptcy notice must be based on a final judgment or order currently payable to the creditor. A final judgment has been defined as a judgment which finally disposes of the rights of the parties. This can include costs orders and any other awards, judgments and orders deemed to be final judgments or orders under s 40(3) of the Act;
• The final judgment or order must not be stayed (for example by an instalment order granted by the court that gave the judgment), both at the time of issue of the notice and at the time of its service. If a stay of execution is granted after service, it has no effect on the bankruptcy notice;
• The judgment or order on which the bankruptcy notice is based must not be more than 6 years old (s 41(3)(c)); and
• A bankruptcy notice is not invalidated by reason only of an overstatement of the amount specified as being due to the creditor, unless the debtor, within the time allowed for compliance with the notice, gives the creditor notice that he or she disputes the validity of the notice on this ground (s 41(5)).

The debt on which the bankruptcy notice is based does not exist.

Because a bankruptcy notice must be based on a final judgment or order, to prove that the debt on which the bankruptcy notice does not exist you would need evidence that:

• You have paid the creditor the amount owing under the judgment or order; or
• You have commenced proceedings to set aside the judgment or order (for example, by commencing an appeal).

It is not enough to say in your application to set aside the bankruptcy notice that you will commence proceedings to set aside the judgment or order or that you have the grounds to do so – you must have filed the documents with the court that handed down the original order. You must also be able to provide the Federal Circuit Court with evidence that shows you have a genuine and arguable case in that original court that you are diligently prosecuting. If you do not commence proceedings to set aside the judgment or order in the original court before filing your application to set aside the bankruptcy notice, the Federal Circuit Court will have no power to extend the time for compliance with the notice under sections 41(6A) and 41(6C) of the Act, and you will have committed an act of bankruptcy.

There is some support in case law for the proposition that you can ask the court to “go behind the judgment” on an application to set aside a bankruptcy notice but only in order to establish that the court should not accept the judgment as proof of the debt. For more information on asking a court to go behind a judgment, please see the LawRight factsheet Bankruptcy – Opposing a creditors petition.

Counter-claim, set-off or cross demand

There are two things you will need to demonstrate to the court to succeed under this ground:

1. That you have a counter-claim, set-off or cross demand equal to or exceeding the amount claimed in the bankruptcy notice. Simply stating that you have a counter-claim, set-off or cross demand will not be enough. You must satisfy the court that the demand is genuine and has a reasonable probability of success; and
2. The counter-claim, set-off or cross demand could not have been set up in the action or proceeding in which the creditor obtained the judgment on which the bankruptcy notice is based. Failure to take advantage of the opportunity to counter-claim or other personal circumstances which prevented you from pursuing a cross-claim (like not having relevant evidence at the time, or a lack of legal advice or knowledge), will not be sufficient.

Abuse of process

If you can prove that the purpose of the bankruptcy notice is to put pressure on you to pay the debt, rather than a genuine effort by the creditor to invoke the court’s jurisdiction in relation to insolvency, then you may be able to get the bankruptcy notice set aside because it is an abuse of process. You will need evidence of a collateral purpose or undue pressure to succeed on this ground.

How to apply

To apply for the bankruptcy notice to be set aside you will need to prepare, file and serve the following documents:

• Application (Form B2); and
• Affidavit.

Application

The requirements for an application to set aside a bankruptcy notice can be found in rule 3.02 of the Rules.

There are two types of orders you can apply for: final orders and interim orders.

Final orders should include the ultimate outcome you want and the legislative basis on which the court has power to grant that outcome. An example would be: That bankruptcy notice number BN0000 issued on 1 January 2015 (“Bankruptcy Notice”), which was served on me on 1 February 2015, be set aside under section 30(1) of the Bankruptcy Act 1966. A copy of the Bankruptcy Notice accompanies this application.

Interim orders should include any outcomes you want before the application is finally decided and the legislative basis on which the court has power to grant that outcome. An example is: That the time for compliance with the Bankruptcy Notice be extended up to and including 7 days after the determination of this application (as amended, if amended) by the Court under section 41(6A) of the Bankruptcy Act 1966.

Affidavit

Your application must be accompanied by an affidavit which sets out the grounds in support of your application and the date when the bankruptcy notice was served on you. You will also need to attach a copy of any application you have made to set aside the judgment or order underlying the bankruptcy notice. It is important that your affidavit complies with rule 3.02 of the Rules otherwise your application may be considered defective and an extension of time to comply with the bankruptcy notice may not be granted.

For more information about preparing an affidavit, see LawRight factsheet Drafting an Affidavit.

Filing

Once you have completed your documents they need to be filed (lodged) with the court. You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application. In certain circumstances you can apply for a waiver of this fee (see LawRight factsheet Fee waiver guide – Federal Circuit Court for more information).

Serving your documents

Your stamped application and affidavit must be personally served on the creditor within 3 days after the documents are filed.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investment Commission which will show the company’s registered address.

If you are not comfortable serving a creditor yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

Financial advice

If you do not think you have any grounds to apply for the bankruptcy notice to be set aside, or if you are not sure whether you should spend the time and money to apply because of your wider financial circumstances, you should seek financial advice.

For free financial counselling you can contact:

• National Debt Helpline on 1800 007 007

• Salvation Army on 1300 363 622

A sequestration order is an order made by a court which makes a person bankrupt. This factsheet sets out the process for applying for a review of a sequestration order made by a Registrar of the Federal Circuit Court.

Before you decide whether to challenge a sequestration order by seeking a review, we suggest you consider the consequences of bankruptcy (see the Australian Financial Security Authority’s website).

In this factsheet:

• “creditor” means the person who is owed money and brought the initial creditor’s petition.
• “court” means the Federal Circuit Court.

Review

Most creditors petitions filed in the court are heard by a Registrar. The decision of a Registrar can be reviewed by a judge of the court if either party asks for this to happen. Where a Judge makes a sequestration order, that order can only be challenged via an appeal. That process is not covered by this fact sheet. Further information about appealing a decision of a Federal Circuit Judge can be found here: Appeals – Federal Circuit Court of Australia

An application for review is heard by way of a hearing de novo. This means that the judge will listen to the matter again from the beginning. The judge will then decide whether all the requirements for the making of a sequestration order are met. This means that to be successful in a review application you will need to have grounds to oppose the creditor’s petition. See our factsheet Bankruptcy – Opposing a creditors petition for more information on possible grounds.

Time limits

An application for review of a sequestration order must be made within 21 days from the date of the initial order. While you can ask the court for an extension of time, there is no guarantee that one will be given. If you are out of time to make an application to review a sequestration order, you may like to think about whether you have grounds to apply for an annulment of your bankruptcy (see LawRight’s factsheet Bankruptcy – Applying for annulment).

Costs

Even if you are successful in your application for review of the sequestration order, you may still be required to pay the legal costs of the other party, particularly if the creditor can show that the grounds on which you opposed the creditors petition during the application for review could have been raised when the creditors petition was originally heard by the Registrar.

How to apply

You can apply for a review of a sequestration order orally at the hearing where the order is made by asking the Registrar for a review. Alternatively, you can make a written application for a review after the hearing.

To make a written application you will need to complete the following forms:

• Application for Review (Form B3A)
• Notice to Creditors (Form B12)
• Affidavit

Application

When you are preparing the Application for Review, you will be the Applicant and the creditor who brought the original creditors petition will be the Respondent. Under the ‘Orders sought’ section of the form, you will need to set out the orders you would like the Judge to make. For example:

1. The orders made by Registrar Smith on 1 January 2015 in proceeding BRG00/2015 be set aside under the Federal Circuit Court of Australia Act 1999 (Cth) section 104(3).
2. The creditors petition be dismissed.
3. There be no order as to costs.

Notice to creditors

You will also need to prepare a Form 12 – Notice to creditors. This notifies your creditors that you are applying for a review of the sequestration order. You must give a copy of this Notice to every person/company you owe money to, not just the creditor who brought the original creditors petition.

Affidavit

You should also file an affidavit which sets out the grounds for review. The grounds for review can be any of the grounds that can be raised to oppose a creditor’s petition. For more information about these grounds, see LawRight’s factsheet Opposing a creditor’s petition.

An affidavit is a sworn statement of your evidence that supports your application for review. Affidavits must be sworn or affirmed before a qualified witness (such as Justice of the Peace or lawyer) before filing. See LawRight’s factsheet Drafting an affidavit.

Filing

Filing is the process of lodging your forms with the court and getting them stamped. You will need to do this once you have completed them. You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application, though in certain circumstances you can apply for the fee to be waived. See our factsheet Fee waiver guide – Federal Circuit Court for more information.

Serving your documents

You will need to serve (give) a stamped copy of your Application for Review, and any other documents you file, on the original creditor. This needs to be done within 7 days before the date the court has scheduled for the hearing.

You will also need to give a copy to your trustee in bankruptcy and make sure to give a copy of the Notice to all of your creditors. Your trustee and creditors need to be served with these documents at least 7 days before the hearing of the application.

Other documents & evidence

As stated above, you will need grounds to oppose the creditors petition to be successful in your application for review. If you filed documents to oppose the petition in the first instance you should review these documents to make sure they are sufficient to show that a sequestration should not be made against you (see our factsheet Bankruptcy – Opposing a creditors petition for further information about the documents you should have filed).

If you did not file any documents, or filed insufficient documents, for the original hearing of the creditor’s petition you will need to do so before the hearing of your Application for Review. If you wish to file additional evidence that was not before the Registrar who made the original decision, you will need permission of the court to file new evidence by way of affidavit in the review proceedings. You should prepare all the necessary documents, including a comprehensive affidavit and take the completed documents to the first hearing and ask the judge for permission to ‘read and file’ them during the hearing

Financial advice

For free financial counselling you can contact:

• National Debt Helpline on 1800 007 007.

• Salvation Army on 1300 363 622.

A creditor’s petition is a court document that has been lodged by a creditor (a person who is owed money) against a debtor (the person who owes money to the creditor). The purpose of a creditors petition is to ask the court to make an order declaring the debtor bankrupt (a sequestration order).

Time limits

There is no statutory time limit in which an application for annulment needs to be made, however, one of the things the court will consider when making its decision is whether the applicant has acted in a timely manner. As such, if you think you have grounds to apply to annul your bankruptcy, you should take steps as soon as you can.

Costs

If you make an annulment application and are not successful, you may be ordered to pay the legal costs of your trustee in bankruptcy and any creditors that participate in the proceedings. In some circumstances a cost order may be made against you even if you are successful. These costs are not always taken out of your bankrupt estate and may become a new debt that you need to pay, outside of the process of bankruptcy.

When the court will annul a bankruptcy

Section 153B of the Act says that the court may annul a sequestration order (the order which made the person bankrupt) if it is satisfied that the order should not have been made. This means that at your hearing there are two things that you need to convince the court about to be successful with an application for an annulment:

1. That if the court was hearing the creditor’s petition on the day of this new hearing, the creditors petition would not have succeeded. This will involve you showing the court that you have grounds to oppose the petition (see LawRight’s factsheet Bankruptcy – Opposing a creditors petition); and
2. That in all the circumstances of your case, your bankruptcy should be annulled. It will be your responsibility to provide evidence of your financial position and any other relevant factors. There is a strong onus on you to be forthright with the court about your situation and provide the court with any relevant evidence, even if it is not favourable to your case.

The power of the court to annul a bankruptcy under section 153B of the Act is discretionary, which means that even if there was some problem with the way in which you were made bankrupt, the court can still decide that it is not appropriate to annul your bankruptcy. Courts only exercise their discretion to annul a bankruptcy in special circumstances. Some of the things the court may consider include:

• Whether you are solvent. If the evidence shows that you cannot pay your debts it is likely that the court will not release you from bankruptcy;
• Whether you have cooperated fully with your trustee in bankruptcy and complied with your obligations as a bankrupt under the Act;
• How much time has passed since the sequestration order was made. If this is a significant amount of time, the court may consider whether you have explained why you have not brought the application sooner; and
• Whether you attended the hearing of the original creditor’s petition, and if not, why not.

This is not an exhaustive list and the court will be bound to consider all the circumstances of an individual case when making a decision.

How to apply

To ask the court to annul your bankruptcy you will need to complete the following forms:

• Application (Form B2);
• Notice of annulment application (Form B11); and
• Affidavit.

Application (Form B2)

When you are preparing the Form B2, you will be the Applicant and your trustee in bankruptcy will be the Respondent. You should not name any of your creditors as respondents. An example of how to identify your trustee properly is: “John Smith as trustee of the bankrupt estate of [your full name].”

Under the “Details of claim” section, you will need to set out the orders you would like the court to make after hearing your case. For example: The bankruptcy of Penny Pleasant be annulled under s 153B(1) of the Bankruptcy Act 1966 (Cth) on the grounds that the sequestration order made on 1 January 2015 ought not to have been made.

Under “Claim for interim relief”, you will need to set out any orders you want the court to make straight away. For example, you may need an order preventing your trustee in bankruptcy from taking any steps to sell your assets until after your annulment application has been decided. You should only ask for interim orders if they are necessary. If you don’t need any interim orders you should leave this section blank.

Notice of annulment application (Form B11)

You will need to complete this form to notify your creditors that you are applying for an annulment of your bankruptcy. You must give a copy of this Notice to every person/company to whom you owe money (not just the creditor who brought the original creditors petition).

Affidavit

An affidavit is a statement of your evidence. In your affidavit, you will need to set out all the facts that the court will need to consider to decide your application.

For more information about preparing an affidavit, see the LawRight factsheet Drafting an Affidavit.

Filing your documents

All your forms will need to be filed (lodged) with the court. You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application, though in certain circumstances you can apply for the fee to be waived. See LawRight’s factsheet Fee waiver guide – Federal Circuit Court for more information.

Serving your documents

You must personally serve:

• a stamped copy of all completed forms on your trustee in bankruptcy; and
• a stamped copy of the Notice of annulment application on each of your creditors,

at least 7 days before your hearing.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investment Commission which will show the company’s registered address.

If you are not comfortable serving your trustee in bankruptcy or creditors yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

Bankruptcy can occur when a person is completely unable to pay their debts. A person may voluntarily declare bankruptcy or be forced to do so by a court.

LawRight Factsheets

• Bankruptcy – Applying for annulment

• Bankruptcy – Opposing a creditor’s petition

• Bankruptcy – reviewing a sequestration order

• Bankruptcy – Setting aside a bankruptcy notice

External resources

• Australian Financial Security Authority – The AFSA help page contains links to community services which may assist in bankruptcy matters.

• MoneySmart – The MoneySmart web page provides information about the bankruptcy process.