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Bankruptcy (Offences) Rules

SR 1970 No. 87 Rules/Other as amended, taking into account amendments up to SR 1970 No. 169
Registered 19 Mar 2010
Start Date 05 Nov 1970
End Date 04 May 1989
Date of repeal 04 May 1989
Repealed by Bankruptcy (Offences) Rules (Repeal)

BANKRUPTCY (OFFENCES) RULES
- In force under the Bankruptcy Act 1966
- Reprinted as at 30 June 1988 (HISTREG CHAP 408 #DATE 30:06:1988)

*1* The Bankruptcy (Offences) Rules (in force under the Bankruptcy Act 1966) as shown in this reprint comprise Statutory Rules 1970 No. 87 amended as indicated in the Tables below.
Table of Statutory Rules
----------------------------------------------------------------------------- Year and
number Date of
notification
in Gazette Date of
commencement Application, saving
or transitional
provisions
----------------------------------------------------------------------------- 1970 No. 87 9 July 1970 9 July 1970
169 5 Nov 1970 5 Nov 1970 -
----------------------------------------------------------------------------- Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and
substituted
----------------------------------------------------------------------------- Provision affected How affected
----------------------------------------------------------------------------- R.5 ................ rep. 1970 No. 169
R.6 ................ am. 1970 No. 169
R.16 ............... am. 1970 No. 169

BANKRUPTCY (OFFENCES) RULES - TABLE OF PROVISIONS

TABLE

TABLE OF PROVISIONS

Rule

1. Citation

2. Interpretation

3. Compliance with forms

4. Informations

6. Issue of summons

7. Service of summons

8. Affidavit of service to be filed

9. Defendant entitled to copy of transcript

10. Arrest of defendant in default of appearance

11. Summons to witnesses

12. Witnesses' expenses

13. Arrest of witness on default of appearance

14. Registrar to be informed of arrest of person

15. Procedure where two or more offences joined in information

16. Defendant to be informed of charge

17. Procedure on plea of guilty

18. Procedure on plea of not guilty

19. Sentence

20. Powers of Court following committal for trial

21. Recording of statement

22. Defendant to receive transcript

23. Registrar to forward record to Crown Solicitor

24. Application of Bankruptcy Rules

THE SCHEDULE

Forms

BANKRUPTCY (OFFENCES) RULES - RULE 1
Citation

1. These Rules may be cited as the Bankruptcy (Offences) Rules.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

BANKRUPTCY (OFFENCES) RULES - RULE 2
Interpretation

2. (1) In these Rules, unless the contrary intention appears- "information" means an information in respect of an offence against the Act; "the Act" means the Bankruptcy Act 1966-1969.

(2) A reference in these Rules to a form by number shall be read as a reference to the form so numbered in the Schedule to these Rules.

BANKRUPTCY (OFFENCES) RULES - RULE 3
Compliance with forms

3. Strict compliance with the forms in the Schedule to these Rules is not necessary and substantial compliance, or such compliance as the special circumstances of a particular case allow, is sufficient.

BANKRUPTCY (OFFENCES) RULES - RULE 4
Informations

4. (1) Where proceedings in respect of an offence against the Act are to be instituted in the Court, the proceedings shall be instituted by filing an information, in accordance with Form 1, in the office of the Registrar.

(2) An information shall be on oath sworn before the Registrar.

(3) Subject to the succeeding sub-rules of this rule, an information shall relate to one offence only.

(4) Where two or more offences-
(a) are founded on the same or closely related facts; or
(b) are similar in character, the information may, subject to the next succeeding sub-rule, relate to those offences.

(5) An information that relates to an offence punishable by a fine only shall not relate also to an offence punishable by imprisonment or by imprisonment or a fine.

BANKRUPTCY (OFFENCES) RULES - RULE 6
Issue of summons

6. (1) Where an information is filed in the office of the Registrar, the Registrar may issue a summons, in accordance with Form 2, requiring the defendant to appear before the Court on a day and at a time and place specified in the summons.

BANKRUPTCY (OFFENCES) RULES - RULE 7
Service of summons

7. (1) Unless otherwise ordered by the Court under sub-section (2) of section 309 of the Act, service of a summons issued under the last preceding rule shall be effected by delivering the summons to the defendant personally.

(2) A summons issued under the last preceding section shall be deemed not to have been duly delivered to a person unless-
(a) a copy of the information to which it relates is endorsed on the summons; or
(b) a copy of the information to which it relates is attached to the summons and handed to the person at the time when the summons is delivered to the person.

BANKRUPTCY (OFFENCES) RULES - RULE 8
Affidavit of service to be filed

8. (1) Where a summons issued under rule 6 of these Rules is served on the defendant-
(a) by delivering the summons to the defendant personally; or
(b) by serving it in accordance with an order made by the Court under sub-section (2) of section 309 of the Act, the person who so serves the summons shall, as soon as practicable after service of the summons, by affidavit, verify when, where and how service of the summons is effected and the informant shall cause that affidavit to be filed in the office of the Registrar as soon as practicable after service of the summons and before the date on which the defendant is required by the summons to appear before the Court.

(2) Where the person who served a summons in a manner specified in the last preceding sub-rule makes an affidavit of service of the summons, the person shall, unless it is impracticable to do so, annex to the affidavit-
(a) if a copy of the information to which the summons related was endorsed on the summons-a copy of the summons having a copy of the information endorsed on it; or
(b) in any other case-a copy of the summons and a copy of the information to which the summons related.

BANKRUPTCY (OFFENCES) RULES - RULE 9
Defendant entitled to copy of transcript

9. Where notes taken and signed in pursuance of sub-section (12) of section 69 of the Act or in pursuance of sub-section (7) of section 81 of the Act relate, or a transcript of evidence given at an examination under section 69 or 81 of the Act relates, to an offence specified in an information and the notes are or the transcript is admissible in evidence against the defendant upon the trial of the offence, the defendant is entitled, upon application to the Registrar, to be furnished, without cost to the defendant, with a copy of the notes or transcript.

BANKRUPTCY (OFFENCES) RULES - RULE 10
Arrest of defendant in default of appearance

10. If a defendant summoned to appear before the Court under rule 6 of these Rules refuses or fails so to appear-
(a) on the day and at the time and place specified in the summons; or
(b) if the hearing of the charge to which the summons relates is adjourned-on the day and at the time and place to which the hearing is adjourned, and no lawful excuse is made known to the Court at the time of sitting and allowed, the Court may, by warrant, cause him to be apprehended, to be kept in custody pending his being brought before the Court and to be brought before the Court.

BANKRUPTCY (OFFENCES) RULES - RULE 11
Summons to witnesses

11. (1) The Court or the Registrar may, at the request of either party to an information, summon a person to attend before the Court on a day and at a time and place specified in the summons and then and there to give evidence, to produce to the Court any documents in his custody or control that he is required by the summons to produce or to give evidence and produce to the Court any such document.

(2) A summons under the last preceding sub-rule shall be in accordance with Form 3 or Form 4, whichever is applicable.

(3) Subject to the next succeeding sub-rule, a summons for the attendance of a witness to give evidence may be directed to two or more witnesses.

(4) A summons to produce documents, whether or not it also requires a person to attend before the Court and give evidence, shall not be directed to more than one person.

(5) Unless otherwise ordered by the Court under sub-section (2) of section 309 of the Act, service of a summons under this Rule on a person shall be effected by delivering the summons to the person personally.

(6) A person summoned to attend before the Court to give evidence, but not required by the summons to produce documents to the Court-
(a) shall attend before the Court-
(i) on the day and at the time and place specified in the summons; and
(ii) if the hearing of the charge to which the summons relates is adjourned-on the day and at the time and place to which the hearing is adjourned, unless excused by the Court from attending on that day;
(b) shall remain in attendance before the Court on a day on which he is so required to attend until he is excused by the Court from further attendance on that day; and
(c) shall, unless excused by the Court, give evidence to the Court concerning the matter referred to in the summons.

(7) A person summoned to produce documents to the Court but not required by the summons to give evidence before the Court-
(a) shall attend before the Court-
(i) on the day and at the time and place specified in the summons; and
(ii) if the hearing of the charge to which the summons relates is adjourned to another day and the documents have not been produced to the Court before that other day-on the day and at the time and place to which the hearing is adjourned;
(b) shall remain in attendance before the Court on a day on which he is so required to attend until he is excused by the Court from further attendance on that day or has produced the documents to the Court; and
(c) shall, unless excused by the Court, produce the documents referred to in the summons to the Court.

(8) A person summoned to attend before the Court to give evidence and to produce documents to the Court-
(a) shall attend before the Court-
(i) on the day and at the time and place specified in the summons; and
(ii) if the hearing of the charge to which the summons relates is adjourned-on the day and at the time and place to which the hearing is adjourned, unless excused by the Court from attending on that day;
(b) shall remain in attendance before the Court on a day on which he is so required to attend until he is excused by the Court from further attendance on that day;
(c) shall, unless excused by the Court, give evidence before the Court concerning the matter referred to in the summons; and
(d) shall, unless excused by the Court, produce the documents referred to in the summons to the Court.

(9) For the purpose of sub-rule (7) of this rule, a person summoned to produce documents to the Court shall be deemed to have produced the documents referred to in the summons to the Court-
(a) if he is excused by the Court from producing those documents to the Court; or
(b) if he is excused from producing some of those documents to the Court-upon producing the remaining documents to the Court.

(10) Where a summons under sub-rule (1) of this Rule is served on an officer of a Department of State of the Commonwealth or of a State or on an officer of an authority of the Commonwealth or of a State requiring the officer to produce documents in the custody of the Department or the authority, as the case may be, the officer shall be deemed to have complied with the summons if, before the time specified in the summons, he causes the documents specified in the summons to be lodged with the Registrar for the District specified in the summons.

BANKRUPTCY (OFFENCES) RULES - RULE 12
Witnesses' expenses

12. Where a summons issued under the last preceding rule is served on a person (in this rule referred to as "the witness"), the witness is entitled to be paid such sum as conduct money as is sufficient to pay the reasonable expenses of the witness in travelling to and from his place of residence to the place where he is required by the summons to attend or produce documents to the Court and of his residential accommodation at the last-mentioned place if it is reasonable that he should be provided with accommodation.

BANKRUPTCY (OFFENCES) RULES - RULE 13
Arrest of witness on default of appearance

13. Where a person who has been served with a summons to attend before the Court or to produce documents to the Court, issued under sub-rule (1) of rule 11 of these Rules, after having been tendered a reasonable sum for expenses, refuses or fails to comply with sub-rule (6), (7) or (8) of that rule, whichever is applicable, in relation to the summons and no lawful excuse is made known to the Court at the time of sitting and allowed, the Court may, by warrant, cause him to be apprehended, to be kept in custody pending his being brought before the Court and to be brought before the Court.

BANKRUPTCY (OFFENCES) RULES - RULE 14
Registrar to be informed of arrest of person

14. (1) Where a person is arrested in pursuance of a warrant issued under these Rules and it is impracticable for the person to be brought before the Court on the day on which the person is arrested, the person by whom he is arrested shall forthwith inform the Registrar of the District in which the warrant was issued of the arrest of the person and of the day on which it will be practicable for the person to be brought before the Court.

(2) Upon receipt of the information referred to in the last preceding sub-rule, the Registrar shall fix a date, time and place, being a date as soon as practicable after the arrest of the person, for the person who has been arrested to be brought before the Court and cause the person arrested to be informed of that date, time and place.

(3) Where a person who has been arrested in pursuance of a warrant issued under these Rules is brought before the Court in accordance with the warrant, the Court may-
(a) admit the person to bail, on such recognizance, and either with or without a surety, as it thinks fit, on condition that the person appears on such day and at such time and place as the Court specifies to be dealt with according to law; or
(b) by warrant, commit the person to such gaol as the Court appoints until the hearing and determination of the proceedings in relation to which the warrant was issued or until the Court otherwise orders.

(4) In this rule, a reference to the Court, in relation to a person who is arrested in pursuance of a warrant, shall be read as a reference to the Court before which the person is directed by the warrant to be brought.

BANKRUPTCY (OFFENCES) RULES - RULE 15

15. Where a defendant appears before the Court in proceedings that were instituted by the filing of an information relating to two or more offences, the Court may, if it thinks it proper to do so, hear and determine the proceedings as if separate proceedings had been instituted in respect of each of those offences or as if proceedings had been instituted in respect of any of those offences and separate proceedings had been instituted in respect of any other or others of those offences.

BANKRUPTCY (OFFENCES) RULES - RULE 16
Defendant to be informed of charge

16. Where a defendant who has been summoned under rule 6 of these Rules or has been apprehended by virtue of a warrant issued under rule 10 of these Rules appears before the Court, the Court shall cause him to be informed of the offence with which he is charged.

BANKRUPTCY (OFFENCES) RULES - RULE 17
Procedure on plea of guilty

17. Where a defendant pleads guilty to the offence specified in an information, the Court, after it has been informed of the facts relating to the offence, has taken such evidence with respect to the offence as it thinks fit and has heard any matters that the informant and the defendant wish the Court to consider in relation to the offence, may convict the defendant of the offence.

BANKRUPTCY (OFFENCES) RULES - RULE 18
Procedure on plea of not guilty

18. Where a defendant pleads not guilty to the offence specified in an information, the Court may, after it has heard the evidence in respect of the offence and any matters that the informant and defendant wish the Court to consider in relation to the offence, convict the defendant of the offence or dismiss the information.

BANKRUPTCY (OFFENCES) RULES - RULE 19
Sentence

19. Where the Court convicts a defendant of an offence, the Court may pass sentence on the defendant for the offence.

BANKRUPTCY (OFFENCES) RULES - RULE 20
Powers of Court following committal for trial

20. For the purposes of sub-section (6) of section 273 of the Act, the Court has power in proceedings in respect of an alleged offence, by warrant- (a) to commit the defendant to such gaol as the Court appoints until the trial of the defendant or until the defendant is admitted to bail; and
(b) to commit a witness in the proceedings to such gaol as the Court appoints until the trial of the defendant or the witness is bound over to appear at the trial.

BANKRUPTCY (OFFENCES) RULES - RULE 21
Recording of statement

21. Where the defendant in proceedings in respect of an alleged offence does not give evidence in the proceedings but makes an unsworn statement, the statement shall be recorded in like manner as any evidence given in the proceedings is recorded, and rule 131 of the Bankruptcy Rules applies to and in relation to the recording of that statement as if it were evidence in the proceedings.

BANKRUPTCY (OFFENCES) RULES - RULE 22
Defendant to receive transcript

22. Where the defendant is committed for trial before a court of competent jurisdiction, the defendant is entitled to receive, without cost to himself, a copy of the transcript of evidence taken before the Court.

BANKRUPTCY (OFFENCES) RULES - RULE 23
Registrar to forward record to Crown Solicitor

23. Where, in proceedings before the Court, a defendant is committed for trial, the Registrar shall cause the record of the proceedings, together with the information, any transcript taken in relation to the proceedings, any exhibits tendered in the proceedings and any recognizances given to the Court in relation to the proceedings, to be delivered to the Crown Solicitor for the Commonwealth.

BANKRUPTCY (OFFENCES) RULES - RULE 24
Application of Bankruptcy Rules

24. These Rules are incorporated, and shall be read as one, with the Bankruptcy Rules.

BANKRUPTCY (OFFENCES) RULES - SCHEDULE

SCH

THE SCHEDULE

FORM 1
Rule 4 INFORMATION
COMMONWEALTH OF AUSTRALIA
Bankruptcy Act
IN THE (here insert "FEDERAL COURT OF
BANKRUPTCY" or, if the proceeding is
instituted in another court, the name of
that court followed by the words
"EXERCISING FEDERAL JURISDICTION IN
BANKRUPTCY")
BANKRUPTCY DISTRICT OF No. of 19 .

(Here insert name of informant) Informant
v.
(Here insert name of defendant) Defendant
I, (full name, address and occupation of informant), inform the Court upon
oath that I have cause to believe, and do in fact believe, that (full name,
addressand occupation of defendant) did, on the day of, 19 , at commit
the following offence against section of the Bankruptcy Act 1966-1969 that is to say, (here set out the alleged offence). Particulars of that offence are as
follows:
(Here set out particulars of the offence)
Dated this day of , 19 .

Sworn at
on the
day of ,
19 , before me: , (Signature of informant)
Registrar in Bankruptcy.
--------
FORM 2
Rule 6 SUMMONS TO DEFENDANT
COMMONWEALTH OF AUSTRALIA
Bankruptcy Act
IN THE (here insert "FEDERAL COURT OF
BANKRUPTCY" or, if the proceeding is
instituted in another court, the name of
that court followed by the words
"EXERCISING FEDERAL JURISDICTION IN
BANKRUPTCY")
BANKRUPTCY DISTRICT OF No. of 19 .

(Here insert name of informant) Informant
v.
(Here insert name of defendant) Defendant
To: (full name and address of defendant)
In pursuance of the power conferred by rule 6 of the Bankruptcy (Offences)
Rules, I, the Registrar in Bankruptcy, summon you to appear before the Court-
(a) at on the
day of, 19 , at the hour of
o'clockin the noon to make answer to the charge made against you in the information of the abovenamed informant sworn before me at on the day of 19 ,
a copy of which is set out on the back of this summons (or a copy of
which is attached to this summons); and
(b) if the hearing of the charge is adjourned-on the day and at the time and place to which the hearing is adjourned.

Dated this day of , 19 .
Registrar.
--------
FORM 3
Rule 11 SUMMONS TO WITNESS
COMMONWEALTH OF AUSTRALIA
Bankruptcy Act
IN THE (here insert "FEDERAL COURT OF
BANKRUPTCY" or, if the proceeding is
instituted in another court, the name of
that court followed by the words
"EXERCISING FEDERAL JURISDICTION IN
BANKRUPTCY")
BANKRUPTCY DISTRICT OF No. of 19 .

(Here insert name of informant) Informant
v.
(Here insert name of defendant) Defendant
To: (full name and address of witness)
In pursuance of the power conferred on the Court (or the Registrar) by rule 11 of the Bankruptcy (Offences) Rules, you are summoned by the Court (or the
Registrar) to attend before the Court at on the ay of
, 19 , at the hour of o'clock
in the noon, and, if the hearing of the charge to which this summons relates is
adjourned, on the day and at the time and place to which the hearing is
adjourned, unless excused by the Court, to give evidence concerning (give short
particulars of the matter concerning which the person is to be examined) (and
then and there to produce any documents in your custody or under your control
that relate to that matter and, in particular, the following documents:
).

Dated this day of , 19 .
(By the Court,)
Registrar.

NOTES:
1. Rule 11 of the Bankruptcy (Offences) Rules requires a person summoned to
attend before the Court to give evidence-
(a) to attend before the Court-
(i) on the day and at the time and place specified in the summons; and
(ii) if the hearing of the charge to which the summons relates is
adjourned-on the day and at the time and place to which the hearing is
adjourned, unless excused by the Court from attending on that day;
(b) to remain in attendance before the Court on a day on which he is so
required to attend until he is excused by the Court from further attendance on
that day; and
(c) to give evidence to the Court concerning the matter referred to in the
summons, unless he is excused by the Court from doing so.

2. (To be omitted if the witness is not also required to produce documents to
the Court.) Sub-rule (8) of rule 11 of the Bankruptcy (Offences) Rules requires
a person summoned to attend before the Court to give evidence and to produce
documents to the Court-
(a) to attend before the Court, and remain in attendance before the Court,
as set out in Note 1 above;
(b) to give evidence to the Court, unless he is excused by the Court from
doing so; and
(c) to produce the documents referred to in the summons to the Court unless
he is excused by the Court from doing so.

3. Rule 13 of the Bankruptcy (Offences) Rules authorizes the issue of a
warrant for the arrest of a person who, having been served with a summons to
attend before the Court (or to attend before the Court and also to produce
documents to the Court) and tendered a reasonable sum for expenses, refuses or
fails to comply with the requirements of rule 11 of the Bankruptcy (Offences)
Rules if no lawful excuse is made known to the Court and allowed by the Court.

FORM 4
Rule 11 SUMMONS TO WITNESS
COMMONWEALTH OF AUSTRALIA
Bankruptcy Act
IN THE (here insert "FEDERAL COURT OF
BANKRUPTCY" or, if the proceeding is
instituted in another Court, the name of
that Court followed by the words
"EXERCISING FEDERAL JURISDICTION IN
BANKRUPTCY")
BANKRUPTCY DISTRICT OF No. of 19 .

(Here insert name of informant) Informant
v.
(Here insert name of defendant) Defendant
To: (full name and address of witness)
In pursuance of the power conferred on the Court (or the Registrar) by rule 11 of the Bankruptcy (Offences) Rules, you are summoned by the Court (or the
Registrar) to produce to the Court at on day of, 19 , at the
hour of o'clock in the noon in connexion with (give short
particulars of the matter in relation to which the documents are to be produced) any documents in your custody or under your control that relate to that matter
and, in particular, the following documents:
Dated this day of 19 .
(By the Court,)
Registrar.

NOTES:
1. Sub-rule (7) of rule 11 of the Bankruptcy (Offences) Rules requires a
person summoned to produce documents to the Court-
(a) to attend before the Court-
(i) on the day and at the time and place specified in the summons; and
(ii) if the hearing of the charge to which the summons relates is
adjourned to another day and the documents have not been produced to the Court
before that other day-on the day and at the time and place to which the hearing
is adjourned;
(b) to remain in attendance before the Court on a day on which he is so
required to attend until he is excused by the Court from further attendance on
that day or has produced the documents to the Court, whichever first occurs; and (c) to produce the documents referred to in the summons to the Court unless
he is excused from the Court from doing so.

2. Rule 13 of the Bankruptcy (Offences) Rules authorizes the issue of a
warrant for the arrest of a person who, having been served with a summons
requiring him to produce documents to the Court and having been tendered a
reasonable sum for expenses, refuses or fails to comply with the provisions of
sub-rule (7) of rule 11 of the Bankruptcy (Offences) Rules if no lawful excuse
is made known to the Court and allowed by the Court.