Commonwealth Numbered Regulations

1989 No. 182 BANKRUPTCY RULES (AMENDMENT) - RULE 19

19. Rule 129 of the Bankruptcy Rules is repealed and the following rules are
substituted: Application for summons under subsection 81 (1) of the Act

"129. (1) An application to the Court or to the Registrar for a summons under
subsection 81 (1) of the Act shall:

   (a)  be in writing;

   (b)  identify the person whom it is sought to examine, and the bankruptcy
        in relation to which it is sought to examine the person; and

   (c)  if the summons applied for is to contain a requirement mentioned in
        subsection 81 (1B) of the Act-specify the books or classes of books
        that the person is to produce at the examination;

   (d)  be supported by an affidavit setting out:

        (i)    the enquiries that have been made concerning the subject-matter
               of the proposed examination and, where applicable, the reason
               for requiring the production of any books or classes of books;

        (ii)   details of the request made to the person to provide the
               required information and, where applicable, to produce the
               books or classes of books for inspection, and the result or,
               where no request has been made, the reason; and

        (iii)  the circumstances of any refusal or failure of the person to
               co-operate in complying with the request.

"(2) If the application is one to which paragraph (1) (c) applies, a copy of
the application and of the affidavit in support of the application shall be
served on the person whom it is sought to examine, and that person may, within
7 days of being served with those documents, file with the Registrar:

   (a)  a notice of objection to produce the books or classes of books
        specified in the application for a direction, or such of those books
        or classes of books as the notice may specify; and

   (b)  an affidavit setting out the grounds of the objection.

"(3) The Registrar shall consider any documents filed under paragraphs 2 (a)
and (b) and, if the Registrar issues a summons in the matter under subsection
81 (1) of the Act, he or she shall either grant or dismiss the application for
a direction, and shall in either case record and file a statement of reasons.

"(4) When the Registrar has issued, or refused to issue, a summons under
subsection 81 (1) of the Act, he or she shall provide, upon request by the
applicant or the person whose examination was requested, a statement of
reasons. Summons under subsection 81 (1) of the Act

"129A. (1) A summons under subsection 81 (1) of the Act shall:

   (a)  be in accordance with Form 49;

   (b)  be signed and stamped by the Registrar; and

   (c)  be served personally on the person to be examined.

"(2) Where the summons contains a requirement mentioned in subsection 81(1B)
of the Act, the Registrar may:

   (a)  require the person being examined to produce specified books, or
        classes of books, to the Court or a person, on a day and at a time and
        place, specified in the direction;

   (b)  order that a specified person, or specified persons, be at liberty to
        inspect, and copy or make extracts of, all or any specified part or
        parts of the books produced in accordance with the direction; and

   (c)  give directions concerning the marking for identification, and the
        retention or disposal, of the books produced.

"(3) The Court, the Registrar or a magistrate shall not commence an
examination under section 81 of the Act unless:

   (a)  the Court, the Registrar or magistrate is satisfied by evidence:

        (i)    that the summons was served personally on the person to be
               examined; or

        (ii)   that the summons came to the notice of the person and that the
               person is not likely to be prejudiced by the absence of due
               service; or

   (b)  the person does not object to being examined.

"(4) Where the person sought to be examined fails to appear in accordance with
the summons, the Court, the Registrar or magistrate may:

   (a)  hear submissions by or on behalf of any person entitled to appear or
        be represented at the examination;

   (b)  either:

        (i)    adjourn the examination to a fixed day and time, or generally;
               or

        (ii)   discharge the summons; and

   (c)  if the Court, the Registrar or magistrate is satisfied by evidence
        that the summons was served on the person to be examined in accordance
        with subrule (1), and the Court, the Registrar or magistrate does not
        discharge the summons-issue a warrant for the arrest of the person.
        Application during examination for production of books

"129B. (1) During an examination, the applicant for the examination or any
person who is represented, or is participating in person, at the examination
may apply orally or in writing to the Court, the Registrar or magistrate for a
direction that the person being examined produce specified books, or classes
of books, at the examination.

"(2) Where an application is made under subrule (1), the Court, the Registrar
or magistrate may hear:

   (a)  the applicant for the examination;

   (b)  if that applicant is not the person applying for the direction-that
        person; and

   (c)  the person being examined; on the application, and may:

   (d)  require the person being examined to produce specified books, or
        classes of books, to a person, on a day and at a time and place,
        specified in the direction;

   (e)  adjourn the examination in order to give the person being examined a
        reasonable period of time to comply with the direction;

   (f)  order that a specified person, or specified persons, be at liberty to
        inspect, and copy or make extracts of, all or any specified part or
        parts of the books produced in accordance with the direction; and

   (g)  give directions concerning the marking for identification, and the
        retention or disposal, of the books produced. Notice of adjournment of
        examination

"129C. Where an examination under section 81 of the Act is adjourned otherwise
than to the next sitting day, the applicant shall give to the person being
examined and to any person who has been represented, or who has participated
in person, at the examination notice in writing of the place, date and time
fixed for the resumption of the examination.".