Supreme Court Rules 1970
Division 8 Examinations
36 Examination of persons concerned with corporations (Part 5.9 Division 1)
(1) This rule applies to proceedings on an application to the Court for a summons under section 596A or section 596B (in these rules referred to as an Examination Summons).(2) The summons by which the application is made shall be served:(a) where a liquidator has been appointed, unless he is the applicant—on the liquidator, andand need not be served on any other person unless the Court so directs.(b) unless ASIC is the applicant—on ASIC,(3) The applicant shall, when making the application, lodge in the registry a draft of the Examination Summons applied for.(4) An affidavit referred to in section 596C must set out:(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination and the grounds for that belief.(5) An affidavit or other material filed in support of an application for an Examination Summons shall not, except with the leave of the Court, be open to inspection by any person other than the liquidator or any person authorised by ASIC.(6) An Examination Summons shall be in form 154N.(7) The applicant shall cause notice of the time and place appointed for the holding of an examination (but not, unless the Court so orders, for the holding of an adjourned examination) to be advertised.(8) An Examination Summons shall be served personally on the person who is to be examined.(9) Where the Court makes an order under section 597 (13), the written record, signed if so required by the Court under that subsection, shall be filed in the registry.(10) Where:(a) the examination of a person under section 597 is held wholly or partly in public, andthe registrar shall, upon application by the person made within 3 years of the date of the conclusion of the examination and payment of the prescribed fee, furnish to the person a copy of the written record or transcript of such part of the examination as is held in public.(b) a written record or transcript of the questions put to the person and the answers given by the person at the examination is filed in the registry,(11) A transcript is authenticated under section 597 (14) if the person who prepared the transcript, or under whose supervision the transcript was prepared, certifies in writing signed by that person that the transcript is a true record of the examination.(12) In this rule, liquidator includes a provisional liquidator.
37 Default in relation to an examination
(1) When a person is summoned under an Examination Summons and the examination is, or is to be, held before the Court constituted by a registrar, and that person (in this rule referred to as the person in default):(a) fails to attend as required by the Examination Summons,(b) fails to attend from day to day until the conclusion of the examination,(c) refuses or fails to take an oath or make an affirmation,(d) refuses or fails to answer a question that the Court directs him or her to answer,(e) refuses or fails to produce books that the Examination Summons requires him or her to produce, orand if, in the case of a failure or refusal referred to in paragraphs (a), (b), (c), (d) or (e), it does not appear to the registrar that there was any reasonable excuse, the registrar must, on the request of any person entitled to take part in the examination, give to that person a signed certificate of the failure or refusal.(f) fails to comply with a requirement by the court to sign a written record of the examination,(2) On application by a person to whom such a certificate has been given, the Court, if satisfied that there has been a contravention of section 597 (6), (7) or (13), may order the person in default to do the relevant act and to pay any costs occasioned by the failure or refusal.(3) On an application under subrule (2), a signed certificate given under subrule (1) constitutes evidence of the matters certified.