Division 11 –
Examinations and orders
(Part 5.9,
Divisions 1 and 2 of the Corporations Act)
Division
11 amended by Corporations Rules 2003 (South Australia) Amendment No. 3
11.1 Definition for Division 11
In
this Division:
examination summons
means a summons under section 596A or 596B of the Corporations Act for the examination
of a person about a corporation’s examinable affairs.
11.2 Application for examination or investigation
under s 411, s 423 or s 536(3) of the Corporations Act
(1) An application for an order for the
examination or investigation of a person under section 411 or 423 or subsection
536(3) of the Corporations Act may be made by:
(a) ASIC; or
(b) a person authorised by ASIC; or
(c) a creditor or contributory; or
(d) any other person aggrieved by the conduct of:
(i) a person appointed to administer a
compromise or arrangement; or
(ii) a controller; or
(iii) a liquidator or provisional liquidator.
(2) The application may be made ex parte.
(3) The provisions of this Division that apply to an examination under
Division 1 of Part 5.9 of the Corporations Act apply, with any necessary
adaptations, to an examination or an investigation under section 411 or 423 or
subsection 536 (3) of the Corporations Act.
11.3 Application for examination summons (s 596A,
s 596B of the Corporations Act) — Form 17
(1) An application for the issue of an examination
summons must be made by filing an interlocutory process or an originating
process, as the case requires.
(2) The application may be made without notice to
any person.
(3) The originating process, or interlocutory
process, seeking the issue of the examination summons must be:
(a) supported by an affidavit stating the facts in
support of the process; and
(b) accompanied by a draft examination summons.
(4) The originating process, or interlocutory
process, and supporting affidavit must be filed in a sealed envelope marked, as
appropriate:
(a) ‘Application and supporting affidavit for
issue of summons for examination under section 596A of the Corporations Act
2001’; or
(b) ‘Application and supporting affidavit for
issue of summons for examination under section 596B of the Corporations Act
2001’.
(5) If the application is not made by the
liquidator, the liquidator must be given notice of the application and, if
required by the liquidator, served with a copy of the originating process, or
interlocutory process, and the supporting affidavit.
(6) If the application is not made by ASIC, ASIC
must be given notice of the application and, if required by ASIC, served with a
copy of the originating process, or interlocutory process, and the supporting
affidavit.
(7) Unless the Court otherwise orders, an
affidavit in support of an application for an examination summons is not
available for inspection by any person.
(8) An examination summons is to be in accordance
with Form 17.
11.4 Service of examination summons
An examination summons issued by
the Court must be personally served, or served in any other manner as the Court
may direct, on the person who is to be examined at least 8 days before the date
fixed for the examination.
11.5 Discharge of examination summons
(1) This Rule applies if a person is served with
an examination summons.
(2) Within 3 days after the person is served with
the examination summons, the person may apply to the Court for an order
discharging the summons by filing:
(a) an interlocutory process seeking an order
discharging the summons; and
(b) an affidavit stating the facts in support of the
interlocutory process.
(3) As soon as practicable after filing the
interlocutory process seeking the order and the supporting affidavit, the
person must serve a copy of the interlocutory process and the supporting
affidavit on:
(a) the person who applied for the examination;
and
(b) unless that person is ASIC or a person
authorised by ASIC — ASIC.
11.6 Filing of record of examination (s 597(13)
of the Corporations Act)
If the Court makes an order in
relation to an examination under subsection 597(13) of the Corporations Act,
the Court may give directions for the filing of the written record of the
examination.
11.7 Authentication of transcript of
examination (s 597(14) of the Corporations Act)
For
the purposes of subsection 597(14) of the Corporations Act, a transcript of an
examination may be authenticated:
(a) by the person, or persons, who prepared the
record of examination, or under whose supervision the record was prepared,
certifying in writing signed by the person or persons, that the record is a
true transcript of the record of examination; or
(b) by any person present at the examination, or any part of the
examination, signing the person’s name at the bottom of each page of the
written record that records a part of the examination at which the person was
present.
11.8 Inspection of record or transcript of
examination or investigation under s 411, s 423 or s 536 of the Corporations
Act
(1) A written record or transcript of an examination
or investigation under section 411, 423 or 536 is not available for inspection
by any person except:
(a) with the consent of the liquidator (if any) or
ASIC; or
(b) by leave of the Court.
(2) This Rule does not apply to the liquidator, ASIC or any person
authorised by ASIC.
11.9 Entitlement to record or transcript of
examination held in public
(1) This Rule applies if:
(a) an examination under section 597 of the
Corporations Act is held wholly or partly in public; and
(b) a written record or transcript of the
examination is filed in the Court.
(2) The person examined may apply to the Registrar
[or other Court officer], within 3 years after the date of completion of the
examination, for a copy of the record or transcript of the part of the
examination of the person held in public.
(3) On receiving an application from a person under subrule (2), and
any applicable fee, the Registrar [or other Court officer] must give a copy of
the record or transcript to the person.
11.10 Default in relation to examination
(1) This Rule applies if a person is summoned or
ordered by the Court to attend for examination, and:
(a) without reasonable cause, the person:
(i) fails to attend at the time and place
appointed; or
(ii) fails to attend from day to day until the
conclusion of the examination; or
(iii) refuses or fails to take an oath or make an
affirmation; or
(iv) refuses or fails to answer a question that the
Court directs the person to answer; or
(v) refuses or fails to produce books that the
summons requires the person to produce; or
(vi) fails to comply with a requirement by the
Court to sign a written record of the examination; or
(b) before the day fixed for the examination, the
person who applied for the summons or order satisfies the Court that there is
reason to believe that the person summoned or ordered to attend for examination
has absconded or is about to abscond.
(2) The Court may:
(a) issue a warrant for the arrest of the person
summoned or ordered to attend for examination; and
(b) make any other orders that the Court thinks
just or necessary.
11.11 Service of application for order in relation
to breaches etc by person concerned with corporation (s 598 of the Corporations
Act)
(1) This Rule applies to a person applying for an
order under section 598 of the Corporations Act.
(2) In addition to complying with rules 2.7 and
2.8, the person must serve a copy of the originating process, or interlocutory
process, as the case requires, and the supporting affidavit on any liquidator
or provisional liquidator (except if the person is the liquidator or
provisional liquidator) of the corporation or body.
Note Under Rule 2.7, a plaintiff must serve a copy
of the originating process, and any supporting affidavit, on a defendant to the
proceeding and, if necessary, on the corporation to which the proceeding
relates; and an applicant must serve a copy of an interlocutory process, and
any supporting affidavit, on a respondent to the proceeding and, if necessary,
on the corporation to which the proceeding relates. In certain cases, these
documents may also be required to be served on ASIC — see Rule 2.8.