Australian Capital Territory Numbered Regulations

SUPREME COURT RULES (AMENDMENT) (NO. 35 OF 1993) - REG 53

Issue of summons for examination—sections 596A and 596B

“81. (1) An application for the issue of a summons under section 596A or 596B shall—

        (a)     be made in accordance with Form 5; and

        (b)     be accompanied by—

              (i)     a draft of the summons in accordance with Form 122; and

              (ii)     an affidavit in support of the issue of the summons.

“(2) An affidavit in support of the issue of a summons shall set out the material facts on which the applicant relies, to establish—

        (a)     that the applicant is an eligible applicant for the purposes of paragraph 596A (a) or 596B (a), as the case may be; and

        (b)     that the person to whom the summons is to be issued—

              (i)     if the application is under section 596A—is or was an examinable officer of the corporation for the purposes of paragraph 596A (b); or

              (ii)     if the application is under section 596B—

(A)     has taken part, or been concerned in, examinable affairs of the corporation, and has been, or may have been, guilty of misconduct in relation to the corporation; or

(B)     may be able to give information about the examinable affairs of the corporation.

“(3) An application for the issue of a summons and affidavit in support of that application may, at the option of the applicant, be filed in a sealed envelope marked, as appropriate—

        (a)     ‘Application for issue of summons for examination under section 596A of the Corporations Law'; or

        (b)     ‘Application for issue of summons for examination under section 596B of the Corporations Law'.

“(4) The Court may issue a summons for examination in, or substantially in, accordance with Form 122.

“(5) At least 8 days before the date set for the examination, a summons issued under this rule shall be personally served on the person who is to be examined or served in such other manner as the Court may direct.

“(6) A person served with a summons may apply to discharge the summons by filing, within 3 days of service of the summons—

        (a)     a notice of motion in the proceedings in which the summons was issued, seeking an order that the summons be discharged; and

        (b)     an affidavit setting out the material facts and matters relied on by the person seeking to discharge the summons.

“(7) A copy of a notice of motion and affidavit filed under subrule (6) shall forthwith be served on—

        (a)     the person who applied for the examination; and

        (b)     unless a person authorised by the Commission applied for the examination—the Commission.

Conduct of examination under Division 1 of Part 5.9

“81A. (1) An application under subsection 597 (4) for a direction that an examination be held in private may be made at the commencement of, or in the course of, the examination.

“(2) If the Court orders under subsection 597 (13) that a written record be kept of the questions put to a person and of his or her answers at an examination—

        (a)     the applicant shall file the written record in the Registry; and

        (b)     if the Court requires that written record be signed by the person who was examined—the person shall sign the record at such time as the Court directs.

“(3) A person who is examined may apply in writing to the Registrar to be provided with a copy of the written record of the examination, and shall be given a copy on payment of the prescribed fee.

“(4) For the purposes of subsection 597 (14), a transcript of an examination may be authenticated by a certificate, in accordance with Form 124, that the transcript is a correct record of the examination, signed by—

        (a)     the person who made the transcript; or

        (b)     a responsible officer of the organisation that is authorised to provide transcription services at the examination.”.

Default in relation to an examination under Division 1 of Part 5.9