Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.9 - MISCELLANEOUS  

Note: This Part applies to a sub-fund of a CCIV in a modified form: see Division 8 of Part 8B.6 .

Division 1 - Examining a person about a corporation  

SECTION 597   CONDUCT OF EXAMINATION  

597(4)    
An examination is to be held in public except to such extent (if any) as the Court considers that, by reason of special circumstances, it is desirable to hold the examination in private.

597(5A)    
Any of the following may take part in an examination:

(a)    ASIC;

(b)    any other eligible applicant in relation to the corporation;

and for that purpose may be represented by a lawyer or by an agent authorised in writing for the purpose.

597(5B)    
The Court may put, or allow to be put, to a person being examined such questions about the corporation or any of its examinable affairs as the Court thinks appropriate.

597(6)    

A person who is summoned under section 596A or 596B to attend before the Court must not intentionally or recklessly:

(a)    fail to attend as required by the summons; or

(b)    fail to attend from day to day until the conclusion of the examination.

597(6A)    

Subsection (6) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6A) , see subsection 13.3(3) of the Criminal Code .

597(7)    
A person who attends before the Court for examination must not:

(a)    without reasonable excuse, refuse or fail to take an oath or make an affirmation; or

(b)    without reasonable excuse, refuse or fail to answer a question that the Court directs him or her to answer; or

(c)    make a statement that is false or misleading in a material particular; or

(d)    without reasonable excuse, refuse or fail to produce books that the summons requires him or her to produce.

597(9)    
The Court may direct a person to produce, at an examination of that or any other person, books that are in the first-mentioned person's possession and are relevant to matters to which the examination relates or will relate.

597(9A)    
A person may comply with a direction under subsection (9) by causing the books to be produced at the examination.

597(10)    
Where the Court so directs a person to produce any books and the person has a lien on the books, the production of the books does not prejudice the lien.

597(10A)    

A person must not refuse, or intentionally or recklessly fail, to comply with a direction under subsection (9) .

597(11)    

Subsection (10A) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (11) , see subsection 13.3(3) of the Criminal Code .

597(12)    
A person is not excused from answering a question put to the person at an examination on the ground that the answer might tend to incriminate the person or make the person liable to a penalty.

597(12A)    
Where:

(a)    before answering a question put to a person (other than a body corporate) at an examination, the person claims that the answer might tend to incriminate the person or make the person liable to a penalty; and

(b)    the answer might in fact tend to incriminate the person or make the person so liable;

the answer is not admissible in evidence against the person in:

(c)    a criminal proceeding; or

(d)    a proceeding for the imposition of a penalty;

other than a proceeding under this section, or any other proceeding in respect of the falsity of the answer.

597(13)    
The Court may order the questions put to a person and the answers given by him or her at an examination to be recorded in writing and may require him or her to sign that written record.

597(14)    

Subject to subsection (12A) , any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules of court, may be used in evidence in any legal proceedings against the person.

597(14A)    
A written record made under subsection (13) :

(a)    is to be open for inspection, without fee, by:

(i) the person who applied for the examination; or

(ii) an officer of the corporation; or

(iii) a creditor of the corporation; and

(b)    is to be open for inspection by anyone else on paying the prescribed fee.

597(15)    

An examination under this Division may, if the Court so directs and subject to the rules of court, be held before such other court as is specified by the Court and the powers of the Court under this Division may be exercised by that other court.

597(16)    
A person ordered to attend before the Court or another court for examination under this Division may, at his or her own expense, employ a solicitor, or a solicitor and counsel, and the solicitor or counsel, as the case may be, may put to the person such questions as the Court, or the other court, as the case may be, considers just for the purpose of enabling the person to explain or qualify any answers or evidence given by the person.

597(17)    
The Court or another court before which an examination under this Division takes place may, if it thinks fit, adjourn the examination from time to time.