Paper: Public examinations – who can use them, when and for what? – November 2006
In brief: Senior Associate Philip Hopley and lawyer Georgia Price provide a general outline of the public examination procedure provided for by Part 5.9 of the Corporations Act 2001 (Cth) and the Corporations Law Rules.
Presented in Sydney on 1 November 2006 at the Corporate Insolvency & Restructuring Forum.
Public examinations provide a means by which a liquidator, administrator or other eligible applicant can examine officers of a corporation and any other person who may be able to provide information about the corporation's 'examinable affairs'.
The purpose of a public examination is to provide information that will either assist in the liquidation, administration or receivership, advance the prosecution or defence of a claim against the company or which may facilitate the bringing of criminal charges against individual directors.
A person may be summoned for examination under s596A or s596B which provide for a mandatory and discretionary examinations, respectively.
While public examinations are held before a court, it has been said that:
'[the] proceedings are not in the nature of legal proceedings before a court; they are more in the nature of investigative procedures where the court has a presence for the purpose, basically, of seeing fair play between the persons interrogating and the persons being interrogated.'
Only a natural person can be summoned for examination.
Another way in which a liquidator or other eligible applicant can gather information about a corporation's examinable affairs, possibly as a precursor to an examinations summons, is to apply to the court under s597A requesting that specific persons be required to provide information by way of affidavit.
For more, download the paper (as an adobe acrobat pdf – 130KB)
For further information, please contact:
- Michael QuinlanPartner,
Sydney
Ph: +61 2 9230 4411
Michael.Quinlan@allens.com.au