Hathway, in the matter of Symich Building Pty Ltd (in liq)

This case came out of the liquidation of Symich Building Pty Ltd. The liquidator used a standard but powerful insolvency tool: a Federal Court summons requiring Ms Josephine Jean Symon to attend for examination under s 596B of the Corporations Act 2001 (Cth), together with orders to produce documents.

The commercial setting matters. The liquidator's solicitors said a large amount of money had gone missing and that the liquidator believed Ms Symon had knowledge or information that could assist in recovering those funds. The judgment does not give the full background to those alleged missing funds, but it does make clear that the liquidator saw oral examination as an important investigative step.

Ms Symon did not bring her challenge soon after service. The summons was issued on 11 December 2025 and served on 24 December 2025. Her examination was listed for 18 March 2026. Only days before that examination, she filed an interlocutory application seeking to stop it altogether or, failing that, to replace oral questioning with a written process.

That proposed written process was detailed. The liquidator would send written questions, Ms Symon would answer them by affidavit within six weeks, and any follow-up questions would then be asked and answered in the same way. So the Court was not just dealing with a request for a short adjournment or a practical accommodation. It was being asked either to discharge the summons or to fundamentally change the way the examination would occur.

The application was supported mainly by a solicitor's affidavit and two medical certificates from Dr Geoffrey Heise. The solicitor explained the delay by referring to his firm's office closure over part of the holiday period, later instructions to act for Ms Symon and her husband, and other urgent court commitments that meant he did not confer with them until mid-February 2026. He also said the production orders had been adjourned to 4 March 2026 and that documents were produced on 3 March 2026 on Ms Symon's behalf.

The medical certificates were central to the application. The first, dated 12 February 2026, said Ms Symon was medically unfit to give evidence in court, referred to extreme anxiety and high blood pressure, and said that if she were cross-examined she might break down, become hysterical, require hospitalisation and face a hypertensive crisis. The second, dated 12 March 2026, referred to chronic severe anxiety, panic attacks, severe episodic elevation of blood pressure, and said she was indefinitely unable to give evidence in court.

The liquidator's side pushed back firmly. In correspondence quoted in the judgment, the liquidator's solicitors said they did not accept that Ms Symon would be unable to attend and give evidence personally. They also pointed out that she remained involved in day-to-day life, including as a director of companies. At the same time, Ms Symon's solicitor gave evidence that to fulfil her role as a director she had substantially reduced direct involvement in day-to-day operational activity and in potentially adversarial aspects of business, relying instead on trusted staff and family members so she could operate in a lower-stress environment.

The Court also noted an evidentiary weakness in the medical material. There was no evidence that Dr Heise was Ms Symon's treating practitioner, rather than a medical practitioner with access to her files. The judgment did not say that this point alone defeated the application, but it formed part of the overall picture when the Court assessed how much weight to place on the certificates.

The Court had to decide two related questions. First, should the examination summons be permanently stayed or set aside? Secondly, if not, should the Court vary the requirement for oral examination and instead require a written question-and-answer process by affidavit?

Those questions turned on both procedure and substance. Procedurally, the Court had to consider the significance of the delay in bringing the challenge, especially because r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) allows a person served with an examination summons to apply within three days for an order discharging it. Substantively, the Court had to decide whether the medical evidence actually established that Ms Symon was unfit for the kind of oral examination the liquidator proposed, and whether written answers would be an effective substitute.

A major point in the reasoning was the nature of a liquidator's examination itself. The Court drew a distinction between ordinary adversarial cross-examination and an insolvency examination directed to obtaining information. That distinction mattered because the medical certificates repeatedly referred to giving evidence in court and to cross-examination. If the evidence was built on a misunderstanding of the process, it was less likely to justify stopping or reshaping that process.

Jackman J dismissed the interlocutory application. On the request to permanently stay or set aside the summons, the Court held there was no satisfactory explanation for why an interlocutory process seeking discharge had not been filed much earlier. The judge said there was no satisfactory explanation for why it was not filed in the last two weeks of January, or indeed in the last two weeks of February, even if the solicitor's court commitments were treated as a satisfactory explanation for some period. The lateness of the application was therefore a factor against the primary relief.

On the medical evidence, the Court accepted that Dr Heise's certificates did establish the nature of Ms Symon's medical condition. But that was not enough. The Court was not persuaded that the certificates established she was in fact unfit for oral examination by the liquidator. A central reason was that the first certificate expressly referred to cross-examination, and the judge considered that this reflected a misunderstanding that the examination would be adversarial in nature. The judge read the second certificate as based on the same wrong assumption.

The Court said that while liquidators' examinations under s 596B can on occasions resemble cross-examination, often they do not. The questions might instead be directed to eliciting information about the conduct of others, including people independent of Ms Symon in a personal or commercial sense. The Court therefore would not assume that the liquidator intended to treat her as an adversary in any meaningful sense.

The Court also rejected the proposed written affidavit process. Jackman J held that there would be real prejudice to the liquidator and to the public interest if the liquidator were prevented from asking questions orally and confined to written questions answered by affidavit. The judgment emphasised the spontaneity of oral examination, its ability to produce candour or expose a lack of candour, and the examiner's ability to test responses immediately rather than through what the Court described as the stiff and unnatural process of preparing written affidavit evidence. The Court also noted that oral examination would allow the liquidator to use Ms Symon's answers in framing questions for other examinees, whereas the proposed written process would unfold over weeks and months.

Finally, the Court noted that the registrar conducting the examination had a wide range of discretionary powers to deal with difficulties arising during the examination itself. That reduced the force of the argument that the process had to be re-engineered in advance. The application was dismissed, Ms Symon was ordered to pay the liquidator's costs of the interlocutory application in a lump sum of $10,000, and the Court granted access to the documents sought by the liquidator subject to any valid claim of privilege.

For directors, former directors, managers, shareholders, family members involved in company affairs, and other related parties, this case is a strong procedural reminder. If a liquidator serves an examination summons, the Court may expect any challenge to be brought quickly. The judgment specifically highlights the three-day rule for applying to discharge a summons. Even where a late application is still heard, delay can weigh heavily against setting the summons aside.

The case also shows that medical evidence must be precise. It is not enough to say that a person is generally unfit to give evidence in court if the opinion assumes a hostile courtroom contest and the Court sees the proposed examination as an information-gathering exercise that may not be adversarial. Lawyers and medical practitioners need to understand the exact process being challenged. Otherwise, the evidence may prove the existence of a condition without proving the legal point that matters, namely inability to undergo the particular oral examination in question.

Businesses should also pay attention to the Court's preference for oral examination in insolvency investigations. The judgment treats oral questioning as valuable because it can reveal spontaneity, candour and inconsistency in a way that written affidavit exchanges may not. That matters where a liquidator is trying to understand transactions, trace funds, compare accounts from multiple people, or decide what questions to ask other examinees next.

At the same time, the decision does not say that health concerns are irrelevant. It says the evidence in this case did not justify the relief sought. The Court also pointed out that the registrar has discretionary powers to manage difficulties during the examination. So in practice, parties should think not only about whether to challenge a summons, but also about whether practical management issues can be raised with the Court in a more targeted way.

The judgment was delivered on 17 March 2026 by Jackman J in the Federal Court of Australia. The hearing also took place on 17 March 2026, with the examination due to occur the following day. The decision was delivered ex tempore and revised from transcript.

The ruling is a procedural decision on an interlocutory application. It does not determine any final substantive claim about liability, recovery of funds, or the broader merits of the liquidation. Its main significance lies in how the Court approached delay, medical evidence, and the usefulness of oral examination in the liquidation context.

This page is based on the Federal Court judgment in Hathway, in the matter of Symich Building Pty Ltd (in liq) [2026] FCA 296. The judgment provides the procedural history of the application, the terms of the relief sought, the medical evidence relied on, the Court's reasoning on delay and on the nature of liquidators' examinations, and the resulting costs order.

The judgment does not provide a full narrative of the underlying liquidation or a detailed account of the alleged missing funds. For that reason, this page focuses on the procedural ruling and what it means for businesses dealing with examination summonses.