Federal Court of Australia

Hathway, in the matter of Symich Building Pty Ltd (in liq) [2026] FCA 296

ORDERS

THE COURT ORDERS THAT:

1. The interlocutory application dated 13 March 2026 be dismissed.

2. Ms Josephine Jean Symon pay the liquidator's costs of that interlocutory application in the lump sum of $10,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, Revised from transcript

JACKMAN J:

1 On 24 December 2025, the applicant, Ms Josephine Symon, was served with a summons issued on 11 December 2025 for examination pursuant to s 596B of the Corporations Act 2001 (Cth) (the Act), and also orders for production, by the liquidator (the Liquidator) of Symich Building Pty Ltd (in liq) (the Company). Ms Symon's examination has been ordered to take place tomorrow.

2 By interlocutory application dated 13 March 2026 and filed on 16 March 2026, Ms Symon seeks orders that her examination be permanently stayed or set aside, or that the requirement that she attend for oral examination be varied such that the court directs a process involving the Liquidator putting written questions to Ms Symon, those questions being answered by way of affidavit to be filed and served within six weeks of receipt of the questions, and an ability of the Liquidator, within six weeks after receiving that affidavit, providing further or follow-up questions to be answered by way of the same procedure.

3 By r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth), a person served with an examination summons may, within three days, apply to the court for an order discharging the summons by filing an interlocutory process and affidavit. Mr Kekatos, the solicitor acting for Ms Symon, has made an affidavit in which he says that between 13 December 2025 and 18 January 2026, his firm's office was closed, and shortly after reopening, he received instructions to act on behalf of Ms Symon and her husband, another examinee, in relation to the Company. Mr Kekatos says that on 30 January 2026, he caused a notice of acting to be filed on behalf of Ms Symon and Mr Symon, but “due to other urgent court commitments”, he was “unable to confer with Ms Symon and Mr Symon until mid-February 2026”. Mr Kekatos says that on 18 February 2026, the orders for production by Ms Symon were adjourned to 4 March 2026, and he caused documents to be produced on 3 March 2026 on her behalf.

4 There is no satisfactory explanation as to why an interlocutory process seeking discharge of the examination summons was not filed in the last two weeks of January, or indeed in the last two weeks of February, if Mr Kekatos’s court commitments are treated as providing a satisfactory explanation. That is a factor against the primary relief sought by Ms Symon of permanently staying or setting aside the examination summons, although I do not treat it as relevant to the alternative relief as to the proposed procedure for written questions and answers by way of affidavit or affidavits.

5 Mr Kekatos’s affidavit annexes two medical certificates from Dr Geoffrey Heise of the Macquarie Medical Centre. The first is dated 12 February 2026 and states as follows:

This is to certify that Mrs Josephine Symon is medically unfit to give evidence in

court.

She suffers extreme anxiety and high blood pressure for which she has been hospitalised on several occasions.

Both conditions are permanent, for which she is on medications and will be so

indefinitely.

She remains in grief from her fathers passing.

I suggestion is that if she were to be cross examined, she would break down,

become hysterical and need hospitalisation with an hypertensive crisis.

This situation may be fatal.

She is incapable also of remote cross examination and fears she may have stroke

(extensive family history) such is the severity of her condition.

She has been referred for psychological counselling

6 A list of medications is provided on the reverse side of that letter.

7 The second is dated 12 March 2026 and states as follows:

1. She suffers chronic. severe anxiety which is expressed as panic attacks. Her threshold for panic is minimal This is associated with severe episodic elevation of Blood pressure.

2. Her condition is permanent.

3. The risk from attending court is a severe panic attack and associated hypertension. The risk from hypertension is heart attack and stroke.

4. She is indefinitely unable to give evidence in court

5. Treatment already is medication for anxiety and psychological intervention. Unfortunately she remains refractory to therapy and appears not to be responding.

6. There is no evidence of a sufficient response to enable her to appears in court.

8 There is no evidence that Dr Heise is Ms Symon’s treating practitioner, rather than simply a medical practitioner with access to her files.

9 On 4 March 2026, the solicitors acting for the Liquidator responded to a letter from Mr Kekatos attaching the first of Dr Heise’s medical certificates and stated relevantly:

We do not accept that your client will be unable to attend and give evidence personally or that telling the truth to the court will cause her any anxiety. She is on medication that obviously allows her to deal with her day-to-day life, including as a director of companies, and her appearance in court, in that capacity as undertaken by her, should not be considered by her to be burdensome.

A large amount of money has gone missing, and our client believes that your client has knowledge or information that will assist him in recovering those funds, that will be traced by our client until uncovered.

If your client is not present at court when she is required, we shall be seeking a warrant for her arrest.

10 In addition, Mr Kekatos gives evidence of his instructions to the effect that to fulfil her role as a director, Ms Symon has had to substantially reduce direct involvement in day-to-day operational activity and the potentially adversarial aspects. She instead relies on trusted staff and family members, to allow her to operate in a lower stress, less aggressive environment due to her health limitations: para 19(g) of his affidavit.

11 Dr Heise’s medical certificates do establish the nature of Ms Symon’s medical condition, but I am not persuaded that they establish that Ms Symon is, in fact, unfit for oral examination by the Liquidator. Dr Heise’s letter of 12 February 2026 wrongly refers to the examination as “cross-examination”, which appears to reflect a misunderstanding on Dr Heise's part that the examination is adversarial in nature. I read the second letter by Dr Heise as based on the same wrong assumption as to Ms Symon being cross-examined.

12 While liquidators’ examinations under s 596B can, on occasions, resemble cross-examination, often they do not. For all I know, the questions proposed by the Liquidator and his legal representatives may not involve anything resembling an allegation against Ms Symon and may well be directed to eliciting information which relates to the conduct of others, including others who may be independent of Ms Symon in any personal or commercial sense.

13 Counsel for Ms Symon relied on a statement by Gray J in Crosbie and Bryant; In the matter of Australian Motor Finance Ltd (receivers and managers appointed) and Australian Motor Finance Corporate Pty Ltd (receivers and managers appointed) [2009] FCA 707 at [19], to the effect that the procedure for examinations under the Act is bound to be onerous to those who are summoned for public examination, and is bound to create a good deal of anxiety in any person involved in it. I respectfully disagree. In my experience, liquidators’ examinations often do not have those characteristics, and there are many examinees, in my experience, who have found them to be neither onerous, nor productive of anxiety.

14 I do not regard Dr Heise’s letters as extending to an inability by Ms Symon to withstand any form of oral examination in a court process. The terms in which Dr Heise’s evidence is expressed are not that broad, and appear to be confined by his assumption that the process is one of cross-examination. For all I know, the Liquidator may not be anticipating treating Ms Symon as an adversary in any meaningful sense in her examination. Even if some of the Liquidator’s questions are directed to whether Ms Symon or persons closely associated with her have some legal liability to the Company, it is entirely conceivable that Ms Symon will find that she has the fortitude to answer those questions.

15 There will be a real prejudice to the Liquidator and to the public interest in preventing the Liquidator from asking questions orally and confining him to written questions to be answered by way of affidavit. The spontaneity of oral examination often produces a heightened degree of candour, or a heightened exposure of a lack of candour, on the part of examinees, and allows the examiner to test responses without the stiff and unnatural (and sometimes overworked) process of preparing written evidence by way of affidavit. Further, an oral examination will enable the Liquidator to use Ms Symon’s answers in framing questions for other examinees, in contrast to the proposed lengthy process of Ms Symon giving answers by affidavits over the following weeks and months.

16 Further, the registrar hearing the examination has a wide range of discretionary powers to deal with any difficulties which arise in the course of Ms Symon’s examination.

17 Accordingly, the interlocutory application should be dismissed.

18 The Liquidator seeks costs of the interlocutory application and is entitled to an order for costs. The Liquidator seeks that the costs be awarded in the lump sum of $10,000 comprising solicitors’ and counsel’s fees of about $8500 and the Liquidator’s professional fees of about $1500, both figures excluding GST. Those figures accord with what in my experience would fall within a reasonable range for the costs incurred on an interlocutory application of this nature. It is the Court’s preference to award costs by way of lump sum where it is reasonable and practicable to do so, and I, therefore, propose to order that the costs be paid in a lump sum in that figure.

19 I grant access to the documents sought by the Liquidator, subject to any valid claim of privilege.

Associate:

Dated:    17 March 2026