Doctor’s certificate can’t trump examination summons

If you’re too ill, too delicate and too vulnerable to attend a court to be subject to a public examination, can you really be well enough to discharge your duties as a director?

“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.” Ziman & Ziman Solicitors.

In Hathway, in the matter of Symich Building Pty Ltd (in liq) [2026] FCA 296 Federal Court judge Ian Jackman answered in the negative, refusing Josephine Symon’s requests that she be excused from attending for her examination and be allowed to provide written responses to a liquidator’s inquiries.

Ms Symon, who is a director of multiple companies, brought on the application to be excused only on March 13, despite being served with a summons for examination on December 24, 2025.

Between the two dates she made no attempt to discharge the summons or obtain a stay, though this may be a reflection of her health, which if the two medical certificates she submitted are any guide is beyond parlous.

According to Dr Geoffrey Heise of the Macquarie Medical Centre Symon “suffers extreme anxiety and high blood pressure for which she has been hospitalised on several occasions” and “remains in grief from her fathers passing”.

Dr Heise speculated 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,” the doctor continued, adding that Symon feared she would have a stroke even if questioned remotely.

Correspondence between Symon’s lawyer and the legal advisors for Symich Building liquidator Stephen Hathway indicates the Helm Advisory principal may harbour some skepticism as to the severity of the asserted ailments.

“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,” Ziman & Ziman Solicitors told Jim Kekatos.

“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,” Ziman & Ziman advised.

Justice Jackman was similarly unconvinced and open to the risk posed to the administration of justice by the unorthodox course the examinee was proposing.

“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 judge said.

“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,” he said.

With that the judge dismissed the application and for good measure ordered Symon to pay Hathway’s costs in a the order $10,000 via lump sum.