DISCUSSION
15 Both parties filed helpful written submissions. The Commissioner's position as set out in its submissions is that in the circumstances of the case it is in the interests of justice for the orders to be made which would have the ultimate effect of compelling the giving of evidence by an officer of Bank Hapoalim relating to all potentially relevant documents and ancillary orders requiring the production of those documents. According to the Commissioner, given the state of the evidence the Court would have little or no confidence that proper and genuine attempts have been made by the applicant to obtain all relevant documents and it is incongruous for the applicant to object to a course that would compel the giving of evidence and production of documents that should demonstrate the true nature of the transactions, payments and relationship between it and the bank.
16 For applicant's part, it is said that: - (i) this application is akin to an application for discovery by a third party outside the jurisdiction and such an order would not be made, (ii) the application, insofar as it does refer to oral evidence, is merely ancillary to the production of documents which is the essence of the application, and again the order would not be made, (iii) the applicant says that the evidence of the identified officer, Mr Mazur, is not evidence of the company, and I should not be satisfied that Mr Mazur would be able to give any relevant evidence to the facts in issue, (iv) there is a risk of futility, referring to the affidavit of Ms Leviant, (v) Mr Etzion is a former bank officer who was directly involved with the loans in question, and although his evidence would be subject to challenge, he would be available for cross-examination. As I understand it, this goes to the question of whether it is in the interests of justice for the order to be made, and (vi) as the correspondence discloses, the bank has been cooperating with the applicant for the production of documents.
17 In relation to these submissions, the applicant in particular pointed to the fact that Australia has made a full exclusion from the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters under article 23 to the effect that Australia has made a general declaration that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents. The applicant relied on this in support of its first two arguments against the making of an order. The applicant also referred to certain decisions in support of its position, in particular Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461 at 465, where Gummow J said (at 465):
The production of documents to a court in compliance with a subpoena or an order in the nature of a subpoena is not the taking of evidence or the causing of the taking of evidence of the person producing the documents.
18 In Novotny v Todd [2002] WASCA 79, Anderson J took the same view and held that no matter which way the request was dressed up in that case, it was seeking nothing more than the production of documents (at [2]-[3]). The applicant otherwise referred to the decision in Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521 at 537, in particular the emphasis therein that the person in question be able to give evidence relevant to the facts in issue. Reference was also made to the decision in Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 481 where Stephen J noted that "[a] corporation cannot…itself "give evidence". It may authorise an individual to depose to facts on its behalf and is obliged to do so in the course of litigation…[b]ut it is not then itself giving evidence [as] the oath remains that of the individual", rather than that of the corporation. As I understand it, this was put in support of the proposition that I should not be satisfied that Mr Mazur's evidence will be relevant evidence as required.
19 It seems to me that there are a number of important factors to the resolution of the issues in dispute between the parties in respect of this application. In terms of s 7(2)(a) of the Foreign Evidence Act, which requires me to have regard to "whether the person is willing or able to come to Australia to give evidence in the proceeding", I infer from the whole of the evidence before me, in particular the course of conduct of the bank with the applicant itself, that there is no real prospect that Mr Mazur would be willing or able to come to Australia to give evidence in the proceeding. Even when dealing with the applicant, the other party to the loan and the account holder, the bank insisted upon, as no doubt it was entitled to do, proper authority before it would communicate or engage in communication with persons said to be acting on behalf of the applicant. In these circumstances, s 7(2)(a) of the Foreign Evidence Act is satisfied.
20 Section 7(2)(b) refers to the question of "whether the person will be able to give evidence material to any issue to be tried in the proceeding". As I have emphasised, I accept that a central issue in this proceeding is the provenance, integrity and adequacy of documents evidencing the loans and other arrangements between Bank Hapoalim and the applicant. I have no doubt that an officer of the bank could give evidence relevant to the proceeding in terms of what has been described by the Commissioner as evidence of the bank's systems in relation to its administration of its credit arrangements, its processes for requiring and maintaining documents, and its processes and systems for ensuring the provenance and authenticity of documents. In this case, given that the provenance and authenticity of documents already produced by the applicants is in issue, that relevant evidence could also be given by Mr Mazur as to those issues. Accordingly, I also have no doubt that s 7(2)(b) of the Foreign Evidence Act is satisfied.
21 Section 7(2)(c) requires me to have regard to "whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order". On the evidence that has been adduced before me, and in the circumstances of the proceeding as referred to above, I have no doubt that it is in the interests of the parties to the proceeding that the order be made and that justice will be better served by the granting of the order. This is the applicant's appeal seeking to set aside the Commissioner's disallowance of objections on the basis that the taxation amount in the assessments is excessive. The basis upon which the applicant seeks to do so essentially is the existence of loans and other credit arrangements between it and Bank Hapoalim. Despite numerous attempts to obtain relevant documents so as to demonstrate the genuineness of those loans the documents which have been produced thus far by the applicant, not unreasonably from the Commissioner's point of view, raise more questions than they answer. In these circumstances, for Bank Hapoalim to be required to give evidence in accordance with the interlocutory application would be in the interests of both parties and would serve justice, because it would ensure that the parties and indeed the Court will be determining the appeal on the basis of a proper evidentiary foundation and not an incomplete or dubious evidentiary foundation, as the Commissioner currently asserts is the case.
22 I am also not satisfied that the arguments made by the applicant are persuasive against the making of the order sought. In terms of the letter of request, it is true that there is a request that a subpoena, summons or equivalent order be issued requiring the production of documents. However, they are described as "in aid of and ancillary to the examination". The examination is set out in Attachment C to the letter of request and is directed to the systems and processes of the bank and not only to the specific documents in question. I do not think that this is a case where the application is simply one for discovery or the application for the taking of oral evidence is simply ancillary to the production of documents. It seems to me that on the evidence I can be satisfied that Mr Mazur, who is the chief legal officer of the bank and the person whom the Commissioner has been informed is the relevant officer for this purpose, can give relevant evidence. I am not satisfied that any concern about futility, as set out in Ms Leviant's evidence, weighs particularly against the making of an order.
23 If there is any issue with third party rights, then presumably that can be dealt with as appropriate at the time. Given also the nature of the documents which Mr Etzion has produced the fact that he will be available for cross-examination also does not weigh against the making of an order. Finally, in terms of the cooperation of the bank, I accept the submission put by the Commissioner that, speaking colloquially, enough is enough. This application was filed on 12 May 2011 and there has been ample opportunity for the applicant, if it was so minded, to use its best endeavours to obtain whatever information it could from Bank Hapoalim. The relevant power of attorney was not provided until recently.
24 There is no material in evidence which persuades me that the result of the more recent correspondence will be any different from that which has been achieved thus far and indeed that the only way the issues in dispute in this proceeding can be properly tested and resolved is to accede to the Commissioner's request. In other words, I am satisfied that it appears to be in the interests of justice to make an order in accordance with s 7(1)(c) of the Foreign Evidence Act in the terms which the Commissioner has sought. I am also satisfied that I should make the ancillary order in terms of proposed order 2.
25 It is apparent from the evidence that there may be difficulties in obtaining the documents unless the applicant provides the signed consent sought. In circumstances where, according to the most recent correspondence, the applicant itself wants to obtain the same material from the bank, there should be no apparent difficulty with the applicant accepting the effect of order 2.
26 Orders will be made accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.