Hearing and Deciding on the Petition on Its Merits
The Scope of Judicial Review in a Petition on the Enforcement Committee's Decision
- Before discussing the body of the arguments in our case, I will discuss the framework of the hearing of an administrative petition and the limits of intervention in the decision of the Administrative Enforcement Panel.
- As mentioned, in accordance with Section 52A of the Securities Law and Section 42E(b) The Courts Law [Consolidated Version], 5744-1984 (hereinafter: The Courts LawThe procedural framework for appealing the decisions of the Administrative Enforcement Committee is an administrative petition that will be heard in the District Court (Economic Department).
- The question of the scope of the audit that a court may exercise in relation to the decision of the Enforcement Committee was not determined in the Securities Law or in the Courts Law, and it was discussed In the case of Africa Israel (the scope of judicial review). It was held that in the framework of an administrative petition, the court is not supposed to examine the decision of the beneficiary "De Novo" as if it did not exist at all. This is in light of the rationale for removing the administrative proceeding from the court, expediting the proceedings, and the fact that the Enforcement Committee is a body appointed as a professional and expert body in the field of capital markets and law. determined "In these circumstances, the presumption of propriety applies to its decisions, at least in this respect, that the discussion should begin from the point of view that the panel's decision exists, and that it should be examined on its merits in accordance with the various considerations that will be detailed below." (ibid., paragraphs 44-45). It was further determined that a distinction must be made between judicial review of legal decisions of the panel and judicial review of factual findings. In legal matters, the Enforcement Committee has no advantage over the court. Therefore, the court is entitled and obligated to intervene in the panel's decisions on these issues, while setting clear rules that will guide the panel, as well as the violators, in future proceedings. Therefore, it is appropriate that the review of the decisions of the Administrative Enforcement Tribunal on legal issues be that of an appellate court (ibid., paragraphs 47-49). The situation is different with regard to the criticism of factual findings determined by the committee's panel. In view of the nature of the proceeding and the characteristics of the members of the Tribunal, it is appropriate that the criticism of findings of fact be more limited than that of an appellate court (which also reduces its intervention in findings of fact as opposed to legal determinations) (ibid., para. 59). The court summarized its view regarding the scope of judicial review of the decisions of the Enforcement Committee:
"In conclusion, I am of the opinion that the judicial review of the panel's decision should be based on the type of decision that is challenged in the framework of the petition. In relation to the panel's decisions, which are legal decisions, the judicial review should be an audit by an appellate court, which examines the decision on its merits (and in fact decides on it in the first place).