Judge
Judge A. E. Levy:
I attach my voice to the result reached by my colleague, Justice E. Rivlin.
The additional hearing is intended, as is well known, to clarify new, difficult or important legal questions that may arise in the case law of this Court, sitting as an appellate court, in order to raise (section 30(b) of the Courts Law [Consolidated Version], 5744-1984). Where such a question is not found, the further hearing will not be able to serve as a shelter for the renewed clarification of the issue, which has already been discussed and decided in the appeal. In the matter before us, I find it difficult to see what this new halakha is that requires our re-examination. In the opinion of the majority of the judges of the panel that was required to appeal, Vice President (Ret.) A. Matza and my colleague Justice Rivlin, it was held that the intentions of the parties to the agreement before us can be learned from its subjective purpose, and there is nothing that requires addressing the question of objective purpose. In other words, there was no change in the decision that came before the appellate court because of a change in the customary precedent, namely Civil Appeal Rule 4628/93 State of Israel v. Apropim Ltd., IsrSC 49(2) 265, or of the manner in which it was applied.
For this reason, and although if I had been asked to the question itself in the appeal proceeding, it would have been possible and my opinion would have been the same as that of my colleague, Vice-President M. Cheshin, I agree, as stated, to the result of the judgment of my colleague Justice Rivlin.
Judge
Justice M. Naor:
- The Apropim Rule should, in my opinion, stand as it is. We are aware of the claims that this rule has created uncertainty. These claims are sometimes raised in the courtrooms as well. I would suggest visitors go back and read, to see what was said and what was not said. This is also my suggestion to those who wish to make use of halakha, sometimes while sailing long distances.
- This is the case with regard to the Apropim rule, and our colleagues Justices Procaccia and Levy are apparently correct in that with this determination our work is completed in the framework of the additional hearing. However, in the decision to hold another hearing, the issues were determined, including "the interpretation of the contract in question". Moreover, there have already been cases – albeit in criminal law – that the court was granted permission for a further hearing, and the court changed the conclusion of the panel that sat in the appeal, with a different view of the facts of the case (Additional Criminal Hearing 4971/02 Zagori v. MI, IsrSC 58 (4) 583). Deputy President Or discussed at length "the boundaries of the discussion in the additional hearing" (ibid., at pp. 634-637), while stating, inter alia:
"Indeed, the additional hearing is intended, as a rule, to discuss, issues of legal importance, cases in which a ruling of the Supreme Court contradicts its previous ruling, or cases in which it is justified to reconsider a ruling that has been ruled because of its importance, difficulty or novelty. Therefore, the court will focus the further hearing on those issues that justified the decision to hold an additional hearing. This is the rule, but there may be exceptions. If it is decided to hold an additional hearing based on the importance of the precedent that has been determined, this will not prevent the court from discussing questions that may decide the law, if such are discovered during the parties' argument. The additional hearing is intended, ultimately, to bring about the correct legal result in the same matter that was put up for further hearing" (p. 634; Emphasis not in the original)