Second, it should be remembered that this is an application for leave to appeal relating to the decision not to dismiss the respondent's claim in limine. In other words, to the extent that it is determined that the claim was submitted to the court that is not authorized to hear it, this means that the hearing conducted in the lower courts is unnecessary and even improper. Therefore, the consideration of the effectiveness of the hearing also draws in the direction of a discussion of the application now. It is clear that not every request for leave to appeal in a third instance relating to summary dismissal is liable to be granted. However, when we add to this consideration the fundamental consideration regarding the importance of respecting the rules of jurisdiction and the broad effects on future plaintiffs, and the consideration regarding the creation of a uniform law that will guide the trial courts, the conclusion is required that the application must be decided now.
Thus, our decision is to hear the application for leave to appeal as if permission had been granted and the appeal had indeed been filed. We have also reached the conclusion, as will be explained at length below, that the appeal should be accepted.
- There is no dispute between the parties that if it were a direct attack on the administrative act - that is, one requesting the annulment of the dismissal or some kind of injunction from the administrative authority - the Administrative Affairs Court would have had the authority to hear it, if only if it did. In this sense, section 93A of the Police Ordinance and Item 37 of the First Addendum to the Administrative Courts Law for Clear Administrative Matters. But in our case, the respondent does not directly attack the administrative decision, and does not ask for its cancellation, but rather demands monetary relief. Hence his argument that a discussion of the administrative aspect of his claim is required only by indirect attack in passing in order to clarify his entitlement to monetary relief, which is within the jurisdiction of the Magistrate's Court.
Indeed, the rule for determining the substantive jurisdiction in the Magistrate's and District Courts is the remedy test. However, despite the centrality of this test, the mere mention of a monetary sum as the purpose of the lawsuit does not make its classification in terms of substantive jurisdiction a civil lawsuit, and one that requires a judicial decision in relation to the administrative act under its definition by way of indirect assault only. The case law discusses cases in which it would be appropriate to set exceptions to the relief test. In these cases, the nature of the claim must be clarified - Is it civil or administrative? Is this a real indirect attack or is it actually a direct attack "in disguise"? (See for example Civil Appeal Authority 88/17 Golan N' Mayor of Tel Aviv - רון חולדאי, [Posted inNevo] Published on May 9, 2018 (hereinafter: Matter Golan), in verses 2-3). In this clarity, the remedy sought can serve us as an aid, as an indication. But remedy is not the be-all and end-all.
- In other words, according to the view that the determining test in the civil proceeding is the relief test and the determining test in the administrative proceeding is the test of interest (see Section 5 Law Administrative Courts and the additions to the law), it is also possible that direct tension was created between the two courts. The civil court claims all of mine and they saw the remedy, while the administrative court claims it is all mine and they looked at the matter. Such tensions are sensitive. Consideration must also be given to the purpose underlying the sections of authority. The legislature established a special instance of an administrative court, while determining a section dealing with decisions relating to service Police officers In the police. Hence, the priority is given to the administrative court, when the main issue that arises in the trial is whether the rules of termination of his employment as a police officer were violated. One must be very careful not to give any party a key to navigate the claim to the civil court just because he puts a price tag on the claim he has filed.
In this context, it should be noted that in its response to the application, the respondent relies on Civil Appeal Authority 7987/10 מדינת ישראל - Ministry of Education v.' Association of Institutions "Isaiah's Vision" [Posted inNevo] (Published on, April 28, 2011) where the State's request for leave to appeal to dismiss the Respondent's claim in limine was denied. In the same case, the judge ruled Y. Danziger that the Magistrate's Court is authorized to hear a financial claim by the Respondent, who sought to indirectly attack a decision by the Ministry of Education not to grant her budgets. This is based on the welfare test. However, Justice Danziger clarified that it is not always the remedy required that will dictate the court's authority: