Flexer and Shai are of the opinion that such a deliberative track should be adopted in our case as well, and that evidence should be presented to the court in all matters relating to the clarification of the immunity of public servants under Amendment 10 to the Ordinance. On the theoretical level, there is a reason for this argument, especially since the granting of immunity to public servants is contingent on the fulfillment of conditions that by their very nature involve facts that require proof. Thus, it must be shown that the act was committed "in the performance of the governmental function" of the public servant, and it must also be shown that this was not an act that was done "knowingly with the intention of causing damage or with the possibility of causing it". However, in contrast to the deliberative track according to which claims regarding immunity that are not immunity of public servants, as well as other defenses and threshold arguments raised in a civil proceeding, the legislature saw fit, as stated, to establish a detailed and unique track for clarifying the immunity granted to public servants (with certain differences between civil servants and employees of public authorities, which we discussed above and which we will discuss below). Therefore, there is no room to apply in this context the procedural format that was established for the clarification of threshold arguments inCivil Procedure Regulations and the rulings derived from it, insofar as they are inconsistent with the unique deliberative track established for the purpose of clarifying the immunity of
Public servants. It should be said immediately that the "statement of claim test" to which Flexer and Shai referred, and which they drew from the rulings relating to the dismissal of a lawsuit in limine due to lack of ground, is inconsistent with the unique procedural track set out in Amendment 10 to the Ordinance regarding the clarification of the immunity of civil servants and employees of public authorities. The Magistrate's Court and the Nazareth District Court held a different opinion and in their decisions the subject of civil appeal775/11 relating to the claim of immunity in the case of Adv. Gordon, adopted the test of the statement of claim and rejected the claim of immunity. Therefore, there is room to intervene in these decisions, as will be detailed below.
- In the legal proceedings that were dedicated to the issue of immunity of public servants under Amendment 10 of the Ordinance, the provision stating that the court's decision on applications relating to immunity will be given Improvise (Section 7b(e) To the Ordinance Regarding Civil Servants Sec. 7c(c) to the Ordinance regarding employees of public authorities. For criticism of these provisions, see Avnieli, p. 480). The deadlines set in the Regulations for the submission of applications in this regard also direct the decision on the issue of immunity to the beginning of the hearing. The logic underlying these provisions, which seek to conclude the clarification of the issue of immunity before the court proceeds to hear and decide the claim on its merits, is clear and simple. A person who has been granted immunity from legal proceedings by law (whether procedural or substantive) does not need to be dragged throughout the entire proceeding until the question of his immunity is decided, and this should be determined as far as possible at the beginning of the hearing. The speed with which the question of immunity is decided, and the ability of the state or the public authority to cause her to join as a defendant and to dismiss the claim against the employee outright, lead to the fact that in those cases in which the employee meets the conditions of immunity, the claim against him may be dismissed very close to the date of its filing, and without him being required to take any action on his part for this purpose.
- Why did the legislature choose To establish these unique procedures for the purpose of clarifying the immunity of public servants? It appears that this stems to a large extent from the fact that the harm to the plaintiff's interests as a result of the rejection of the claim directed personally against the employee is very low, in view of his ability to continue to conduct the proceeding against the state or against the public authority, as the case may be, and to be deprived of the compensation to which he is entitled if he proves his claim. On the other hand, from the employee's point of view, the trouble and resources involved in the need to defend against the lawsuit may be so high that they in themselves can deter the employee and influence his judgment in making administrative decisions (for the effect of the nuisance in the lawsuit on the defendant's behavior in general, see: David Rosenberg and Steven Shavell, A Model in Which Suits are Brought for Their Nuisance Value, 5 Int'l Rev. L. & Econ. 3 (1985)). Therefore, it seems, the legislature assumed that