Framework of the hearing of a plaintiff's application under section 7b(c) of the Ordinance
- The state's decision to recognize the immunity of a civil servant is not the end of the story if the plaintiff asks the court, within the period set out in the Torts Regulations, to determine that "the conditions of immunity under section 7A are not met" (Section 7b(c) to the Ordinance). Also
The state's decision not to recognize immunity is also not the end of the story if the employee asked the court within the period set out in the Torts Regulations to determine that "the conditions of immunity under section 7A are met" (section 7b(d) of the Ordinance).
What are the legal rules according to which the court will decide on the plaintiff's request or the employee's request that relate to the state's decision regarding immunity?
The state's decision regarding the recognition or non-recognition of immunity is by its nature an administrative decision, and as such it is subject to judicial review according to the rules of administrative law. From the explanatory notes to the bill relating to Amendment 10, it emerges that this is indeed the type of judicial review that the legislature saw before its eyes, even though the court it preferred as a hostel for conducting that review is the trial court before which the tort claim was filed, and this for reasons of efficiency. This is what was noted in the explanatory notes (p. 137):
It is proposed that the state's decision to adopt the act of the civil servant or not to adopt it will be subject to the review of the court hearing the claim in the framework of a preliminary proceeding and not to the review of the High Court of Justice, in order to prevent a duplication of hearing in two instances on the same question, and since the questions that will be discussed in the framework of the action, and the nature of the audit in this proceeding, even though it is conducted in the framework of a tort claim, will be administrative in nature, as required by the fact that it is a review of a decision of the state; the burden of proof in such a matter will be placed on the person who argues against the state's decision.