In view of this conclusion, the main argument raised by Flexer in his appeal, according to which the trial court should have conducted a factual inquiry and heard evidence on the issue of immunity, and that it erred in applying judicial review under the rules of administrative law to the state's decision to recognize the immunity of police officers. Flexer raised additional arguments in the appeal he filed concerning his right to cross-examine declarants as part of the hearing of the application and to hold an oral hearing thereof, as well as the lack of authority of the Registrar to hear such requests. I will now turn to these issues.
Reasoning of the Notice of Recognition and its Support for the Affidavit
- Regulation 10 The Torts Regulations stipulate that "the filing of an application under Sections 7b(c) or (d) or 7C(a) The Ordinance will have provisions Section A to Chapter 20 of the [Civil] Procedure Regulations, with the necessary changes and subject to the provisions of these Regulations." Section A Chapter 20 above deals with the filing of written motions, and the rules of procedure set forth therein therefore apply,
with the Required Changes, on the application submitted by Flexer in accordance with Section 7B(c) of the Ordinance. What does the "Required Changes" box tell us as far as the said application relates to the said request?
Regulation 6(c) The Torts Regulations instruct that the State's notice of recognition shall be prepared in accordance with Form 2 in the Appendix to these Regulations. An examination of the wording of the aforementioned form shows that it includes three sections - one is intended to detail the state's notice that the defendant employee is immune from the pending tort claim. The second concerns the details of the reasons for the existence of the said immunity, and the third concerns the request addressed to the court to dismiss the claim accordingly. The notice shall be signed by the person giving the notice detailing his name and position. There is no provision in Form 2 or in the Torts Regulations that obligates the person giving the notice to support what is stated in the affidavit. When the plaintiff filed an application according to the Section 7b(c) The Ordinance will be subject to the procedures set forth in the Civil Procedure Regulations regarding written requests. Therefore, the plaintiff must support his request with an affidavit insofar as it is based on facts (Regulation 241(a) to the Civil Procedure Regulations) and the state's response to this request must also be supported by an affidavit regarding the facts set forth in the response (Regulation 241(c) to the Civil Procedure Regulations). And since we have determined that in the framework of the application, the court examines the legality and reasonableness of the state's decision to recognize immunity, which follows that the affidavit that the state must attach in support of the claims it wishes to raise in this matter will be the affidavit of the party on its behalf who made the decision regarding the recognition of immunity, as someone who can testify with his personal knowledge of the manner in which the decision was made, the factual basis that was examined for this purpose and the reasons that underpinned it.
- The notice of recognition given by the State regarding the immunity of the police officers in this case does not meet the requirement of the reason that is supposed to be included in the notice under section 2 of the form. Instead, the state made do with a laconic and unexplained statement that the policemen's actions were carried out "in the course of fulfilling their governmental duties, as stated In section 7a(b) To the Ordinance The Torts (New version), and there is no exception to immunity" (Exhibit 3 of the State's exhibits). In addition, the state did not submit an affidavit on behalf of the party that made the decision in this case to recognize immunity in support of the response submitted to Flexer's request. Instead, the affidavits of the police officers were submitted.