In these circumstances, the respondents are of the opinion that Flexer's insistence on suing the police officers personally is puzzling, and according to them, the amendment to the Ordinance is intended to prevent such conduct in cases that justify recognition of immunity.
The parties' arguments in Civil Appeal 775/11
- As already mentioned, the procedures established regarding the recognition of the immunity of employees of a public authority who are not civil servants differ from the procedures relating to civil servants, and we will discuss this at length below. In any event, Adv. Gordon also argues that there is no place to apply to the application for recognition of the immunity of a public servant submitted by
The tests set out in the case law regarding the dismissal of a claim in limine, for the same reasons that the respondents enumerated in other municipal applications 1649/09. Adv. Gordon further argues that although in her case it is an interim decision and a "third incarnation", there is room to grant leave to appeal because this is a question of principle that affects all public servants and since a precedent has not yet been established on this issue. Adv. Gordon further argues that there is a lack of clarity in the rulings of the trial courts on this issue. As evidence, she notes that in another lawsuit filed against her, the Magistrate's Court in Nazareth (in a different panel) recognized her immunity and ruled that the existence of the exception to immunity should not be examined according to the facts of the statement of claim. Therefore, Adv. Gordon is of the opinion that it is appropriate to return the present proceeding to the Magistrate's Court in order to hold a new hearing on the request to recognize her immunity, and alternatively, she petitions that this court decide on the matter.
- In its response to the request for leave to appeal, the Municipality announced that given the professional subordination relationship between Adv. Gordon and Adv. Eliaz, who represented the Municipality in the District Court, the Legal Advisor to the Ministry of the Interior determined that Adv. Reshef Chen, the Legal Advisor to the Haifa Municipality, would give an opinion on the question of whether the Municipality of Nazareth Illit should support or oppose the request for leave to appeal. In his position, Adv. Chen argues that the District and Magistrate's Courts erred in examining the exception to immunity according to the facts alleged in the statement of claim, noting that this examination renders meaningless the purpose of the amendment to the Ordinance to grant immunity to public servants from tort claims. Referring to the provisions of the law relating to the immunity of employees of public authorities - the procedures for which the procedures are different from the procedures relating to the immunity of civil servants - Adv. Chen noted that when an employee of a public authority (the defendant) submits an application supported by an affidavit claiming that the conditions of immunity have been met, the burden shifts to the plaintiff to prove that the exception to immunity is met. In the present case, Adv. Chen adds, Shai (the plaintiff) did not respond in an affidavit on her behalf to an affidavit by Adv. Gordon, and in his opinion, this was sufficient in order to accept the request for recognition of immunity. Finally, Adv. Chen argues that a review of the statement of claim shows that Adv. Gordon's actions were legitimate actions that she took as the legal advisor to the local authority, and according to him, it is difficult to assume that all of the legal disputes between the municipality and Shai stem from a verbal argument that broke out between the two, as claimed in the statement of claim. Therefore, Adv. Chen expressed his opinion that the Municipality should support the application for leave to appeal filed by Adv. Gordon.