It follows from the aforesaid that there was no decision on the question of whether the claim falls within the scope of Item 1, but the court was of the opinion that there was no reason to order dismissal in limine.
- Indeed, as a rule, the rule is that there is no room to discuss motions to dismiss in limine motions to certify a class action, which in themselves are motions that precede a decision on the merits of the action, unless it is a clear case that does not require factual clarification (see Civil Appeals Authority 8332/96 Shemesh v. Reichert, IsrSC 55(5) 276, 290 (2001).
In the Supreme Court's rulings, this rule was even explicitly expressed in the specific context of a motion for summary dismissal, on the grounds that the request for approval does not fall within the scope of Item 1, where the decision on the question may have broad implications, see the Yahoo case:
"[...] The present case raises considerable questions regarding the interpretation of Item 1 of the Second Addendum, the determination of which is of great significance in relation to the boundaries of the consumer class action. Therefore, this argument was sufficient to dismiss the motion for dismissal in limine, without the need to address the arguments raised therein on their merits. The hearing of these arguments is in place in the framework of the motion for certification and the presumption that the court will revisit them at the same hearing, with all the issues that arise in this context." (Section 4, emphasis added - A.R.B.).
In summary, in our case, the court rejected the motion for dismissal in limine in its entirety, and from reading the matter it is clear that the decision does not state that the claim falls within the scope of Item 1 of the Second Addendum or a decision on this issue.
Does the claim arise on the merits of a matter within the scope of Item 1 of the Second Addendum
- On the merits of the matter, I am of the opinion that it is not possible to accept the Applicant's approach that the fact that the Respondent is a "dealer" and that the class members are "customers" is sufficient to bring the claim within the scope of Item 1, but it is necessary to examine whether the claim in question is in connection with a matter between it and a client, i.e., whether it exists within the framework of a dealer-client relationship, as determined in other Municipality Applications 4110/18 Anonymous v. Kadima Science-Education for Life in Tax Appeal (published in the databases, [Nevo], 7 November 2019, hereinafter: "The Anonymous Case") in section 11:
"Clause 1 of the second addendum states that it is possible to file a "lawsuit against a dealer, as defined inthe Consumer Protection Law, in connection with a matter between him and a customer, whether or not they entered into a transaction." In order for the claim to fall under this particular, it is not enough that the respondent is acting as a "dealer", but it must be examined whether the claim in question is in connection with a matter between it and a customer, i.e., whether it exists within the framework of a dealer-client relationship. The arguments raised by the appellants relate to the service provided to appellant 1 through the respondent by the Ministry of Education. Hence, in order to characterize the relationship between the respondent and appellant 1, we must examine the normative framework within which appellant 1 is entitled to the service in question." (emphasis added - A.R.B.).