No CrossRef data available.
Article contents
On Unifying the Israeli Trial Court Structure*
Published online by Cambridge University Press: 16 February 2016
Extract
In the Spring of 1977, Prof. Shalev Ginossar published a brief but highly important article, “The Law's Delay”, in which he advocated, inter alia, simplifying the Israeli judicial structure by combining the various courts into one.
In July 1979, the then Minister of Justice, Mr. Shmuel Tamir, appointed a select committee headed by Justice Moshe Landau, then Deputy President of the Israeli Supreme Court, and soon to become its President, which was charged with studying the structure and jurisdictions of the Israeli court system, with the aim of recommending significant changes. Among the witnesses who appeared before this Committee was Prof. Ginossar, himself, and there was reason to believe that the Committee might recommend adopting some of the basic changes in the Israeli court structure that Prof. Ginossar advovcated.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1983
References
1 (1977) 31 HaPraklit 29Google Scholar. See also Ginossar, S., “Access to Justice in Israel”, in Cappalletti, M. (gen. ed.) Access to Justice (Milan, 1978), vol. I, book 2, pp. 625, 641–645Google Scholar.
2 Prof. Ginossar also advocated uniting all the courts into one, including the appellate levels and special courts, such as the labour courts, as well as abolishing the current system whereby the District Courts and Magistrates' Courts are divided also geographically, each with its own “local jurisdiction” or venue. In this article, I will discuss the issue of special courts, particularly that of the labour courts. I will not, however, deal expressly with the issues of unifying the appellate level with the trial level, nor will I discuss the geographic unification of the courts and the abolishment of local jurisdiction.
3 I will discuss herein only the civil jurisdiction of the Magistrates' and District Courts, despite the fact that such courts are divided as to their jurisdiction also as to criminal matters. The primary reason for this limitation is that I am not sufficiently conversant with the criminal jurisdiction so as to take a firm position as to it. In addition, the vast majority of problems that have arisen because of the split in jurisdiction between the Magistrates' and District Courts involve the civil sphere. Moreover, despite my lack of expertise in the criminal sphere, it is my impression that if it were to be decided to unite the Magistrates' and District Courts in order to overcome the problems of their split jurisdiction in the civil sphere, the criminal sphere would not present a reason not to do so.
4 11 L.S.I. 157.
5 See the Small Claims (Jurisdiction) Law, 1976, secs. 2 (a) and 4, (30 L.S.L. 240); Rules for Adjudication of Small Claims (Procedure), 1976. A second example is the use of representatives of the public in the proceedings of the labour courts. See the Labour Courts Law, 1969, secs. 1, 10–16 (23 L.S.I. 76) as well as the procedural rules of these courts. Rules of the Labour Courts (Procedure), 1969.
7 The use of interrogatories is, at this writing, limited to the District Courts. See Rules of Civil Procedure, 1963, r. 115.
8 The use of pre-trial conferences is, at this writing, limited to the District Courts. See Rules of Civil Procedure, 1963, r. 140.
9 See Eliahu v. Yehezkiel (1971) (II) 25 P.D. 425 in which the then President of the Supreme Court, Agranat, J., stated that the Magistrates' Courts should not be viewed as a type of small claims court for purposes of the rule that determinations of small claims courts do not serve as collateral estoppel that bind regular courts “and this is so since the procedures there [i.e., in the Magistrates' Courts]—and that is important here—are not less thorough, in essence, than those used in the District Courts.” (p. 435). In terms of the main differences in procedure that still exist, at this writing, between the two types of courts, one should mention also rr. 17 and 158 of the Rules of Civil Procedure, 1963 that provide a defendant in the Magistrates' Court the option of not filing a written answer when the amount in controversy is less than IS 25 (less than one dollar today!). However, despite the fact that these rules are expressly limited to the Magistrates' Courts, it is clear that the intention was to very small claims, indeed, and the assumption was that such claims are only filed in the Magistrates' Courts, (These rules predate the creation of the small claims courts as special divisions of the Magistrates' Courts). Moreover, these rules no longer have any practical significance and recently the Advisory Committee to the Minister of Justice on Civil Procedure, under the chairmanship of former Supreme Court Justice Etzioni, recommended their abrogation as part of a general policy of unifying the Rules of Civil Procedure in the District Courts and Magistrates' Courts. See Danziger, Y., “The Advisory Committee on Civil Procedure (Etzioni Committee)” (1981) 34 HaPraklit 159Google Scholar. See also infra n. 10.
10 When the Rules of Civil Procedure, 1963 were adopted the principal differences in procedure between the Magistrates' and District Courts were as stated above concerning the use of interrogatories and pre-trial conferences, along with slight differences in the procedure concerning the discovery of documents. See r. 123 ff. Since then the process has been one of bringing the rules of the Magistrates' Courts as to these matters closer and closer to those of the District Courts. See Rules of Civil Procedure, 1969. (Amendment No. 5) K.T. 1844. In the same vein, when a new discovery device was adopted, i.e., allowing the inspection of physical evidence (r. 139A that was adopted in 1975, Amendment No. J, K.T. 2528), it was made immediately applicable in both the Magistrates' and District Courts with no differences whatsoever. Finally, recently the Advisory Committee to the Minister of Justice on Civil Procedure, under the chairmanship of former Justice of the Supreme Court Etzioni, has recommended the use both of interrogatories and of pre-trial conferences in the Magistrates' Courts precisely as these devices are employed in the District Courts and generally to unify completely the procedures in these two types of courts, with the inconsequential exception of the preservation of the special, optional oral procedure in the Magistrates' Courts for requesting the discovering of documents contained in r. 132. See Danziger, supra n. 9.
11 Landau Report, p. 31.
12 Ibid. at p. 28.
13 Supra n. 4. It should also be noted that the case law, by limiting the application of the restriction of sec. 35 whereby decisions on such incidental issues are not given collateral estoppel effect, has effectively expanded even further the jurisdiction of the Magistrates' Courts over matters that are ostensibly within the exclusive jurisdiction of the District Courts. See, in this regard, The Estate of Rotenstein, Deceased v. Lavi (1968) (I) 22 P.D. 552; Eliahu v. Yehezkiel supra n, 9; The Heirs of Altschuler, Deceased v. Building on Allenby St., Tel-Aviv, Inc. (1972) (I) 25 P.D. 693.
14 See, e.g., Kalkoda v. Egged (1959) 13 P.D. 260; Tubi v. Raphaeli (1977) (III) 31 P.D. 561; State of Israel v. Gal (1980) (III) 34 P.D. 494.
15 Courts Law, 1957, supra n. 4, sec. 28 (a) (4). This provision may be contrasted with that concerning the small claims courts as to which the legislature limited counterclaims to those that are not above the jurisdictional limit of such courts. Small Claims (Jurisdiction) Law, 1976, supra n. 5, sec. 2(a). It should also be noted that the District Courts, in contrast to the Magistrates' Courts, are not limited as to counterclaims which would otherwise be within the exclusive jurisdiction of the Magistrates' Courts to those that arise from the same circumstances as the original claim but are authorized to determine such counterclaims even though they have no factural connection whatsoever with the original claim. Ibid., sec 18(1).
16 Rules of Civil Procedure, r. 48 (c).
17 See, Ator v. Goldenberg (1955) 9 P.D. 946; Sheinfeld v. Mani (1965) (III) 19 P.D. 143.
18 Rules of Civil Procedure, rr. 19 and 20.
19 See Markin v. Markin-Winkler (1957) II P.D. 1080; Abramson v. Abramson (1969) (I) 23 P.D. 459.
20 Shemesh v. Mifal Hamiim, Kfar Saba (1959) 12 P.D. 834; Goldman v. Algerabeli, (1964) (III) 18 P.D. 74; Kikar Herzel, Ltd. v. Goldberg (1965) (IV) 19 P.D. 107.
21 See cases cited n. 14 supra.
22 Ibid.
23 Supra n. 14.
24 See Levi v. Akrish (1958) 12 P.D. 1457; Nadiv v. Etani (1982) 2 P.M. 435.
25 Ha'Aretz, 17, 1. 1981, p. 11.
26 See Small Claims (Jurisdiction) Law, 1976, supra n. 5, sec. 1 of which provides: “The Minister of Justice may empower a particular Magistrates' Court to sit as a Small Claims Court.” Similar situations exist as to the status of the High Court of Justice as part of the Supreme Court pursuant to sec. 7 of the Courts Law, 1957, supra n. 4, and that of the Maritime Court, which in the first instance is a part of the District Court in Haifa and on appeal, of the Supreme Court. See Maritime Court Law, 1952, secs. 2 and 6 (6 L.S.I. 58).
27 Labour Courts Law, 1969, (23 L.S.I. 76).
28 See n. 5, supra.
29 The recommended creation of appellate divisions within the District Courts is connected to the Committee's suggestions to ease the burden on the Supreme Court in connection with appeals of right to such Court. Similarly, the recommendation to create a division for administrative matters within the District Court is a direct result of the Committee's suggested changes as to the treatment of petitions to the High Court of Justice. See Landau Report, 15–16, 20–24, 29. This article, relates to neither of these subjects. See also infra n. 43.
30 Landau Report, 29.
31 There have already been developments in the Labour Courts that may be attributed to this isolation. The two most prominent are: (a) the series of cases involving specific performance of labour contracts: Tsori Pharmaceutical and Chemical Co Ltd. v. Dr. Rex (1972/73) 4 P.D.A. 477; Tsori Pharmaceutical and Chemical Co. Ltd. v. The National Labour Court (1974) (I) 28 P.D. 372; Salmon v. The Histadrut (1973/74) 5 P.D.A. 449; Salmon v. The National Labour Court (1976) (I) 30 P.D. 495: The Histadrut v. The National Labour Court (1978) (I) 32 P.D. 819; and (b) the issue of the justiciability of actions to overturn arbitration decisions concerning economic disputes: Anonymous v. The National Labour Court (1976) (III) 30 P.D. 382; The Histadrut v. The Union of Government Attorneys (1979/80) 11 P.D.A. 157. See also the cases concerning collective resignations: The Histadrut v. “Elko”, Israel Electro-Mechanic Manufacturers, Ltd., (1976/77) 8 P.D.A. 57; “Elko” Israel Electro-Mechanic Manufacturers, Ltd. v. The National Labour Court (1977) (II) 31 P.D. 197.
32 The above discussion has focused on the relationship between the labour courts and a unified trial court of the first instance which is, of course, the subject of this article. It should be noted, however, that the arguments set forth are equally valid as to the appellate level. Therefore, even when expertise is desired at that level it is preferable, in my view, to establish divisions within a unified appellate court rather than to create a separate appellate court. It also seems to me that at the final appellate level, it is of utmost importance that the general supreme court has the authority to determine ultimately all matters and thus there is no place at all for separate final appellate courts. I am also doubtful that it is desirable even to create divisions within a unified final appellate court. If there is a need for expertise in such a final appellate court it may be achieved through the allocation of cases.
Thus, in principle I would support the integration of the current National Labour Court as a division within a united intermediate appellate court with the possibility of appeals in labour matters, as in all other matters, to the Supreme Court. Such a system would respond to the need for expertise while solving the problems that currently exist in the relationship between the National Labour Court and the Supreme Court. Under the current system there is no appeal to the Supreme Court from a decision of the National Labour Court. The National Labour Court, is, however, subject to the control of the High Court of Justice. This is a very unsatisfactory situation. The principles which should govern the intervention of the High Court of Justice in matters that have been litigated in the National Labour Court are far from clear and are a matter of dispute among the justices of the Supreme Court. Thus the intervention of the High Court of Justice is neither systematic nor consistent. See Shemen Industries, Ltd. v. The National Labour Court (1980) (II) 34 P.D. 75; The Histadrut v. The State of Israel (1978/79) 10 P.D.A. 78; Haifa Refineries, Ltd. v. The National Labour Court (1971) (I) 25 P.D. 2618; The Histadrut v. The National Labour Court (1978) (I) 32 P.D. 819; Herut v. The National Labour Court (1977) (III) 31 P.D. 124; Maccabi Israel Health Fund v. The National Labour Court (1978) (I) 32 P.D. 214; The Histadrut v. The National Labour Court (1980) (I) 34 P.D. 687.
Moreover, there is no guarantee that precedents established by the High Court of Justice will be followed in later cases by the National Labour Court. See the cases cited in n. 31 supra concerning the specific enforcement of labour contracts. Not only is this a problem in practice, but the National Labour Court even takes the theoretical position that it is not bound by the precedents of the Supreme Court since, in its view, the provision of sec. 33(b) of the Courts Law, 1957, supra n, 4, which provides that “a precedent established by the Supreme Court binds every court, except the Supreme Court,” does not apply to the National Labour Court. See Tsori Pharmaceutical and Chemical Co., Ltd. v. Dr. Rex, supra n. 31.
33 Landau Report, 42.
34 Succession Law, 1965, sec. 151 (19 L.S.I. 58).
35 Capacity and Guardianship Law, 1962, sec. 78 (16 L.S.I. 106).
36 Ibid.
37 Family Law Amendment (Maintainance) Law, 1959, sec. 18 (13 L.S.I. 73).
38 Adoption of Children Law, 1981, sec. 26. In contrast to all the above matters concerning personal status, the jurisdiction as to which is committed to the District Courts, exclusive jurisdiction as to petitions for the determination of age is in the Magistrates' Courts. See Determination of Age Law, 1963, sec. 1 (18 L.S.I. 7).
39 Bankruptcy Ordinance (New Version) 1980, sec. 172. See also, ibid., sec. 173 for the possibility that bankruptcy jurisdiction may also be extended to the Magistrates' Court.
40 Companies' Ordinance, sec. 150.
41 Partnerships Ordinance (New Version) 1975, sec. 96.
42 See supra n. 27.
43 The Committee recommended that, in addition to such petitions, the proposed division for administrative matters should also handle “fiscal litigation (appeals from tax determinations, import duty litigation, etc.) as well as th e matters which will be transferred to the District Courts pursuant to the bill concerning adjudication of administrative matters 1980 which has just been published (H.H. 1980, p. 357),” Landau Report, 29. However, the impression one gets from the entire discussion of this subject in the Landau Report is that the primary motivation for the suggested creation of the administrative division was the suggested transfer to the District Court of petitions filed before the High Court of Justice. It should also be noted that in 1975 the Committee for Matters Concerning Quasi-Judicial Authorities recommended not to create a special division in the District Courts to determine appeals from such authorities. See the Report of that Committee, 1975, p. 13.
44 Landau Report, p. 29.
45 The Companies' Ordinance, sec. 150 directly authorizes only the District Court in Jerusalem to administer corporate dissolutions, subject, however, to the authority of the relevant government official, today the Minister of Justice, by order, to authorize also other District Courts to administer corporate dissolutions. This authority was exercised, even prior to the creation of the State of Israel, so as to provide alternative jurisdiction also in the District Courts of Tel-Aviv-Jaffa and Haifa concerning the dissolution of corporations as to which the center of their business activities is within the local jurisdiction of one of these courts respectively.
46 See supra n. 26.
47 See Declaration of Death Law, 1978, sec. 1 (32 L.S.I. 67), which provides for exclusive jurisdiction in the District Court of Jerusalem to declare the death of a lost or missing person. See also, Reuven v. State of Israel (1979) (I) 33 P.D. 540.
48 In order to complete the picture as to current District Court jurisdiction it is worthwhile to point out what is involved in terms of quantity. In 1980, the latest year for which statistics have been published, there were a total of 27,461 civil actions filed in District Courts as courts of first instance. Of these their were 8,379 monetary claims, 137 actions related to land, 9,927 inheritance matters, 6,240 matters including personal status (the major portion of which consisted of matters of maintenance—3,170 and guardianship—1,780) and a small number of bankruptcy proceedings (167), corporate matters (310) and matters concerning partnerships (39): Judicial Statistics 1980 (Central Bureau of Statistics, Jerusalem, 1981) Table 17, p. 30Google Scholar.
49 It should also be added that if the Magistrates' and District Courts are not united, it is imperative to restructure the allocation of their jurisdiction. For a fuller discussion of the issue, see Goldstein, S., “The Problem of Split Jurisdiction at the First Instance” (1982) 12 Mishpatim 160, 178–179Google Scholar.