Background
The petitioner asked the High Court of Justice to order the Minister of Justice to amend or clarify Regulation 43 of the Civil Procedure Regulations, 5779-2018. Regulation 43 governs the court’s power to dismiss an action at the threshold in special circumstances. The petitioner argued that the regulation’s wording was ambiguous and permitted courts to dismiss actions for abuse of judicial proceedings, allegedly impairing litigants’ fundamental rights and producing inconsistent decisions.
According to the petitioner, the secondary legislator intended Regulation 42—under which a pleading may be struck out—to set the maximum consequence for abuse of process, rather than permitting dismissal of the action under Regulation 43’s residual phrase, “for any other reason.” He sought an order requiring the Minister either to exclude abuse of process expressly from that phrase or to limit the power to dismiss when a specific regulation permits only striking out. The petitioner had repeatedly approached the Ministry of Justice, which informed him that his proposal had been forwarded to the relevant professional officials and would be examined according to the Ministry’s priorities.
The Court’s Holding
The Court dismissed the petition. Justice David Mintz, writing for a unanimous panel, held that the requested remedies would require the Court not only to direct the Minister to amend the Civil Procedure Regulations but also to prescribe the particular content of the amendment. Such relief is not ordinarily granted by the High Court of Justice.
The Court explained that it interprets legislation and may identify interpretive difficulties, but as a general rule it does not order the legislature or a secondary legislator to amend statutes or regulations. Nor does it substitute its own judgment for that of the secondary legislator by determining the substance of a regulatory arrangement. The Court additionally noted that the Ministry had already referred the petitioner’s proposal to the relevant professional officials for consideration under its priorities.
Key Takeaways
- The High Court ordinarily will not compel the legislature or a secondary legislator to amend legislation or regulations.
- The Court will not replace the rulemaker’s discretion by prescribing the text or substance of a requested regulatory amendment.
- A claim that a procedural regulation is ambiguous does not, by itself, justify judicially directed rulemaking, even where inconsistent application and effects on litigants’ rights are alleged.
Why It Matters
The decision reinforces the institutional boundary between judicial interpretation and regulatory policymaking. Although Israeli courts may interpret ambiguous procedural rules and call attention to difficulties in their operation, litigants generally cannot use a High Court petition to obtain a court-designed amendment.
The ruling leaves unresolved the petitioner’s substantive argument about whether abuse of process may support dismissal under Regulation 43 rather than only striking out under Regulation 42. That proposal remains for the Ministry of Justice’s professional officials to consider through the administrative rulemaking process.