Case Number

HCJ 176/54

Date Decided

4-6-1955

Decision Type

Original

Document Type

Full Opinion

Abstract

The petitioner applied to the High Court for an order of certiorari against the Appeals Tribunal set up under the Invalids (Pensions and Rehabilitation) Law, 1949, and prayed to set aside the decision of the Tribunal rejecting his appeal against the refusal of the competent authority to recognise his right to a pension. He alleged that the Tribunal had ignored certain medical evidence.

Held (by Olshan P. and Berenson J., Witkon J. dissenting):

(1) The High Court has no jurisdiction to review the decision of the Appeals Tribunal, and the application must be refused.

Zeraubavel v. Appeals Tribunal under Fallen Soldiers’ Families Law, 1950; (1953) 7 P.D. 183 followed.

(2) The Supreme Court is bound by its own previous judgments, subject to the usual conditions applying to the operation of the doctrine of precedent in English law.

Ramm v. Minister of Finance and Others; (1958) 8 P.D. 494 followed.

Per Witkon J. (dissenting) : Admittedly there was no distinction in principle between the present application and Zeroubavel's case, which laid down that although the jurisdiction of the High Court to control the decisions of administrative tribunals by certiorari is not ousted by a provision in the law that those decisions should be final, it is ousted when that provision is accompanied by an additional provision requiring the tribunal to give reasons for its decision. But Zeroubavel's case was wrongly decided and should not be followed. Despite the fact that in Ramm's case it had been laid down that the Supreme Court is bound by its previous decisions in accordance with the usual conditions of English law, it should be held that the doctrine of the binding nature of precedents is not applicable in Israel, both for reasons of law and for reasons of policy. Since the precedent established in Ramm's case itself cannot, therefore, be binding on the court, it is entitled to, and should, hold that it is not bound to follow Zeroubavel's case, and should grant the petitioner an order nisi and try his case on the merits.

Per Olshan P. : Ramm's case binds the Supreme Court to follow its own decisions. Even a judge who disagrees with the application of the doctrine of precedent should regard himself as bound by Ramm's case, since otherwise the opinion of the majority of the judges of the Supreme Court could be nullified by a minority. The court is therefore bound by Zeroubavel's case, and the application must be refused.

Per Berinson J. : Even in England, where the court may only issue the traditional prerogative writs, the combined effect of the requirements that a tribunal must give reasons for its decision and that that decision is final, is not sufficient to oust the jurisdiction of the High Court to review the Tribunal's decisions. The more so, then, in Israel, where there is the widest jurisdiction to intervene when justice demands. Hence it would appear that Zeroubavel's case was wrongly decided. Since, however, a previous judgment of the Supreme Court is, as held in Ramm's case, binding upon it on the basis, not of law, but of policy1), the decision in Zeroubavel's case must be accepted as being conclusive. The application should therefore be refused.

Keywords

Administrative Law -- Competent authority, Administrative Law -- Discretion, Administrative Law -- Judicial review, Army

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