Administrative petition: what the law actually requires

A decision of an authority has harmed you: a local planning committee, a local authority, a government ministry. The first question is not what to argue but where to apply and within how much time, and both answers are found in two documents.

The framework: not the HCJ

Section 3(a) of the Administrative Courts Law, 5760-2000, provides that a District Court shall sit as a Court for Administrative Affairs. That is the address: not the HCJ, and not an ordinary civil proceeding.

Section 5(1) defines the jurisdiction: “a petition against a decision of an authority or of a body listed in the First Schedule, in a matter listed in the First Schedule”, except for a petition whose main remedy concerns the making of regulations. The First Schedule is the first check in every case: if the matter is not listed in it, there is no jurisdiction, and the right proceeding is a different one.

The grounds and the remedies

“A Court for Administrative Affairs shall hear an administrative petition and an administrative appeal in accordance with the grounds, powers and remedies by which the Supreme Court sitting as the High Court of Justice hears matters, with the necessary changes…”Administrative Courts Law, 5760-2000, section 8 (unofficial translation), Nevo text

What this means in practice: the whole toolbox of administrative law is available to you: lack of authority, extraneous considerations, unreasonableness, discrimination, violation of the right to be heard. But the limits of the HCJ also apply, first among them its discretion not to intervene.

The deadline, and the trap after it

Regulation 3(b) of the Administrative Courts Regulations (Rules of Procedure), 5761-2000 (תקנות בתי משפט לענינים מינהליים (סדרי דין), התשס״א-2000):

“Where no such time has been set, the petition shall be filed without delay, according to the circumstances of the matter, and no later than forty-five days from the day on which the decision was lawfully published, or from the day on which the petitioner received notice of it, or from the day on which the petitioner learned of it, whichever is earliest.”Administrative Courts Regulations (Rules of Procedure), 5761-2000, regulation 3(b) (unofficial translation), Nevo text

Note three points. Regulation 3(a) comes first: if a time is set in a specific law, that time governs, and the 45 days are only a default. The count starts from the earliest of three dates, not the latest. And regulation 3(c) allows the court to extend the time, after giving the respondent an opportunity to respond, if it sees justification.

And the real trap is regulation 4: “The court may dismiss a petition if it finds that, in the circumstances of the matter, there was delay in filing it, even if it was filed within one of the times under regulation 3.” Filing on day 44 does not protect you. The requirement “without delay” stands on its own.

What the petition must contain

Regulation 5(b) sets out the content of the petition: the details of the petitioner and their counsel, the respondents, the facts and the arguments, and the remedy sought. The facts are verified by an affidavit. And regulation 6 defines who the respondents are; failing to join a respondent is a defect that holds up the hearing even before the merits are heard.

What to prepare before filing (regulations 5 and 6 of the Rules of Procedure Regulations):

• A copy of the decision that is the subject of the petition and any document related to the matter, as far as possible (regulation 5(d)).
• The date on which the decision was published, delivered to you or came to your knowledge; it is included in the petition (regulation 5(b)(3)).
• The correspondence in your prior application to the authority, and if you did not apply, the reasons for this (regulation 5(b)(6)).
• The source of authority: the enactment under which the decision was made, and the item in the First Schedule (regulation 5(b)(3a)).
• An affidavit on Form 2 verifying the facts (regulation 5(c)).
• The list of respondents: the authority, any other authority concerned, and anyone who may be harmed if the petition is granted (regulation 6(a)); if a proper respondent was not joined, the court may order the petition to be struck out (regulation 6(b)).
• The amount of the court fee under the Courts Regulations (Fees), 5767-2007 (תקנות בתי המשפט (אגרות)), or the regulation that exempts you from it (regulation 5(b)(8)).

Interim order: a separate application

Section 9 of the Law empowers the court to give an interim order, and regulation 9(a) sets the way: “an application for an interim order shall be filed separately from the petition, at the time the petition is filed or afterwards, and shall be brought before the court as soon as possible; the application shall set out the facts and the arguments supporting it… the facts in the application shall be verified by an affidavit.”

This is the procedural point where people slip up: interim relief requested in the body of the petition, without a separate application and without an affidavit, will not be dealt with urgently. Regulation 9A adds a route for a temporary order when the urgency is even greater.

Appeal

Section 11 of the Law provides for an appeal to the Supreme Court, and section 12 deals with an application for leave to appeal. The distinction between the two depends on the nature of the decision, and it must be clarified before you mark a date in the diary.

The order of steps

1. Find the date you learned of the decision. When the decision was published, when it was delivered, and when you actually learned of it: the earliest of these starts the count.
2. Check the First Schedule. If the matter is not there, the Court for Administrative Affairs has no jurisdiction.
3. Check whether a special time was set in the specific law. Regulation 3(a) overrides the 45 days.
4. Exhaust the procedures with the authority (an objection, an appeal (arar) or a reasoned application) and document the dates, so that you can explain every day that has passed.
5. File as early as possible, and attach a separate application for an interim order if the situation needs to be frozen.

Frequently asked questions

Where do you file an administrative petition?

Section 3(a) of the Administrative Courts Law, 5760-2000, provides that a District Court shall sit as a Court for Administrative Affairs. Section 5(1) defines the jurisdiction by the First Schedule to the Law: if the matter is not listed in it, there is no jurisdiction.

What is the deadline for filing?

Regulation 3(b) of the Administrative Courts Regulations (Rules of Procedure), 5761-2000: without delay, and no later than forty-five days from the day on which the decision was lawfully published, or from the day on which the petitioner received notice of it, or from the day on which they learned of it, whichever is earliest. Regulation 3(a) prevails if a different time is set in law.

Can you file on day 45?

Regulation 4 provides that the court may dismiss a petition because of delay even if it was filed within one of the times under regulation 3. The requirement “without delay” stands on its own.

How do you ask for an interim order?

Section 9 of the Law empowers the court to give an interim order. Regulation 9(a) of the Rules of Procedure Regulations provides that the application shall be filed separately from the petition and brought before the court as soon as possible, with the facts in the application verified by an affidavit.

A petition against a municipality: to the Court for Administrative Affairs or to the High Court of Justice (HCJ)?

Usually to the Court for Administrative Affairs. Item 8(a) of the First Schedule to the Law gives it jurisdiction over a petition against a decision of a local authority or of an officer or office holder in it, except for a decision that requires the approval of the Minister of the Interior, when the main subject of the petition is the Minister’s decision. The Schedule also lists areas that concern a municipality, such as municipal property tax (arnona) (item 1), tenders (item 5), business licensing (item 7) and planning and building (item 10), subject to the exceptions in each item, as well as decisions under the Freedom of Information Law, 5758-1998 (item 2). A matter not listed in the Schedule is usually heard in the HCJ, which hears matters that are not within the jurisdiction of another court (section 15(c) of Basic Law: The Judiciary).