Digicel (PNG) Limited v Hon Jim Miringtoro in his capacity as Mnister for Communications and Information Technology and The Independent State of Papua New Guinea and National Information and Communications Technology Authority (2015) SC1439

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Cannings J, Collier J, Toliken J
• Judgment Date: 02 July 2015
• Citation: (2015) SC1439
• Judgment Number: SC1439
• Year: 2015
• Docket Number: SCM NO 9 of 2015

Full Title: SCM NO 9 of 2015; Digicel (PNG) Limited v Hon Jim Miringtoro in his capacity as Mnister for Communications and Information Technology and The Independent State of Papua New Guinea and National Information and Communications Technology Authority (2015) SC1439

Supreme Court: Cannings J, Collier J, Toliken J

Judgment Delivered: 2 July 2015

SC1439

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 9 OF 2015

DIGICEL (PNG) LIMITED

Appellant

V

HON JIM MIRINGTORO IN HIS CAPACITY AS MINISTER FOR COMMUNICATIONS AND INFORMATION TECHNOLOGY

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

NATIONAL INFORMATION AND COMMUNICATIONS

TECHNOLOGY AUTHORITY

Third Respondent

Waigani: Cannings J, Collier J, Toliken J

2015: 29 June, 2 July

JUDICIAL REVIEW – applications for leave to seek review – criteria to be satisfied – whether the applicant has raised an arguable case – whether the applicant has exhausted available administrative remedies

The National Court refused leave to the appellant (the applicant in the National Court) to seek judicial review of a decision of the Minister for Communications and Information Technology regarding the provision of wholesale interconnection services to telecommunications network operators. The appellant claimed that the decision it sought to have reviewed was a deemed decision of the Minister under Section 130(5) of the National Information and Communications Technology Act 2009 and that the decision affected it adversely. That National Court refused leave for two reasons: (a) there was no arguable case because a “decision” deemed by the Act to have been made by the Minister was not a decision capable of being judicially reviewed as it had not been published in the National Gazette as required by Section 130 of the Act; and (b) the applicant had not exhausted all administrative remedies to challenge the decision of the Minister. The appellant appealed to the Supreme Court against the refusal of leave.

Held:

(1) The National Court was led into error in finding that the deemed decision of the Minister had not been published in the National Gazette. The error was due to the failure of the parties to notify the Court that the deemed decision was in fact published in the National Gazette on 27 March 2015, prior to the hearing of the application for review on 9 April 2015. The deemed decision was capable of being judicially reviewed and the appellants had raised an arguable case for its review.

(2) The fact that the appellant had applied to the ICT (Information and Communications Technology) Appeals Panel for review of the recommendation of NICTA (National Information and Communications Technology Authority) on which the deemed decision of the Minister was based, and that the Panel had not reached a decision by the date of the Minister’s decision, was of no consequence in terms of staying or suspending the Minister’s decision or in preventing judicial review of the Minister’s decision.

(3) There was no alternative avenue of appealing against or challenging the decision of the Minister. The role of the ICT Appeals Tribunal established by the National Information and Communications Technology Act was to review decisions of NICTA. It had no power to review decisions of the Minister.

(4) Leave having been refused in error, the Supreme Court quashed the decision of the National Court and, there being no good reason not to, granted leave for judicial review.

Cases cited

The following cases are cited in the judgment:

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920

Innovest Limited v Pruaitch (2014) N5949

Kekedo v Burns Philp PNG Ltd [1988-1989] PNGLR 122

The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

APPEAL

This was an appeal from a decision of the National Court refusing leave for judicial review.

Counsel

M M Varitimos QC & P Tabuchi, for the Appellant

D Denniston & U Mel, for the First & Second Respondents

2 July, 2015

1. BY THE COURT: This appeal concerns a decision of a Judge of the National Court in proceedings OS(JR) 141 of 2015. In that case her Honour refused an application for judicial review of a decision of the first respondent (“the Minister”), which decision was allegedly made under the National Information and Communications Technology Act 2009 (“the Act”). The Act establishes a complex statutory framework for regulation of information and communications technology (“ICT”) services in Papua New Guinea. More specifically in the context of the current appeal, the Act regulates the supply of wholesale information and communications, and creates a regulator, the National Information and Communications Technology Authority (“NICTA”), to oversee that industry. NICTA is the third respondent in this appeal.

2. The orders of the National Court in respect of which the appellant brings the appeal were as follows:

1 The appellant’s application for judicial review be refused and dismissed in respect of a deemed decision, alleged by the appellant to have been made by the Minister pursuant to Section 130(5) of the National Information and Communications Technology Act 2009 (“the Act”) that the Minister accepted a declaration recommendation of the third respondent dated 27 October 2014 that the first respondent renew the declarations of the Domestic Mobile Terminating Access Service (DMTAS) and the Domestic Fixed Terminating Access Service (DFTAS) on the terms proposed by the Third Respondent; and

2 The appellant pay the costs of the State.

3. In a notice of motion filed 14 May 2015 the appellant seeks to have the decision of her Honour set aside, and costs. So far as concerns this appeal, it appeared to be common ground prior to the hearing that the main issues in contention were whether, on an application for leave to judicially review a decision of a Minister, her Honour erred in refusing leave because she held, in effect, that:

(a) there was no arguable case because a “decision” deemed by the Act to have been made by the Minister was not a decision capable of being judicially reviewed as it had not been published in the National Gazette as required by Section 130 of the Act; and

(b) the appellant had not exhausted all administrative remedies to challenge the decision of the Minister.

4. It is helpful to concisely summarise the relevant legislative framework and background facts to the current appeal before turning to these issues.

BACKGROUND

5. The appellant (“Digicel”) is a telecommunications company operating in Papua New Guinea, providing telecommunications services covering in excess of 78% of the population of this country. Digicel currently has more than 2.4 million customers in Papua New Guinea.

6. The Domestic Mobile Terminating Access Service (DMTAS) and the Domestic Fixed Terminating Access Service (DFTAS) are services provided by telecommunications network operators to each other, which facilitate the passing of calls between the customers of one network and the customers of another network (also known as “interconnection” services in the telecommunications industry).

7. For the purposes of this appeal we accept that Digicel was involved in supplying and receiving such services. In particular the Digicel network is interconnected with the bmobile network and the Telikom PNG Limited (“Telikom”) network in Papua New Guinea. We note further that Digicel provides the DMTAS to bmobile and Telikom in order that retail customers of those telecommunications companies can speak with or send messages to Digicel retail customers. These arrangements also operate in the reverse direction.

8. The evidence of Digicel before the Court below, and in this Court, is that for many years there have been in place commercially negotiated agreements between Digicel and bmobile, and between Digicel and Telikom. In particular Digicel’s interconnection agreement with bmobile was entered into on 17 April 2010 for a period of 10 years, amended in or about June 2013. Digicel’s current interconnection agreement was entered into with Telikom on 12 June 2008. Following amendment that agreement expires on 12 June 2020.

9. More relevantly for the purposes of the present appeal is that it is not in dispute that the wholesale services, being the DMTAS and the DFTAS, were declared services pursuant to Section 131 of the Act on the terms set out in Schedule 1 to the Act (Section 131(1)). In particular, Schedule 1, Sections 1(1) and 2(1) provide that the DMTAS and the DFTAS were deemed declarations until 31 December 2014.

10. It is apparent to us that the circumstances attending the expiry on 31 December 2014 of conditions whereby the DMTAS and the DFTAS were declared services within the meaning of the Act precipitated the litigation in the Court below and this Court.

THE LEGISLATIVE FRAMEWORK

11. Issues relevant to the primary proceedings and this appeal particularly...