State v Minister for Communications, Works & Energy, ex parte Fiji Television Ltd [1999] FijiLawRp 3; [1999] 45 FLR 229 (28 September 1999)

[1999] 45 FLR 229

HIGH COURT OF FIJI

Revisional Jurisdiction

THE STATE

v

MINISTER FOR COMMUNICATIONS, WORKS
AND ENERGY

ex parte

FIJI TELEVISION LIMITED

Byrne J

28 September 1999

Administrative Law- judicial review- whether ministerial decision to increase licence fee a public law matter- whether decision subject to rules of natural justice. Television Decree 35/1992.

Some years after Fiji Television began broadcasting under an exclusive licence the Minister decided vastly to increase the licence fee. On a motion for judicial review of this decision it was argued that the matter was purely contractual and did not raise matters of public law. It was also argued that the decision was within the limits of the Minister’s discretion. Rejecting these submissions and quashing the decision the High Court HELD: (i) the exercise of a contractual power contained in a statute raises an issue of public law and (ii) that the Minister’s decision was so unreasonable that the Court was entitled to review it.

Cases cited:

Associated Provincial Picture Houses Ltd. v. Wednesbury

Corporation [1948] 1 KB 223.

Federal Airports Corporation v. Aerolineas Argentinas and

Others (1997) 147 ALR 649.

Ha v. State of New South Wales [1997] HCA 34; (1997) 189 CLR 465.

Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 WLR 519.

Kioa and Others v. West and Another [1985] HCA 81; (1985) 159 CLR 550.

Luby v. Newcastle Under-Lyme Corporation [1964] 2 QB 64.

Nakkuda Ali v. Jayaratne [1951] AC 66.

R. v. Metropolitan Police Commissioner Ex-parte: Parker [1953] 1 WLR 1150.

R. v. East Berkshire Health Authority Ex-Parte: Walsh [1985] QB 152

Wootton v. Central Land Board [1957] 1 WLR 424

Motion for judicial review in the High Court.

G.E. Leung for the Applicant
E. Walker for the Respondent

Byrne J:

Pursuant to leave to apply for Judicial Review which I granted on 22nd April 1998 of a decision of the Minister for Communications, Works and Energy made on the 6th of October 1997 or at the latest 9th of April 1998 that with effect from 24th June 1998 the annual Licence fee that the Applicant is required to pay was to be increased from $1,100.00 to $275,000.00 being $250,000.00 plus $25,000.00 VAT, the Applicant seeks by way of Judicial Review to challenge the Minister’s decision. In particular it seeks the following orders:

(a) An order for certiorari to quash the decision of the Respondent purporting to increase the television Licence fee of the Applicant;

(b) A declaration that the Respondent’s decision in adjusting and increasing the Applicant’s Licence fee is:-

(i) Unlawful;

(ii) In breach of the rules of natural justice;

(iii Unreasonable; and

(iv) Unconscionable.

(c) An order for mandamus directing the Respondent to reconsider the matter and to exercise the discretion vested in him under Clause 3.2 of the television Licence reasonably and according to law;

(d) An injunction to restrain the Respondent from giving effect to his decision to increase the Licence fee to $250,000.00 plus 10% VAT;

(e) An order that the Respondent pay the Applicant’s costs on a full indemnity basis.

In my Interlocutory Judgment on the application for leave to apply for Judicial Review I set out the relevant facts and background on pages 2 and 3 of my judgment and on pages 4 and 5 the grounds on which the Applicant argues the decision should be quashed.

The principal contention of the Respondent is that Judicial Review should not be granted in this case because the Respondent has increased the Licence fee under the licence or contract it granted to or has with the Applicant. Thus, it is said, this is a matter of private law and does not raise any question of public law. Consequently the decision is not reviewable.

On pages 5 to 8 of my first judgment I mentioned the authorities, both text-book and decided cases, on which the Respondent relied in his submissions opposing the granting of leave and my comments thereon. I shall not repeat them here verbatim but shall make some comments now on the expanded submissions settled by senior counsel for the parties. First however I must say something about the first submission by the Respondent about the correct date of the decision. This was not submitted originally by the Respondent but in the submissions prepared by Dr. Geoffrey Flick S.C. of Sydney it is said that the operative decision was made by the Minister on 9th of April 1998. It is therefore argued that the existing Application cannot competently review that decision; a fresh Application needs to be filed - the Applicant cannot merely seek to amend its existing Application.