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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 1 OF 1987
OS 1A OF 1987
BETWEEN: TELEPAGE PTY LTD
PLAINTIFF
AND POST & TELECOMMUNICATIONS CORPORATION
DEFENDANT
IN THE MATTER OF AN APPLICATION BY TELEPAGE PTY LTD
AND THE POST AND TELECOMMUNICATIONS CORPORATION ACT (CH. NO. 394)
Waigani
Kapi DCJ
23-25 March 1987
DECLARATORY ORDER - Paging services - Breach of contract - onus on the plaintiff.
MANDAMUS - PABX matters - Duty to determine - application - Board of PTC.
DECLARATORY ORDER - two way mobile trunking service - non renewal of permit - on the grounds of breach of condition - application of principles of natural justice.
DECLARATORY ORDER - Telephone Cabling License - revocation of authority to do cabling work - on grounds of unauthorized activities - application of principles of natural justice.
MANDAMUS - Harmony Telephones - Duty to determine application - Board of PTC - consideration of policy.
DECLARATORY ORDER - Invalidity of Radio Communications Regulations (ch 152) - principles relating to repeal of regulation by virtue of repeal of Act under which regulation made - inconsistency between an Act and regulations made under it.
Held
(1) The plaintiffefail p toe tove that there was a breach of contract in relation to provision of paging services.
(2) Evaluation C to pacirvi anot ach of s 5(d)(iii) oii) of thef the P Post &ost & amp; Telecommunication Act (ch 394).
(3) 䃘 o h of h of of thPf thPublic Finances (Mas (Managemnagement) ent) Act 1Act 1986 (35 of 86). No contract has yet been concluded between defenand Pging. This may be complied with when such auch a cont contract is concluded.
(4) ;e defenis unis under ader a duty to consider an application for approval undl under s 71 of the Post & Telegraph Act (ch 150).
(5) &ـhe dent is entitentitled to defer the dthe determeterminatiination of an application under s 71 of the Post & Telegraph Act
(6) < There is a statutoryt to a to apply for a renewal of a permit under Radio Communications Regulations (ch 152).
(7) &
(60;&##160;;ere is no provision under ther the P Post &ost & amp; Telegraph Act (ch 150) which either impliedly or expressly prevents the application of the principles of natural justice. Pples of natural justice aice are applicable when considering revocation of authority to erect and maintain telegraph lines.
(9) lae piffntas nwtified e al e alleged unauthorized acti activities and was given an opportunity to respond to them before
a final decision was made to revoke theorityrect aintalegranes under Post &ost & amp; TelegTelegraphsraphs Act
(10) ; A p has a righ right to a to apply for approval of apparatus under Post & Telegraph Act (ch 150). There is a duty on thendanendant to make a ion.
(11) The defective Harmony teny telepholephones were modified by the plaintiff in accordance with the instructionthe manufacturer and found to be acceptable. Tfe defendant failed to deto determine the application on this new information. This amounts to nsideratioration. An order for mus will be g be granted to order the defendant to consider the modified phones.
(120; &#The power of making regulregulations under the Radio Communications Act (cu> (ch 152) has not been repealed. Radmmunins Regulations
(13) ټ Post & TelecTelecommunication Corporation (ion (Consequential Amendments) Act 1982 has amended s 6 of the Radio Communications Act (ch 152) by giving the power to grant license to the defendant and not the Minister. This is inconsistith the
Cases Referred To
Murphyores Incorporated Pty Ltd v The Commonwealth [1976/77] 136 CLR 1.
Reg. Anderson; Ex parte Ipec-Air Pty Ltd [1964/65] [1965] HCA 27; 113 CLR 177.
British Oxygen Co. v Board of Trade [1970] UKHL 4; [1971] AC 610.
R v Gaming Board; Ex parte Benaim [1970] EWCA Civ 7; [1970] 2 QB 417.
F.A.I. Insurances Ltd v Winneke [1982/83] [1982] HCA 26; 151 CLR 342.
Perre Brothers v Citrus Organization Committee [1975] 10 SASR 555.
Regina v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052.
Watson v Winch [1916] 1 KB 688.
Legislation
Post & Telecommunication Act (ch 394).
Public Finances (Management) Act 1986 (35 of 86).
Post & Telegraph Act (ch 150).
Radio Communications Act (ch 150).
Radio Communications Regulations (ch 152).
Constitution of Papua New Guinea (ch 1).
Post & Telecommunication Corporation (Consequential Amendments) Act 1982 (7 of 82).
Radio Communications Amendment Act 1983 (63 of 83).
Counsel
I. Molloy with J. Sheppard for Plaintiff
J. Priestly with W. Stollery for Defendant
Cur.adv.vult.
31 July 1987
KAPI DCJ: The plaintiff is a company incorporated in Papua New Guinea and carries on business providing such services as radio paging, voice messaging, mobile two-way radios and a public facsimile bureau. It commenced tg on 1 FebruFebruary 1985.
The paging service enables a person to communicate by carrying a small portable radio receiver called a "pager". A perso commte through thih this pager even though he is out of reof reach of the telephone. In a letter da0 August 198t 1984, PTC graapproval for the plaintiff to provide a wide area of paging service in Port Moresby and Laed Lae. In 1985, another companyinanying under the name of Papua New Guinea Paging also commencemenced similar services. These are the ono companiepanies providing services to date. As at 9 February the plai plaintiaintiff had 108 subscribers to the paging service.
In December 1985 granted four permits for purposes of operating a two-way mway mobile trunking system. Three permits granted for for stations operated by the New Zealand High Commission and one permit was granted to the plaintiff for a repeater station. These permits wrantethe plhe plaintiff for purposes of experimenting with with the two-way mobile trunking system. is a communication syshichshich is designed to enable persons to communicate between mobile and the base. This shis system may accesaccess to the PTC tele network. This, however, is only an incidental advantdvantage. The tiff also proposes to s to establish a mobile telephonvice in the future. This will enable perso como commucommunicate from mobile to land based telephones in the PTC network.
On 1986, PTC registered TelepTelepage as an approved Telephone Cabling Contractor. PTC has establishedgister ster of registered cabling contractors to ensure that only PTC approved contractors carry out permanent telephone cabling of multi-tenanted buildings.his is a means used by PTC to control the standard of largelarge scale telephone cabling work carried out by private contractors.
In mid 1986, the plaintiff purchased about 1,000 Harmonic Telephones which were manufactured by Northern Telecom in Northern Ireland. The phones were nally purc purchased by PTC but were found to be defective. PTCosed to return all the the defective phones to the manufacturer. However, an arrangement was reached between Northern Telecom and Telepage to sell the deve phones to Telepage and then to enable Telepage to repairepair or to modify these phones in accordance with the instructions from Nrn Telecom. The defecdefective s were were accordingly sold to Telepage and they have carried out modifications to some of these phones and has made application to PTC for type approval of these phones.
The plaintiff is also interested in providing a PABX Rental and Maintenance Services in Papua New Guinea. Th a private automatic brac branch exchange system. It is used inffice with nuth numerous telephones. It is also connected to the public telephone network. In ction with tervice plai plaintiff has ahas acquired a Mitel SX-10 machine made in New Zealand. ystem item is ascribed to d to be extremely compact aniablectronic telephonephone communication system. It is cois controlled bputomputer. It is not necessaryescribecribe in detailfeatures of the machine.
Disputes have arisen over the provision of these services. I will deth each of the ishe issepar in the same mann manner as were dealt with by counsel duri during the hearing.
PAGING SERVICES
The plaintiff coed trading in paging services in accordance with the terms erms of an approval granted by PTC in a letter dated 10 August 1984. Approval was granted by PTC to operate such services in Port Moresby and Lae. The important tef this apps approval are as follows:
"Approval is hereby granted to operate such a service in Port Moresby and Lae until further notice. You shouldever,ware that that the Corporation reserves the right to w to withdraw this approval, at any time in the future, and to assume sole ol of wide area paging services in this country. Should such a of action bion be cone contemplated, you may be rest assured that ample notice would be given.
This approval should not be construed as an exclusive permit to operate wide area paging ces in Port Moresby and Laed Lae. The Corporation may from time to time grant approval to other organizations to operate identical or similar services.
This approval is subject to your acceptance of the scale of charges attached hereto."
In ter dated 2 February 1987, 987, by PTC to Mr L Anderson of the Prime Minister's Department, Protocol Section, PTC expressed an
intention to enter into paging services itself and that it would take over certain equipment from Papua New Guinea Paging and would
be installed in three months time from the date of the letter to commence the services. No sotice of intention to n to provide services
was given to the plaintiff. However, the plaintiff e aame aware of this letter to Mr Anderson. The plainalleges there is e is a
breach of contract by PTC in that: (a) It was agreed that it would four ve years before tore the plaintiff recovers the cost of installing and operating such serviservice.
That PTC had no inte ong iong inese ses duthis d. (b) #160;  &##10; <  If PTC decided to ennto thto this service itself, it was agreed the plaintiff should be given
twelve months notice. > The onus is on the plaintiff to show that there was such a contract and that thendanin breach of the the contrcontract. The plaintiff
alleges that there were discussions between Mr Kelson, a Director of the plaintiff company and Mr Von Hagen, who was at that time
the General Manager of Telecommunications Branch. It is alleged thattermshe the agreement were were discussed and approval was
given by a letter dated 10 August 1984. lson swore an affidavi alsi also gave evidence to support the plaintiff's case. The evidence
ofterms of suof sucf such an agreement is to be found in the r of approval by PTC. In cross-examin, Mr Kelsonelsonelson agreed that
the terms of the discussions he had with Mr Von Hagen, aflected in the letter.  The termthe approval evideevidenced by this
letter are the following: (1)  rovap given until furt further notice. (2) The Corporation res rvesrihe right to withdraw tprovaany tn there and assume sole control of paging services. (3))
< &1600ټ But if such a ch a takeover isnded,would reasonable or amor ample nple noticeotice. (4) &##160; The appe approval i notno monopoly; that PTC may grant approvaotherate cies.
> (5)&#(5) ټ Tpe apl oval was suas subject to a scale of charges provided by PTC. The eve giv Mr Kelson is nots not refl reflected in the terms of the letter of approval. ight of the Corporation toon to withdraw
the approval at any time in the future is inconsistent with any agreement that the plaintiff would have at least four to five years
in which to recoup ost of their equipment.. Ale terms of the agreementement recorded in the letter suggest that ample notice
would be given, if PTC decided to withdraw its approval and take over the provision of the service itself. This not prevent any
approapproval which may be given to another company which may be a competitor with the plaintiff. This also doe prevent any any
decision C itself, without having to withdraw approvals of the plainplaintiff's services, to enter into providing these services
and compete.& It is clear from the terms of the letter to the plaintiff tiff that the approval to them was not construed as an exclusive
permit to provide services in Port Moresby and Lae. If the terms ofletter of a of approval dated 10 August 1984, recorded the discussions
with Mr Kelson wrongly, then it was up to him to correct or point out the proper terms of the approval. This, he ha donethat he
hahe has agreeagreed that this letter reflects the discussions he had with Mr Von Hagen and he does not give any explanawhy the terms
which he alleged were the terms of the approval, were not recorded in this leis letter. I find on the balance of brobabilities that
there was no such agreement as alleged by the plaintiff. I also find that thention tion by PTC to go inese services is not a breach
of the terms of the approval contained in the letter of 10 Aug0 August 1984. It is clear that at tme of the approval, PTC made it
quite clear that other comp companies could be given approval to operate such services and indeed PNGng has been approved as another
company to provide these services. The plaintiff took took no action to prevent the operation of services by this company. Theosal
by PTC to enter iner into providing these services is in itself not a breach of the tef the approval. There is no agreemen PTC tPTC
to give give such notice if it decides to compete with the plaintiff. This is not a b of a contrcontract and the intention by PTC
to enter into the services must be attacked on other grounds. The second gropon which the plaintiff attacks the decision by PTC to provide paging services is that such such a decision is ultra
vires the Post & Telecommunications Act (ch 394). The relevant ons are s 4(as 4(a) and 5(d)(iii). The plaintiff alleges that the decision by PTC to enter into these
services has been taken without any regard to the cost of running such a service or ut anestigation carriearried out into whether,
or not, there is a demand for such services.  PTC statutory corporation tion which is set up by the Post & Telecommunication Act (ch 394). Its functions are enumerated by s 4. I have no that if trporatporation entered into any activity which isch is outside
the scope of s 4 of the Act, the courts would review the dec of tard. There is no complaint that the Board hard has undertaken any
function outside s de s 4 of the Act. What has been raised is cais case is under s 5(d)(iii) which is in the following terms: "5. & Objectives In ing ing out its functions under s 4 the Corporation shall pursue the following objectives ...
(d) ټ&# aonsibonsibrporatporatizen by: (iii) &160; #160; &#refr refraining from from providing services which are not justified by reasf higt or limited demand." As I have pointed oued out beft before, the decision by PTC to provide paging services clearly comes within its functions under s
4(a) of the Act. The question is; can it be said that PTC has pursued the objective of being a responsible corporate citizen by
refraining from providing services which are not justified by reasons of high cost or limited demand? In PTC ned the question tion
tion of an area wide paging system for Port Moresby. In a report prepared E ParE Parks dated 20 Sept 1983, it was concluded that
a detailed market survey would be required to ascertain the mahe market size, rental charges and financiturns available in providing
such a service. It wouldwould appeat in 19in 1984, PTC refrained from entering into this service. This would explain the approval
of the plaintiff company to enter into this service. Accordinghe evidence of Mrof Mrs, PTC has expressed a new new intention to
provide this service. It appfrom the Board decisdecision that an intention has been expd to provide these services by either taking
over PNG PaginPaging or buying certain equipment from it. The Board Meeting Minutew that the Managing Directorector has been directed
to obtain information from PNG Paging so that a cost benefit or analysis can be uaken, if PTC decides to proceed with this option.
According to ias, the Mark Marketinketing and Customs Department Manager, Mr Simpson, has been given the task of investigating the
economical viability of providing a service. To date, this survey ha been completed and it is d is difficult to speculate as to
what its findings would be. No contract et been enterentered into bn PNG Paging and PTC. I have concludom all thesethese evidence
that the Corporation hion has given consideration to s 5(d)(iii)he Act. It cannot be said at this point in time that that PTC has
not been responsible in directing its mind to this particular issue. The plaintiff submits that there is little demand in this area. In brief, the evidencen onen on behalf of the plaintiff is that the
plaintiff and another company, PNG Paging, are providing these services at the moment. Mr Kelson, who gave nce oa behalf of the
plaintiff was unable to give full deta details of the services provided by PNG Paging. As far as the plainis coederned, they now
have 108 subscribers and the demand in Port Moresby is about 600 pag0 pagers. Mr Kelson concludes from that there is no room for
a further operator to operate paging services. He stated thad that if PTC entered this service, the plff company would decrease
in profits. I could not be satisfied from Mr Kelson's evideevidence that if PTC entered this service,ould run the service at a high
cost. What Mr Kelson ison is afraid of is that if PTC entered this service, the plaintiff may los profits. By this aris argument,
itaappears that it would have a monopoly in the service and that PTC should be prevented fromring the service. It ; It is interesthat
thet the plaintiff does not say this of other services provided by the PNG Paging Service. It is not a strong point to argue that
because there are two companies which are already operating; therefore leaving very little room for PTC Service to enter because
of very limited market demand. It is clear from the eve tnce that the Board is presently negotiating with PNG Paging either to take
over their services or buy certain equipment. If option is taken, the anhe ant is weakened. It is clear from theence tnce that
that there is enough demand both in Port Moresby and Lae to have enabled thentiff and the PNG Paging Service to operate. There isre
is also evidthae that these services would be provided to other centres throughout Papua New Guinea. If PTCred this service ande
and ran its operations efficiently, as the plaintiff does, it may runrvice with a profitable rete return. The only effect this might
have is the one expressed by Mr Kelson, that is, it may compete with the plaintiff and would reduce or decrease its profits. In
my that is a differenterent matter. That is providing cition. I t satissatisfied that that the market for these services has stabilized
to the extent that there would be no room for o ente ser 160; As I have said earlier, this is a matter which PTC is now assessing
bing beforeefore it actually provides the service. The next ground upon which the plaintiff relies on attacking the decision of the Board of PTC to enter into the services is that it
has decided to buy certain equipment from PNG Paging without complying with s 58 of the Public Finances (Management) Act 1986 (No 35 of 1986) by not calling for a tender or by not certifying that invitation of tenders is impracticable or inexpedient. As I have pointed out earlier, the Board of PTC has decided to investigate the possibility of buying certain equipment from PNG Paging
in order to enter the paging services. The Minutes of the Board which have been tendered in this respect, simply reflect that the
Managing Director should investigate the matter with the company concerned and then report back to tard. Also on cross-examination
of witnesses called byed by the Corporation, it is clear that at the present moment, the Board or the Corporation is investigating
its economic viability and that to date no firm commitments or no contract has been entered into between PTC and PNG Paging. It
would appear that this matter has been raised prematurely because, firstly, no contract has been entered into; but secondly, under
s 58(2) of the Act, a public body may certify that invitation of tenders is impracticablenerpedient. The BoardBoard may ertify tify
any such contract to buy equipment in the future. Id not grant this applicatlication. PABX MATTERS Under s 70 of the Post & Telegraph Act (ch 150) the Board has the exclusive priv of erecting and maintaining telegraph lines. Telegralegraph li defined ined under the
Act to include: (a) &  casyng, cng, coatingating, tube, tunnel or pipe enclosing; and (b) asy poas, mr riengwiie or e or cable and any apparatus connected with it for transmitting messages ages or coor communimmunications
by means of electricity.
In a letter dated 28 April 1986, the plaintiff made an application to PTC -
(a) ټ&#to be a be approveproved as a PABX contractor; and
(b) &##160; for typr type approoal fe the supply of SX-10 PABX machines.
In a letter dated 7 July 1986, ustomuipmeanch adch advisedvised the plaintiff that the matter of PABX equipment for type approval woal would not be considered until the question of a licence as PABX contractor was resolved. In the meantime, taintiff tiff was required to supply further technical information and this was provided by the plaintiff in a letter dated 28 May 1986.
It appears fromencidence that other contra have applied for approval.oval. It appears from evidence tnce that there are three existing contractors supplying PABX machine60; They are Ericssons, Phillips, TMC and STC. These hese contracts ding ding to the evidence of Mr Jerram, were approved prior to Independence. It is clear from tidence tnce that PTC took action internally to consider the question of approving new contrs. Iemo dated 19ed 19 June 19ne 1986, Mr Jerram raised the question of the review of PABX contractors. Same concern has also baised by the Executive Manager of Engineering Operations, Headquarters, on approving new coew contractors. The matter is also bconsi ered by the Board and the review of policy on PABX matters was investigated by Mr Banr Banks who was a Consultant to PTC. hingsently stand, PTC BoardBoard is presently investigating the new policy on new contractoractors. this is done, no new acto actors would be approved. It appears the plaintiff wiff was advised of this in a lett letter dated 2 February 1987. The l which Mr n has ignorignored.
The plaintiff seeks anks an order for mandamus to direct PTC to make a decision on the application foroval. It has been submitted byseounsel for PTC that the plaintiff has no statutory rory right to apply for authority. Therefohere is no statutortutory duty on the part of PTC to consider the application. He submitted tha1 simply eply enables PTC, has the exclusive authority or privilege to erect and maintain telegraphic lines, to depardepart from such privilege and at its own etion authorized any other person to perform the work.  Coufor the plaintiff has shas submitted to the contrary that the plaintiff has a statutory right to apply and PTC is bound to consider the application and give an answer. Similar arguments raiseer nder s 9 of the e Customs (Prohibited Exports) Regulations made under Customs Act (1901-1973) (Commonwealth)0; This provision was considered in Murphyores Incorporated Pty Ltd v The Commonwealth [1976/77] 136 CLR 1. The arg was put this way away at p 27:
"The Customs (Prohibited Exports) Regulations make no provision for the making of cations for approval for exportation of goods. This circumstancgether witr with the fthe form of reg. 9, is relied upon to support the submission that the regulation creates no duty to consider and determine an application for approval to export. Thulatit will be noted, ted, ted, prohibits exportation unless a written approval issues and is produced to the Collector."
Mr Je Mason, on the same page quoted a passage from Reg. v Anderson; Ex parte Ipec-Air Pty LPty Ltd [1964/1965] [1965] HCA 27; 113 CLR 177:
"It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield (1). The courts, while claimo a no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case yet duty bound to declare invalid a purported exercise of the discretion where the properroper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law."
He goes on at p 18:
"This statement, in my view, correctly and authoritatively expresses the principle which should be implied to a power to approve exportation conferred in the form in which regulation 9 is expressed.
It is not to the point to say that the regulation makes no provision for the making of applications and still less that it does not explicitly impose on the minister a duty to determine applications. The exie of the discretionetion attracts the principle of construction enunciated by Kitto J. It is imt in what has been been said that the existence of the discretion implies the existence of y to determine any applicatlication that is made."
In the present case, s 71 of the Act gives discretion to PTC on such conditions as it deems fit to authorize other persons to erect and maintain telegraphic lines. I woulpt the reasoning in g in the passage referred to above and apply it here. I find that there is y on y on the Board to determine any application that comesre it.
The next question that arises is whether the the Board has determined the application. Counsel for the plaintiffsubmitted that PTC refused used to make a decision. Counsel for PTC ubmitted tted that it has considered the application and haerred the application until it has come up with a new policy on awarding PABX contractors.&ors. In tesent case, no approvaprova been given to the plaintifintiff either as a PABX contractor or type approval for Mitel SX-10 PABX system. PTC at the moment hceiveerother applications as PABX contractors and they have have all been deferred until PTC has reviewed its policy. The Boardted tiew after coer considering a recommendation by a Mr Banks, a Consultant to PTC. 160; Mr Banks hggested alsd also the reviethe existing contractors. He suggestr example, a cona consideration of direct billinglling of customers for maintenance by PABXlier reviewing of quarterly payments; review of policies soes so as to give PTC an advantage commercially. With respect to the futuri policy review, Mr Banks strongly suggests that PTC enters into the supply of PABXs in the light of these recommendations. was recommended that policies on use of private networks, conditions for lease lines betweeetween PABXs and inter-connection would be reviewed. The Board has aed these rese recommendations and has undertaken a review on the policy. This was communicated e plhe plaintiff by the Managing Director of PTC in a letter dated 2 February 1987. It appears the evidence thce that PTC ade every endeavours to hear the application by the plaintiff. In ree to the appe applicaplication for type approval by the plaf, Mr Jerram the Manager for Customer Equipment Branch in a in a letter dated 27 May 1986, advised the plaintiff that the matter has referred to senior PTC mana management and asked for further technical information to be provided. The Managing Director in a letter dated 2 February 1987, informed the plaintiff that PTC PABX policy is currently under review and the details of the new poshould be available within two months. He was advised to proceeh with the applicationation then. It cannot be said that PTC has not heard the application or that it will not hear it in the future. In fact, PTC has receive iall information sentt by laintiff and has has indicated it will hear its application when the policy has been finalfinalized. I do not think that thereny significance in the fact that the application with the cthe cheque was returned. The point is PTCot considensider the applic now until the policy is reviewed. Ience, the consideration oion of the application hion has been deferred to a future date.here is nothing wrong with that. ritish OxygeOxygen Co. Co. v Board of Trade [1970] UKHL 4; [1971] AC 610. I would not grant the order for mandamus in this respect.
TWO-WAY MOBILE TRUNKING SERVICE
Under s 6 of the Radio Communications Act152), the Board may grant licences to establish, maintain and operate stations and apparatuaratus for the purposes of transmitting and receiving radio communications. Any person who wishes torae granted a licence or a permit may apply in accordance with s 10 of the Radio Communications Regulations (ch 152). Alder s 28 of the RegulRegulations, it is also necessa seek approval of apparatusratus to be used. In 1985, the plaintiff socassociation with Lynns, a relative company of the plaintdecided they would design aign and set up an experimental two-way mobile trunking system. In Novembe5, the New ZealaZealand Higmission at Waigani indicateicated an interest to have an experimental two-way mobile trunking system installed to enable mobile radiounications between its fleet of vehicles with a base statiotation at the High Commission building and the High Commissioner's residence. On the basis of this aent,ment, applications were made for permits to establish a mobile station. A fourth permit wasted to T to Telepage, the plaintiff, to establish a repeater station. Type approval for equipme t to operate the system weso granted by PTC. Type approval was given foen for mobile radio equipment for the mohe mobile telephone system which is differrom the mobile trunking system. Thisoval was givs given inen in anticipation that the plaintiff would also be setting up such a service in the future. The permits ed to operate rate these stations were granted until the 2 June 1986, for three channel trunking systems for evaluation. All thmits expired on that that date. An application was made by the plaintiff as well as on behalf of the New Zealand High Commissioner to renew or extend the permits but his application was refused. The New Zealand High Csioner has not made an application for review of this decisdecision by PTC and I can only consider the application by the plaintiff iation to the refusal to extend the permit for the repeater station. The renewal was rwas refused in a letter dated 8 September 1986. No complaint is made abous this refusal. Plaintiff appliain in Dece December and in a letter dated 16 December, he was refused again on the basis that there was breach oach of conditions in the earlier permit. It isged that the plaintifintiffched the conditions of the the permit issued to it by using equipment to make connection with the PTC network, which was not authoriy PTC. The equipment referred tthin this letter is this the equipment for making connections for the use of a mobile telephone system as distinct from a mobile trunking system. Approval for equipment wast was given by PTC in a letter dated 30 October 1985. A condition to this approval was that the equipment shall be disconnected from the switch network upon cessation of theuation trials. It is t is alleged bythat that the plaintiff made connections to this equipment to the PTC network which enabled the New Zealand High Commissioner to make two calls to the residence, to his wife and to the secretary in the office. The allegatiothat equipmenipment was connected for purposes of providing services to the New Zealand High Commissioner. This, it is allwas iach ofch of the type approval and for evaluation of this equipment. However, Mr , Mr Kelson in his affidavit explains that had approval to connect the equipment to the PTC network for purposes of evaluation and trnd trials. He states that it must haen during this trials that the High Commissioner must have have dialled through the PTC network. The no other suggestion thon the New Zealand High Commissioner dialled and was successful through the PTC network on othe other occasions. The plaintiff arguat henots not given an opportunity to be heard on this alle allegation and therefore, there is a denial of natural justice.
Co for the plaintiff relies on a passage from De Smith in Judicial Review of Administrativrative Action 3rd Edition p 223:
"Non-renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore bet to imto imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no duty is implied in the making of the original decision to grant or refuse the licence."
"This passage deals with one of the fundamental principles of natural justice, that is the right to be heard. Section 59(2) e Constitnstitution states:
"The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."Constitution, the responsibility iity is placed upon the judiciary to develop these principles as part of the underlying law. In R ing Board Ex parteparte Benaim [1970] EWCA Civ 7; [1970] 2 QB 417, Lord Denning said:
"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and extent. Everythipends on the subjesubject matter."
When dealing with the question of renewal of a licence, Mason J (as he then was) in
"Our starting point then is that an applicant for renewal of a licence generally has a legitimate expectation that his licence will be renewed when the statutory power is entrusted to a statutory authority. Dhe appellant here have a ve a similar legitimate expectation that its approval will be renewed? The answer to this question depends on the nature and effe the statutory power, the circumstances of its exercise ande and the fact that the power is reposed in the Governor in Council."
ief Justice in dealing with the question said at p 348: :"The first, and most important, question that arises is whether the Governor in Council for the State of Victoria, when deciding whether to renew an approval previously granted to a company for the purpose of s 72(a) of the Workers Compensation Act [1958] (Vict.) is subject to the requirements of the rules of natural justice. Such an apprentitles the cthe company to issue the policies of insurance mentioned in that section; the refusal to renew an approval has the result that the company may no longer accept any premiums or carry on any insurance business against liability in relation to workers' compensation to which employers are subject under the Act. It is obvious that a company may, in reliance on an approval, set up an insurance business, or expand its existing business into another field of insurance,that the refusal to renew an approval will mean that the business, or part of the business,ness, of the insurer must immediately come to an end. A company doesset up a busa business of insurance in the expectation that it will last for only one year - that would be quite inconsistent with the nature of a business of insurance. The natural expectati that that the business will continue indefinitely, so long as it is properly conducted and proves successful. It is apparent the refusalfusal to renew anoval may have a seriously adverse effect on a company whichwhich was previously an approved insurer. In these circumstances, a ny which becomes an approved insurer has a legitimate expecexpectation that its approval will be renewed unless some good reason exisr refusing to renew it. It woul be fair to depriveprive a company of the ability to c to carry on its business without revealing the reason for doing so, and, if the reason is one related to some alleged misconduct or deficiency in the conduct of the company's affairs, without allowing the company a full and fair opportunity of placing before the authority making the decision its case against the existence of the alleged misconduct or deficiency. I have recently set out my views as to the application of the rules of natural justice in Salemi v MacKeller [No.2] [1977] HCA 26; [1977] 137 CLR 396 and Bread Manufacturers of New South Walesans [1981] HCA 69; [1981] 56 ALJR 89. In aance with the viee viee views that I have there expressed, I regard it as clear that, in circumstances such as the present, the exercise of the power to grant or refuse a renewal of an approval will be subject to the common law rule whose effect is that a company that would be affected by a refusal to grant a renewal should be given an opportunity to be heard before a decision is made, unless that rule is either excluded by the Act on its proper construction, or is rendered inapplicable by the fact that the power is vested in the Governor in Council."
The same rational of decision also appears in Perre Brothers v Citrus Organization Committee [1975] 10 SASR 555. These cases set ou principinciples of natural justice and the circumstances in which they may apply in relation to renewal of licence.
Counsel for PTC has submitted that taintiff has no right for renewal because this was a permit rmit and there is no statutory right under the regulations to renew a permit. Under the Radio Comatiocations Act, there is provision for granting of licences. However, under the provisions of the Radio Communications Regulations (ch 152) the regulations distinguish a licence and a permit. A licence mayranteer s 6 as 6 and pursuant to s 7 they are for a period of twelve months and renewable fble for further twelve months. Underof thRegulations,, provision is made for a permit. It seems that the onhe onhe only difference between a licence and ait is that whereas a licence is granted for a period of twelve months and renewable for ther the same period, permits are used where val is sought only for a sh a short period. Section (9)(3) statat the the provisions of this regulation relating to licences apply to permits. Except for theod and the nthe non-payment of fees provisions relating to permits, all the other provisionly to both. Thereforeefore, the argubynt by counsel for PTC must fail.
With respect to renewals, s 17 of the Regulations is relevant. It reads:
Can it be said that the provisions of the Act and Regulations preclude the application of the principle of natural justice, that is, a right of hearing before a grant or renewal of a licence. The provision itis not vert very helpful. Howevhe Regulationss do have regard to the question of a right of a hearing. Under s 13 o Regulationations, the Board in its discretion ittence to the licensecensee may vary or revoke the conditions oons of a licence or impose conditions or additional conditions. Subsn 2 sically provides tdes tdes that before such action is taken, the Board shall give notice of intention to do so to the licensee ane the licensee an opportunity to make written submissions or representations. A similsimilar pron is to s to be found in s 15 of the Regulations dealing with suspension or revocation of licences. These provisions ofse also also apply to permi virtue of s 9 (3) of the Regulations. There iere is, howeverabse absence of such a provision to give notice to any part may apply to be granted or renew a licence. It wouldwould appear thsenabsence of such an equivalent provision with respect to al of permits and renewals wals is significant. This is an implied iion thon that principles of natural justice do not apply in as they relate to notice aice and opportunity to be given to parties who apply for licence or renewal of licence.
With respectype approval of equipment ment imported by the plaintiff for purposes of a mobile telephone service, the approval given by PTC in a letter dated 30 October 1985, made it quite clear that this was only for purposes of a joint technical evaluation and that this was not a type approval for the plaintiff to supply this equipment in Papua New Guinea and it was specifically pointed out that there would be no advertisement of the equipment for sale and specifically pointed out that this was approved specifically for evaluation purposes and that it was to be disconnected from the network upon the cessation of the evaluation trials. It is from the conditionstions of approval that the plaintiff could not have expected to renew the approval or even expect to market quipment in Papua New Guinea. Tproval was given strictlyictly for the evaluation.
.TELEPHONE CABLING LICENCE
Under s 70 of the Post & Telegraph Act (ch 150), the Board has the exclusive privilege of erecting and maintaining telegraph lines. Under s 7the Act, the Boar Board may authorize any other persons to erect and maintain telegraph lines. gulations have been made uade under the Act concerning this authority by the Board. An internaledure has been been worked y the Board for purposes of granting authority to such persons. The ice that hast has been been adopted by the Board has been tister persons who may be authorized to erect and maintain tain telegraph lines. It appears that when a pera person has been app or authorized, he's granteranted a certificate of registration. Und71 of the Act, this cans can simply be called an authority by the Board and may be given on conditions.
Keyco eyco Electrical Pty Limited, another company which has been authorized by o carry out telephone cablicabling did telephone cabling work on a Fairfax building. Subsequenthe cabling work work by Keyco Electrical Pty Limited, the owners of the Fairfax apartments building entered into an agreement with the plaintiff to supply and ftotal of 37 PTC approval telephones to the eighteen apartmeartments. Before entering into this service, the plaintiff sought approval from PTC to connect these telephones as the registration as a telephone cabling authority did not authorize them to do so0; In a letter dated 20 June 1986, Mr Kamara, the Deputy Maty Managing Director of PTC granted an interim authority to make these telephone connections. The plff connected the phoe phones in accordance with this interim authority. After the telephones han ceen connected in accordance with the interim authority, another letter dated 24 June 1986, by Mr Kamara advised the plaintiff he had wrongly given the interim authority and that only the Board has the authority to gito give such approval. It would appeom this that that the plaintiff had proceeded under a mistaken approval by PTC. This is somethir which theh the plaintiff not be blamed. However, as a resulthis fuis further advice from the Deputy Manager, ger, the plaintiff then engaged a lawyer tise him on his position. This result correspondepondepondence between the plaintiff's lawyers and PTC. The plaintiff was advised on 3 July 1986, in a letter addressed to its lawyers, and the last paragraph of this letter read:
"In view of recent unauthd activities undertaken by your client company, the Board has further resolved to withdraw draw the building cabling licence issued in favour of your client on or about the 5th of May 1986."
The plaintiff by par 7A of the Originating Summons claims for a declaration that the revocation by PTC of the plaintiff's registration as a telephone cabling contractor was null and void. They rely on the breach of principles of natural justice by PTC. It is submitted that the PTC should have given notice to the plaintiff and afforded him an opportunity to reply to any allegations before proceeding to revoke the authority. The pries ofral justice arce are set out under s 59 of the Cons>Constitution. I have already discusse prhe principles earlier ijudgment. There are no rigid rules as to when the principles of natural justice applyapply and to their scope and extent. u>Regina vsley Metropolitanlitan Borough Council Ex parte Hrte Hook [1976] 1 WLR 1052, the Court of Appeal was dealing with a case in a licence to trade in a market was cancelled by the Local Authority. In dealing with with thisematter, Lord Denning having dealt with the common law position of the stallholder states on p 1057:
"It is a right conferred on him by the common law unhich, so long as he pays the stallage, he is entitled to hato have his stall there; and that right cannot be determined without just cause. I agree that he hasave thee the permission of the marketholder to start with. But he has it and has set uset up his stall there, then so long as he pays the stallage, he has a right to keep it there. It is note taken away exce except fot cause and then only in accordance with the provisions of s of natural justice. I do not mind whethe markemarketholder is exerg a judicial or an administrative function. A stallhoallholder countthon this right in order to enable him to earn his living.& It is not to be taken away except for just cause and in acin accord with natural justice."
Lord Justice Scarman on p 1058 sai>
"This is a serious mats matter, because what has been done is to revoke an existing licence, a licence which enabled its holder to earn his living. The laofessor S.A. De Smit Smith, in Judicial Review of Administrative Action, 3rd ed. (1973), p 197 described very well the gravity of such a step. He said:
renewal ofal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unlesslicensee has alreadyready been given to understand when he ranted the licence that rent renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and pe cast a slur on his reputatputation. It may therefore be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant orse the licence."
"Thp>"The author is there dealing with non-renewal but everything that he says about non-renewal applies with even greater force to revocation."
In the present case, PTC has proposed to cancel the registration on an alleged misconduct on the part of the plaintiff, that is, that he made telephone connections without authority from PTC. This of course erious impl implications. Firstt raises the reputatiutation of the plaintiff but also affects his business of erecting andtaining telegraph lines. Having rega the authoritierities and the circumstances of thof the present case, the power of revocation by PTC is subject to the principles of natural justice, that is to say that the plaintiff is entitled to be informed of the details of alleged unauthorized activities and then given an opportunity to make representations before it before a decision is made. The question is, whether, the Post & Telegraphs Act (ch 150) excludes the requirement of the principles of natural justice. There is no provision uther the Act as well as under the Regulations concerning the question of natural justice. This be contrasted with tith the requirements of principles of natural justice provided for under Radio Communications Regulation (ch 152). There is nothing in u>Post>Post & Telegraphs Act (ch 150) which woch would exclude the application of the principles of natural justice and I find that there is no provision in the Act which excludes the application of these principles. In the instant case, two reports appeared to have played a major part in influencing PTC in concluding that the plaintiff had been engaged in unauthorized activities. First, it is alleged the pthe plaintiff has made telephone connections at the Fairfax apartments and secondly, a report by STC that the plaintiff has installed Northern Telecom phones at the Wormald International O at Hohola. The questquestion id PTC gPTC give notice of these allegations to the plaintiff? Iears from the evidence thce that the complaint about connecting telephones at the Fairfax apartments was raised by Mr Brown of the Building Caping and Consultanstomer Services Branch in a telex dated 10 June 1986. #160; Infahe plaintiff resp responded in a letter dated 11 June 1986, and did not give a detailed explanation except to suggest that PTC should confer with its Deputy General Manager and the Executive Mr, Marketing, for further dher details. The report by STC whichcons contained in a letter dated 27 May 1986, addressed to the Managing Director of PTC, was brought to the attention of the plaintiff and on 29 May 1986, in a letter addressed to PTC made itsissions in writing. I60; In croamination, Mr K Mr Kelson agreed that he was made aware of the contents of these complaints. I fore, find that the plai plaintiff was notified of the nature of the complaints against him and he had the opportunity of replyi those complaints. Before the don by the Boar Board, this decision was notified in a in a letter sent to the plaintiff's lawyers dated 3 July 1986. It would a that PTC Board oard reconsidered the matter and still decided in the exercise of its discretion not to reinstate the registration. Notification of this latter decision is contained in a letter dated 8 September 1986. I dofind that there was bras breach of natural justice.
HARMONY TELEPHONES
PTC purchased approximately aboer a and Harmony DMTF DMTF sets from Northern Telecom. These telephoere found to d to be d be defective and after satisfactory arrangements between the parties, PTC proposed to send all the defective telephones back to the manufacturers. In the meantime,plainmade made arrangementsments with the manufacturers to purchase these defective telephones as well as make modifications in accor with the manufacturer's instructions to about four or six of these telephones. In anIn an applon dated 11ed 11 November 1986, the plaintiff made application to the Marketing & Customer Services Department of PTC for type approval of these telephones.; PTC in a letter dated 19 November 1986, indicated that that they would be willing to examine a random sample from the entire stock of all the modified telephones. The plaintiff was unwilling to do this and insisted that the sample of four to six units be tested and type approval given and then at a later date would modify the rest of the telephones. PTC indicated by a lettted 6 January 1987, that itat it is unlikely that approval would be granted for these units unless they are all repaired and represeny the manufacturer, Northern Telecom. It is clear that PTC has donsidered as a matteratter of policy that they would not consider these units unless the phones are repaired and represented by the manufacturer.
There is no specific provision for appg equipment for purposes ofes of Post & Telegraphs Act (ch 150). However, by constru of s 7f s 70 of the Act, PTC Board has exclusive privilege of erecting and maintaining telegraphs which means it would have implied authority to approve apparaor purposes of connection to the lines or wires for transmiansmitting messages. As I have held ously in rein relation to the PABX matters, there is discretion in the Board to authorize any person to market and service certain apparatus. Where a perspliessuch appr approval, there is a duty on the Board to mato make a decision. Has the PTC Board coned thed the application?riginally, it had indicated to the plaintiff that it would be willing to consider the appliapplication if it had a random testing of he telephones which were modified. By a letter dated ated 6 January 1987, the Managing Director of PTC has indicated a policy that the defective telephones would not be reconsidered unless they were repaired and represented by the manufacturer. And turnie cheques, it appt appt appeared that PTC has rejected the application with the policy stated in the letter. This is not a of nciding aing at all. It is clear the letter refr referred to above that PTC has ahas already decided in accordance with theed reason that it would not grant approval to these telephones unless they were representedented by the manufacturer. During the arg in BritiBritish Oxygen Company v. Board of Trade [1970] UKHL 4; [1971] AC 610 at 625, Lord Reid referred to a passage in the judgment okes LJ:
"There are on the one hand cases where a tribunal in the honest exercise of e of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. Ik counsel for the applicaplicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection couldaken to such a course. On the ohand there are care care cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distin to n to be drawn between these two classes."
Lord Reid continues:
"I see nothing wrong with that. But the circumes in which hich discretion exercised vary enormously and that passage cannot be appliapplied literally in every case. The geneule is that anyonenyone whoto exercise a statutory discretion must not "shut his ears ears to an application" (to adapt from Bankers LJ on p 183). I do nonk ths any great diat difference between a policy and a rula rule. Tmay be cases where an offn officer or authority ought to lito a substantial argument reasonably presented urging a change of policy. What the auhe authority must not do is to refuse to l at all. But a Ministinistry or large authority may have had to deal already with a multitude of similar applications and they will almost certainly have evolved a policy so precise that that it could well be called a rule. Then be no objection to thto that, provided that the authority is always willing to listen to anyone with something new to say - of course I do not mean to say thare need be an oral hearing. In resent case the rthe rehe respondent's officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so."
In the present case, the defendant has no doubt directed its mind to the fact that the telephones which have been represented are being presented for approval are the same telephones which were defective. Itd have been reasonable able and within the powers of the defendant to reject the telephones which were found to be defective. Hr, in the present case, tse, the application by the plaintiff is not simply a representation of the same telephones. Infact thentiff has somethomething new to say, and that is, that they have modified the defective telephones in accordance with the manufacturer's instructions and have been tested and found to be acceptable. Now the defendants have d iled to listen to this new matter in this application. They hot even tested whethwhether or not the modifications are uptandard and whether, or not, they have fixed the defect in the phones. They have reje rejected the phones without testing theirability. In my view, iew, in the circumstances of this case, this would amount to no consideration of the application by the plff. this is so, mandamus will will issue for the defe defendant to test and consider the phones with the modifications. As toher, t, the defendantndant will grant type approval is not a matter for this Court to indicindicate. That is within the discretf the Board
INVALIDITY OF RADIO COMMUNICATIONS REGULATIONS (CH152)
Thep>The plaintiff in its Originating Summonss a declaration that the Radio Communications Regulations are void and of no effect fect by reason of the Post & Telecommunication Corporation (Consequential Amendments) Act 1982 (No 7 of 1982). Alternativf the whole of t of the regulations are not void and of no effect, he submits that various sections of the Regulations should be declared to be void and of no e.
The Radio Communications Regulations (ch 15ch 152) were made in accordance with s 14 of the Radio Communications Act (ch 152). Under thivision, the Head Head of State acting on advice makes regulations. These regulations were required amongst other things for purposes of enabling the Minister to grant licences under s 6 of the Radio Communications ActPost & Telecommunication Corporation Act in 1982, 982, s 6 of the Radio Communications Act was amended by Post & Telecommunication Corporation (Consequential Amendments) Act 1982 (No 7 of 1982). Insofar is relevant, sch sch 2 of this Act amended s 6(1) by substituting Minister for the Board. Undis amendment, the BoartBoarthe Corporation is given the discretion to grant licences. Section 5he Radio adio adio Telecommunications Regulations (c), the Minister still retains the exclusive privilege of esof establishing, erecting, maintaining, operating stations and apparatus.& When the Act amended s 6(1s 6(1) of the Radio Communications Act, no further provision was made in relation to the then existing Radio Communications Regulations (ch 152). The sions relating to the the Regulation made reference to the Minister granting licences, permits and other related matters. These not been amended.d. Has thConsequential Actof ctof 1982 repealed the Radu>Radio Communications Regulations (ch 152)?
Law relating to repeal of regulations by virtue ofal ofAct which enablesables the regulations to be made can be fobe found in the judgment of Lord Reading CJ in Watson v Winch [1916] 1 KB 688 at 690. The isss put by Lord ReadiReading in these terms:
"Upon these facts a question arises which has not been decided by any Court, namely, whether the repeal of an Act which enabled a corporation to make by-laws, involving as it does the revocation of the power of the corporation to make them, has the effect of repealing by-laws already made under the power while it existed, or whether the by-laws remain in force notwithstanding the repeal of the statute under which they were made. The question is one of general importance, and the argument on behalf of the appellant makes us regret that the respondent was not represented ... It was sn Surtees v Ellv Ellison (1),
"It has been long established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. That isgeneral rule; and wand we must not destroy that, by indulging in conjectures as to the intention of the Legislature."
To passage it is only necessary to make one qualification, namely, that since that case, Lord Lord Brougham's Act (13 & 14 Vict.c.21) and the Interpretation Act, 1889, have been passed, and one must now bear the later Act in mind. It would follow that nalawy-law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving tlidity of the by-law notwithstanding the repeal. Applying that iple to this this case case, it follows that the by-laws made under the Norwich Improvement Act, 1879, have no longer any validity and that the conviction must be quashed."
In the presese, Radio Communicationstions Act has not been repealed but amended only in certain provisions. The power to make regula uons under which the Radio Communications Regulations were made is vested in the Head of State acting on advice under s the Radio Communications Act. The rule-making power und1r s 14 of the Act hast has not been amended. That being the cahere is n is no question of the repeal of the regulations. Therone other amendment tont to the Act which is relevant e pow making regulatiolations. Section 14he Act was amendamended by Radio Communicationations Amendment Act 1983 (63 of 1983)epealing s 14(c) of the Acte Act. Th to say, the power givengiven to the Head of State, acting on advice, can no longer make regulations prescribing the fees for any matter under the Act or the Regulations. This has the effect pealinealing any Regulations which prescribes a fee for such matters. Subject to this amendment the Regulations are still in force.
The nexstion which arises, is, whether, the regulations are inconsnconsistent with the provisions of the Act, as amended? That of
cour requby the tehe terms of s of s 14 of the Act. After the Consequl Act
Lawyer for the Plaintiff: K.Y. Kara
Lawyer for the Defendant: ant: W. Stollery
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