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Hitron Ltd v National Information and Communication Technology Authority [2023] PGNC 350; N10424 (25 July 2023)

N10424

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 64 OF 2023 [IECMS]
OS (JR) NO. 65 OF 2023 [IECMS]

HITRON LIMITED
First Plaintiff

And
DIGICEL (PNG)
Second Plaintiff

V
NATIONAL INFORMATION AND COMMUNICATION TECHNOLOGY AUTHORITY
Defendant

Waigani: Miviri J
2023: 19^th & 27^th July

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave to apply for Judicial review Order 16 Rule 3 NCR – Provider of ICT Services Hitron Limited – Digicel Owner Operator Mobile Telecommunication service PNG – NICTA Decision Pursuant to Section 107 National Information & Communications Technology Act 2009 – Universal Access and Service Levy – Net Revenue Percentage Of Each Operator Licence – Debt Owed To State – UAS Levy K 299, 131.11 Hitron LTD – UAS Levy Digicel K 11, 801, 211.66 – Locus Standi Sufficient Interest – No Delay – Arguable Cause – No Statutory or Administrative Avenues Within – Materials Relied Sufficient – Balance Discharged – Leave Granted in both Applications – Costs reserved.

Cases Cited:

Digicel (PNG) Ltd v Miringtoro [2015] PGSC 27; SC1439
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

M M. Varitmos KC & L. David, for both Plaintiffs
K. Kipongi, for State

RULING

27^th July 2023

1. MIVIRI, J: This is the ruling on the originating summons filed of the 21^st June 2023 by the First and Second Plaintiffs individually, contending for leave for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules. Both have been moved together against the decision of the defendant made pursuant to section 107 of the National Information and Communication Technology Act on the 14^th March 2023 in both cases.
   
2. This decision was to levy a Universal Access and Service Levy (UAS Levy) and issue invoice No. UAS 020-23 to Hitron in the amount of K299, 131.11 for the 2023 Universal Access and Service Levy. On or about 16^th March 2023, Hitron became aware of the written decision and invoice. Hitron is a company engaged in the provision of ICT services in Papua New Guinea. And is wholly owned subsidiary of Digicel Papua New Guinea (Digicel) providing strategic and operational oversight and support including in respect of legal and regulatory matters.
   
3. Who is the next plaintiff applicant affected by the decision of the same decision by the defendant upon also dated the same date of the 14^th March 2023 invoking the same section, s107 of the National Information and Communication Technology Act as the basis from which Invoice number UAS 013-23 was levied in the amount of K11, 801, 211.66. And against which Digicel became aware of the written decision and the invoice. Digicel is a company engaged in the provision of mobile telecommunication services in Papua New Guinea.
   
4. In both instances of that levy by that section 107 of that Act, both companies, Hitron and Digicel are seriously affected by the decision of the 14^th March 2023 of NICTA for the imposition of the levies upon them. The former is in the amount of invoice No. UAS 020-23 of K299, 131.11. And for the latter by Invoice number UAS 013-23 levied in the amount of K11, 801, 211.66. It is not a light matter considering that the decision under section 107 by force of subsection (2) of sections 3, 104, 105, 106, 108, 121 and 122 of that Act imposes requirements that must be satisfied.
   
5. For instance, by section (3) (b) of the Act that the regulatory measures should be proportionate and crafted to achieve results that are no more burdensome than necessary to achieve their stated regulatory objectives. And this is based on sound economic principles, administered in a transparent manner and to the extent appropriate. Particularly denoting that it is subject to prior public consultation which gives effect to section 299 of the Act with published explanations and public clarifying guidelines. There is real justification for the cause that has been taken to levy in the figure by that invoice by section 104 (2) of that Act, that the amount is fiscally sound. Particularly given the fact that it is an annual levy taking account of section 105 and section 106 of the requirements of auditing. There is justification that the money levied is indeed necessary from the list of UAS Projects to be implemented in that given budget section 108 (5) of the Act. The summary is set out by reading sections 120, 122 (2) which is justification of the invoice imposed as such in both cases here against both applicants. These information on the Universal Access and Service Fund Website regarding its activities undertaken in fulfilling will be sound basis because by its reporting there is transparency accountability and justification for the imposition against companies as is the case here. By this discussion there is very strong arguable basis for a substantive hearing on the merits to settle. It is therefore appropriate grounds to grant leave upon.
   
6. Without going into the merits of the case these in my view demonstrate that both applicants Hitron and Digicel have sound basis discharged on the balance required that they are both affected by the decision of NICTA of the 14^th March 2023 in that written decision made pursuant to section 107 of the Act to levy the amounts upon both. They have locus standi to challenge that decision by Judicial review. This ground is discharged in their favour. It is a decision that has impacted upon them and seriously effects what they do in their field of operation and business. It is a decision that must be reviewed. It is strong arguable basis given the discussion set out above and would follow Digicel (PNG) Ltd v Miringtoro [2015] PGSC 27; SC1439 (2 July 2015). Both applications discharges Standing and have arguable merits to go to a substantive hearing.
   
7. Because reading the terms of section 107: Universal Access and Service Levy.

(1) Subject to Subsection (2), NICTA may levy charges on operator licensees for the Universal Access and Service Fund, to be known as the "Universal Access and Service Levy".

(2) NICTA shall set the Universal Access and Service Levy as a percentage of the net revenues of each operator licensee at a level, to be determined annually, to apply from the beginning of each fiscal year –

(a) to achieve the desired level of funding for the Universal Access and Service Fund for that year as advised to NICTA by the UAS Board, less any amounts paid by NICTA in the previous year under Section 32(2)(a); and

(b) not exceeding a maximum percentage as prescribed in the regulations.

(3) Each operator licensee shall fully co-operate with NICTA, including through the provision of relevant information requested by NICTA, in order to enable NICTA to make the calculation identified in Subsection (2).

(4) Upon receiving notification by NICTA of the amount owed as its Universal Access and Service Levy, an operator licensee shall submit payment of the Universal Access and Service Levy to the Universal Access and Service Fund Trust Account.

(5) The Universal Access and Service Levy is a debt owed to the State and may, in addition to other available avenues, be recovered in a court of competent jurisdiction.

(6) Without limiting any other action or remedy available to it if an operator licensee fails to pay an amount owing in accordance with Subsection (4), NICTA may recover the outstanding amount of the Universal Access and Service Levy from funds otherwise payable under Section 115;

(7) Subject to Subsection (8), any regulations made under Section 32(4) may determine the timing for payment of the Universal Access and Service Levy and the manner of calculation of any late payment charges.

(8) No Universal Access and Service Levy may be charged prior to 1 January 2011.

8. What is summed as the various figures imposed upon both is “a percentage of the net revenues of each operator licensee at a level, to be determined annually, to apply from the beginning of each fiscal year”. In other words, it is not a bold round figure but is a justified figure as imposed considering what is set out under section 107 in aggregate. It is the percentage that is worked out from the net revenue of each operator, in this case of Hitron, and Digicel to be determined annually. Particularly with the discussion that I have set out that are no more burdensome than necessary to achieve their stated regulatory objectives. And this is based on sound economic principles, administered in a transparent manner and to the extent appropriate. The sum imposed by that invoice is derived from a relationship between NICTA and the applicants extending by various procedures prescribed to arrive eventually at that net figure imposed upon.
   

Then it would avoid the arguments lacking in the hands of the applicants of want or excess of jurisdiction because it is founded on procedures under Statute that have been forfeited not heeded to arrive. Which have failed to consider and take into account relevant considerations particularly with the principles of unreasonableness and the light of section 59 of the Constitution. This in my view would turn the wheel aligning in favour of the applicants that together with their locus standie now confirmed, by the Actions of the defendant, they now have very strong arguable basis prima facie to challenge the decision made imposing the figures by the invoices. Because Leave for Judicial review has been granted where the plaintiff points to the process and procedure that have been followed to arrive at a decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 followed in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).

9. Because at heart is “Audi alteram partem” the right to be heard in his defence which Judicial review is by stare decisis. Particularly given in my view the invoices set out above. Hence both applicants are not mere busy bodies, but

persons with genuine grievance: NTN v Board of Post &Telecommunication Corporation [1993] PNGLR 22, to task in law the actions of the defendant against them. Particularly gauged in the backdrop of the affidavit material deposed to by Michael Gaius Ravu Henao sworn of the 21^st June 2023, Lawyer Head of Legal and Regulatory for Digicel. “25. The process that has been adopted by NICTA to recommend UAS Projects and determine UAS Levies has historically been the subject of dispute and a number of judicial review proceedings before this Court between Digicel (PNG) Limited and the Plaintiff, for which leave to review has been granted, and where each of those proceedings has subsequently been settled.” This is not the first time for the dispute between the parties. The merits of the present dispute by each originating summons filed in each case, show that there are no statutory or administrative remedies to challenge the subject decision except to come as has been done by the two applicants for leave to judicially review the subject decision. The effect is that this requirement is satisfied by both on the balance required.

10. That now leaves whether the application in both cases has been made without delay. The subject decision was made on the 14^th March 2023 and these proceedings in each case were filed by the originating summons in each case on the 21^st June 2023 which is well within the four months envisaged by order 16 Rule 4 (2) of the Rules. And is supported by the Notice of Application for Leave to apply for Judicial review, the statement pursuant to order 16 Rule 3 of the Rules, affidavit of Michael Henao of the 21^st June 2023, his affidavit verifying of the same date. There is nothing against form and process by the rules to sway otherwise than to grant the orders sought. The decision taken must be properly pleaded: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here the pleading is more than sufficient to show that a decision has been taken by NICTA in that written decision 14^th March 2023 which imposed the subject levies now questioned by both applicants for leave to scrutinize. The aggregate by the facts, circumstances, and the relevant law set out above, is that both applications satisfy the requirements in law for leave for Judicial review. The balance is satisfied in their favour. Accordingly, leave for Judicial review is granted firstly, Hitron, and secondly Digicel in both cases of the decision of NICTA of the 14^th March 2023 in that written decision made pursuant to section 107 of the Act to levy the amounts upon both applicants.
    
11. I have considered the opposing arguments and find no substance to go down that way because of the reasons set out above. Which in my view far outweigh to refuse leave. It is a very serious decision with very serious consequences upon both applicants. And this is clear by the amount in money imposed. It is no light matter in the operation of a company where money in this figure is dished out in this way. Yes, the law must be complied in the operation that a company runs, but it should not be the case of defiance of the principles of equity which Judicial review is all about. The law must heed and par with equity. Conversely equity and law are brothers and sisters of Justice their mother. And there is no room to quarrel given. The balance has been tilted to grant the originating summons in both cases pleaded. I accordingly grant in both cases as pleaded.
    
12. The formal orders of the court are:
    
    • (1) Leave is granted for Judicial review pursuant to Order 16 Rule 3 of the National Court Rules against the written decision of the Defendant dated the 14^th March 2023 imposing by section 107 of the NICTA Act “UAS Levy” in the invoice of UAS 020-23 upon the plaintiff Hitron in the sum of K299, 131.11 for 2023 Universal Access and Service Levy granted.
      
    • (2) Leave is granted for Judicial review pursuant to Order 16 Rule 3 of the National Court Rules against the written decision of the Defendant dated the 14^th March 2023 imposing by section 107 of the NICTA Act “UAS Levy” in the invoice of UAS 013-23 upon the plaintiff Digicel in the sum of K11, 801, 211.66.
      
    • (3) Both applicants Hitron & Digicel are granted leave for Judicial review by their originating summons filed.
      
    • (4) Both matters will be called up for Directions hearing on Monday 31^st July 2023 at 9.30am.
      
    • (5) Liberty is granted the parties to as to whether the matter should be referred to mediation.
      
    • (6) Mr Varitimos KC is permitted to appear by video on the next hearing date and the registry and Court IT will take steps for his appearance by video and the Allocation of courtroom 9.
      
    • (7) Costs of and incidental of these applications in both instances will be reserved.
      
    • (8) Time for entry of the orders will be abridged to the time of settlement by the Registrar which shall take place forthwith.
      

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group: Lawyers for the Plaintiff/Applicants

Office of the Solicitor General: Lawyers for Defendant