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Telecom Vanuatu Ltd v Minister for Infrastructure and Public Utilities [2007] VUCA 8; Civil Appeal Case 32 of 2006 (5 April 2007)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 32 of 2006

BETWEEN:

TELECOM VANUATU LIMITED
Appellant

AND:

MINISTER FOR INFRASTRUCTURE AND PUBLIC UTILITIES
First Respondent

AND:

HAM LINI VANUAROROA, MOANA CARCASSES KALOSIL, WILLY JIMMY TAPAGARARUA, BARAK TAMBE SOPE, EDWARD NATAPEI, JOSHUA KALSAKAU, ISABELLE DONALD, ARNOLD PRASAD, MORKING STEVEN IATIKA, GEORGE WELLS, JOE NATUMAN AND JAMES BULE
Second Respondent

AND:

THE ATTORNEY GENERAL
Third Respondent

AND:

PACIFIC DATA SOLUTIONS LIMITED
Fourth Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice Hamlison Bulu
Hon. Justice Oliver Saksak
Hon. Justice John Mansfield

Counsel: Dr. C Ward and Mr. S Rosewarne for Appellant
Mr. A Jenshel and Mr. Tom Joe Botleng for 1st, 2nd & 3rd Respondent
Mr. M O’Bryan and Mr. J Malcolm for 4th Respondent

Date of Hearing: 28 March 2007
Date of Decision: 5 April 2007

The Issue on the Appeal

This appeal is ultimately reduced to a short issue. It is whether the Minister of Infrastructure and Public Utilities (the Minister) validly granted to Pacific Data Solutions Limited (PDS) on 21 October 2005 a licence under s. 16 of the Telecommunications Act No. 10 of 1989 (the Act). Telecom Vanuatu Limited (TVL) claimed at first instance and on appeal that the grant of the PDS licence is ultra vires and so the PDS licence is of no lawful effect.

The interest of TVL in seeking that relief arises from a Franchise Agreement of 20 November 1992 between the Government of the Republic of Vanuatu and TVL, in essence to grant to TVL a licence to provide a Public International Telecommunication Service and a Public National Telecommunication Service in Vanuatu.

The Principal Facts and Legislation

The provision which is at the heart of this case is s.16 of the Act. As in force at the time of the grant of the PDS licence, and the Franchise Agreement, it relevantly provided:

"NO PERSON TO RUN TELECOMMUNICATION SYSTEM WITHOUT LICENCE

16 (1) Subject to section 19, no person shall operate a telecommunication system in Vanuatu except under the authority of a licence granted in accordance with subsection (2) of this section by the Minister.

(2) The Minister may, subject to the provision of subsection (6), grant the licence referred to in subsection (1).

........

Subject to the other provisions of this section, in the case of an application for a licence to operate a telecommunication system to provide Public International Telecommunication Service or in the case of an application for a licence to operate a telecommunication system to provide Public National Telecommunication Service, the Minister shall grant such licence with the prior approval of the Council of Ministers, subject to such terms and conditions as may be determined by the Council of Ministers and published in the Gazette.

Provided that at one time in Vanuatu there shall be no more than one telecommunication system in operation to provide Public International Telecommunication Service and no more than one telecommunication system in operation to provide Public National Telecommunication Service".

The proviso has now been removed by the Telecommunications (Amendment) Act No. 34 of 2006. The significance of that amendment is discussed below.

The terms "Public National Telecommunication Service" and "Public International Telecommunication Service" are both defined in s.2 of the Act as follows:

"Public International Telecommunication Service" means international telecommunication services, other than a broadcasting service or a broadcasting satellite service, for use by the general public and may include telephone, telegrams, telex, data, facsimile and any other telecommunication service established internationally which is available publicly; and also includes dedicated leased point-to-point services provided over the international net work for the exclusive use of lessees;

"Public National Telecommunication Service" means national telecommunication services, other than a broadcasting service or a broadcasting satellite service, for use by the general public and may include telephone, telegrams, telex, data, facsimile or any other telecommunication service established nationally which is available publicly; and also includes dedicated leased point-to-point services provided over the national net work for the exclusive use of lessees but does not include any international telecommunications which are reserved to Vanitel pursuant to the Vanitel Franchise."

It was not suggested by any party that the service to be provided under the PDS licence is a dedicated leased point-to-point service.

Clause 2:1 of the Franchise Agreement included the licence to TVL. It is in the following terms:

"2. LICENCE

2.1 Grant

Subject to the terms and conditions of this licence, the Minister hereby grants to the Company the sole rights for the term specified in Condition 13.3 and 13.4 to provide, operate and develop, and the Company shall provide, operate and develop, the Public Telecommunication System of Vanuatu and further to be the exclusive provider of Public Telecommunication Services in Vanuatu or to or from any destination outside the Republic or passing in transit through the Republic and further to exclusively provide, operate and develop such additional telecommunication services with the Republic which the company may with the approval of the Authority from time to time consider necessary or desirable or which the Company agrees to provide at the request of the Authority. The Company shall provide the Authorised Telecommunication Services with such Telecommunication Apparatus which it shall, in its sole discretion, determine and provide"

The term specified was for an initial period of 20 years. TVL, at one point, emphasised that the licence involved two elements, namely the monopoly rights to provide and operate the public national and international telecommunications systems for Vanuatu and secondly to exclusively provide and operate the ‘additional telecommunications services’ within Vanuatu in the circumstances referred to .

Clauses 2.4, 2.5 and 2.6 of the Franchise Agreement then provided:

2.4 Not to Appoint a Third Party

Subject to conditions 2.5, 2.6 and 2.7, the Minister or the Authority shall not issue to any person other than the Company any authority or permission to provide, at any time during the Term of this Licence, any Authorized Telecommunication Services, provided that this Licence shall not prevent, or be breached by reason of, the provision of any Authorized Telecommunication Services by National Vanuatu and Vanitel at any time prior to the Completion Date.

2.5 Government’s Right to Run or Authorize Telecommunications or Radio Stations

Nothing in this Licence shall in any way prejudice or affect the right of the Government or any Ministry, department or authority thereof or other entity controlled thereby (with the approval of the Authority) to establish, extend, maintain, run or authorize any telecommunication or radio station apparatus or equipment:

(a) for broadcasting purposes;

(b) for experimental purposes;

(c) for remote control or apparatus or equipment;

(d) for amateur radio; or

(e) for any other purpose which does not relate to Public Telecommunication Services.

2.6 Services Not Provided by Company

Nothing in this Licence shall in any way prejudice or affect the right of the Authority to grant any authority or permission to any person to provide any telecommunication services which the Authority and the Company jointly determine are not or will not be at the time when such authority or permission is granted, provided by the Company whether at all, or in any particular geographical area, or at particular time or times, provide that the Authority shall not grant any such authority or permission except in the circumstances referred to in condition 2.7 (d). Broadcasting services and Broadcasting-Satellite Services are specifically excluded from this Licence and in the later case this provision applies irrespective of whether transmission is through a broadcast satellite provided specifically for the purpose or by utilizing the facilities of any available communications satellite.

Senior counsel for PDS emphasised the need to have careful regard to the definition of ‘Authorised Telecommunication Services’ to fully understand how those clauses operate, and to determine whether they operate in a way that means that the grant of the PDS licence involved a breach of the Franchise Agreement. For the reasons set out below, we do not need to address that issue.

The PDS licence is for 15 years. It is relevantly in the following terms:

a) The licensee may install and operate all necessary Telecommunications Devices (including a Satellite Earth Station and associated equipment) as it considers necessary or appropriate;

b) The Licensee must not provide Telecommunications Services that are for use by the General Public or available publicly but may provide Telecommunication Services to:

i) Its holding company, subsidiary or subsidiaries of its holding company (as determined under the Vanuatu Companies Act (CAP 191); and

ii) Any customer that holds a License under the Interactive Gaming Act 2000.

It is accepted on all sides that the PDS licence, in so far as it permits the supply of telecommunications services to the holding companies or subsidiaries of PDS, does not authorise the provision of public national or international telecommunications services. TVL makes no complaint about that part of the PDS licence.

The TVL complaint concerned the licence authorising PDS to supply telecommunications services to entities holding licences under the Interactive Gaming Act 2000 (the gaming licensees). At present there are six gaming licensees in Vanuatu, but that number is not necessarily fixed.

Under the Interactive Gaming Act, and regulations made under it, an entity may become a gaming licensee only if:

a) It is a company registered under the Vanuatu Companies Act: s. 4 (1), Interactive Gaming Act;

b) It satisfies the responsible Minister that it is a suitable person to hold a licence, having regard to its character, its business reputation, the financial background of its close associates, its financial position, its financial technical and other resources to conduct interactive gambling games, its corporate structure and the experience and business ability of the persons to be involved in its management and operations: s. 5, Interactive Gaming Act;

c) It pays the application fee of $US 75,000 and a licence fee of $US50,000 upon its grant and annually thereafter: Interactive Gaming (Fees) Regulations 2003; and

d) It meets detailed compliance obligations during the currency of the licence: Part 3, Interactive Gaming Act.

The Judgment at First Instance

Justice Tuohy recognised that the critical expressions in the definitions of public national and international telecommunications service are not defined in the Act. Nor did he gain any benefit from any statement of purpose in the Act itself to construe those terms: see s. 8 of the Interpretation Act No. 9 of 1981.

Consequently, in accordance with ordinary principles of statutory construction, Tuohy J considered their ordinary and natural meaning in the context in which they appear in the Act. After referring to a number of authorities in which the word ‘public’ or like words and expressions have been considered, his Honour referred with approval to the observation of MacDermott LCJ in Russell –v- Thompson [1953] NI 51 at 56 that the ordinary meaning of the word ‘public’ is

"......... the ordinary run of humanity, taken as it comes, without special attribute or qualification of any kind... the requirement of particular attributes or qualifications may reach a point when one can say that a process of discrimination has produced a class which is not ‘the public’".

Justice Tuohy recognised, as TVL contends was appropriate and PDS agrees, that the identification of a group of persons by geographical location, by the mere payment of a fee, or by size (whether large or small), will not necessarily include or remove the group from being the public or a segment of the public. The principle which his Honour drew from the authorities, in particular from Director of Public Prosecutions -v- Vivier [1991] 4 ALL ER 18 at 24, is that the line is generally to be drawn where membership of the group is dependent not upon their status as members of the public but upon some reason personal to themselves, such as a special relationship to another person or some other particular personal characteristic.

After considering the conditions of eligibility for the grant of a licence under the Interactive Gaming Act, his Lordship concluded:

"This group is also defined, not by some general characteristic such as place of residence which every member of the public has, but by some very specific onerous characteristics connected with their tenure of interactive gaming licences".

The Grounds of Appeal

There were three grounds of appeal. They were as follows:

1) The judge at first instance, having correctly held that customers of PDS who had paid a fee would constitute merely a section of the general public, erred in holding that the requirement that those customers hold licences under the Interactive Gaming Act took them outside the description of the "general public" for the purposes of s. 16 (6) of the Act;

2) The judge at first instance erred in holding that the services purportedly authorised to PDS under its licence did not infringe the exclusive licence granted to TVL under the Franchise Agreement; and

3) The judge at first instance erred in failing to deal at all with TVL’s complaint that the First Respondent failed to observe conditions 2.6 and 2.7 of the Franchise Agreement in purporting to grant a licence to PDS.

As noted below, ground 3 was abandoned. Ground 2 became relevant only to the extent, that the Franchise Agreement may have disclosed the terms and conditions imposed upon the grant of the licence to TVL by the Franchise Agreement by the decision of the Council of Ministers under s. 16 (6) of the Act.

Consideration

Although counsel for PDS observed that the proviso to s. 16 (6) of the Act might permit the public national and international telecommunications services in Vanuatu to be segmented, so that there could be separate providers for each segment, we agree with the submissions of counsel for all parties that s. 16 (6) contemplates that there should be only one provider of a public national telecommunication service and only one provider of a public international telecommunications service in Vanuatu. That is so even if the respective providers do not provide the full gamut of potential telecommunications services in each of those markets. Under the Franchise Agreement, TVL is therefore the sole provider of each of those public telecommunications services.

It is also clear that the PDS licence authorises it to provide telecommunications services to two categories of persons. What is in issue is whether the supply of such services to the gambling licensees under the PDS licence would involve a contravention of the statutory monopoly to TVL under the Franchise Agreement, so that its grant was not permitted under s. 16.

It was common ground that PDS by providing telecommunications services to the gambling licensees would be operating a telecommunication system within Vanuatu.

The critical wording is common in the definitions of ‘public international telecommunication service’, and ‘public national telecommunications service’. They are that the services be ".. for use by the general public and may include.. any telecommunication service which is available publicly ..."

One submission of TVL is that the learned judge at first instance failed to have regard to the ‘alternative formulation’ as to whether the service is available publicly, even if it is not for use by the general public. TVL submitted that those additional words emphasised that the distinction drawn is not between sections of the public, but is between members of the public and members of a private group or private groups selected on the basis of some particular private characteristic. It then contended that gambling licensees are not members of a private group because none of the criteria for the grant of a licence under the Interactive Gaming Act is sufficient to remove them, or the pool of potential licensees, from the general public or the public, as those words are properly construed.

Although TVL identified a so-called ‘alternative’ formulation, additional words ‘available publicly’ read in context do not add any dimension to the ambit of public national or international telecommunications services as defined. The distinction between members of the public and members of a private group which it drew flows equally from the expression ‘for use by the general public’. The two expressions, in context, are endeavouring to draw the same distinction. Indeed, as might be expected from there being a compendious expression in the two definitions, TVL’s submissions did not ultimately identify with any precision any different content in the two phrases ‘for use by the general public’ and ‘available publicly’.

We do not accept that the trial judge failed to recognise that the relevant distinction was that contended for the TVL. The opposite is the case. His Honour clearly recognised that the distinction drawn is between the public or certain segments of it on the one hand, and members of a private group or private groups selected on the basis of particular characteristics on the other. The expressions for ‘use by the general public’ and ‘available publicly’ are not defined in the Act. They are clearly intended to identify or describe members of the public or the community generally, or a segment of the public. The contrast is with a group selected or defined by a specific characteristic or trait which the public, or persons within the public, cannot self-select into membership. It is the selection or identification process which will determine generally whether a particular group is constituted by reason of its members being members of the public, or is constituted as a non-public group or a group to which the public cannot gain membership routinely.

So much may be drawn from the cases which have addressed the general issue, albeit in the particular and different legislative contexts under consideration in these cases. For example, a testamentary gift to schools restricted to the children of members of the Masonic order was not exempt from estate duty because it was not a gift for public educational purposes, not being for the benefit of the public or a section of the public but for the benefit of a group selected by a private characteristic: Thompson –v- Federal Commissioner of Taxation [1959] HCA 66; (1959) 102 CLR 315 especially per Dixon CJ at 321-323. An invitation to a specific identifiable person to participate in a particular investment opportunity was not an invitation to the public generally because neither the public generally, nor any general section of it, could act on the invitation: Lee –v- Evans (1964)112 CLR 276. An offer to a large group comprising the members of a credit union to subscribe for units in a trust was not an offer to a section of the public because it was the relationship of the offerees to the credit union which entitled them to receive the offer: Corporate Affairs Commission -v- Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201. The fidelity funds of a professional body were not funds held in trust for charitable purposes, because the funds were not for the benefit of the public but for a large and inchoate group identified as clients of members of that professional body who had had their money stolen and had exhausted their remedies against their former professional advisers: New Zealand Society of Accountants –v- Commission of Inland Revenue [1986] 1 NZLR 147. By way of contrast are cases where participation has been available to any person: McCartan Turkington Breen -v- Times Newspapers Ltd [2000] UKHL 57; [2001] 2 AC 277; Derbyshire –v- Police [1966] NZHC 109; [1967] NZLR 391; Hansen –v- Transport Department [1967] NZHC 100; [1968] NZLR 208; Schubert & Morris –v- Lee [1946] HCA 28; (1946) 71 CLR 589.

The decision in DPP –v- Vivier provides a useful illustration of the distinction. The defendant was charged with the offence of driving under the influence of alcohol on a road or other ‘public place’. The accident leading to the charge had occurred in a caravan park. It was held that the caravan park was a ‘public place’, because those entering the caravan park were screened not for any characteristic personal to themselves, but merely because they wished to enter and were prepared to pay a modest entry fee. There was no sufficient segregation process or selection process of those allowed into the caravan park to cause them to cease to be members of the general public.

In our view, there is nothing in the Act to suggest that the meaning of the critical expressions in s.16 (6) should be approached in any different way. Counsel for TVL did not point to any textual or contextual matter which might lead to a different view. Indeed, it would be surprising if the monopoly contemplated by the proviso to s. 16 (6) was not to ensure that the telecommunications services to which it refers were not available to as wide a section of the Vanuatu public (or in the case of those using international telecommunications services the wider public seeking electronic communications into or out of or through Vanuatu) as possible, subject to paying the applicable general fee. It is consistent with such an intention that those wishing to use the services provided should not be selected or confined by any personal characteristics which members of the public would not be able to meet reasonably readily.

In that light, in our view, the decision of Justice Tuohy and his reasons for his decision were correct. PDS cannot supply telecommunications services, relevantly, except to the gambling licensees and only the gambling licensees may use those services. They are selected by a complex mixture of personal characteristics assessed by the relevant Minister. Those characteristics are referred to above. No doubt, there might be different circumstances where the eligibility conditions for access to a telecommunications system or service may be less stringent, so that the issue as to whether the public has such access and so may use that service might be answered differently. However, this is not such a case. (We later refer to a contention on behalf of TVL that one relevant category of user of the telecommunications system of PDL is the players of the internet gambling games made available by the gambling licensees, rather than the gambling licensees themselves. That is not the primary contention of TVL.

As TVL placed some weight upon Telstra Corporation –v- Australian Performing Rights Association [1997] HCA 41; (1997) 191 CLR 140, it is appropriate that we should indicate why that decision does not, in our view, advance TVL’s contention. That case concerned a claim of breach of copyright contrary to the Copyright Act 1968 (Aus) by Telstra by transmitting music and lyrics of various songs on ‘call waiting’ mode in its network, and on mobile phones directly from its service centre, from the businesses to which Telstra provided a transmission service, and whilst a caller was temporarily directed to a Telstra exchange. As is apparent from the respective reasons for decision, the outcome in that case depended on the interpretation of quite complex provisions of the Copyright Act and their application to the several factual circumstances in which the music and lyrics were provided. At P156, Dawson and Gaudron JJ (who with Kirby J formed the majority) said that it was necessary that the transmission facility be available to those members of the public who chose to avail themselves of it. We do not think that decision suggests some other approach to the construction of the relevant provisions of the Act, and its application to the facts, than that which we have taken.

Finally, we note that neither counsel for TVL nor for PDS ultimately contended that clauses 2.1 or 2.6 and 2.7 of the Franchise Agreement, even if in part indicating the conditions determined by the Council of Ministers under s. 16 (6), was of assistance in resolving the primary contention. We do not therefore need to refer further to them.

In our view, for the reasons we have given, the principal attack upon the conclusion of Justice Tuohy in respect of the way the case was argued before him must fail.

A Further Contention

In the course of submissions of counsel for TVL, a further contention was advanced in support of the appeal. The contention was to the effect that the PDS license was invalid, because it could not be issued in the face of s. 16 (6) of the Act (as then in force) because it permitted PDS to operate a national or international telecommunication service for use by the general public and/or to operate a national or international telecommunications service which was available publicly. Under this contention, the "public" element was said to be those persons who, apparently for a modest fee, participate in the internet games made available through one or more of the gaming licensees. The ‘public’ was said to be not just the gaming licensees themselves (the contention made at trial and by the grounds of appeal), but also the users of their games, the players.

It was accepted that the contention was not encompassed within the existing grounds of appeal. Consequently the contention could not be advanced without the leave of the Court: Rule 5 of the Court of Appeal Rules. Rule 5 is subject to the proviso that the Court of Appeal

"........ shall not rest its decision on any ground not stated in the notice of appeal unless the respondent has had sufficient opportunity of contesting the case on that ground either in writing or by appearance in person or by advocate".

Counsel for the Minister and for PDS opposed TVL being granted leave to now raise that matter.

No document was presented which stated explicitly the ground sought to be raised. Nor was it addressed in the written submissions on behalf of TVL. Counsel candidly acknowledged that the contention had been conceived, and the argument developed, only shortly before the hearing of the appeal.

There was of course no error on the part of Tuohy J in not addressing that contention, simply because it was not put to his Honour.

As the issue raised at first instance and on this appeal is one of public law, namely the validity of the grant of the PDS license, it is generally desirable that all matters touching upon that issue should be ventilated.

There are, however, powerful reasons why the Court should not give leave to raise that contention in this matter, notwithstanding its public law character.

The first is a practical one.

Counsel for PDS contends that, had the issue been raised at the hearing at first instance, PDS would probably have adduced further evidence going to the meaning of the word "use" in the telecommunications industry and the nature of the gambling licensees’ relationship with PDS, and with their online clients. Understandably, Mr. O’Bryan was unable to say whether that would be the limit of the proposed further evidence. Counsel for TVL said that no further evidence should be necessary, as the submission was based solely upon uncontested evidence from one of the PDS witnesses at the hearing.

We are unable to say confidently that the position of PDS, and for that matter the Minister, might not be prejudiced if the issue now sought to be raised were to be determined without the opportunity for them to address the possibility of further evidence. It may well be that such further proposed evidence might be of no real assistance. It might also be that TVL would dispute certain of that evidence. Given the way the issue arose, we are not in a position to decide such issues without knowing more clearly the nature of the proposed evidence. And as PDS had little, and the Minister no notice of the contention, in fairness they cannot be criticized for being unable to say positively and in detail how they would wish to respond to it.

Ideally, the process of adducing such evidence would have occurred at the trial and this Court would have had the benefit of a determination on all relevant or potentially relevant facts, as well as a decision at first instance on the merits of the argument. This Court has power to permit the adducing of further evidence on an appeal. But the time frame within which that could fairly be expected to be undertaken and the possibility of some cross-examination, as well as of some conflicting evidence, so that fact finding may be required on contentious factual issues, means such a course is an impracticable one.

The second reason why leave to raise the issue should not be allowed arises from the amendment to the Act by the Telecommunication (Amendment) Act No. 34 of 2006. As noted above, it amended s. 16 (6) of the Act by deleting the proviso. Consequently, there is now no legislative prescription that there be only one provider of public international telecommunication services and only one provider of public national telecommunication services. The significance of the present proceedings is therefore not of ongoing significance to the public. The Minister may, subject to compliance with s. 16, issue more than one licence to provide and operate a public national or international telecommunications service. In addition, the practical reality of the current issue is that TVL is seeking to reinforce its commercial position under the Franchise Agreement by removing a, what it claims to be a competitor or potential competitor, namely PDS. As TVL has the right to pursue such remedies as it may be advised for breach of the Franchise Agreement in separate proceedings (we say nothing about its prospects of success), its commercial position is protected by that right to a significant degree whatever the outcome of this proceeding.

We note the contention put on behalf of PDS that, by two separate approaches, it can be seen that PDS under its licence is not in any event permitted to provide public national or international telecommunication services.

The first of those contentions was that the players accessing the games provided by the gaming licensees do not ‘use’ the telecommunications services of PDS, even if (as seems to have been accepted) they would be members of the broad public. It was said they ‘use’ the facilities of the gaming licensees, together with such internet service providers as the particular players may use to gain access to the games they wish to play. If residents of Vanuatu were permitted to access those games, they would presently have to use TVL as their internet service provider. Emphasis was placed upon the word ‘use’ in the relevant definitions. Counsel for TVL submitted that, because the electronic signal between the gambling licensees, and the players, on the present evidence, passed through PDS equipment, necessarily the players were using the telecommunication services of PDS.

For the reasons already given, it is not appropriate to determine that issue because all the material relevant to its determination may not be before the Court. It is sufficient to observe that, in our view, the contention of PDS is not so clearly untenable that we should reject it out of hand and deprive PDS of the opportunity of developing its contention in the factual context it considers appropriate by granting leave to TVL to raise the fresh contention at this stage.

The second contention was that the PDS licence did not permit PDS to provide public national or international telecommunications services in any event. The PDS license is set out above.

Clause (b) of the PDS licence is worded a little awkwardly. The words ‘but may’ might be better expressed as ‘and is limited to’. It is clear that the Minister did not intend to permit PDS to provide public national or international telecommunications services, so the word ‘but’ should not be read as the Minister understanding that services by PDS to gambling licensees were public. However, the PDS argument is circular because the Minister cannot decree that the PDS services are not public if in fact they are services to the public. Ultimately it is for the Court to decide whether the PDS services to be supplied to gambling licensees were services to the public. The Minister no doubt thought they were not, but that is a question for the Court. It is the question we have decided.

A Distraction

Another matter raised in the notice of appeal by TVL, and in its written and oral submissions, was not finally pursued.

TVL claimed that grounds 2 and 3 of its notice of appeal raised the issue that the learned judge had failed at all to address its claim that the Franchise Agreement had been breached by the grant of the PDS licence. His Honour clearly did not address any claim based upon breach of the Franchise Agreement.

The contention was that, even if the PDS licence was not invalid as being beyond power, TVL had a contractual right of first refusal to provide any additional telecommunications services within Vanuatu, and that it had not been given that right by the Government. The claim was said to have been before the learned trial judge by reason of a late amendment to the claim for judicial review.

The proceeding commenced on 24 November 2005, when TVL sought judicial review of the decision of the Minister to grant the PDS licence. TVL asked that the decision of the Minister be quashed, because it was not authorised under s. 16 of the Act. It also sought a declaration that the grant of the PDS licence was in breach of s. 2.1 of the Franchise Agreement. It claimed against PDS, as the then third defendant, an injunction restraining it from acting on and from providing services under the PDS licence. The Government of the Republic of Vanuatu was initially joined as the second defendant, to cover the possibility that the decision to grant the PDS licence was made by the Government rather than the Minister.

On 20 February 2006, Treston J. made orders that the claim for judicial review be amended by joining the Attorney General as a party, and by TVL discontinuing its claims for relief based upon alleged breach of the Franchise Agreement. His Honour directed that PDS remain as an interested party to the proposed amended claim for judicial review.

The amended Claim for Judicial Review was filed on 10 April 2006. The Minister remained as the first defendant, the Council of Ministers (see s.16 (6) of the Act ) were joined as the second defendants, and the Attorney General was joined as the third defendant. PDS remained an "interested party". There was then nothing which could conceivably amount to a claim based upon a breach of the Franchise Agreement.

At the commencement of the hearing on 16 August 2006, Justice Tuohy gave leave to TVL to further amend its Claim for Judicial Review. His Honour published reasons for that interlocutory ruling on 12 September 2006, at the same time as the principal judgment. It is not necessary to refer to the detail of those amendments, other than to note that new ground 5 was added in the following terms:

"Further, or in the alternative, the First Defendant failed to observe Conditions 2.6 and 2.7 of the Franchise Agreement of 1992 [... portion deleted] before the grant of the Purported Licence to the Interested Party".

That was the ground of the Claim for Judicial Review which was said to have required Justice Tuohy at first instance to have addressed the claim that the Franchise Agreement had been breached by the grant of the PDS license and by the manner of its grant.

The deleted portion of ground 5 related to a separate contention, which his Lordship did not permit to be made. It concerned TVL’s claim that it should have been, and was not, given an opportunity to be heard before the grant of the PDS licence. Justice Tuohy’s reasons for Interlocutory Ruling (No.1) also dealt with that issue. TVL applied for leave to appeal from that part of the interlocutory ruling, but then withdrew that application shortly before the hearing.

There are substantial procedural difficulties in the way of TVL making a claim for breach of the Franchise Agreement in this proceeding, but in any event it need not be further considered. That is because it is clear that no claim based upon a breach of contract was before the Court. The solicitors for TVL had made that abundantly clear in correspondence to the Minister and to PDS, and to the learned trial judge, when seeking leave to further amend the Claim for Judicial Review shortly before the hearing, including by the addition of cl 5 of the claim. His Honour did not deal with such a claim because he was not asked to. Grounds 2 and 3 of the appeal, to the extent that they raised that issue, were inappropriate.

Senior counsel for TVL in the course of oral submissions in reply acknowledged that to be the case. He was clearly right to do so.

The consequence of TVL abandoning that contention is that the matters raised by the Minister and by PDS in their notices of contention do not have to be addressed.

If TVL has any claim based upon breach of the Franchise Agreement, it will have to be pursued in separate proceedings.

Conclusion

For the reasons given in our judgment the appeal must be dismissed. TVL should pay to the respondents their costs of the appeal to be agreed or taxed.

Dated at PORT VILA on 5th April 2007

BY THE COURT

Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson J.
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice John Mansfield