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Hitron Ltd v National Information and Communications Technology Authority [2025] PGNC 314; N11452 (27 August 2025)

N11452

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 64 OF 2023

BETWEEN:
HITRON LIMITED
Plaintiff

AND:
NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY
Defendant

AND
OS (JR) NO. 65 OF 2023

BETWEEN:
DIGICEL (PNG) LIMITED
Plaintiff

AND:
NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY
Defendant

WAIGANI: PURDON-SULLY J
20 JUNE, 27 AUGUST 2025

JUDICIAL REVIEW- Application for judicial review – imposition of levy under s107(2) of the National Information and Communications Technology Act 2009 – Whether levy was unlawfully imposed – Ground of review based on want or excess of jurisdiction upheld – Remedies considered and granted

STATUTES - Interpretation – Strict construction – Words and Phrases - Literal and natural meaning – “from the beginning of each fiscal year” considered - National Information and Communications Technology Act 2009 s 107(2)

INTERPRETATION – National Information and Communications Technology Act 2009 – Part V – Universal Access and Service Regime - s 107(1) & (2) – desired level of funding

Cases cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Attorney General v The Earl of Selbourne [1901] UKLawRpKQB 215; [1902] 1 KB 388
Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB 64
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 CLR 297
Dale Christopher Smith v Minister for Lands (2009) SC973
Damem v Maipaki [2004] PNGLR 41
Dent v Kavali [1981] PNGLR 488
Deputy Commissioner of Taxation v Hankin [1959] HCA 2; (1959) 100 CLR 566
Digicel (PNG) Ltd v Commissioner of Internal Revenue Commission [2018] N7188
Hagahuno v Tuke [2020] SC2018
Hilary Singat v Commissioner of Police [2008] SC910
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
Ipatas v Somare [2010] N4190
IRC v Dr Pirouz Hamidian Rad [2002] SC692
Isaac Lupari v Sir Michael Somare (2008) N3476
Kamuta v Sode [2006] N3067
Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at p 582
Lower Mainland Dairy Products Sales Committee v Crystal Dairy Ltd [1933] AC 168
MacCormick v Federal Commissioner of Taxation (1984) 52 ALR 52
Mairi v Tolo (No 2) [1976] PNGLR 125
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263
Mileng v Tololo [1976] PNGLR 447
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Monoluk v Pala [2018] N7181
Paru Aki v Sir Moi Avei (No 2) [2003] SC720
PLAR No. 1 of 1980 [1980] PNGLR 326
PNG Power v Registrar of the National Court [2013] SC1335
Ponau v Teaching service Commission Disciplinary Committee [2006] N3059 Ombudsman Commission v Yama [2004] SC747
Premdas v State [1979] PNGLR 329
R.H. Rayner (Mincing Lane) Limited v The Chief Collector of Taxes [1993] PNGLR 416
Reference by the East Sepik Provincial Executive (2011) SC1154
Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852
Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, cited with approval Sehmidt v Secretary of Home Affairs [1969] 2 Ch 149
Royale Thompson & Ors v Karingu [2008] SC954
Saile v Posai [2008] PGNC 117
SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397
Seaford Court Estates Ltd v Asher [1949] 2 KB 481
Special reference by the Attorney General [2016] SC1534
Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879

Counsel
Mr R J Webb KC with Ms C Copland, for the plaintiffs in both proceedings
Mr A Roden-Paru with Ms G Jiki for the defendant in both proceedings

PURDON-SULLY J: These reasons for judgment concern an application by the Plaintiff (Hitron) in OS (JR) No 64 of 2023 and by the Plaintiff (Digicel) in OS (JR) No 65 of 2023 seeking judicial review of the decision of the Defendant dated 14 March 2023 made pursuant to s 107 of the National Information and Communications Technology Act 2009 (the Act) to:
1. levy a Universal Access and Service Levy (UAS Levy) and issue an invoice No UAS 013-23 to Digicel in the amount of K11,801, 211.66 for the “2023 Universal Access and Service (UAS) Levy” (the Digicel decision); and
2. levy a UAS Levy and issue an invoice No UAS 020-23 to Hitron in the amount of K299,131.11 for the “2023 Universal Access and Service (UAS) Levy” (the Hitron decision).
In these reasons:
1. Digicel and Hitron will be referred to as “the Plaintiffs”
2. The Defendant will be referred to as “NICTA”
1. The Minister of Information and Communications Technology will be referred to as “the Minister”
1. OS (JR) No 64 of 2023 and OS (JR) No 65 of 2023 will be referred to as “the proceedings”
2. The Digicel decision and the Hitron decision will be referred to as “the decisions”
3. The Universal Access and Service Fund will be referred to as the “UAS Fund”.
The proceedings are being heard concurrently. The grounds of review and relief sought is the same or similar in the proceedings. In these reasons, unless identified otherwise, my discussion of the issues and grounds of review will apply to each of OS (JR) No 64 of 2023 and OS (JR) No 65 of 2023 as will my findings on the evidence.
The grounds of review are:
1. Want or excess of jurisdiction
2. Breach of statutory procedures as prescribed by s 122 of the Act
1. Bad faith
1. Failing to take into account relevant considerations
2. Unreasonableness (Wednesbury)
3. Breach of natural justice and procedural fairness.
The grounds of review are particularised at [48] of the Plaintiffs’ Statements in Support each filed 21 June 2023.
The Plaintiffs seek the relief in their substantive Notices of Motion for judicial review pursuant to Order 16 r 5(1) each filed on 4 August 2023, namely relief in the form of certiorari, declarations, prohibition and/or injunction and costs.
The documents relied upon by the parties are detailed in the List of Documents filed on 19 June 2025 together with the Plaintiffs’ Order 16 r 3(2)(a) Statements in Support filed on 21 June 2023.
The Plaintiffs’ primary challenge to the decisions is that NICTA did not calculate the UAS Levy as s.107 of the Act requires and, consequently, did not have power to make the decisions. It is their primary position, in brief, that s.107 only permits NICTA to impose a levy which is calculated as an amount sufficient to ensure it has sufficient funds in the UAS Fund, established by the Act, to pay disbursements which are expected to be made from that fund in the fiscal year to which it relates.
On their case it is submitted that the evidence establishes that NICTA did not have the power to make any levy at all on the Plaintiffs in 2023 as the UAS Fund had sufficient funds to cover the anticipated disbursements from it in 2023.
NICTA seeks the dismissal of the proceedings with costs. It is its position that the Plaintiffs have not made out any ground for review and that at all material times NICTA acted in good faith and within the confines of the Act.
Central to the arguments of the parties and the Court’s determination of the issues is the proper interpretation of s 107(2) of the Act, the provision of the Act that enables NICTA to impose an annual levy on the Plaintiffs.
For the reasons that follow I uphold the ground of review based on want or excess of jurisdiction, a finding dispositive of the application for judicial review without the need to consider the further grounds of review pleaded by the Plaintiffs. I also grant the relief sought in the Plaintiffs’ Notices of Motion pursuant to Order 16 r 5(1) of the National Court Rules (NCR).
Before I outline the reasons for my decision, it is necessary to detail the relevant background before moving to a consideration of the legislative framework within which the decisions were made. Where appropriate, I shall use emphasis for clarity and discussion purposes.

CONTEXTUAL BACKGROUND

Digicel and Hitron are companies incorporated in Papua New Guinea (PNG) engaging in the provision of mobile telecommunications services.
Hitron is a wholly owned subsidiary of Digicel.
NICTA is a statutory corporation established by s 8 of the Act to regulate the information and communications technology (ICT) industry in PNG.
One of NICTA’s functions is to issue various licences to entities which participate in the ICT industry in various ways (operator licensees). The Plaintiffs are operator licensees.
Another of NICTA’s functions is to administer the UAS Fund established under s 89 of the Act.
The main purpose of the UAS Fund is to promote long term economic and social development through its funding of UAS projects.
It is unclear on the evidence when the UAS Fund was first established. It was necessary for it to be re-established on 5 October 2016, having, according to a letter from the then Secretary of the Department of Finance to the General Manager of the Bank of Southern Pacific, lapsed nine (9) years earlier. The Act only came into force on 2 August 2010.
The main asset of the UAS Fund is a bank account set up under s 103 of the Act into which funds must be deposited.
The UAS Fund is not part of the consolidated revenue of the State. It must be accounted separately as a Trust Account pursuant to the Public Finance Management Act 1995.
Section 100 of the Act identifies the sources of finance for the UAS Fund, one of which is a levy imposed by NICTA on operator licensees, such as the Plaintiffs, pursuant to s 107 of the Act.
The UAS Levy, once imposed, is a debt owed to the Independent State of PNG.
Pursuant to s 107(2) of the Act, NICTA shall set the levy as a percentage of net revenues of each operator licensee under the conditions that the percentage would achieve the desired level of funding for the UAS Fund for a specific fiscal year.
As provided under s 22 of the National Information and Communications Technology (Operators Licencing) Regulations 2010 (the Regulations) the UAS Levy is set as a percentage of net revenues of operator licensees at a level that does not exceed 2% of their net revenue.
NICTA commenced issuing UAS levies in about 2016.
From 2016 to 2023 NICTA issued requests to all operator licensees requiring them to provide details of their net revenue for the purpose of determining the UAS Levy percentage.
NICTA issued levies in each of those years, save for 2019. The levies are used to fund approved UAS projects.
The process adopted by NICTA in pursuance of its statutory obligations is detailed in the affidavit of Warren Suti, Manager Project Planning of the UAS Secretariat filed 1 May 2025.
The process for the funding of UAS projects will be discussed later when the scheme of the Act is considered in more detail. However any UAS project that requires funding over a K1 million threshold is subject to the public procurement process administered by the National Procurement Commission (NPC) which process is outside NICTA’s control. This involves the issuing of tender notices by the NPC on behalf of NICTA, a lengthy process on the evidence of Mr Suti (at [39] of his affidavit filed 1 May 2025). Most projects requiring funding over the threshold limit are not implemented as scheduled.
It is the Plaintiffs’ case, not challenged by NICTA, that the process adopted by NICTA to recommend UAS projects and determine UAS levies has historically been the subject of dispute resulting in a number of judicial review proceedings before this Court, for which leave to review has been granted and where each of those proceedings has been later settled (see affidavits of Michael Gaius Ravu Henao filed 24 June 2023 at [30]-[32] and Warren Suti filed 1 May 2025 at [27]).
By letter dated 25 August 2022 to NICTA, Digicel, on behalf of itself and Hitron, expressed legal and procedural concerns with respect to the 2022 levies imposed and the approach that had been adopted by NICTA which had, it said, infected earlier levies. Amongst other things, NICTA was requested to give an undertaking that prior to issuing any further UAS Levy invoice in the future, it would:

... in accordance with its functions and responsibilities pursuant to s 122 of the Act publish the annual reports of the UAS Board including the audited financial statements for the UAS Fund for each of the past five years...

By letter dated 20 September 2022, NICTA responded, in part, as follows:

...

(b) To publish the annual reports of the UAS Board, including the audited financial statements of the UAS Fund pursuant to Section 122 of the Act:

NICTA has been unable to publish these (and some other reports) because the Auditor General’s office has been unable for some time to arrange the audits required in time. You will appreciate that it is not for NICTA to canvass issues that other agencies may be having. Suffice to say, however, we understand this to be a matter that affects more than reporting by NICTA and the UAS Board.

Your letter is really making a case for transparency with which NICTA agrees. Therefore, I am taking action to see what can be published, even if the financial statements involved have not been audited. I intend to publish as much as possible, with appropriate caveats in relation to the financial statements involved.

It is the Plaintiffs’ case that the reports were not published.
On 5 October 2022, Digicel wrote to the CEO of NICTA in response, stating in part that s 106 of the Act does not require the UAS Fund to be audited by the Auditor General’s Office because it is to be undertaken by an independent auditor who is not from the Auditor General’s Office, the Auditor General’s discretion to audit the fund supplementary to the annual audit that is required to be undertaken. Digicel went on to state that the Auditor General’s Office does not have a role in the appointment of the independent auditor and as such should not be an impediment to the regular audit of the fund. Digicel sought NICTA’s urgent advice “explaining why an independent auditor has not been appointed to undertake this important activity thus far, and your confirmation that the procedure specified by the Act has been and/or will be followed by NICTA in the future”. The Plaintiffs reserved their rights.
It is the Plaintiffs’ case that there was no response to this letter.
On 6 October 2022 NICTA created the “UAS Strategic Plan” covering five (5) years from 2023 to 2027.
On 7 October 2022 NICTA published a number of consultation documents on the UAS website including the Strategic Plan in which prospective UAS projects for the years 2023 to 2027 were identified. The document outlined at Part 3 three (3) initiatives during the five-year planning period and a series of programs under the initiatives, the programs to be implemented through a series of projects:

...which NICTA will design in consultation with relevant stakeholders and officials, subject to the approvals of the UAS Board and the Minister. Where appropriate, UAS Projects may combine elements of multiple initiatives and Programs within certain geographic areas. The range of specific UAS Projects to be implemented under each program will be set forth in each fiscal year’s UAS Projects Report, and the detailed specifications of each such project will be defined in a case by case basis, according to the parameters of any operation plans and priorities, and prevailing ICT sector development trends...

Under the Strategic Plan the levy was to be treated as a source of funding cumulative with other sources over a five-year period as follows:

4. Budget

Based on the initial estimates of expected mandatory UAS Fund contributions, GoPNG and donor support, NICTA forecasts the following approximate levels of Fund income over the planning period from 2023 to 2027. This forecast assumes that licensed operators will contribute up to 2% of their revenues annually as advised by the UAS Board and determined by NICTA. The resulting contribution amounts are conservative estimates and don’t take account of possible other sources of Fund contributions, or higher industry revenue growth.

Specific budget allocations for UAS Projects under each initiative and Program will be determined in the development of annual Operational Plans, following these budgetary guidelines.

The summary of estimated budget allocation for each initiative in each year, following from the above total budget forecast are provided below.

The budget summary for the three UAS Initiatives was then shown at 4.1 as K32,250,000 for each of the five years.
It is the Plaintiffs case that in the Strategic Plan NICTA:
1. Listed three high-level “Initiatives” it intended to pursue over the course of the five years in accordance with the objectives of the UAS Fund in s 90(1) of the Act.
2. Grouped under each of those initiatives a number of “Programs” which were also high-level with a total of seven Programs allocated among the three Initiatives.
1. Each of the Initiatives and Programs simply grouped activities which would be pursued with the intent of achieving the objectives of the Act, however none was a proposal to build or complete any particular “Project”. Rather the Plan distinguished between the Initiatives and the Programs on the one hand, and Projects on the other when it noted that concrete Projects might involve activities which incorporated elements of the various Initiatives and Plans and that specific Projects would be identified in reports submitted to the Minister by the UAS Board for his approval pursuant to the Act.
1. The Budget for the Initiatives and Programs in an amount of K32,250,000 for each year from 2023 to 2027 was not an estimate of the actual cost of any Projects in any year as no such Projects had been defined and costed. Rather it was an estimate of how much could be made available for the UAS activities from various sources, including from levies on licensee operators such as the Plaintiffs.
The deadline for submissions was 4 November 2022.
By letter dated 11 October 2022 Digicel sought a four (4) week extension to respond to the submission.
By letter dated 1 November 2022, NICTA extended the response deadline by two (2) weeks to 21 November 2022.
On 21 November 2022 the Plaintiffs lodged a joint submission in response to the consultation papers. With the reference to the UAS Levy it inter alia:
1. Referred to NICTA’s inability to implement UAS Projects in the past and likely inability to implement the UAS Strategic Plan and projects proposed;
2. Stated that levying the operator licensees, including the Plaintiffs, in the way foreshadowed in the consultation papers was not permissible under the Act because the foreshadowed method of calculation:
  1. was based on the indicative budgets rather than the forecast expenditure of approved UAS projects following the Minister’s approval, and
  2. was not determined according to the level of revenue required by the fund in each fiscal year to remain fiscally sound.
1. Referred to a lack of transparency in that they and the other stakeholders could not properly respond to the project proposals more generally because NICTA had not disclosed how the UAS Fund was managed, including the publication of audit reports or any other financial information in relation to the fund in accordance with its statutory obligations.
NICTA did not respond to the submission referred to in (a) and (b) and it did not make the requested financial information publicly available prior to the making of the 2023 decisions.
On 16 December 2022 NICTA submitted its 2023 UAS Project Report to the UAS Board for its consideration. The Plaintiffs assert that the report did not identify any specific projects or, a posteriori, set out any costings for any such projects. On its case what NICTA did was to identify geographic areas in which it intended to pursue programs within one of the initiatives over the course of the year. It otherwise apportioned the total indicative budget of K32,250,000 in the strategic plan to each of the initiatives and programs.
On 28 December 2022 the UAS Board approved NICTA’S 2023 Project Report whereupon it was submitted to the Minister.
On 9 February 2022, pursuant to s 108(5) of the Act, the Minister approved

... all UAS Projects listed in the Report for 2023 with the proposed aggregate budget of K32,250,000.

It is the Plaintiffs’ case that the aggregate cost was a very high-level estimate of what the costs of the projects to be undertaken might be for the 2023 year.
The Plaintiffs received the decisions dated 14 March 2023, made pursuant to s 107 of the Act, recorded in the following terms (reflecting different amount for Digicel and Hitron):

SUBJECT: 2023 UNIVERSAL ACCESS AND SERVICE (UAS) LEVY

Pursuant to Section 107(1) of the National Information and Communications Authority Act 2009 (the Act), please find enclosed (Invoice No.) and in the amount of K (amount) which is due and payable by 20 April 2023.

The Minister for Communications and Information Technology, Hon Timothy Masiu approved the following three (3) project initiatives for 2023: (i) Broadband Internet Initiative (ii) Meaning Connectivity Initiative (iii) Broadcasting Initiative at an aggregate cost of K32.5 million. The industry will only be levied for about half the total cost of the projects which is K16.7 million. The levy for 2023 has been set at 1.00% of the net revenues of each operator and will finance the implementation of these projects. The levy amount payable by (Digicel or Hitron) has been determined using financial information for the most recent fiscal year provided by you.

The invoice number for Hitron was No UAS 020-23 and for Digicel UAS 013-23.
The amount of the levy on Hitron for the relevant year was K299,131.11 and on Digicel, K11,801,211.66.
On 16 March 2023 the Plaintiffs became aware that NICTA had caused to be published on the UAS Fund website a letter dated 9 February 2023 from the Minister addressed to Mr Noel Mobiha in his capacity as Chairman of the National ICT Authority inter alia approving the 2023 projects in the report of the UAS Board.
A copy of the report from the UAS Board was not attached and has not been published. It is unchallenged that NICTA has not published on the UAS Fund website the annual reports of the UAS Board or NICTA.
In their respective Notices of Motion for substantive judicial review the Plaintiffs seek to challenge the decisions based on the interpretation and application of the Act they urge on the Court wherein it is submitted that NICTA was out of time to make any decision in relation to the application of a UAS Levy in respect of the 2023 fiscal year and otherwise did not base its calculations of the desired level of funding as required under s 107(2) and in the result was not lawfully entitled to issue a levy for that year. As such the Plaintiffs seek that the decisions be quashed and declared null and void.
Before I proceed to identify and consider the issues and arguments advanced I shall provide an overview of the Act before briefly outlining relevant principles of statutory interpretation and judicial review.

THE LEGISLATIVE FRAMEWORK

The purpose of the Act as captured in its Preamble is inter alia to regulate the ICT industry, to regulate radio communications and spectrum and to provide for the establishment of NICTA.
Section 2 sets out the objective of the Act which is “to ensure that the ICT industry contributes to the greatest extent possible to the long term economic and social development of the PNG” by means that are detailed in a non-exhaustive list at (a) to (h) of the section.
Section 3 details the regulatory principles that achieve the objective of the Act which includes transparency, prior public consultation, published explanations and public clarifying guidelines (s 3(b)(iii)).
Section 107 lies within Part V of the Act titled UNIVERSAL ACCESS AND SERVICE REGIME (ss 88 to 122).
Section 88 of Division 1 of Part V provides a simplified outline of the UAS Fund as follows:

88. SIMPLIFIED OUTLINE.

The following is a simplified outline of this Part -

(a) A Universal Access and Service Fund is established to promote the long-term economic and social development of Papua New Guinea by funding approved UAS Projects.

(b) A UAS Board is established to identify, develop, and cost UAS Projects to give effect to Government Policy.

(d) The UAS Board shall recommend proposals to the Minister in a UAS Project report who shall accept or reject UAS Projects.

(e) A Universal Access and Service Fund will be sourced from Government contributions, industry levies and other grants or loans and shall be held in trust.

(f) NICTA shall implement accepted UAS Projects, including putting in place competitive processes and Project Agreements, administering compliance and directing the release of funds upon satisfactory completion.

(g) Each of the UAS Board, NICTA and the Minister shall report annually on the application of the Universal Access and Service Fund.

Division 2 (ss 89 – 90) concerns the establishment of the UAS Fund which is a designated fund held in trust for the specific purpose of funding UAS Projects that will “promote the long term economic and social development of Papua New Guinea by funding approved UAS Projects that will encourage the development of ICT infrastructure and improve the availability of ICТ services within Papua New Guinea, including in rural communities” (s 90(1).
A UAS Project is defined in s 4 of the Act to mean:

a project, consistent with the objective of the Universal Access and Service Fund, involving the exercise of facilities rights and/or the supply of ICT services, submitted to the UAS Board for consideration by a stakeholder or otherwise developed by the UAS Board, in the manner described in Division V.5

Division 3 (ss 91 – 99) concerns the administration of the UAS Fund.
A body called the UAS Board is created by s.91. It comprises the Chairman of NICTA, the Heads of each of the Departments responsible for telecommunications and Technology, for National Planning, and for Financial Management, as well as a member from the private sector with relevant attributes (s.92)
The UAS Board is supported by a Secretariat, which inter alia assists the Minister and the Board with their respective functions under the Act, including executing UAS Projects sourced from the UAS Fund in accordance with project agreements (s 99).
The functions of the UAS Board are detailed in s 91 and include implementing the objective in s.90, to publicise the UAS Fund and its objective, advise the Minister, receive and develop UAS Project proposals and submit to the Minister, consult organisations about the UAS Fund, prepare and publish an annual report to the Minister on the activities of the UAS Board and give effect to government policy (s.91(2)(a)-(h)) see also s 98(2)).
The Minister may notify the UAS Board and NICTA of government policy for utilising the UAS Fund (s 98 (I)).
The approved UAS Projects referred to in s.90 are UAS Projects which have been approved by the Minister upon the recommendation of the UAS Board (s 108(5)(b)).
There is no obligation on the UAS Board to recommend, or on the Minister to approve, any UAS Project in any fiscal year. If a project is recommended it lapses if not approved (s 108(6)).
UAS Projects as defined in s 4 of the Act and elsewhere in Part V refer to projects which involve granting access to IT infrastructure or otherwise making available information and communication technologies and facilities to the people of PNG.
With respect to the role of NICTA, s 7 of the Act details a simplified outline as follows:

The following is a simplified outline of this Part –

(a) A body corporate known as the National Information and Communications Technology Authority (NICTA) is established with various functions and powers.

(b) NICTA comprises four Members, being three non-Executive Members and the Chief Executive (ex officio).

(c) NICTA is supported by its staff which comprises the Chief Executive and employees of NICTA. NICTA and its staff may be supported where necessary by external consultants.

(d) NICTA meets at least once every two months and decisions are made by a majority vote.

(e) NICTA is funded from a number of sources, including operator licensing fees, numbering fees and radiocommunications fees.

(f) NICTA is subject to a range of obligations intended to ensure independence, transparency and accountability.

Section 9 of the Act details the functions of NICTA as follows:

(a) to give effect to the objective of this Act and the regulatory principles; and

(b) to provide advice to the Minister in the formulation of Government Policy in respect of any aspect of this Act or that otherwise promotes the objective of this Act; and

(c) to exercise all licensing and regulatory functions in relation to the ICT industry as are contemplated by this Act; and

(d) to oversee the performance of ICT licensees and their compliance with this Act and any mandatory instrument; and

(e) to assist the ICCC to investigate complaints regarding market conduct for the purposes of the ICCC enforcing compliance with laws relating to market conduct in the ICT industry in Papua New Guinea; and

(f) to develop and monitor a system for reviewing and responding to complaints by retail customers in relation to ICT services; and

(g) to consult, where appropriate, commercial, industrial and consumer organisations about any matter relating to the ICT industry or this Act; and

(h) to act as the duly appointed representative of the State at all international bodies or authorities which have the purpose of regulating or administering ICT services and radiocommunications; and

(i) to develop and monitor procedures for ensuring the safety and quality of ICT services and radiocommunications; and

(j) to make available to persons engaged in the ICT industry and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of NICTA under this Act; and

(k) to conduct research in relation to matters affecting the interests of consumers of ICT services; and

(l) to make available to the public general information in relation to matters affecting the interests of retail customers of ICT services; and

(m) to perform such other functions as are assigned to or conferred on NICTA under this Act or any other law.

NICTA has three broad functions under the Act, none of which involve it in any policy decision-making. They are:
1. Identification of possible UAS Projects and submitting them to the Board for consideration. In performing this function it is required to invite input from stakeholders as to whether the project should be recommended to the Board inter alia as one which meet the criteria as a project able to be subsidised out of the UAS Fund (s 108). The Plaintiffs are stakeholders within the Act as defined in s 4.
2. Developing, implementing and managing any UAS Project recommended by the UAS Board and approved by the Minister, through a structured competitive process to select a third-party provider to carry out the projects, entering into a project agreement with the selected bidder, supervising the performance of the contract to completion, and making payments due under the contract out of the UAS Fund (ss 109 – 118). No disbursement can be made from the UAS Fund in respect of a UAS Project until after NICTA has entered into a project agreement for its performance.
1. Management of the UAS Fund including the receipt and banking of levies to the fund bank account as well as directing payment from the bank accounts of the UAS Fund of amounts due under project agreements (ss 103, 104). It must keep the accounts of the UAS Fund and facilitate an audit by an independent auditor each fiscal year and publish on its website the annual report of the UAS Board to the Minister, a report the Board is required to submit inclusive of audited statements of the UAS Fund within 90 days of the end of the fiscal year (ss 106, 120(2)(a), 122(2)).
Division 4 of Part V (ss 100 – 107) concerns the financial management of the UAS Fund. The UAS Fund is financed from a variety of sources which are listed in s.100 as being:
1. all monies appropriated for the purpose of the Universal Access and Service Fund; and
2. all monies received from the Universal Access and Service Levy paid by operator licensees in accordance with Section 107; and
1. all monies paid pursuant to Sections 32(2)(a) and 36(2)(b)(i); and
1. all monies paid by any person for the purposes of Universal Access and Service Fund; and
2. amounts appropriated as Government contribution to a project which is partly funded by an international agency, whether by loan or grant.
A UAS Fund Trust account, managed by three trustees of the UAS Fund Trust, consisting of the Chairman of the UAS Board and the Heads of the Departments of communication and information and finance, is established to receive funds intended to finance the UAS Fund (s 102).
The funds are inter alia “public monies appropriated for the purpose of (the) Trust Account” (Annexure B to the affidavit of Kila Gulo-Vui filed 6 December 2023).
The funds are managed with strict prudential oversight (ss 88(e), 102(2), 103(4); see also Annexure B to the affidavit of Kila Gulo-Vui filed 6 December 2023).
The funds cannot be used as collateral or for a loan or otherwise encumbered (s 89(3)).
The Trustees of the UAS Fund are required inter alia to ensure that any cash reserves of the Fund are prudently invested (s103(4)).
Monies are to be paid out of the UAS Fund only if all of the criteria in s 103(6) is met including sufficient credit available in the Trust Account so that it can meet its expected payments when they arise (s 103(6)(c)).
The management of the UAS Fund is dealt with in s 104 with a focus on the annual revenue that is to come from the fund, so that it could pay out for work done in the year in which the annual revenue is concerned.
Section 104 is titled MANAGEMENT OF UNIVERSAL ACCESS AND SERVICE FUND MONIES.
It provides:

(1) NICTA shall be the Fund Manager for the Universal Access and Service Fund.

(2) Subject to the Provisions, as prescribed, of the Universal Access and Service Fund Trust, the responsibilities of the Fund Manager include, but shall not be limited to, the following –

(a) receiving funds collected from operator licensees as Universal Access and Service Levies imposed pursuant to Section 107; and

(b) directing the disbursement of funds from the Universal Access and Service Fund in accordance with Section 117; and

(i) the amount of annual revenue required to ensure that the Universal Access and Service Fund remains fiscally sound; and

(ii) the calculation of the rate of assessment for the Universal Access and Service Levy imposed pursuant to Section 107.

(3) Subject to Subsection (4), the money in the Universal Access and Service Fund shall be utilised exclusively for the payment of subsidies relating to UAS Projects and shall not be used by NICTA for any other purpose.

(4) NICTA shall budget for its forecasted costs in performing its UAS Secretariat (including Fund Manager) role as a category of forecast expenditure within its budget prepared under Section 31 and, subject to the provisions, as prescribed, of the Universal Access and Service Fund Trust, is entitled to recover a reasonable contribution to its cost directly associated with the fulfilment of its obligations under this Part from the Universal Access and Service Fund.

As detailed NICTA’s fund management is thus responsible for:
1. receiving the levies collected under s 107 of the Act from licensee operators;
2. directing the disbursements of the funds in accordance with s 117 of the Act, on the conditions of any project agreements being met; and
1. collaborating with the UAS Board to determine the amount of annual revenue required to ensure that the UAS Fund remains fiscally sound and the calculation of the rate of assessment for the levy imposed under s 107 of the Act.
It is uncontested that depending of the nature of an approved UAS Project work on an approved Project may not commence in the fiscal year in which it is approved by the Minister and may take several years to complete.
Section 105 recognises that there may be surpluses in the UAS Fund in particular years and provides that they can be retained as reserves for funding in subsequent years by providing as follows:

105. SURPLUSES AND RESERVES.

(1) The Fund Manager may establish reserves from surpluses resulting from the Universal Access and Service Levy or other sources of funding for the purpose of funding UAS Projects in future years.

(2) Any surpluses in the Universal Access and Service Fund shall be used for the purposes of fulfilling the objective of the Universal Access and Service Fund, as set out in Section 90.

Section 106 provides for an independent annual audit of the UAS Fund with those reports to be annexed to the annual report to the Minister. It states:

106. AUDITOR.

(1) The Minister, in consultation with NICTA and the Departmental Head of the Department responsible for treasury matters, shall appoint an independent auditor for the Universal Access and Service Fund, who shall provide an annual audited financial statement that shall be included in NICTA' s annual report to the Minister.

(2) The Auditor General of Papua New Guinea may at his discretion audit the Universal Access and Service Fund from time to time.

It is unchallenged that the UAS Fund has never been audited. On the submission of Counsel for NICTA requests for the appointment of an independent auditor have been unsuccessful. Further, while the annual financial statements have been submitted to the Auditor General for auditing that has not occurred.
Section 107 of the Act follows and is in these terms:

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.

Pausing at this juncture, it is clear that:
1. while NICTA may impose a levy pursuant to s 107(1), the terms of the provision do not compel it to do so;
2. if the levy is imposed, then by virtue of s 107(2), it must be calculated in accordance with the provisions that follow, namely as a net percentage of the net revenues of each operator licensee at a level to be determined once a year and to apply from the beginning of that fiscal year;
1. the levy imposed is calculated with regard to the considerations in s 107(2) (a) and (b) inter alia to achieve the desired level of funding for the UAS Fund for the relevant year, in this case for 2023 (with provisions for deductions of some amounts not relevant in the present context) to ensure a sufficient level of funds to meet its anticipated outgoings that year, such levy not to exceed a maximum percentage as prescribed in the regulations; and
1. once imposed the levy becomes a debt owing to the State.
Division 5 (ss 108 – 114) is titled UAS Projects and Associated Subsidies.
Pursuant to s 108, and having regard to government policy, the UAS Board engages NICTA to identify, develop and estimate the indicative costs of UAS Projects, estimate a proposed aggregate budget for all UAS Projects to be undertaken under Part V for the relevant period identified by the Board, rank the projects in order of priority and prepare a report for the Board. That report is then considered by the Board which prepares a report for the Minister with its recommendations. The report known as the UAS Project Report is to be submitted to the Minister for his consideration “at least once in every calendar year” (s 118(3)), the Minister required to respond with his decision within 60 days of receipt of the report failing which at the end of that period he is taken to have rejected the projects identified in the report (s 118(5) and (6)).
Division 6 (ss 115-118), which is titled Project Agreements inter alia deals with the execution and monitoring of project agreements by NICTA and authorisation for NICTA to direct the trustees of the UAS Fund to disburse funds in accordance with the timetable and amounts in any agreement.
Division 7 (ss 119-122) is titled Transparency and Accountability. It includes a range of provisions which impose on NICTA an obligation to fulfil its function in an open and transparent manner (e.g., s. 3(b)(iii) and Division 7 - Transparency and Accountability).
In this regard there are important reporting requirements, including financial requirements by NICTA to the UAS Board (s 119), by the Board to the Minister, including a requirement that the audited statements be included in its annual report to the Minister within 90 days of the end of the fiscal year (s 120) and by the Minister to Parliament which requires the tabling of the Board’s annual report (s 121).
I set out those provisions in full.

Division 7. — Transparency and Accountability.

119. REPORTING BY FUND MANAGER.

(1) Within sixty (60) days after the end of each fiscal year, NICTA shall submit an annual report to the UAS Board and the Minister on the financial situation and performance of the Universal Access and Service Fund and the Universal Access and Service Fund Trust Account.

(2) NICTA shall include in the report submitted under Subsection (1) –

(a) a report on its activities, including activities in support of the Minister and the UAS Board relative to the Universal Access and Service Fund and NICTA's implementation functions; and

(b) a statement of the current amount of monies or other investments held in the Universal Access and Service Fund Trust Account; and

(d) a record of disbursements made from the Universal Access and Service Fund Trust Account; and

(e) a record of the Universal Access and Service Levies or other monies accruing to the Universal Access and Service Fund.

(3) NICTA shall provide information or any special reports relevant to this Part as requested by the UAS Board or the Minister.

120. REPORTING BY THE UAS BOARD.

(1) The UAS Board shall submit an annual report on its activities under this Part to be submitted to the Minister within ninety (90) days of the end of the fiscal year.

(2) The UAS Board shall include in its annual report (without limitation) –

(a) the audited financial statements of the Universal Access and Service Fund; and

(b) the annual report from NICTA as required under Section 119; and

121. REPORTING BY THE MINISTER.

The Minister shall table the annual report of the UAS Board before Parliament at the first available opportunity.

Finally, s 122 provides for NICTA to establish and maintain a website for the UAS Fund as follows:

122. WEBSITE.

(1) Within six (6) months of the Succession Date, NICTA shall establish a website for the Universal Access and Service Fund.

(2) Subject to Subsection 108(8), NICTA shall include in the Universal Access and Service Fund website information regarding the activities undertaken by the UAS Board and NICTA in fulfilling the objective set out in Section 90, including (without limitation) -

(a) the annual reports of the UAS Board; and

(b) NICTA's annual reports; and

(d) information about UAS Project proposals; and

(e) information about current UAS Project requests for proposals; and

(f) information about current and past UAS Projects which have been awarded funds from the Universal Access and Service Fund; and

(g) the Act and any other legislation, regulations, guidelines or procedures regarding the fulfilment of the objectives set out in Section 90; and

(h) any other information that the UAS Board and/or NICTA consider relevant and appropriate for inclusion on the website.

(3) NICTA shall endeavour to keep the information on the Universal Access and Service Fund website up to date.

RELEVANT PRINCIPLES OF STATUTORY INTERPRETATION

The principal issue in these proceedings is the correct approach to the interpretation of s 107 and its proper characterisation.
The following legal principles of statutory interpretation which arise on the authorities and from the submissions will guide the Court.
The first principle is that a statutory provision must be construed purposively in the context of the Act considered as a whole and with regard to the interests of justice (Inakambi Singorom v. John Kalaut [1985] PNGLR 238; PLAR No. 1 of 1980 [1980] PNGLR 326; Reference by the East Sepik Provincial Executive (2011) SC1154; Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852; Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879; Hagahuno v Tuke [2020] SC2018).
There are however exceptions to the general rule if the provision being construed is a taxing provision. In Hagahuno v Tuke [2020] SC2018 (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J), Kandakasi DCJ said at [57] and [61]:

57. ..... it is settled law that, the fair large liberal and purposive approach should be employed for the interpretation and application of a Constitutional law and other statutory provisions as opposed to the narrow and restrictive approach. The Supreme Court has been repeatedly making this point clear and have also applied the principle in many cases...

....

61. There are however, two well-known exceptions to the above position of the law. The first of the two exceptions are in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. The reason for this exception is simple. For the imposition of a tax or a charge against a subject, Parliament needs to express that intention in clear and unambiguous terms in the relevant statute. A failure to do so, would result in an interpretation that is favourable to taxpayers.

The rule of strict interpretation applying to tax legislation has been recognised in this jurisdiction (Mairi v Tolo (No 2) [1976] PNGLR 125; Mileng v Tololo [1976] PNGLR 447; IRC v Dr Pirouz Hamidian Rad [2002] SC692; PNG Power v Registrar of the National Court [2013] SC1335 at [49]; Special reference by the Attorney General [2016] SC1534 at [65]).
In Mairi v Tolo (No 2) [176] PNGLR 125, following a summary of long recognized authoritative statements that call for Courts to follow the precise wording of taxing statutes and not to alter or supplement them by words of their own to better effect the intention of Parliament, the plurality of the Supreme Court (per Prentice DCJ and Williams J) cited with approval the well-known passage by Rowlett J in Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB 64 at [71]:

In a taxing Act one has to look at what is clearly said. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.

The Court also quoted from a passage from Attorney General v The Earl of Selbourne [1901] UKLawRpKQB 215; [1902] 1 KB 388 at [396] where Collins MR said:

[The Crown fails] if the case is not brought within the words of the statute, interpreted according to their natural meaning, and if there is a case which is not covered by the statute so interpreted that can only be cured by legislation, and not by an attempt to construe the statute benevolently in favour of the [Crown].

These passages were considered and approved by Sheehan J in R.H. Rayner (Mincing Lane) Limited v The Chief Collector of Taxes [1993] PNGLR 416 and again by the Supreme Court (Amet CJ, Sevua & Kandakasi JJ) in IRC v Dr Pirouz Hamidian Rad [2002] SC692 where Kandakasi J (as he then was) said:

The authorities also state that, only in a clear case of an irrational result being suggested by the words of Parliament, the Courts may depart from the literal and natural meaning. Care must of course be exercise (sic) in such a case to ensure that the Court does not devolve into the sphere of law making in the disguise of statutory interpretation...

In R.H. Rayner (Mincing Lane) Limited v The Chief Collector of Taxes (supra), Sheehan J reiterated this principle citing with approval a passage of Gibson J at p 304 in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 CLR 297 as follows:

There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case.

Finally, I refer to a passage from the majority (Gibbs CJ, Wilson, Deane and Dawson JJ) at [64] in MacCormick v Federal Commissioner of Taxation (1984) 52 ALR 52:

For an impost to satisfy a description of a tax it must be possible to differentiate it from an arbitrary exaction and this can only be done by reference to the criteria by which the liability to pay the tax is imposed. Not only must it be possible to point to the criteria themselves, but it must be possible to show that the way in which they are applied does not involve the imposition of liability in an arbitrary or capricious manner...

THE PROPER CHARACTERISATION OF S 107

Applying these principles, I accept the submission on behalf of the Plaintiffs that s 107 is a taxing provision.
It is an imposition of a pecuniary liability being a compulsory extraction imposed in respect of a fiscal year for the purpose of raising revenue to be distributed by a public authority established under the Act for government purposes, namely funding its projects, the public authority with reporting requirements to the relevant Minister and the levy imposed under the hand of the relevant Minister (MacCormick v Federal Commissioner of Taxation (1984) 52 ALR 52 at [60] and [64]; see also Lower Mainland Dairy Products Sales Committee v Crystal Dairy Ltd [1933] AC 168 cited with approval in Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263 per Latham CJ at [276]).
As a taxing provision, s 107 should be construed strictly in accordance with the principles earlier outlined. This means that for it to be a valid law, it must be properly imposed, strictly in terms of what is clearly said in the Act, including the criteria according to which the amount of tax is determined. As the majority (Gibbs CJ, Wilson, Deane and Dawson JJ) said in MacCormick v Federal Commissioner of Taxation (1984) 52 ALR 52 at [62], citing with approval Deputy Commissioner of Taxation v Hankin [1959] HCA 2; (1959) 100 CLR 566 at 576-577:

...a stream cannot rise higher than its source.

If the liability depends upon specified criteria, and if the tax is not imposed strictly by reference to those criteria, the liability will be unlawful.

RELEVANT PRINCIPLES OF JUDICAL REVIEW

Judicial review is a special procedure developed to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public powers conferred by statute (Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317).
Judicial review is available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision that no reasonable tribunal could have reached or abuses its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion but to examine the decision-making process (Kekedo v Burns Philp Ltd & Ors [1988-89] PNGLR 122 (see also Order 16 r 13 of the NCR).

THE ISSUES

The Plaintiffs’ primary position is that the decisions were not lawful decisions, because in imposing the levies NICTA failed to comply with the requirements of s 107 and relatedly, s 104(2)(c) of the Act (see written submissions filed 13 June 2024 at [42]) and as such acted in want or excess of its jurisdiction.
The issues as identified by the parties and on the evidence are as follows:
1. whether on interpretation and application of the Act NICTA was out of time to make any decision in relation to the application of its UAS Levy in respect of the 2023 fiscal year; and
2. whether on interpretation and application of the Act NICTA was lawfully entitled to issue the UAS Levy invoices to the Plaintiffs for the 2023 fiscal year.

CONSIDERATION

Whether on interpretation and application of the Act NICTA was out of time to make the decisions

It is submitted on behalf of the Plaintiffs that on proper interpretation of the Act and the definition of fiscal year in s 3 of the Interpretation Act 1975 the levies under review should have been determined and applied no later than the 1 January 2023. This is because the amount of the applicable levy cannot apply from the beginning of the fiscal year to which it relates, as required by s 107(2) if it is not determined beforehand. Further, the desired level of funding for the fiscal year in question will not be achieved if the levy is not made by the beginning of it. It is contended that the levy does not become a source of funds for the year until the levy is made, creating the debt provided in s 107(5) which is payable immediately by the operator licensee under s 107(4), absent any regulation pursuant to s 107(7).
It is submitted on behalf of NICTA that as the fiscal year commences on 1 January, if 1 January is what the legislature intended “the beginning of each fiscal year” to mean in terms of issuing of a levy, then it is impracticable as I January is a public holiday, government departments are closed and even if it is not a public holiday NICTA will not be able to deliver to all operator licensees, some of whom are based in outside provinces, the levy invoices within that day as asserted by the Plaintiffs. There are also other practical considerations for NICTA in the conduct of their tasks prescribed by the Act within the year prior to the issuing of the levy so that the levy can be applied at the beginning of the fiscal year. Those practical considerations are detailed at [36] to [40] of NICTA’s written submissions.
It is further contended on behalf of NICTA that the only relevant timeframes provided by the Act are that NICTA apply the levy at the beginning of each fiscal year under s 107(2) and that the Minister provide his determination within 60 days of receiving the project report from the UAS Board under s 108(6). Given the vacuum of timeframes, and the Act and Regulations being silent on a definition of the beginning of each fiscal year, it is contended that it is logical and practical that the beginning of the fiscal year in terms of applying the levy would not be limited to a particular date and that given that the year is made up of 12 months it is thus logical that the beginning of the fiscal year would be a timeframe or a period such as from January to April, the middle of the fiscal year would be from May to August and the end of the fiscal year would be from September to December. Accordingly, it is submitted, based on each year being broken into three sections, the levies under review fell within the first section of the year and thus the beginning of the year.
The submissions on behalf of NICTA are arrived at by virtue of a combination of the principles of statutory interpretation as to how to approach the meaning of words and phrases which are not defined, the Constitution and ss 3 and 12 of the Interpretation Act.
With respect to the latter, when considering the provisions of s 12 of the Interpretation Act NICTA submits that it has endeavoured “with all convenient speed” to issue the levy at the beginning of each fiscal year which it did in the 2023 fiscal year by issuing the levies on 14 March 2023.
In that regard, s 12 of the Interpretation Act provides:

Where no time is prescribed or allowed within which an act is required or permitted by a statutory provision to be done the act shall or may be done as the case may be with all convenient speed and as often as the occasion arises.

Having considered the submissions advanced on behalf of the parties, I am able to comfortably conclude that the decisions under review were not lawfully imposed because they were not determined and applied by no later than from the beginning of the fiscal year as required by s 107(2) of the Act.
This is because the fiscal year commences on 1 January of each year and runs for a period of 12 months. This is clear from a combined reading of relevant provisions of the Constitution and Interpretation Act as follows.
The Constitution defines fiscal year in Schedule 1.2 (1) as

“fiscal year”, in relation to any activity of the National Government means the period of 12 months commencing on 1 July or on such other date as is fixed by an Act of the Parliament for the purpose;

The Fiscal Year (Change) Act 1977 however, amended the definition of fiscal year to provide:

For the purpose of the definition of “fiscal year” in Section Sch 1.2 (1) of the Constitution 1 January is fixed as the date on which each fiscal year of 12 months shall commence.

Section 3 of the Interpretation Act defines fiscal year as:

“fiscal year” or “financial year” means–

(a) in relation to a fiscal or financial year prior to 1 July 1977– the period of 12 months commencing on 1 July; or

(b) the period commencing on 1 July 1977 and ending on 31 December 1977; or

(c) in relation to a fiscal or financial year commencing on or after 1 January 1978–the period of 12 months commencing on 1 January of any year or on any date specified under Subsection (3) in place of 1 January;

The Court rejects the submissions on behalf of NICTA at [43] of written submissions as to the how the phrase, “from the beginning of each fiscal year”, should be interpreted in terms of the application of the UAS Levy. While a creative interpretation, it is one plainly at odds with the ordinary and natural meaning of the phrase.
Unless the meaning of the phrase is defined by a statutory provision or by judgment of the Court, its ordinary or natural meaning is to be used, unless to do so would lead to a preposterous or unjust result. This principle, described by the Supreme Court in Royale Thompson & Ors v Karingu [2008] SC 954 (Injia CJ, Mogish and Cannings JJ) at [7] as “just common sense”, applies to the interpretation of statutory provisions (PLAR No 1 of 1980 [1980] PNGLR 326; Paru Aki v Sir Moi Avei (No 2) [2003] SC 720; Hilary Singat v Commissioner of Police [2008] SC 910).
The ordinary meaning of the word “beginning” as detailed in any number of online dictionaries (Miriam-Webster, Oxford English, Cambridge) is “the point in time or space at which something begins”, “the earliest stage of something”, “the first part of something”, “the point at which something begins : start”, “the origin of something, or the place, time, or way in which something started”.
It is an ordinary meaning used and understood in any number of well-known contexts. For example, in Treasure Island, Robert Louis Stevenson (1883) wrote in Chapter 1 the following:

Squire Trelawney, Dr Livesey, and the rest of these gentlemen having asked me to write down the whole particulars about Treasure Island, from the beginning to the end keeping nothing back...

In the King James version of the Holy Bible we are told that God created heaven and earth over a period of seven days. In Genesis 1:1-5 we read:
1. In the beginning God created the heaven and the earth.
2. And the earth was without form and void, and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters.
3. And God said, Let there be light: and there was light.
4. And God saw the light, that it was good: and God divided the light from the darkness.
5. And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day.
Clearly, if the phrase “the beginning of” when considered in the context of a fiscal year is given its ordinary and natural meaning then the beginning of the year is January, not mid-March.
Where the fiscal year in PNG starts on 1 January, March, being the third month of a calendar cycle of 12 months, cannot thus be fairly construed as “the beginning of” the fiscal year.
January is a month that also accords with NICTA’s own timetable on page 6 of its 2023 UAS Project Report which had the tender process for approved projects commencing in January 2023.
In the context of a taxing provision, the word ‘beginning’ must be given its literal and natural meaning based on the intent, meaning and spirit of the legislation in question, here, legislation that permits the imposition of an annual levy where the fiscal year starts on 1 January (Digicel (PNG) Ltd v Commissioner of Internal Revenue Commission [2018] N7188 at [16])).
It is thus clear from the wording of the section, strictly interpreted, that the impost under s 107 is to be levied from the beginning of each fiscal year, namely 1 January, a date which compliments the scheme of the Universal Access and Service Regime in Part V of the Act. That scheme envisages the imposition of an annual levy to be determined in an amount necessary to bring the overall funding for the fiscal year in question up to the desired level of funding for that particular year to enable approved projects to be funded during the course of that particular calendar year consisting of a period of 12 months.
Nor, on the submission of NICTA, could the levying of an impost on 14 March, the third month into the fiscal year, be fairly described as an impost having been made “with all convenient speed” where the intent of the legislation requires a levy to apply from the beginning of each fiscal year, where a fiscal year starts on 1 January.
The Court is unable to conclude on the evidence before it that the work necessary to meet the scheduling required under the Act could not be undertaken in anticipation of the commencement of the relevant fiscal year such that the practical considerations raised on behalf of NICTA suggest that an interpretation based on the ordinary and natural meaning of the words used by Parliament would lead to a preposterous, unjust or irrational result.
To interpret the words in the manner urged upon the Court at [42] to [44] of the written submissions relied upon by NICTA, is, respectfully, to do the very thing that the authorities say the Court should not do.
Nor, is this a matter where a Judge is at liberty to “iron out the creases” (Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at p 499) where, to continue the metaphor, there are no creases to iron out, the problem not a “ruck” in the weave of the cloth but scheduling on the part of NICTA and the Board to meet the timeframes required under the Act and their statutory obligation to “exercise all licensing and regulatory functions in relation to the ICT industry as are contemplated by the Act” (s 9(c). It is the Government that sets policy as reflected in the Act and until the policy on timeframes is changed, it is NICTA who is required to ensure the policy is carried out. To do otherwise, and to again pick up the earlier metaphor, to “iron a cloth” where no ironing is required, not only defeats the intended purpose, but threatens to ruin the garment.
As the authorities make clear it is not the business of this Court to wade in and change the intent of the legislature or engage in judicial innovation where none is required. As the Court said in Mairi v Tolo, Secretary of Education (supra):

If the case is not brought within the words of the statute, interpreted according to their natural meaning; and if there is a case which is not covered by the statute so interpreted, that can only be cured by legislation and not by any attempt to construe it benevolently in favour of the (State).

The intent of the Act is clear. The levy is to be “determined annually and apply from the beginning of each fiscal year” (s 107(2)). The beginning of the fiscal year is 1 January. The Court accordingly accepts the submission on behalf of the Plaintiffs that the amount of the levy cannot apply from the beginning of the fiscal year to which it relates as required by subsection 2 if it is not determined beforehand. Further the desired level funding for the fiscal year in question will not be achieved if the levy is not made by the beginning of it.
A decision-maker must understand correctly the law that regulates its decision-making power and give effect to it (Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 per Diplock LJ).
If a power granted to a decision-maker is not properly exercised, the exercise of it is unlawful.
The power given to NICTA in s 107 to levy operator licensees is a power to levy no more than once a year. On a proper interpretation and application of the Act, in imposing the levies under review on 14 March 2023 and not on or before 1 January 2023 NICTA failed to meet the requirement in s 107(2) that the levy is to be “determined annually and apply from the beginning of each fiscal year”. It thus acted without jurisdiction. The decisions which imposed the levies were unlawful.

Whether on interpretation and application of the Act NICTA was lawfully entitled to issue the UAS Levy invoices to the Plaintiffs for the 2023 fiscal year

The primary position of the Plaintiffs is that NICTA had no power under s 107 to impose the levy in the manner it did because properly interpreted s 107 only empowers it to impose a levy in respect of a fiscal year inter alia:
1. to achieve the desired level of funding for the UAS Fund for that fiscal year;
2. which desired level of funding must be calculated as an amount which is sufficient to cover disbursements expected to be paid from the UAS Fund over the course of that fiscal year;
1. which desired level must be notified by the UAS Board to NICTA; and
1. if that desired level of funding for the fiscal year is less than the balance of the fund at the time the levy is made necessary to ensure the UAS Fund is sufficient to meet the amounts to be disbursed from it in that year.
The Plaintiffs contend that the material provided by NICTA by way of discovery pursuant to orders of this Court of 28 April 2025 evidence that the amounts levied pursuant to the decisions under review were not calculated to ensure that the UAS Fund was sufficient to cover anticipated disbursements from it in 2023. It demonstrates that NICTA did not have the power to make any levy at all on the Plaintiffs for the 2023 year.
While the submissions on behalf of NICTA are fulsomely canvassed at [54] to [106] of written submissions, other than as may be further outlined hereunder, the thrust of the submissions can be summarised as follows:
1. A strict interpretation of s 107(2) and the use of the word “shall” makes it mandatory for NICTA to apply a UAS Levy annually from the beginning of each fiscal year to all operator licensees in consideration of the conditions set out under s 107(2)(a) and (b). The power to levy must accordingly be exercised, the clear intent of the levy to finance the fund and achieve its objective to encourage the development of ICT infrastructure and improve the availability of ICT services within PNG.
2. Before the issuing of the levy NICTA complied with the three prerequisites it must consider, namely the desired level of funding for the UAS Fund for a fiscal year, advise the desired level of funding to the Board less any amounts paid to NICTA in previous years and ensure that the levy percentage did not exceed 2% of the operator licensee’s net revenue.
1. The Act calls for a desired level of funding which is an estimate or an indicative costing, not the actual costs of the projects approved by the Minister.
1. The levies imposed on the Plaintiffs were properly issued and issued within the relevant fiscal year, the levies based on a five-year strategic plan, the desired level of funding for each year being K32.5M based on the levy for each year. It is not an arbitrary figure because it is based on the strategic plan. The Act contemplates that some projects might not be completed within the relevant year and permits provision for surplus.
2. Contrary to the Plaintiffs’ claim, NICTA did collaborate with the Board on 28 December 2022 who advised to set a levy taking into account the UAS Project Report for approval by the Minister thereby fulfilling the requirements of s 104(2) of the Act.
3. With respect to the assertion that the collaboration done by NICTA and the Board is not done in a vacuum and the starting point must be the audited accounts of the fund as per ss 106 and 119, there is no mandatory requirement on NICTA and the Board that they must do so when collaborating to determine the desired level of funding provided for in s 107(2). NICTA has not been able to make these statements publicly available because it is yet to receive approval from the Minister to engage an independent auditor as required under s 106(1) and whilst it has sought approval from the Auditor General to audit the UAS trust account this has not occurred. Notwithstanding, NICTA is not prohibited by a failure to provide these financials from carrying out its statutory function and duty to impose a levy.
4. With respect to whether NICTA properly took into account, or at all, the requirements under s 105 to apply the surpluses or reserves already held in the UAS Fund prior to determining the levy for the 2023 fiscal year this submission is misconceived. The desired level of funding for the 2023 projects was K32.5M. As at 1 January 2023 NICTA had in the fund K34M plus. An additional K5.3M paid by Digicel was not paid into the fund trust account but is being moved to that account. These funds were not surplus funds but funds yet to be allocated to approved projects from previous years that were pending completion of the tender process, especially the process undertaken by the NPC and for project agreements entered into.
5. The Act does not specifically state that if there are surplus funds NICTA shall not issue a levy. Section s 105(2) only provides that surplus funds are to be used for the purpose of fulfilling the objectives of the UAS Fund, as set out in s 90 of the Act and does not go further to state if there are surplus funds NICTA must not issue a levy. Further there are a range of factors that can contribute to a delay in the delivery of a project, NICTA not prohibited by any delay from applying the levy each year as it is obligated and expected to do pursuant to s 107(2) of the Act.
6. With respect to the claim that decisions were based on projects which were not approved by the Minister, the Minister approved the projects on 9 February 2023.
7. The Court must caution itself when looking at questions of fact as alleged by the Plaintiffs as this would contravene s 263(1) of the Act, which provides that a person whose interests are affected by a decision inter alia by NICTA or the Minister may apply to the National Court only on a question of law. It should consider whether there are express provisions in the Act providing for the issuance of the levy and consider its strict application or whether there are none that requires its interpretation of the legislature’s intent, but consideration must also be given to the overall purpose of the Act.
For the reasons that follow I also find that the decisions under review were not determined in accordance with the requirements of the Act because they were not based on the achievement of a desired level of funding for the relevant 2023 fiscal year as required by s 107(2)(a). The levies were not calculated as an amount required to cover anticipated disbursements from the UAS Fund in 2023. Rather the levies were calculated to achieve indicatively budgeted revenues of K32.5M based on the UAS Strategic Plan for the five years 2023 to 2027, the amount required to fund the plan equalised and spread across that five-year period.
This may have been a method of calculation administratively convenient to NICTA, however it failed to meet its statutory obligations under s 104(2)(c) in collaboration with the Board to determine an amount of annual revenue required to ensure that the UAS Fund remained fiscally sound (s 104(c)(i)) and the calculation of the rate of assessment for the levy imposed under s 107 to achieve the desired level of funding for the UAS Fund for the 2023 year as advised to NICTA by the UAS Board (s 107(2)(a)).
In its letter dated 14 March 2023 notifying Digicel of the levy, being annexure MH4 to the Affidavit of Michael Henao filed 21 June 2023 (a letter sent to Hitron in similar terms save for the amount of the levy) NICTA said:

The Court accepts the submission on behalf of the Plaintiffs that NICTA wrongly treated the three high level initiatives of the Strategic Plan as projects and the indicative budget in it as the anticipated costs of projects to be undertaken in 2023, a finding clear on a consideration of the 2023 UAS Projects Report. It thus had no power to levy the Plaintiffs in that year.
It is unchallenged that NICTA only executed and paid for two projects in 2023 at a total cost of K924,822.70, a sum significantly less than the figure on which the levies were calculated. While it is submitted on behalf of NICTA that the funds in the UAS Fund at the commencement of 2023 were monies received for other projects approved in previous years and yet to be realised, there is no persuasive evidence to support the submission (see Affidavit Verifying Documents of Oala Moi filed 16 April 2025 pursuant to Order of 13 March 2025 whereby NICTA was required to give discovery with verification of documents in the categories details at [3]).
NICTA gave no direct evidence to this effect. Given the importance of the issue it would be expected that if there was evidence to support the submission it would be before the Court. While there is some reference in the UAS Secretariat Report at [7.1.1] to approved projects the subject of the procurement process (Board Minutes of 14 April 2023, being Annexure OM-8 of Mr Moi’s affidavit) it is not open to the Court to engage in speculation.
Section 105, which relates to surplus and reserves, provides no comfort to NICTA in this regard. It is not challenged that NICTA may properly undertake costing exercises and calculate what is needed to pay for a particular project in the course of a calendar year in circumstances where although the money is collected through a levy it is not expended or fully expended in the course of the calendar year for a number of reasons, including failure of the contracted party to perform, dispute or some other delay. All s 105 means is in that scenario the money will stay in trust to be applied in due course. It is a sum taken into account, or which should be taken into account, when considering what levies are to be imposed for the relevant fiscal year. It would be a sum reflected, or which should be reflected, in the annual independently audited statements, if they had been prepared.
The difficulty for NICTA, one that in the end it could not persuasively overcome on its own evidence, is that even if K32.5M was likely to be expended in 2023 on costed and approved projects, NICTA did not have the power to impose the levies the subject of review because:
1. up to September 2023 no disbursements had been made from the fund’s bank account for a number of years (see for example Financial Update of UAS Levy at [7.1.2] of Board Minutes of 14 April 2023 being Annexure OM-8 of Affidavit of Oala Moi);
2. as at 20 July 2022 the account had a credit balance of K33,717,519.24 a balance that, as at 14 April 2023 had grown to what was described in Board Minutes of that date as a “healthy” K42.3 million and which by 29 December 2023, had grown to an even healthier K46,696.663.95, the fund, thus, with deposits more than sufficient to cover NICTA’s own projected expenditure for the 2023 fiscal year, without the need for the imposition of any levy on the Plaintiffs, even if NICTA’s projections were to be regarded as having been properly assessed and imposed; and
1. there was no evidence the funds in the trust account were to be utilised in the 2023 fiscal year on other projects approved in previous years yet to be realised.
In short, there was no proper basis for the making of the decisions under review even if NICTA’s calculations were to be accepted.
The Court accepts the submission on behalf of the Plaintiffs that the requirements of s 107 strictly construed are as follows:
1. The power given to NICTA to levy operator licensees under s 107(1) is a power to levy no more than once a year. That is due to the requirement in s 107(2) that the amount of the levy is to be determined annually and in respect of a fiscal year.
2. If an annual levy is made, it must be made no later than the beginning of the fiscal year to which it relates, that is, no later than 1 January of that year. I repeat and rely upon my earlier findings in this regard.
1. The levy must be determined in an amount which is necessary to bring the overall funding for the fiscal year in question up to the desired level of funding ...for that year. The requirement that the desired level of funding be for the fiscal year in question means it is an amount calculated as sufficient to cover the anticipated disbursements from the UAS fund in that year. There can be no other interpretation on the plain and ordinary meaning of the words used in the legislation and the framework of Part V of the Act within which s 107 sits.
1. The desired level of funding as referred to in s 107(2)(a) is an amount calculated as described in s 104(2)(c)(i). The desired level of funding for each fiscal year is the product of collaboration between NICTA as fund manager and the UAS Board pursuant to s 104(2)(c)(i) of the Act to determine:
  - (i) the amount of annual revenue required to ensure that (fund) remains fiscally sound
2. The collaboration referred to in s 104 does not determine the revenue required in a vacuum, a necessary part of that determination the most recent publicly available and independently audited financial statements for the UAS Fund with regard to the accounts maintained by NICTA to enable the financial assessments to be made with confidence as required by the Act, the external audited accounts providing a level of trust for the Board and the Minister that NICTA’s financial statements are materially correct and therefore reliable in undertaking its statutory tasks, including the assessment for future projections and budgeting and the calculation of any levy imposed under s 107.
3. The desired level of funding calculated as above must be an amount advised to NICTA by the UAS Board. Even though it may be an amount decided upon by the Board with the close involvement of NICTA the final decision as to the amount is one for the Board in accordance with its functions pursuant to s 91, inter alia to give effect to the objectives of the UAS Fund in s 90 of the Act, to provide advice to the Minister on government policy on Part V of the Act or which promotes the objectives of Part V and gives effect to government policy. The requirement that the Board make the decision advised to NICTA is a necessary precondition to NICTA’s decision to levy the operator licensees pursuant to s 107.
4. If the balance of the UAS Fund is greater than the desired level of funding for the fiscal year at the time that is ascertained, NICTA does not have the power under s 107 to make any levy on operator licensees in respect of that fiscal year. This does not offend s 105 which recognises, as earlier observed, that there may be surpluses in the fund in particular years and provides for their retention as reserves for funding in subsequent years.
This construction is the only construction which saves s 107 from invalidity. If s107 is not interpreted as set out above, any levy imposed by NICTA would be arbitrarily and/or capriciously imposed and consequently invalid.
That is what occurred in the present case.
On the evidence, on 6 October 2022 NICTA created its UAS Strategic Plan covering wherein it listed three high level initiatives it intended to pursue over the course of the five years, grouping under each initiative a number of programs.
It identified an indicative budget for the initiatives and programs of K32.25 million for each of those years. However, the desired level of funding for the 2023 projects was not K32.25M, a sum split across six (6) recommended projects, each allocated a budget, albeit without calculation of the costings of any project approved by the Minister to be undertaken in 2023. They were not only not costed, but not undertaken in the 2023 fiscal year, with no evidence they were expected to be completed within the year. Three (3) fell under the K1 million threshold requiring referral to the NPC. All, however, had a tender timetable being January 2023, notwithstanding that there was no Ministerial approval until 9 February 2023.
The fact that the industry was only levied “1% of the net revenues of each operator and will finance the implementation of these projects” namely K16.7 million, as noted in the decisions, was a recognition that K32.25 million was not a real cost of the expenditure on the projects intended to be rolled out in the 2023 fiscal year. It was a figure that emerged from the overall 5-year plan.
Notwithstanding NICTA’s recognition on page 23 of its 2023 UAS Project Report that it must cost actual projects to be undertaken or executed in the 2023 fiscal year, it did not do that. It simply split K32.25 million across the ranked projects.
Because the levies under review were not calculated as an amount required to cover anticipated disbursements from the UAS Fund in 2023, rather on the basis of the estimated costs of the three UAS project initiatives referred to in the decision of 14 March 2023 and the indicatively budgeted revenue of K32.25 million based on the 5 year Strategic Plan, the Court accepts the submission on behalf of the Plaintiffs that:
1. there was no collaboration to ascertain the amount of annual revenue required for 2023 as required by s 104(2)(c)(i);
2. there was no ascertainment of the desired level of funding for 2023 as required by s 107(2)(a); and
1. NICTA did not have any basis on which it could calculate a levy in accordance with s 107.
What the scheme of the section requires is that every year NICTA must do a calculation in relation to the year to ascertain how much it needs in the UAS Fund to cover the expenses for the year in question, in this case the year 2023. It does not permit NICTA to keep making levies and accumulating funds regardless of whether or not those funds are required for payment out in the year in question. It is an annual exercise to make sure the fund is covered for the next 12 months and if it is not covered NICTA is entitled in that circumstance to calculate the amount in accordance with the section.
In failing to determine the levies under review according to the level of revenue required by the UAS Fund in the 2023 fiscal year to remain fiscally sound and in basing the levies on the indicative budgets of proposed projects, the levies imposed the subject of the decisions under review were not determined in accordance with the requirements of the Act and NICTA acted in excess or for want of jurisdiction.
I turn to address particular submissions advanced on behalf of the Plaintiff and NICTA relevant to the Court’s findings and this ground of review.
Firstly, it is not mandatory that a UAS Levy be applied annually. Subsection (2) of s 107 must be read with subsection (1) which provides that NICTA “may” levy charges on operator licensees for the UAS Fund. When the provisions are read together it is clear that NICTA has the power to levy charges should it determine to do so, and if it determines to exercise that power, then it must do so in accordance with subsection (2) which is to set the levy as a percentage of the net revenues of each operator licensee at a level determined annually having regard to the particular considerations in (a) and (b) of subsection (2).
Read otherwise, NICTA would be required to impose a levy “come what may”, irrespective of prevailing circumstances, including changes in government policy or the impacts of social, economic and political upheaval - the worldwide impact of the most recent COVID pandemic being a case on point (see 2020 Annual Report of Chairman Noel Mobiha, being Annexure F to affidavit of Kila Gulo-Vui). There may be any number of reasons why a levy is not imposed in a particular fiscal year, including the balance of the UAS Fund to ensure fiscal soundness. On NICTA’s own evidence the Minister did not impose a levy in 2019 because he did not approve the projects recommended by the Board (affidavit of Kila Gulo Vui filed 6 December 2023 at [35(e)]; affidavit of Warren Suti filed 1 May 2025 at [11(d)]).
While it is submitted that the intent of the levy is to finance the UAS Fund, it does not flow from that circumstance that if the fund does not require financing for the year in question (for whatever reason) that a levy must be imposed. In the present case, and as earlier discussed, there was no basis for NICTA to exercise its powers under s 107(1) to impose the levies under review as the fund was fiscally sound in 2023 and, on NICTA’s own calculations, in credit to meet its anticipated expenditure and the anticipated costs of projects if undertaken in 2023.
In addressing the written and oral submissions on behalf of NICTA that s 107(2) is in mandatory terms and payment required to be made once notification of the levy is received, while the levy once imposed becomes a debt to the State, it only becomes a debt if it is validly imposed. There is nothing unusual about tax legislation providing that taxes as assessed become debts owing to the State or the Commissioner of Taxation or some other government authority, a standard mechanism for the recovery of taxes. It is one, however, that assumes validity of imposition in accordance with the taxing statute.
Secondly, in the context of a taxing provision, “the desired level of funding .. for that year as advised to NICTA by the UAS Board less any amounts paid by NICTA in the previous year...” (s 107)2(a)) cannot be interpreted to involve any discretionary exercise on the part of NICTA. That would be contrary inter alia to the objective of the UAS Fund which is the costing and “funding of approved Projects” for the relevant year (s 90). It would be contrary to the provisions of Part V of the Act which are based on prudent financial oversight and the management of the UAS Fund responsibly, efficiently and transparently in accordance with best practice.
While s 108 speaks of the preparation by NICTA of an estimated aggregated budget for all UAS projects to be undertaken for the relevant period, that is, for the relevant fiscal year, that does not suggest that NICTA would then have a discretion as to the amount of the levy it imposes. The levy imposed is based on the requirements of s 107(2), which level of funding has been calculated based on the estimated budget to fund the relevant projects for that year, projects which had been costed following the process outlined in s 108(1) which includes an estimated aggregate budget prepared by NICTA for all the UAS projects “to be undertaken under this Part for the relevant period” (s 108(1)(d)), with the projects then preferentially ranked based on the factors in subsection (4). The costings then go to the Board which makes recommendations and submits those to the Minister who considers them on a calendar basis. It is a process that NICTA recognised on page 1 of its 2023 UAS Project Report (Annexure C to the affidavit of Kila Gulo-Vui filed 6 December 2023).
Any other interpretation would be inconsistent with the authorities, if not the submissions advanced on behalf of both parties, that require the Court to interpret s 107 strictly and that, in the context of a taxing provision, it must be possible to differentiate it from an arbitrary or capricious exaction. The imposition must be precise and unambiguous. It can only be done by reference to the criteria by which the liability is to be imposed and the way the criteria is applied. NICTA is not at liberty to impose a levy unrelated to expenditures it is expected to make on projects in a particular fiscal year.
Thirdly, the view that the imposition of the levy under s 107 is somehow cocooned from the absence of external audits, the preparation of which is a mandatory requirement under the Act, and that the absence of those reports has no impact on the levy is, respectfully, misconceived (see affidavit of Kila Gulo Vui filed 6 December 2023 at [29] – [31] and [35(f)]). The lack of external control impacts the integrity of the Act and its processes under Part V. Not only can you not have a regulatory authority who is having issues with its own regulation, in proceedings for judicial review it is a matter relevant to the exercise of the Court’s discretion, including any relief to be granted where the protections that arise under the Act are non-existent.
While there is no specific provision requiring the independently audited financial statements for the fund to be utilised in the collaboration referred to in s 104 of the Act, it would be contrary to a proper understanding of NICTA’s functions in meeting the purpose of the Act captured in the Preamble and the objectives of the Act in s 2 to suggest that audited statements were irrelevant to the proper management of the fund by NICTA as Fund Manager and in the meeting of its statutory obligations under the Act which include the collaborative exercise under s 104.
It would be at odds with the protections within the Act to ensure the financial stability and sustainability of the fund and that decisions made thereto are to be made fairly, rationally and transparently.
It would be at odds with the placement of s 106 (which relates to the appointment of an independent auditor) within Division 4 of Part V which is titled Financial Management of the UAS Fund, the positioning of s 106 following a logical sequence within that Division, namely, the financing of the UAS Fund (s 100), the establishment of a UAS Fund trust to manage the receipt of funds intended to finance the fund (s 102), the administration of the fund trust account by NICTA (s 103), the management of the fund monies by NICTA (s 104), how to address surpluses and reserves (s 105), the appointment of an independent auditor to prepare annual audited accounts (s 106), concluding with the requirements for the imposition of the UAS Levy (s 107), the last section in Division 4.
It would be at odds with the demands of common sense and logic to suggest that audited statements, statutorily required to form part of the annual reports of NICTA and the Board and made available to the Minister and the public, were irrelevant to the financial assessments required to be made under Part V.
The importance of independently audited accounts within the UAS regime outlined in Part V is underscored by:
1. the requirement that those accounts must be included in NICTA’s annual report to the Board and the Minister on the financial performance of the fund, a report to be submitted within 60 days of the end of each fiscal year (ss 106 (1); 119);
2. the UAS Board’s annual reporting requirements to the Minister which, again, must include provision of the audited financial statements of the UAS Fund (s 120(2)(a));
1. the requirement that the Minister must table the Board’s report in Parliament at the first available opportunity (s 121); and
1. that the reports of both the Board and NICTA must be publicly disseminated by NICTA on its website (s 122 (2)(a) & (b)).
The provisions of Part V collectively, and s 106, do not suggest that the requirement for publicly available and independently audited financial statements for the UAS Fund is legislative adornment or accounting ‘window dressing’. It is information that should properly inform NICTA, the Board and the Minister in performing their statutory tasks.
The Court takes judicial notice of the fact that the purpose of the external auditing of financial statements is to ensure accuracy, reliability and compliance with accounting standards. If an organisation’s internal financial records and systems are subject to regular external review, it will assist to establish a level of trust (or otherwise) that the organisation’s internal financial statements or management accounts are materially correct and can be relied upon in the undertaking of financial projections, including in the collaborative effort provided for under s 104(2)(c) to ensure that the UAS Fund is fiscally sound.
Put another way, a regular program of annual external audits, as required by the Act, is designed to create a level of confidence in the Board and the Minister that NICTA’s financial systems and processes can be relied upon to produce materially correct financial data, the Minister then able to have confidence that any recommendation to him by the Board is based on historical data that is correct.
It is to the reports of NICTA and the Board, annually provided, which must include the annual audited financial statements, that the Minister and government is entitled to look inter alia to inform government policy, the Minister’s approval of UAS projects and government contributions, if any, to the UAS Fund that may be required (ss 91(2)(a), 98 (1), 100(1)(e), 108(5); see also affidavit of Kila Gulo Vui filed 6 December 2023 at [3]-[4])).
While the external audits, which are a ‘look in the rear-view mirror’, and budget predictions on the evidence of NICTA will, as a matter of practice, be undertaken before the end of a current financial year in which the budgeting and assessment process under Part V of the Act takes place to enable NICTA to plan for the next financial year before the fiscal year actually starts and before the externally audited financial statements for the current year are likely available, the availability of the most recent audited accounts, in the context of a mandatory requirement for the preparation of audited accounts annually would inform the functions of the Board and NICTA in meeting their statutory obligations under the Act on a matter of national interest (s 3).
Relevantly, the importance of audited accounts for the UAS Fund must be considered in the context of the evidence of Warren Suti filed 1 May 2025. He annexes to his affidavit at WS-1 to WS-8 copies of individual request letters to operator licensees from 2016 to 2023 requiring the individual operators to provide details of their net revenue for the purposes of determining the UAS Levy percentage. Each letter in evidence, signed by the CEO of NICTA, requires the operator licensee to not only complete and return to NICTA a Declaration of Net Revenue Form for the relevant fiscal year but to provide “a copy of (the operators) audited accounts” for the relevant financial year. It is stated that the information is required under sub-section 14(4) of the Regulations for the purpose of calculating the annual licence fees and s 107(3) of the Act relating to the UAS Levy. The audited accounts must be the latest audited accounts, audited by a registered company auditor or as approved by NICTA and provided within three (3) months from the end of the financial year. Failure to comply incurs a penalty being imposed under the Act.
If, then, NICTA is obliged to receive from operator licensees their annual accounts audited by a registered company auditor to enable it to perform its functions under the Act for the purpose of a levy determination (as stated in its letters), it would be difficult to suggest that the annual independently audited accounts of the UAS Fund as required by s 106 would not likewise be relevant to the performance of NICTA’s statutory obligations under Part V, one of which is the calculation of a levy determination under s 107.
Further, the relevance of independently audited financial statements is an issue of public accountability and good governance (ss 119 – 122 of Division 7 of Part V). Pursuant to s 109 NICTA is required to develop and carry out a competitive selection process in accordance with the Act and regulations consistent with regulatory principles as outlined in s 3 of the Act to achieve the Act’s objectives in s 2. Those principles provide that regulatory measures should inter alia be:

(iii) administered in a transparent manner and, to the extent appropriate, should be the subject of prior public consultation (in accordance with Section 229 of this Act), published explanations and public clarifying guidelines;

The publicly released audited accounts is information on which stakeholders are thus entitled to rely, not only in building stakeholder trust and confidence, but to enable stakeholders to undertake their own forward forecasting and make informed submissions based on independent financial material in respect of UAS projects to be recommended to the Board and the Minister and NICTA’s obligation, in turn, to meet the requirements of s 108 which inter alia require its assessment of those submissions. It includes undertaking a cost/benefit and sustainability analysis of a project (s 108 (4)) and its reporting to the Board and the Minister. Pursuant to s 108(5) it is the Minister, on receipt of the Board’s UAS Project report and proposed aggregate budget, who must then determine which projects will proceed. This is not a rubber stamp process, as evidenced by the Minister’s refusal to approve recommended projects in 2019.
While there is no mandatory requirement that the starting point for the collaborative efforts under s 104 must be the most recent audited accounts, as submitted on behalf of the Plaintiffs, the availability of those audited accounts is undeniable, the external reports as contemplated by s 106 infusing and informing NICTA’s statutory tasks under Part V. It is an interpretation which accords with s 109(4) of the Constitution which provides that:

Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.

As at both 1 January 2023 and 14 March 2023 there were no independently audited accounts of the fund, the annual reports unaudited and NICTA unable to produce same (Affidavit of Oala Moi at [9]). Indeed, there is no evidence that the fund’s accounts have ever been separately externally audited (see letter by Acting Chief Executive Officer to Auditor-General dated 20 October 2023 being Annexure H to the affidavit of Kila Gulo-Vui filed 6 December 2023).
On the evidence, the first attempt made by NICTA to remedy this situation through the process outlined in s 106 was on 30 December 2022. In consequence, there was no external review in 2022 or 2021 or any earlier time to confirm that the organisation’s internal financial records were materially correct and could be relied upon with confidence to determine how a desired level of funding could be achieved for the 2023 fiscal year (see evidence of Oala Moi filed 16 April 2025 at [9] and affidavit of Kia Gulo-Vui filed 6 December 2023 at [29] – [31]).
NICTA’s “best endeavours”, on its submissions, to effect compliance do not make it any less non-compliant nor suggest an entitlement to ignore the requirement and exercise its functions notwithstanding. It is an explanation, respectfully, that would carry as much weight as a defence to a charge of unlicensed driving based on the driver viewing his entitlement to drive for seven years on the strength of an unapproved application for a licence, notwithstanding his best endeavours to obtain one.
Further, it is a submission that must be rejected on NICTA’s own evidence. The cumulative effect of the evidence of NICTA’s difficulties in auditing the accounts at [30] of Kila Gulo-Vui’s affidavit and the correspondence he put into evidence by way of annexures (see the letters to Chief Secretary of the Department of Prime Minister and National Executive Council dated 30 July 2021 and 10 March 2023 and the letter of 30 December 2022) is that the problem lay with the Auditor General. However, it is not the Auditor General’s role to select an independent auditor (letter of 20 October 2023 to the Auditor General).
Pursuant to s 106 (1), the mandate lies with the Minister who, in consultation with NICTA and the Departmental Head of the Department responsible for treasury matters is required, by the use of the word “shall”, to appoint an independent auditor of the fund, who “shall” provide an audited financial statement, that “shall” be included in NICTA’s annual report to the Minister. The terms of the subsection are clear.
While subsection (2) provides that the Auditor General may audit the fund from time to time, it is only at his discretion. He is not mandated to do so. It is the independent auditor, appointed in terms of subsection (1) by the Minister, who is required to undertake the external audit annually.
While NICTA appears to have turned to s 63 of the Public Financial (Management) Act 1995 which inter alia enables the financial statements of a public body to be submitted to the Auditor General for external review, the evidence is silent on why the course outlined in s 106(1) has not been pursued with more vigour, including prior to 30 December 2022, given the direction in 2018 that the fund required a separate audit to be undertaken.
It was not until 30 December 2022 that a request was made to the Minister under s 106, the only request in evidence, one made two (2) days after the UAS Board recommended the imposition of the 2023 levies and four (4) months after Digicel sought that the annual reports of the UAS Board, including the audited financial statements for the UAS Fund for the past five years, be published.
The evidence suggests little occurred thereafter by way of follow up with respect to the appointment of an independent auditor, one which, as foreshadowed in the letter of 30 December 2022, was to involve a tender process. The Board Minutes of 14 March 2023 record at [6.0] that a letter had been sent to the Minister awaiting a response. It was noted that an audit was “overdue” and that “the industry was pushing for an audit” and that “the fund itself, remains intact and has never been touched”. The need for an international auditor was raised.
By letter dated 20 October 2023, NICTA was, again, requesting the Auditor General to undertake the task. If the evidence of NICTA is to be accepted, history suggests that request optimistic given it had been tried and failed.
Against this background, the Court is unable to conclude that NICTA has used its best endeavours to comply with its obligations with respect to external audit review in meeting the requirements of the Act. Overall, the evidence suggests a lack of focussed resolve to that end given the mandate in s 106. What renewed agitation there has been in recent times has been modest and appears to have come about in consequence of industry pressure as opposed to proactive engagement by a public authority to meet a statutory responsibility.
The lack of external audits meant that the annual reports could only be provided in draft. The letter to the Chief Secretary of the Department of Prime Minister from Mr Gulo-Vui dated 10 March 2023 in response to a request for NICTA’s annual report for the calendar year 2022, stated it was provided in draft because the financial statements were unaudited, the delay to that end blamed on the Auditor General.
It is a circumstance that feeds into a separate ground of review, the Plaintiffs further contention being that contrary to the requirements of s 122, NICTA has breached the procedures prescribed by the Act designed to ensure procedural fairness in decision-making in that it has failed to publish on its website inter alia any annual reports of the UAS Board (s 122(a)) and its annual reports (s 122(b)). NICTA does not squarely address the Plaintiffs submissions on the point other than in the context of the main issue as identified earlier. Its contention is that s 123(3) provides that NICTA shall endeavour to keep the information on the UAS Fund up to date and to this end there were technical issues in 2023.
It remains unchallenged however that NICTA has failed to publish on its website the annual reports required to be published (see letter from CEO of NICTA to Digicel dated 20 September 2022), because it is unable to do so due to a lack of external audited accounts. It is a further reason that suggests a timely resolution of an ongoing problem.
To my mind, in circumstances where the exercise by NICTA of its statutory power under s 107 affects the Plaintiffs’ interests, the Plaintiffs have a legitimate expectation, reasonably based, that the industry regulator will adhere to the procedures under s 122 which form part of a suite of provisions under Part V designed to achieve procedural fairness in decision-making. The expectation as such arises from the very nature of the tasks to be performed under Part V (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at p 583).
In this case it was a legitimate expectation heightened by NICTA informing Digicel in its letter dated 20 September 2022 as follows:

Your letter is really about transparency with which NICTA agrees. Therefore, I am taking action to see what can be published even if the financial statements have not been audited. I intend to publish as much as possible with appropriate caveats in relation to the financial statements involved.

Finally, with respect to the submissions on jurisdiction, the appeal provisions under Part XIII of the Act (ss 254 to 263) have no application such that there can be no issue that the Plaintiff has failed to exhaust the statutory remedies open to it, a requirement for the grant of leave, an issue raised on Mr Gulo-Vui’s evidence, albeit not pressed by NICTA at the hearing. The application before the Court involves a question of law, namely whether the levies under review were imposed in accordance with the requirements of s 107. While that may involve, in some instances, a factual substratum, there can be no question that this Court has jurisdiction to determine the matter before it.

CONCLUSION

For the reasons given the ground of want or excess of jurisdiction is upheld, the decisions unlawful because of a failure to meet the requirements of s 107(2) of the Act.
The Court’s findings to that end address the significant issues identified by the parties for determination by the Court and are dispositive of the Plaintiff’s application for judicial review. As such it is not necessary to consider the further grounds of review raised on behalf of the Plaintiffs.

RELIEF

The next step is to consider what relief, if any, should be granted to the Plaintiffs. Deciding on what remedies should be granted is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797at [42] (Asiki)); Isaac Lupari v Sir Michael Somare (2008) N3476; Dale Christopher Smith v Minister for Lands (2009) SC973).
The Plaintiffs seek the orders in its Notice of Motion filed on 4 August 2023. No submissions were made on behalf of NICTA with respect to the relief sought in the event a ground of review was upheld. However, at [35)] of his affidavit filed 6 December 2023, Mr Gulo-Vui raises several matters for the Court’s consideration that potentially go to the issue of relief. None of those matters, however, are ultimately persuasive of a decision not to grant the relief sought by the Plaintiffs for these reasons:
1. The findings of the Court are that NICTA has not met the requirements under Part V with respect to the imposition of the 2023 UAS levy [35(a) of Mr Gulo-Vui’s affidavit].
2. The late issuing of the 2023 UAS Levy did not meet the requirements of the Act [35(b)].
1. With respect to the asserted failure of the Plaintiffs to challenge the decisions under the processes available to it under Part XIII of the Act, I repeat and rely upon my earlier consideration of this [35(c)].
1. The Court does not, respectfully, understand the complaint that the Plaintiffs have not come to Court with clean hands on the basis that during the period of public consultation the Plaintiffs sought an extension on its feedback to consultations which had an impact on NICTA’s schedule and then did not submit any projects for consideration other than complain about NICTA’s administration. NICTA would have been aware of its own scheduling requirements such that the decision to grant or not grant an extension was a matter for it, within its understanding of that timetable [35(d)].
2. The deposition that the Plaintiffs were not materially and prejudicially affected by the levies is not persuasive given the findings made that the levies did not meet the requirements of the Act and as such were not lawfully imposed [35(e)].
3. The Court repeats and replies upon its findings with respect to the requirements for external audits and NICTA’s website and/or is otherwise not required to address the matters raised given those findings [35(f).
On the question of relief sought in the Plaintiffs’ substantive Notices of Motion which are identical save for the amount of the levy, in my discretion I determine as follows:
1. Given that the challenge on excess or want of jurisdiction has been upheld, NICTA having no legal authority to make the decisions under review, the Order at [1] in the nature of certiorari should be granted, the decisions unable to stand and should be quashed (Asiki (supra); Monoluk v Pala [2018] N7181).
2. The declaratory relief at [2], [3], [4] and [7] of the Notices of Motion should also be made as it will clarify the respective rights and obligations of the parties to the proceedings (Dent v Kavali [1981] PNGLR 488; Saile v Posai [2008] PGNC 117).
1. In light of the Court’s findings on excess or want of jurisdiction the order in the nature of prohibition at [5] should be made as it will restrain NICTA from doing something which has been found to be unlawful (Damem v Maipaki [2004] PNGLR 41).
1. The Plaintiffs sought an injunction at [6] of their Notice of Motion in the alternative. Having granted writs of prohibition it is not necessary to grant further injunctive relief.
Finally, NICTA should meet the Plaintiffs’ costs of its successful application.

ORDERS

The orders of the Court in proceedings OS (JR) No 64 of 2023 are:
1. An order in the nature of certiorari quashing the written decision of NICTA dated 14 March 2023 imposing by Section 107 of the National Information and Communication Technology Act 2009 (as amended) ("the Act") a Universal Access and Service Levy (“UAS Levy") and Invoice No. UAS 020-23 upon Hitron Limited in the amount of K299,131.11 for the "2023 Universal Access and Service (UAS) Levy" ("the said written decision").
2. A declaration that the said written decision is and was null and void and of no effect.
3. A declaration that on the proper interpretation and application of the Act, NICTA was out of time to make any decision in relation to the application of a UAS Levy in respect of the 2023 fiscal year.
4. A declaration that on the proper interpretation and application of the Act, NICTA was not lawfully entitled to and should not have issued a UAS Levy invoice to Hitron Limited for the 2023 fiscal year.
5. An order in the nature of prohibition, prohibiting NICTA by itself, its officers, servants and agents howsoever from levying any UAS Levy or issuing any further UAS Levy invoices in respect of the 2023 fiscal year.
6. A declaration that on the proper interpretation and application of the Act, NICTA was not lawfully entitled to and should not have made any decision to levy a UAS Levy for the 2023 fiscal year.
7. NICTA pay the Plaintiff’s costs of and incidental to the proceedings on a party and party basis to be agreed or taxed.
The orders in OS (JR) No 65 of 2023 are:
1. An order in the nature of certiorari quashing the written decision of NICTA dated 14 March 2023 imposing by Section 107 of the National Information and Communication Technology Act 2009 (as amended) ("the Act") a Universal Access and Service Levy (“UAS Levy") and Invoice No. UAS 013-23 upon Digicel (PNG) Limited in the amount of K11,801,211.66 for the "2023 Universal Access and Service (UAS) Levy" ("the said written decision").
2. A declaration that the said written decision is and was null and void and of no effect.
3. A declaration that on the proper interpretation and application of the Act, NICTA was out of time to make any decision in relation to the application of a UAS Levy in respect of the 2023 fiscal year.
4. A declaration that on the proper interpretation and application of the Act, NICTA was not lawfully entitled to and should not have issued a UAS Levy invoice to Digicel (PNG) Limited for the 2023 fiscal year.
5. An order in the nature of prohibition, prohibiting NICTA by itself, its officers, servants and agents howsoever from levying any UAS Levy or issuing any further UAS Levy invoices in respect of the 2023 fiscal year.
6. A declaration that on the proper interpretation and application of the Act, NICTA was not lawfully entitled to and should not have made any decision to levy a UAS Levy for the 2023 fiscal year.
7. NICTA pays the Plaintiff’s costs of and incidental to the proceedings on a party and party basis to be agreed or taxed.

Lawyers for both plaintiffs in the proceedings: Ashurst PNG
Lawyers for the defendant in the proceedings: Allens

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