SC1439
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 9 OF 2015

DIGICEL (PNG) LIMITED
Appellant

V

HON JIM MIRINGTORO IN HIS CAPACITY AS MINISTER FOR COMMUNICATIONS AND INFORMATION TECHNOLOGY
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

NATIONAL INFORMATION AND COMMUNICATIONS
TECHNOLOGY AUTHORITY
Third Respondent

Waigani: Cannings J, Collier J, Toliken J
2015: 29 June, 2 July

JUDICIAL REVIEW – applications for leave to seek review – criteria to be satisfied – whether the applicant has raised an arguable case – whether the applicant has exhausted available administrative remedies

The National Court refused leave to the appellant (the applicant in the National Court) to seek judicial review of a decision of the Minister for Communications and Information Technology regarding the provision of wholesale interconnection services to telecommunications network operators. The appellant claimed that the decision it sought to have reviewed was a deemed decision of the Minister under Section 130(5) of the National Information and Communications Technology Act 2009 and that the decision affected it adversely. That National Court refused leave for two reasons: (a) there was no arguable case because a "decision" deemed by the Act to have been made by the Minister was not a decision capable of being judicially reviewed as it had not been published in the National Gazette as required by Section 130 of the Act; and (b) the applicant had not exhausted all administrative remedies to challenge the decision of the Minister. The appellant appealed to the Supreme Court against the refusal of leave.

Held:

(1)	The National Court was led into error in finding that the deemed decision of the Minister had not been published in the National Gazette. The error was due to the failure of the parties to notify the Court that the deemed decision was in fact published in the National Gazette on 27 March 2015, prior to the hearing of the application for review on 9 April 2015. The deemed decision was capable of being judicially reviewed and the appellants had raised an arguable case for its review.

(2)	The fact that the appellant had applied to the ICT (Information and Communications Technology) Appeals Panel for review of the recommendation of NICTA (National Information and Communications Technology Authority) on which the deemed decision of the Minister was based, and that the Panel had not reached a decision by the date of the Minister's decision, was of no consequence in terms of staying or suspending the Minister's decision or in preventing judicial review of the Minister's decision.

(3)	There was no alternative avenue of appealing against or challenging the decision of the Minister. The role of the ICT Appeals Tribunal established by the National Information and Communications Technology Act was to review decisions of NICTA. It had no power to review decisions of the Minister.

(4)	Leave having been refused in error, the Supreme Court quashed the decision of the National Court and, there being no good reason not to, granted leave for judicial review.

Cases cited

The following cases are cited in the judgment:

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920
Innovest Limited v Pruaitch (2014) N5949
Kekedo v Burns Philp PNG Ltd [1988-1989] PNGLR 122
The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

APPEAL

This was an appeal from a decision of the National Court refusing leave for judicial review.

Counsel

M M Varitimos QC & P Tabuchi, for the Appellant
D Denniston & U Mel, for the First & Second Respondents

2 July, 2015 

1. BY THE COURT: This appeal concerns a decision of a Judge of the National Court in proceedings OS(JR) 141 of 2015. In that case her Honour refused an application for judicial review of a decision of the first respondent ("the Minister"), which decision was allegedly made under the National Information and Communications Technology Act 2009 ("the Act"). The Act establishes a complex statutory framework for regulation of information and communications technology ("ICT") services in Papua New Guinea. More specifically in the context of the current appeal, the Act regulates the supply of wholesale information and communications, and creates a regulator, the National Information and Communications Technology Authority ("NICTA"), to oversee that industry. NICTA is the third respondent in this appeal.

2. The orders of the National Court in respect of which the appellant brings the appeal were as follows:

1	The appellant's application for judicial review be refused and dismissed in respect of a deemed decision, alleged by the appellant to have been made by the Minister pursuant to Section 130(5) of the National Information and Communications Technology Act 2009 ("the Act") that the Minister accepted a declaration recommendation of the third respondent dated 27 October 2014 that the first respondent renew the declarations of the Domestic Mobile Terminating Access Service (DMTAS) and the Domestic Fixed Terminating Access Service (DFTAS) on the terms proposed by the Third Respondent; and

2	The appellant pay the costs of the State.

3. In a notice of motion filed 14 May 2015 the appellant seeks to have the decision of her Honour set aside, and costs. So far as concerns this appeal, it appeared to be common ground prior to the hearing that the main issues in contention were whether, on an application for leave to judicially review a decision of a Minister, her Honour erred in refusing leave because she held, in effect, that:

(a) there was no arguable case because a "decision" deemed by the Act to have been made by the Minister was not a decision capable of being judicially reviewed as it had not been published in the National Gazette as required by Section 130 of the Act; and

(b) the appellant had not exhausted all administrative remedies to challenge the decision of the Minister.

4. It is helpful to concisely summarise the relevant legislative framework and background facts to the current appeal before turning to these issues.

BACKGROUND

5. The appellant ("Digicel") is a telecommunications company operating in Papua New Guinea, providing telecommunications services covering in excess of 78% of the population of this country. Digicel currently has more than 2.4 million customers in Papua New Guinea.

6. The Domestic Mobile Terminating Access Service (DMTAS) and the Domestic Fixed Terminating Access Service (DFTAS) are services provided by telecommunications network operators to each other, which facilitate the passing of calls between the customers of one network and the customers of another network (also known as "interconnection" services in the telecommunications industry).

7. For the purposes of this appeal we accept that Digicel was involved in supplying and receiving such services. In particular the Digicel network is interconnected with the bmobile network and the Telikom PNG Limited ("Telikom") network in Papua New Guinea. We note further that Digicel provides the DMTAS to bmobile and Telikom in order that retail customers of those telecommunications companies can speak with or send messages to Digicel retail customers. These arrangements also operate in the reverse direction.

8. The evidence of Digicel before the Court below, and in this Court, is that for many years there have been in place commercially negotiated agreements between Digicel and bmobile, and between Digicel and Telikom. In particular Digicel's interconnection agreement with bmobile was entered into on 17 April 2010 for a period of 10 years, amended in or about June 2013. Digicel's current interconnection agreement was entered into with Telikom on 12 June 2008. Following amendment that agreement expires on 12 June 2020.

9. More relevantly for the purposes of the present appeal is that it is not in dispute that the wholesale services, being the DMTAS and the DFTAS, were declared services pursuant to Section 131 of the Act on the terms set out in Schedule 1 to the Act (Section 131(1)). In particular, Schedule 1, Sections 1(1) and 2(1) provide that the DMTAS and the DFTAS were deemed declarations until 31 December 2014.

10. It is apparent to us that the circumstances attending the expiry on 31 December 2014 of conditions whereby the DMTAS and the DFTAS were declared services within the meaning of the Act precipitated the litigation in the Court below and this Court.

THE LEGISLATIVE FRAMEWORK

11. Issues relevant to the primary proceedings and this appeal particularly concern the application and interpretation of Part VI (interconnection and wholesale access) of the Act, to which we will turn shortly. Section 2 of the Act defines the objectives of the Act as ensuring that:

… the ICT industry contributes to the greatest extent possible to the long-term economic and social development of Papua New Guinea, by means that include –

(a) providing a regulatory framework consistent with the regulatory principles in Section 3 that promotes –

(i) the long-term interests of Papua New Guinea and its people, taking account of the National Goals and Directive Principles and the Basic Social Obligations of the Constitution; and

(ii) the efficiency and competitiveness of the ICT industry in Papua New Guinea; and

(b) ensuring that ICT services of social importance are supplied as efficiently and economically as practicable and supplied at performance standards that reasonably meet the social, industrial and commercial needs of Papua New Guinea and its people; and

(c) promoting the development of an ICT industry in Papua New Guinea that is efficient, competitive and responsive to the needs of Papua New Guinea and its people; and

(d) promoting and maintaining fair and efficient market conduct and effective competition between persons engaged in commercial activities connected with the ICT industry in Papua New Guinea, including by assisting the ICCC to achieve this; and

(e) promoting the development of the technical capabilities and skills of the ICT industry in Papua New Guinea; and

(f) providing appropriate community safeguards in relation to ICT activities and to regulate adequately participants in sections of the ICT industry in Papua New Guinea; and

(g) encouraging, facilitating and promoting industry self-regulation in the ICT industry in Papua New Guinea; and

(h) encouraging, facilitating and promoting sustainable investment in, and the establishment, development and expansion of, the ICT industry in Papua New Guinea, including via the exercise of facilities rights.

12. The objective of Parts VI and VII of the Act is set out in Section 124 as follows:

124. OBJECTIVE OF THIS PART.

(1) The objective of this Part and Part VII of this Act is to –

(a) promote effective competition in markets for ICT services in Papua New Guinea, to be known as the "competition objective", subject to –

(b) promoting the economically efficient use of, and the economically efficient investment in, the facilities by which ICT services may be supplied, to be known as the "efficiency objective".

(2) In determining the extent to which a particular thing is likely to further the achievement of the efficiency objective, regard shall be had (without limitation) to all of the following matters -

(a) whether it is technically feasible for the relevant ICT services to be supplied, having regard to –

(i) the technology available or likely to become available; and

(ii) the reasonableness of the costs involved; and

(iii) the effect of supplying the ICT services on the integrity, operation or performance of other ICT services or facilities; and

(b) the legitimate commercial interests of the access provider in supplying the ICT services, including the ability of the access provider to exploit economies of scale and scope; and

(c) the incentives for investment in the facilities by which the ICT services may be supplied, including the risks involved in making the investment.

13. The functions of NICTA (the National Information and Communications Technology Authority) are set out in Section 9 of the Act, and include:

(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; …

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

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

14. We note that NICTA has the power under Section 10 to do all things necessary or convenient to be done for, or in connection with, or otherwise incidental to, the performance of its functions or to enable it to achieve the objective of the Act as well as exercise such powers as are conferred on NICTA by any other Act.

15. Importantly in the context of these proceedings, Part XIII (appeals) of the Act contemplates the establishment of the ICT Appeals Panel. It is plain from Section 256 (review by the ICT Appeals Panel) of the Act that applications may be made to the ICT Appeals Panel for review of specified decisions of NICTA. In particular, but not exclusively, the ICT Appeals Panel may review decisions of NICTA in respect of wholesale services to make or not to make a recommendation under Section 129 of the Act (Section 256(c)(i)). Standing is given to persons whose interests are affected by a decision of NICTA of a kind specified in Section 256 to bring an application for review of the decision to the ICT Appeals Panel (Section 257(1)). The ICT Appeals Panel is obliged to review the decision of NICTA if satisfied that the person applying for review has a sufficient interest (Section 257(3)).

16. As is explained by Section 123(b) of the Act, the regime established by Part VI contemplates the supply of wholesale ICT services by access providers on a non-discriminatory basis, unless they are the beneficiaries of an access exemption. "Wholesale services" are defined by Section 4 (interpretation) of the Act as:

(a) an ICT service that is supplied to a wholesale customer; and

(b) for the purposes of Part VI of this Act only, includes –

(i) a service that facilitates the supply of such an ICT service (excluding intellectual property where it is not an integral but subsidiary part of that ICT service), where that service is supplied, or is capable of being supplied, by an operator licensee to a wholesale customer; and

(ii) the supply of access to, or use of, a site on which any facility is located, but only to the extent -

(A) that the site is owned, occupied or controlled by the network licensee that has the facilities right in respect of that facility; and

(B) that network licensee has a legal right (whether conditional or unconditional) to use that site; and

(C) the facility may be used to supply a network service.

17. The requirement of access providers to provide access to wholesale services in a non-discriminatory way is of particular importance where the wholesale services become "declared services". So, for example, Section 136(3) states that:

An access provider shall, if requested to do so by an access seeker -

(a) supply an active declared service to the access seeker in order that the access seeker can provide retail services; and

(b) take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the access seeker is equivalent to that which the access provider provides to itself; and

(c) take all reasonable steps to ensure that the access seeker receives, in relation to the active declared service supplied to the access seeker –

(i) fault detection, handling and rectification; and

(ii) ordering and provisioning,

of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.

18. Of key importance for the purposes of the issues in dispute before us are the provisions of Division VI.3 (declared services) of the Act. This Division prescribes the process whereby "wholesale services" become "declared services" under the Act. In particular, Sections 127, 129, 130 and 131 of the Act provide:

127. PUBLIC INQUIRY BY NICTA.

(1) NICTA may hold a public inquiry under Section 230 into –

(a) whether a recommendation should be made to the Minister that a wholesale service should be declared or that an existing declaration of a declared service should be revoked or varied; and

(b) if so, the appropriate terms of any such declaration, revocation or amendment.

(2) NICTA may hold a public inquiry under Subsection (1) -

(a) on its own initiative, including prior to the expiry of an existing declaration; or

(b) upon receipt of a written request from any person asking NICTA to hold such a public inquiry, such request accompanied by a detailed submission identifying the grounds for that request.

(3) NICTA shall hold a public inquiry under Subsection (1) upon receipt of a written direction from the Minister under Section 230 directing NICTA to do so.

(4) After receiving a written request under Subsection (2), NICTA shall -

(a) within fourteen (14) days, notify any access provider supplying the wholesale service that NICTA has received the request, including a summary of request; and

(b) decide whether or not to hold that public inquiry, after having regard to –

(i) the objective of this Part; and

(ii) whether the request was made in good faith; and

(iii) any other matters it thinks are relevant; and

(c) if NICTA decides not to hold a public inquiry, advise the person making the request in writing (copying the relevant access providers) of the decision and of the reasons for the decision…

129. DECLARATION RECOMMENDATION BY NICTA.

(1) Following a public inquiry under Section 127, if NICTA is satisfied that all of the declaration criteria would be met by the declaration, or continued declaration, of a wholesale service on particular terms –

(a) NICTA shall recommend to the Minister that the wholesale service should be declared or continue to be declared; and

(b) NICTA shall publish a report identifying –

(i) NICTA's analysis of the extent to which the declaration criteria are met; and

(ii) the particular terms of the declaration, consistent with the declaration criteria; and

(iii) the extent to which the terms are technologically neutral and non-discriminatory; and

(iv) an expiry date for the declaration, which must be a date within five (5) years after its commencement date.

(2) Following a public inquiry under Section 127, if NICTA is not satisfied that all of the declaration criteria would be met by the declaration or continued declaration, of a wholesale service –

(a) if the wholesale service is already declared, NICTA shall recommend to the Minister that the declaration of the wholesale service should be revoked; and

(b) NICTA shall publish a report identifying –

(i) NICTA's analysis of the extent to which the declaration criteria are met; and

(ii) if the wholesale service is already declared, the proposed date of revocation of that declaration.

(3) If the public inquiry considered whether any variation to the particular terms of an existing declaration was desirable, NICTA shall identify in its report its reasons and conclusions why that variation was or was not desirable.

(4) NICTA may consult with the ICCC and other Government agencies in preparing its report, including where desirable to promote a consistent approach to economic regulation within Papua New Guinea.

130. DECLARATION BY MINISTER.

(1) On receiving a declaration recommendation from NICTA, the Minister shall either– 

(a) if the declaration recommendation is to declare a wholesale service, either –

(i) accept the declaration recommendation and declare the wholesale service; or

(ii) reject the declaration recommendation and not declare the wholesale service; or

(b) if the declaration recommendation is to renew, vary or revoke an existing declaration, either –

(i) accept the declaration recommendation and renew, vary or revoke the existing declaration as the case may be; or

(ii) reject the declaration recommendation and not renew, vary or revoke the existing declaration.

(2) In making the decision under Subsection (1), the Minister -

(a) shall have regard to the declaration criteria and the declaration recommendation, including any report under Section 129; and

(b) may have regard to such other matters as the Minister considers are relevant, provided that the Minister identifies those other matters in the Minister's published decision.

(3) If the Minister accepts the declaration recommendation to –

(a) declare a wholesale service or renew an existing declaration, the declaration must be published in the National Gazette on the particular terms set out in NICTA's report; or

(b) amend an existing declaration, the amended declaration must be published in the National Gazette on the terms set out in NICTA's report; or

(c) revoke an existing declaration, the revocation must be published in the National Gazette; and

(d) the Minister shall notify NICTA of his decision.

(4) If the Minister has not made a decision under Subsection (1) within thirty (30) days after receiving the declaration recommendation, NICTA shall confirm with the Minister the timing of his decision.

(5) If the Minister does not, within sixty (60) days after receiving the declaration recommendation make a decision to accept or reject the declaration recommendation, then the Minister is deemed, at the end of that sixty (60) day period, to have decided to accept that recommendation and Subsection (3) applies.

(6) A decision by the Minister to accept a declaration recommendation under Subsections (3) or (5) has effect from –

(a) the date of its publication in the National Gazette; or

(b) such later date as is specified in the terms of the declaration.

(7) If the Minister rejects NICTA's recommendation, the Minister shall publish reasons for the rejection.

131. DEEMED DECLARATIONS AND MANDATED INQUIRIES.

(1) The wholesale services listed below are hereby declared -

(a) on the terms set out in Schedule 1 to this Act –

(i) domestic mobile terminating access service; and

(ii) domestic fixed terminating access service;

(b) all facilities access services that may be supplied by means of any facility constructed under a Project Agreement for the life of that facility.

(2) The Head of State, acting on advice, may make regulations before 31 December 2010, not inconsistent with this Act, prescribing the interim terms of declaration of the whole or any part of the following wholesale services, or any similar wholesale services -

(a) domestic inter-exchange transmission services; and/or

(b) domestic transmission tail services; and/or

(c) domestic digital data and/or voice resale services (whether access tails or end-to-end services), such as xDSL services and/or Ethernet services; and/or

(d) any wholesale services not identified in Subsections (2)(a), (b) or (c) above that were defined as "Excluded Services" in the Telecommunications Regulatory Contract between Telikom PNG Ltd and the ICCC dated 16 July 2002, as that definition stood as at 1 July 2009, but excluding any services identified in Section 132.

(3) Any declaration of a wholesale service under regulations made under Subsection (2) shall expire on the earlier of –

(a) three (3) years after the regulations take effect; or

(b) the date on which the Minister makes a declaration decision under Section 130 in respect of that wholesale service; or

(c) the date on which NICTA has completed its public inquiry pursuant to Subsection (7) for that wholesale service and has concluded that no declaration recommendation will be made.

(4) Any wholesale services that are declared under Subsection (1) or pursuant to any regulations made under Subsection (2) are to be known as the "deemed services".

(5) The deemed services are taken to have been declared by the Minister under Section 130 of this Act on the terms set out in Schedule 1, the Project Agreement identified in Section 131(1)(b), or any regulations made under Subsection (2), as applicable.

(6) The declaration of a deemed service under this Section can be amended or revoked by a declaration decision under Section 130 of this Act, notwithstanding the initial terms of the declaration identified under Subsection (5).

(7) NICTA shall use all reasonable endeavours to hold a public inquiry under Section 127 before the date two (2) years after the Succession Date as to whether the whole or any part of any of the following wholesale services or any similar wholesale services (without limitation) should be declared and, if so, the form of that declaration –

(a) the wholesale services listed in Subsections (2)(a), (b) or (c); and/or

(b) any other wholesale services the subject of regulations made under Subsection (2); and/or

(c) unbundling of specified facilities located between a local exchange and the network boundary, whether unconditioned and/or conditioned (including spectrum sharing); and/or

(d) domestic inter-network mobile roaming services; and/or

(e) facilities access services associated with fixed network facilities (including exchanges); and/or

(f) facilities access services associated with mobile network facilities (including telecommunications transmission towers).

EVENTS IMMEDIATELY PRECEDING THE APPLICATION FOR LEAVE

19. On 1 September 2014 NICTA gave notice of its intention to undertake a public inquiry into, and report on whether, the DMTAS and/or DFTAS should continue to be declared services within the meaning of the Act following the expiry of the then-existing declarations of those services on 31 December 2014. Following this public inquiry, on 27 October 2014 NICTA made a recommendation to the Minister pursuant to Section 129 of the Act. This recommendation was that the Minister determine that, after 31 December 2014, the DMTAS and the DFTAS be declared services for the purpose of the Act.

20. On 17 November 2014 pursuant to Section 256 of the Act, Digicel lodged an application with the ICT Appeals Panel for review of NICTA's recommendation of 27 October 2014.

21. On 27 December 2014 the period of 60 days had passed following NICTA's recommendation to the Minister. There was no evidence that the Minister had made a decision to accept or reject NICTA's recommendation during that 60-day period. Accordingly, the effect of Section 130(5) of the Act was that the Minister was deemed to have decided to accept that recommendation.

22. On 20 March 2015 Digicel filed an originating summons in the National Court seeking orders including that:

•	Leave of the Court, pursuant to Order 16, Rule 3 of the National Court Rules, to apply for judicial review of the deemed decision made pursuant to Section 130(5) of [the Act] by [the Minister], which decision was made on or about 27 December 2014, to accept a declaration recommendation of [NICTA] being a declaration recommendation dated 27 October 2014 that [the Minister] renew the declarations of the Domestic Mobile Terminating Access Service (DMTAS) and the Domestic Fixed Terminating Access Service (DFTAS) on the terms proposed by [NICTA].

•	Costs of and incidental to this Originating Summons be reserved.
(amendments to original)

23. On 27 March 2015 the Minister's decision was published in the National Gazette No G215 OF 2015.

24. According to evidence of Mr Phillip Tabuchi (which is not disputed), Digicel's originating summons first returned before her Honour on 31 March 2015 for hearing of Digicel's application for leave for judicial review. The application for leave for judicial review was adjourned to 9 April 2015 for hearing because the State was not ready to proceed on 31 March 2015. The application was heard by her Honour on 9 April 2015.

DECISION OF THE PRIMARY JUDGE

25. Her Honour delivered her decision in respect of the application for leave 
on 21 April 2015. Materially, her Honour made the following findings:

•	Digicel had a sufficient interest in the matter and there had been no undue delay in Digicel bringing the matter to Court.

•	The issues before the court for determination were whether Digicel had an arguable case and whether it had exhausted all available administrative remedies.

•	It was appropriate to first determine whether there was an arguable case, and in particular whether there was a "decision" before the Court which could be validly reviewed.

•	Section 130(5) of the Act operates such that, if a decision was not made within 60 days, the Minister was deemed at the end of that 60-day period to have made a decision to accept the recommendation. In such case Section 130(3) applies, and the Minister was required to cause the declaration to be published in the National Gazette and notify NICTA.

•	Pursuant to Section 130(6) the decision had effect from the date of its publication in the National Gazette or such later date as was specified in terms of the declaration.

•	On the evidence before her Honour, there was no decision before the Court for review. In particular, Mr Andrew Kidu, a witness for Digicel, deposed in his affidavit filed on 20 March 2015 that he had caused a search of the National Gazette to be conducted and those searches indicated that the deemed decision had not been published. The absence of publication in the National Gazette connotes that the deemed decision had not been made by the Minister.

•	As a result of this finding there was no serious issue to be tried or determined, and accordingly Digicel did not have an arguable case.

•	According to authorities including The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 and Kekedo v Burns Philp PNG Ltd [1988-1989] PNGLR 122, there must be exceptional circumstances that exist to warrant the departure from the general rule that judicial review is not available to an applicant who is yet to exhaust other administrative remedies.

•	Digicel had not exhausted all available administrative remedies. Her Honour observed:

This finding is based on the fact that there is no deemed decision before the court to review and also for the reason that the plaintiff has challenged NICTA's recommendation pursuant to Section 256 of the Act which is still pending. I also find that there are no exceptional circumstances which warrant the departure from the general rule. The plaintiff will not be prejudiced. They can still pursue their appeal through the ICT Appeals Panel.
[Transcript OS 141 of 2015, 21 April 2015, page 4 lines 37-42]

•	The application for leave for judicial review, while the matter was before the ICT Appeals Panel, was an abuse of process.

THE APPEAL

26. As we noted earlier in this judgment, at the commencement of the hearing of this appeal it appeared common ground that the main issues for consideration were whether, in the application for leave to judicially review the decision of the Minister, the primary Judge erred in refusing leave because her Honour held that, in effect:

(a) there was no arguable case because a "decision" deemed by the Act to have been made by the Minister was not a decision capable of being judicially reviewed as it had not been published in the National Gazette as required by Section 130 of the Act; and

(b) the applicant had not exhausted all administrative remedies to challenge the decision of the Minister.

27. In argument the Court's attention was particularly drawn to comments of Gavara-Nanu J in Innovest Limited v Pruaitch (2014) N5949. In that decision, after considering the terms of Order 16, Rule 4(1) of the National Court Rules, his Honour continued:

38. The other two requirements that must be satisfied in order for leave to be granted are based on common law and are not stipulated in Order 16. First, the applicant must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 and Dr Rose Kekedo v Burns Philp PNG Ltd (supra). Under this requirement, there may be exceptions where the Court may decide to hear an application notwithstanding that all other administrative remedies have not been exhausted. An example of this type of situation is where the body which reviewed the decision has failed to give its decision within a reasonable time or where such body has been changed or terminated and is not able to perform its duty: R v Chief Constable of Merseyside Police, ex pare Calveley [1986] QB 824; [1986] 1 All ER 257. Second, the applicant must demonstrate that there is an arguable case or a serious issue to be tried: Fred Aikung v Peter Waieng [1998] PNGLR 15, N1853; Pepi Kimas v Boera Development Corporation Ltd (2012) SC 1172; Willie Edo v Hon Sinai Brown (2006) N3071; Ila Geno & Ors v The State [1993] PNGLR 22; Paul Asakusa v Andrew Kumbakor (supra); Simon Manjin v Post & Telecommunication Corporation [1990] PNGLR 288.

39. Under the last requirement, the Court is only required to see whether on a quick perusal of the materials before it, there is a prima facie case of an arguable case, or a serious issue to be tried which, on further investigation by the Court, might favour the grant of the claim or relief sought by the plaintiff. If so then that would warrant the grant of leave for judicial review. A quick perusal of the materials should not involve a detailed analysis of the materials.

28. With respect we adopt this formulation of principles by his Honour in relation to applications for leave for judicial review.

29. At the hearing it quickly became apparent that an error had been made by the learned Judge at first instance, in respect of the issue whether there was an arguable case before her Honour concerning the existence of a "decision" of the Minister which could be reviewed by the National Court. We emphasise however that this error was clearly based upon the incorrect material which had been placed before her Honour, and to that extent her Honour was misled into proceeding upon a false premise. Specifically, it appears that so far as either Digicel or her Honour were aware, the deemed decision of the Minister which her Honour accepted had been made had not been published in the National Gazette. In fact, as has subsequently emerged, the decision was actually published in the National Gazette G215 of 27 March 2015.

30. We accept the submission of counsel for the Minister and the State, Mr Denniston, that he personally had not been informed of the publication of this decision. That information relating to this publication, which was critical to her Honour's decision, was not brought to her Honour's attention either prior to or at the hearing; this does, however, bespeak either incompetence or something more sinister in respect of the conduct of the first and second respondents in the National Court proceedings, and is deserving of the highest criticism by this Court.

31. As is clear from review of her Honour's judgment, the misapprehension under which her Honour laboured concerning the gazettal of the decision infected her reasoning concerning whether there was a "decision" which had been reached, and whether there was an arguable case. Indeed we note that at the hearing before us, counsel for the Minister and the State conceded in the circumstances that there was a "decision" which was capable of review.

32. As a result, the only real issue for determination by this Court was whether the appellant had exhausted all administrative remedies prior to pursuing its application for judicial review.

33. Mr Denniston submitted, inter alia, that:

•	Digicel had sought to set in train a process to disturb a state of affairs about which previously Digicel had not complained.

•	The framework of the Act contemplates that the ICT Appeals Panel can conduct its review pursuant to Section 256 of the Act notwithstanding that a decision was deemed to have been made by the Minister pursuant to Section 130(5) of the Act.

•	Section 259(2) of the Act contemplates that the ICT Appeals Panel can stay the operation of the decision or recommendation of NICTA. In such cases there is no recommendation upon which the Minister can make a decision, and therefore no decision can be made by the Minister.

•	If an actual or deemed decision is gazetted prior to the completion of a review it would have no effect, otherwise it would be in breach of the right of review of a NICTA decision and a breach of natural justice.

•	Practically it is impossible for the ICT Appeals Panel to complete any review pursuant to Section 256 of the Act prior to a decision of the Minister being deemed to have been made pursuant to Section 130(5) of the Act.

•	On its own admission Digicel had commenced an administrative review action of the NICTA recommendation in the ICT Appeals Panel.

•	No exceptional circumstances are apparent to relieve Digicel from the requirement to exhaust all administrative remedies before commencing an application for judicial review.

34. In our view, the submissions of the Minister and the State cannot be substantiated.

35. First, even if it were relevant that Digicel had not previously complained about the relevant state of affairs prior to the present proceedings, we note that in any event any such complaint would have been to no avail. The circumstances in respect of the status of DMTAS and DFTAS were mandated by the Act, in particular Schedule, 1 Sections 1(1) and 2(1).

36. Second, it is clear that the view of her Honour that Digicel had not exhausted all administrative remedies prior to seeking judicial review, was infected by her Honour's specific finding that there was no "decision". As we have already observed, this finding was based upon a false premise, apparently induced by the failure of the first and second respondents to disclose relevant information to the Court.

37. Third, the ICT Appeals Panel is a creature of statute, specifically created and endowed with limited powers and functions by the Act. It cannot review matters that fall outside its statutory jurisdiction (Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920). It can only resolve such appeals as are brought within its jurisdiction by the legislation, and in particular Part XIII of the Act. Part XIII only contemplates that the ICT Appeals Panel has the power to review decisions of NICTA. Any decisions of the Minister, including deemed decisions, are not reviewable by the ICT Appeals Panel. In this respect it cannot be said that the pursuit by Digicel of a remedy in the ICT Appeals Panel was an alternative administrative remedy available to Digicel in respect of the deemed decision of the Minister.

38. Fourth, Mr Denniston did not direct the Court's attention to any other avenue of remedy available to Digicel, other than in the ICT Appeals Panel. And we are not aware of any.

39. Fifth, and notwithstanding the submissions of Mr Denniston, we harbour serious doubts as to whether the commencement of a proceeding in the ICT Appeals Panel operates as a stay on the legislative machinery in Section 130(5) which specifically deems a decision of the Minister to have been made in the timeframe contemplated by that section. Mr Denniston urged the Court to accept that it was impossible for the ICT Appeals Panel to reach a decision in respect of a commenced review in the timeframe contemplated. We note that Mr Varitimos for the appellant strongly opposed any suggestion that the Court should draw such an inference. Certainly no evidence was brought to our attention that would support such an inference.

40. Fifth, for the purposes of the current application, we do not accept the submission on behalf of the respondents, the effect of which can be summarised as that:

•	NICTA can make a recommendation to the Minister.

•	The ICT Appeals Panel can review the recommendation of NICTA.

•	Even if the Minister makes a decision (or a decision is deemed to have been made by the Minister) based on the recommendation of NICTA, if the ICT Appeals Panel were (for example) to set aside the NICTA recommendation pursuant to Section 261, the decision of the Minister is – presumably retrospectively – similarly set aside.

41. In our view such a hypothesis is not sustained on consideration of the legislative framework of the Act, and indeed it is inconsistent with the concession by the respondents at the hearing that the deemed decision of the Minister was effective once it had been gazetted (as it had been in this case).

42. In the circumstances of this case, it is clear that once the Minister had reached a decision or a decision was deemed to have been reached, the only avenue available to Digicel was to seek judicial review of that decision.

CONCLUSION

43. The National Court was led into error in finding that the deemed decision of the Minister had not been published in the National Gazette. The error was due to the failure of the parties to notify the Court that the deemed decision was in fact published in the National Gazette on 27 March 2015, prior to the hearing of the application for leave for review on 9 April 2015. The deemed decision was capable of being judicially reviewed and the appellants had raised an arguable case for its review.

44. The fact that the appellant had applied to the ICT Appeals Panel for review of the recommendation of NICTA on which the deemed decision of the Minister was based, and that the Panel had not reached a decision by the date of the Minister's decision, is of no consequence in terms of staying or suspending the Minister's decision or in preventing judicial review of the Minister's decision.

45. The appellant had no alternative avenue of appealing against or challenging the decision of the Minister. The role of the ICT Appeals Tribunal established by the National Information and Communications Technology Act was to review decisions of NICTA. It had no power to review decisions of the Minister. The learned primary Judge with respect fell into error in drawing the opposite conclusion.

46. The appeal will therefore be allowed, and leave granted to the appellant for judicial review of the deemed decision of the Minister, and costs will follow the event.

ORDER

(1) The appeal is allowed.

(2) The whole of the judgment and orders of the Honourable Acting Justice Nablu in proceedings OS(JR) 141 of 2015 given on 21 April is set aside and quashed.

(3) Leave is granted to the Appellant for judicial review of the deemed decision made pursuant to Section 130(5) of the National Information and Communications Technology Act 2009 by the first respondent, which decision was made on or about 27 December 2014, in accordance with the Statement under Order 16, Rule 3 (2)(a) of the National Court Rules.

(4) The proceedings before the National Court, OS(JR) 141 of 2015, are reinstated forthwith.

(5) The first and second respondents shall pay the appellant's costs of and incidental to the appeal on a party-party basis, to be taxed, if not agreed.

Judgment accordingly.
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Young & Williams Lawyers: Lawyers for the Appellant 
Solicitor-General: Lawyers for the First & Second Respondents