Bermuda Telephone Company Ltd v Telecommunications Commission 1999 Civil Jur. No. 4

• Jurisdiction: Bermuda
• Judgment Date: 09 February 1999
• Date: 09 February 1999
• Docket Number: Civil Jurisdiction 1999 No: 44
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Mitchell, J

Civil Jurisdiction 1999 No: 44

BETWEEN:

The Bermuda Telephone Company Limited

Applicant

and

The Telecommunications Commission

Respondent

Mr Mark A C Diel for the applicant

Mr William Pearce, Solicitor General, for the respondent

R v Hillingdon Borough Council ex parte Royco Homes Ltd.ELR [1974] 1 QB 720

Administration of Justice (Prerogative Writs) Rules 1978, rule 5

Application for leave to issue an originating summons seeking a declaration that the entitled decision is unlawful — Increase in rates provided that applicant will provide exiting or improved levels of service and will maintain employment at present level — Whether this is a management function

RULING

This is an application pursuant to rule 5 of the Administration of Justice (Prerogative Writs) Rules 1978 for leave to issue an originating summons seeking a declaration that the entitled decision is unlawful and therefore void or in the alternative an order of certiorari that such be quashed. I heard the parties on 9 February 1999 and indicated that I would grant leave and would give written reasons later. I now so do.

In essence, the applicant says that the respondent has taken upon itself management functions that are properly and only for the applicant and that there is no provision in the Telecommunications Act 1986, (the Act), or any other law which enables them to do this.

Rule 5 states merely that no summons seeking prerogative relief shall issue without leave of a judge but gives no guidance as to why leave should or should not be granted.

De Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5^th Edition, 1995 paragraph 15–015 puts it this way—

‘Leave will be refused where applications are:

• (1) ‘frivolous, vexations or hopeless’;

• (2) made by ‘busybodies with misguided or trivial complaints of administrative error;’

• (3) ‘misconceived’;

• (4) ‘unarguable’ or ‘groundless’

• (5) where there is a more appropriate alternative procedure; or

• (6) where an application for judicial review is an inappropriate procedure.’

At paragraph 3 of the impugned decision the respondent approves increases in rates on the understanding that the applicant will continue to provide existing or improved levels or service and goes on to say that such approval is also conditional on employment levels being maintained at current levels. This the applicant says is an example of the respondent taking on...