Bermuda Telephone Company Ltd v Quantum Communications Ltd 1998 Civil Jur. No. 283

• Jurisdiction: Bermuda
• Judgment Date: 25 February 1999
• Docket Number: Civil Jurisdiction 1998 No. 283
• Date: 25 February 1999
• Court: Supreme Court (Bermuda)

In the Supreme Court Of Bermuda

Meerabux, J

Civil Jurisdiction 1998 No. 283

BETWEEN:

The Bermuda Telephone Company Limited

Appellant

and

Quantum Communications Limited

Respondent

Mr. M. Diel and Mr. R. Myers for the Appellant

Mr. W. Pearce Q.C. Solicitor General for the Minister of Telecommunications

Mr. T. Marshall for Quantum Communications Limited.

Pepper v HartUNK [1993] 1 All ER 42

Caledonian Ry v North British Ry. (1881) 6 AC 114

Grey v PearsonENR (1857) 6 HLC 61

Stock v Frank Jones (Tipton) Ltd.WLR [1978] 1 WLR 231

South West Water Aughority v Rumble'sELR [1985] AC 609

Re Lonrho plc (No.2)WLR [1989] 3 WLR 1106

Preston v BuckleyENR (1870) 5 QB 391

IRC v Dowdall O'Mahoney & Co.ELR [1952] AC 401

Telecommunications Act, s. 21, 22(6)

Appeal against decision of the Minister of Telecommunications — Direction by Minister for BTC to ‘take all necessary steps to provide the connection of the BTC network to the Quantum network’— Whether either party can elect to submit the dispute to the Commission or both parties must agree

JUDGMENT

PRELIMINARY

This is an appeal by Notice of Motion dated 25 August 1998 and amended 30 September 1998 by the Bermuda Telephone Company Limited (‘BTC’) the Appellant, against the decision of the Minister of Telecommunications (‘the Minister’) dated 14 August 1998 under section 60 of the Telecommunications Act 1986 (‘the Act’). In the decision the Minister directed BTC to ‘take all necessary steps to provide the connection of the BTC network to the Quantum network by no later than 3 p.m., September 3, 1998’.

FACTUAL BACKGROUND

I take the facts from the affidavit evidence of Lorraine Lyle dated 30 July 1998 and 15 August 1998.

On 22 May 1998 Quantum Communications Limited (‘Quantum’), the Respondent, through its attorneys, filed a complaint under section 22 of the Act with the Telecommunications Commission (‘the Commission’) alleging that BTC was in breach of various duties imposed by section 21 of the Act, in particular, the duty to ‘establish physical connections with other Carriers on reasonable terms and conditions’.

On 22 June 1998, BTC wrote to the Commission, through its attorneys, electing not to refer the matter of Quantum's complaint to the Commission upon reliance on section 22(6) of the Act. On 25 June 1998 Quantum wrote to the Commission through its attorneys, electing to refer for resolution the matter of the complaint to the Commission, also upon reliance on section 22(6) of the Act. On 26 June 1998, the Commission pursuant to the reference of the complaint, directed BTC inter alia to ‘take all necessary steps to provide the connection of the BTC network to the Quantum network by no later than 3 p.m., July 5, 1998’.

On 7 July 1998, BTC filed a Notice of Appeal against the Commission's Directive under section 25 of the Act and at the same time applied for a suspension of the implementation of the Commission's Directive, which, in the event, was granted. It was one of the grounds of appeal that the Commission had no jurisdiction under section 22 of the Act to issue a directive under subsections (6), (7) and (8) thereof where, as in this case, both parties to the dispute had not elected to refer the dispute to the Commission.

The Minister, after an exchange of submissions, made a decision on 14h August 1998. In respect of the jurisdictional argument made by BTC the Minister found at paragraph 18 that ‘the plain meaning of the words in the section entitles either of the parties to the dispute to submit the dispute to the Commission for resolution’.

BTC now appeals to this Court under section 60 of the Act. One of the grounds of appeal set out in paragraph 10 of the Amended Notice of Motion is that the Minister erred in law in making the above mentioned finding.

THE ISSUE AND ANALYSIS

The question for determination is whether on a proper construction of section 22(6) of the Act either party may refer a dispute to the Commission for resolution by it or whether both parties must do so in order to found the Commission's jurisdiction to issue a directive under section 22(7) and (8) of the Act.

The question directly emerges from section 22(6) of the Act which is in these terms—

‘(6) If the dispute is unresolved within thirty days after the complaint is received by the respondent Carrier the parties to the dispute may—

• (a) jointly agree to further negotiation or mediation; or

• (b) jointly agree...