The Bermuda Telephone Company Ltd v The Honourable Charles T. Collis Minister of Telecommunications
| Jurisdiction | Bermuda |
| Judgment Date | 19 July 1991 |
| Date | 19 July 1991 |
| Docket Number | Civil Appeal No. 20 of 1990 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Roberts, P.
Huggins, J.A.
Georges, J.A.
Roberts, P.
Huggins, J.A.
Georges. J.A.
Roberts, P.
Huggins, J.A.
Georges, J.A.
Civil Appeal No. 20 of 1990
Civil Appeal No. 20 of 1990
Civil Appeal No. 20 of 1990
and
and
and
M. Beloff Q.C. for the Appellant.
C. Diel for the Appellant.
M. Diel for the Appellant.
A. Garneau Q.C. (Attorney-General's Chambers) for the respondent.
M. Beloff Q.C. for the Appellant
C. Diel for the Appellant
M. Diel for the Appellant
A. Garneau, Q.C. (Attorney-General's Chambers) for the Respondent.
M. Beloff, Q.C. and Mark Diel for Appellant
A. Garneau. Q.C., Solicitor General for Respondent
Metropolitan Properties (FGC) Ltd v LennonELR [1969] 1 QB 577
Jeffs v NZDPMBELR [1967] AC 551
R v Inland Commissioners ex parte PrestonELR [1985] AC 835
Appeal on points of law — Judicial review of administrative action — Increase of telecommunications charges — Test of bias — Whether Government Board properly constituted — Whether members of Telecommunications Commission had appropriate technical knowledge — Natural justice — Whether necessary for all members to take part in meetings
Roberts, P.
The appellant is a specified carrier under the Telecommunications Act, 1986 (‘the Act’). Under the Act, the Bermuda Telephone Company Limited (‘B.T.C.’) may not initiate a new telecommunication service to the public, nor vary its rates or charges, unless B.T.C. has first given notice to the Telecommunications Commission (‘Telcom’).
The Government of Bermuda, by Act of Parliament, imposed upon B.T.C. a tax of 3% of its gross revenues. B.T.C. wrote on 28th February, 1990 to Telcom, giving notice, under Section 23(1) of the Act, that B.T.C. intended to ‘introduce a new charge’ from 1st April 1990, on all bills.
On 14th March, 1990, Telcom replied that it proposed to hold a public hearing on 29th March and sought submissions from B.T.C. by 23rd March. Telcom asked the Minister for an extension of time beyond the time specified by the Act. After further adjournments. public hearings were heard on 3rd and 10th May. Private meetings of Telcom, to consider the application of B.T.C., were held on 20th March, 9th, 17th and 31st May, 1991–i.e. a total of 6 meetings in all were held.
On 1st June, Telcom wrote to B.T.C., informing it that it refused to allowed the surcharge sought. B.T.C. appealled to the Minister under Section 25 of the Act. On 17th July, the Minister refused the appeal and confirmed the decision of Telcom.
Thre was an appeal by B.T.C.. against the Minister's decision, under Section 60 of the Act, which allows for an appeal against such a decision ‘on a point of law or mixed law and fact’ to the Supreme Court. Such an appeal came before the Chief Justice and was dismissed by him on 26th November, 1990.
Telcom is a statutory body with various functions which are set out in the Act. Among these is the giving of directions with regard to new or altered rates of charge by B.T.C.
The statute prescribes a number of requirements as to the composition and procedures of Telcom.
The appellants, before this court, raised four main issues—
1. Was the chairman of Telcom apparently, if not actually, biased?
2. Did the members of Telcom lack the technical knowledge required by paragraph 1 of the Second Schedule to the Act?
3. Did members of Telcom attend meetings with sufficient regularity to deprive B.T.C. of a fair hearing?
4. Was the Minister apparently, if not actually, biased?
It is accepted that the correct test of bias is not whether there is actual bias, but whether a reasonable person would suspect that there was—see Metropolitan Properties (FGC) Ltd v. Lennon(1969) 1 Q.B. 577 at p. 600.
It is said that a reasonable suspicion of bias arises from the fact that the Chairman was a former Minister of Industry and Technology, a member of the party which imposed the tax and an adviser to the Minister on Telecommunications matters. While the first two factors were known to B.T.C. before the public hearing on 3rd May, the last factor was not, though there is no information available to us, as we believe was the case with B.T.C., as to what an adviser to the Minister actually does.,
The Minister is said to have been biased because he belonged to a Government which imposed a tax on B.T.C. The appellant did not explain satisfactorily, in my judgment, how this would have led a reasonable person to assume that the Minister was not entirely neutral as to whether or not B.T.C. should pass on this to its customers by way of a surcharge.
Nor do I see any evidence of bias in the Minister's failure to delegate his power to hear the appeal under Section 8 of the Act.
For the reasons given below, I consider that this appeal should be allowed on other grounds. Had I been obliged to consider grounds 1 and 4, I would have had no difficulty in rejecting the allegations of bias against the Chairman of Telcom and the Minister.
Paragraph 1 of the Second Schedule to the Act requires that at least two of the commissioners shall have ‘appropriate technical knowledge in the field of telecommunications, evidence by such qualifications as the Minster may deem satisfactory’.
In his order of 17th July. 1991, the Minister expressed himself as satisfied that ‘all of the Commissioners are qualified in accordance with clause 1 of the Second Schedule to the Act as a result of their long involvement with either the Commission, its predecessor the Telecommunications Authority or the Broadcasting Commissioners’.
Must the knowledge, which at least two of the Commissioners must have, be technical and in the field of telecommunications? I do not consider that such knowledge depends upon a person holding any recognized degree, diploma or other paper qualification. I see no reason why the Minister should not regard experience in the field of communications as amounting to a sufficient qualification, but I do not think that he is entitled to accept as adequate appropriate technical knowledge under this paragraph something which obviously does not so qualify. The Minister cannot cure a defect in appointment merely by saying that a qualification is satisfactory if it clearly does not satisfy the Act.
Of the seven members of Telcom, three had previous experience as members of the Broadcasting Commission. This Commission, however, was appointed to deal with the content and timing of broadcasts. It had no functions which could reasonably be said to relate to telecommunications.
Of the other members, Mr. Stewart was Chairman of the Broadcasting Commission from 1980 to 1983 and Chairman of the Telecommunications Commission (fore-runners of Telcom) from 1982–83. Mr. Mello was a member of the Price Commission before 1986; that Commission dealt with price applications from B.T.C. Mr. Kempe had helped to draft the Act and was an amateur radio operator. The Chairman had been a Minister of Telecommunications from 1983–85 and is an adviser to the Minister on Telecommunications.
None of these persons seems to have satisfied the requirement of technical knowledge in the field of telecommunications, as required by paragraph of the Second Schedule. Indeed, the Minister cites their membership of these various bodies as the sole factor in their appointment. This may well be adequate for a majority of members of Telcom, but does not seem to me to satisfy the requirement that two members of Telcom shall have ‘appropriate technical knowledge in the field of communications.
It was admitted that some of the members of Telcom did not attend all the meetings. Two attended 6, 3 attended 5, 1 was at 4 and 1 at 2. At the two public hearings, 6 attended each time.
At all meetings Telcdm met its quota of not less than four. But it is argued that some of those present at the meeting of 31st May, when Telcom reached its decision, had not been present at some of the other five meetings at which B.T.C.'s application was considered.
I must therefore consider whether it is necessary for all members to take part in each meeting.
The Chief Justice applied the test that, provided that a quorum was present at each meeting, as it was, it was not necessary for every member to attend each time, if each member who took part in the decision had all the relevant material before him. This was required by Jeffs v. Nzdpmb(1967 A.C. 551 exp. at p. 565).
The Minister, when dealing with this objection, stated that Telcom was properly constituted when considering the matter. In his decision of 17th July, 1990, he said—
‘As four of them were present at all of its meetings when submission were made and considered, the fact that certain other members were not present at one or more meetings does not invalidate the proceedings which were conducted in accordance with natural justice.
The Notice calling the hearing required submssions to be in writing so that all the essential evidence was contained in written documents which were available at all material times to all members of the Commission’.
It is not clear as to what was put before the members who were absent. In particular, the records of the two public meetings are not full. Telcom's own record of what took place at them is no more than an outline. It seems likely that there short notes were provided, with written submissions, to those who were absent from a meeting, though the Minister says that the submissions during...
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