The Bermuda Telephone Company Ltd v The Honourable Charles T. Collis Minister of Telecommunications
| Jurisdiction | Bermuda |
| Judgment Date | 26 November 1990 |
| Docket Number | Civil Jurisdiction 1990 : No. 268 |
| Date | 26 November 1990 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Astwood, CJ
Civil Jurisdiction 1990 : No. 268
and
Mr Mark Diel for the Appellant
Mr Andre Garneau (Solicitor General), Amicus Curiae
H Sabey & Co Ltd v Secretary of State for the environmentUNK [1978] 1 All ER 587
R v Huntingdon Confirming AuthorityELR [1929] KB 698
Jeffs v New Zealand Dairy Products and Marketing BoardELR [1967] AC 551
Telecommunications rates — Whether surcharge amounted to rate increase — No new service provided — Functions of the Minister and of the Commission
On the 17th July, 1990, the Minister of Telecommunications refused an appeal by the Bermuda Telephone Co. Ltd., the Appellant, to set aside the direction of the Telecommunications Commission dated the 1st June, 1990.
The Appellant is a specified carrier under the provisions of the Telecommunications Act, 1986, (the Act) and, being such a carrier, it cannot initiate a new telecommunication service to the public or vary its rates and charges to the public for existing telecommunication services unless notice in writing of the new service and the proposed rates and charges therefor, the proposed variation in the rates and charges for existing service and the amount thereof has been duly given to the Commission (section 23(1) of the Act) and the Commission gives a direction under section 24 of the Act.
On the 28th February, 1990, the Appellant, through its general manager, addressed a notice to the Commission in these terms:
‘The Chairman,
Telecommunications Commission,
Ministry of Telecommunications,
Golinsky Building,
60 Reid Street,
Hamilton HM 12,
Bermuda.
Dear Sir,
In accordance with the Telecommunications Act 1986, Section 23, Subsection (1), notice is hereby given that it is proposed to introduce a new charge on 1st April 1990 to appear on bills for that month, i.e. paid in arrears.
The new charge will be 2% of the total amount billed and will appear on all bills as ‘SURCHARGE’.
The 2% is calculated so that a proportion of the new 3% of revenue licence fee and additional taxes imposed by Government will be passed on to our customers without any additional mark up. The Company will absorb the shortfall. The 2% surcharge takes no account of additional expenses expected as a result of current labour negotiations.
In explanation, the total additional fees and taxes imposed by Government are estimated to amount to $1.5 million annually. The 2% surcharge will return approximately $1,345,000.
Yours faithfully,
(Sgd.) D. Mannus
D. Mannus,
General Manager.’.
The Commission met on the 20th March, 1990, and discussed the notification from the Appellant and came to the conclusion, without having heard further from the Appellant, that if the notification were approved the net result to the customers would be a 2% increase in the cost of telephone service and that the notification was, in effect, a 2% rate increase and should be dealt with accordingly. Counsel for the Appellant submitted that, when the Commission came to this conclusion, they had pre-judged a vital issue in the application and should have informed the Appellant how they intended to deal with the application, and that they misled-the Appellant when they informed them that they would be having a hearing into their notice of proposed surcharge on the 2nd April, 1990. He submitted that the Appellant was not, therefore, given a proper opportunity to deal with the pre-judgment of the Commission. It is to be noted that counsel was only able to take such technical points after having been supplied with the minutes of the meeting of the 20th March, 1990.
The Solicitor General appeared as amicus curiae to assist the Court by bringing out any points which he considered needed to be brought to the Court's attention since there is no other party to these proceedings and the appeal is from a decision of the Minister. He submitted that when the Commission received the letter of the 28th February, 1990, from the Appellant it had to consider it in view of the provisions of section 24(2) of the Act and, having viewed it, concluded that if it was to consider it at all it would have to decide how it fitted into the scheme of the Act before proceeding. He took the view that there is no error of law in this approach. The Minister in coming to his decision took the same approach.
Counsel for the Appellant's complaint, as I understood it, was that the application to the Commission was for a surcharge. “The letter of the 28th February, 1990, is cleverly drafted to give the impression that the Appellant proposed to introduce a new charge to be billed to the customer as a surcharge. Counsel contended that before the Commission decided to deal with the application as a rate increase it should have given the applicant an opportunity to be heard on this change of nomenclature. What is in a name? The Minister dealt with this quite effectively at para. 2 of his decision of the 17th July, 1990:
‘Insofar as the third ground of appeal is concerned, I believe that any...
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