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Court dismisses
Telikom case
By JOSHUA ARLO
THE National Court has dismissed proceedings by Telikom against
Independent Consumer and Competition Corporation (ICCC) and mobile phone
company Digicel because of “relitigation, multiplicity, abuse of process
and undue delay to move central issue”.
The central issue was whether Telikom consented or agreed with ICCC to a
variation of clause 10.1 of the regulatory contract to bring forward the
end of Telikom’s monopoly from Oct 17 this year.
Last Friday, Justice Bernard Sakora dismissed the proceedings before the
National Court in Waigani because it was an abuse of the court process,
upholding Justice Ambeng Kandakasi’s May 18 decision on the matter
Justice Sakora said that Justice Kandakasi had exhausted this issue and
that Telikom’s latest onslaught in court was only “repeating,
resurrecting (and) in any case, dealing with issues already dealt with
in previous proceedings”.
“The decision of Justice Kandakasi exhausted all the issues that the
first defendant ICCC and Telikom consented to vary pursuant to the law
(and) variation of clause 10.1 of the regulatory contract,” Justice
Sakora said.
He said that there had been one central and continual issue and that a
“multiplicity of proceedings mounted by the plaintiff were not
demonstrated in court that consent had not been given”.
Justice Sakora said the court was of the view that it did not intend to
move these applications until the Supreme Court dealt with the appeals
pending before it.
He also said that there was undue delay by Telikom to move these
applications quickly.
He dismissed the entire proceedings before him pursuant to Order 12 Rule
40 of the National Court rules and the inherent powers of the court.
A brief history of this legal battle shows that Telikom commenced legal
proceedings against the ICCC on Dec 22 last year seeking judicial review
to quash the decision of
ICCC made in August 2006 to grant two new public mobile licences.
However, this proceeding was not deliberated as the matter was
discontinued on July 18 this year.
ICCC later took Telikom back to court seeking a declaration that there
was consent by both parties.
Also earlier on Nov 3, 2006, Telikom had launched another proceeding (WS
1599/06) seeking a declaration that the ICCC could not issue or purport
to issue any licence before Oct 17 of this year.
Telikom also sought another declaration that a licence issued to Digicel
was null and void and consequential injunctions.
The issue of consent was again raised.
It was then that Digicel was added as a party despite strenuous
opposition by Telikom.
The National Court through Justice Kandakasi consolidated these two
matters as one as it was a cross-claim by both parties and on May 18
this year, Justice Kandakasi refused interlocutory injunction sought by
Telikom (WS 1599/06).
On July 5, Justice Kandakasi dismissed the proceedings by Telikom as an
abuse of process.
An appeal on this matter was lodged with the Supreme Court and is still
pending.
An Appeals Panel convened on Aug 26 confirmed consensual agreement on
the variation and also confirmed the decision by ICCC to grant mobile
licences to Digicel and another mobile company, Green Communications.
But Telikom still sought relief from the court for a review of the
decision of ICCC to issue public mobile licences, while maintaining the
same issue of consent.
While its earlier appeal was pending in the Supreme Court, Telikom then
filed the present proceedings (OS 376/07 and OS 377/07) on July 10,
which came before Justice Sakora.
The first one involved Telikom against Shogren seeking a judicial review
of the Appeals panel decision and also to stay the decision.
The other was Telikom against the ICCC and Digicel where Telikom sought
judicial review of the decision of ICCC to agree to Digicel commencing
to operate prior to Oct 17.
They also sought a court injunction order to restrain Digicel from
operating before the said date.
Throughout the hearing of these proceedings, Telikom maintained that it
did not consent to this variation of the contract to let Digicel operate
earlier than Oct 17.
However, ICCC argued that there was consent and that what Telikom was
doing by launching proceedings in the National Court while an appeal on
the same issue was pending in the Supreme Court, was an abuse of
process.
Last Friday, Justice Sakora just made a summary of reasons from his
unpublished decision when dismissing Telikom’s proceedings.
A published judgment with detailed reasons is expected to be ready by
Sept 5 when he makes a ruling on the cost of the entire proceedings
after he comes back from a Supreme Court circuit in Mt Hagen.
 
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