Telecommunications company C3 Pure Fibre has lost an application for leave to seek judicial review following a lengthy dispute with OfReg over the non-payment of licence fees.
Grand Court Judge Ian Kawaley delivered his judgment on 1 Dec., in which he said the regulator was acting lawfully in seeking to collect the $500,000 in fees and interest.
A spokesperson for the Utility Regulation and Competition Office told the Compass the body is pleased with the judge’s decision.
“We are committed to ensuring that all operators and licensees are fully compliant with their obligations and will continue to work with the sector in this regard,” they added.
The clash began when OfReg issued an enforcement notice to C3 over the non-payment of licence fees in July 2022.
In response, the telecoms firm asked OfReg to clarify how the ‘royalty fee’ portion of the licence fees had been defined, and the respondent replied on 16 Feb. this year.
Licence fees, the regulator said in October, are collected from all information and communications technology licensees.
They comprise two parts – a ‘royalty fee’ that OfReg collects on behalf of the government and a ‘regulatory fee’, which it said covers the body’s costs of regulating the sector.
C3 – also known as Infinity Broadband – acting through its attorneys, in a letter dated 17 March, asked the regulator to revoke the initial enforcement.
Its letter claimed the respondent had no power to impose a ‘royalty fee’ or ‘regulatory fee’ and requested the return of past licence fee payments.
OfReg did not rescind the initial notice, and instead issued a ‘final determination’ enforcement notice on 18 Aug. against the applicant.
It said that the telecoms company was obligated to pay the fees and failure to do so was a breach of its licence.
C3 responded by filing an application with the Grand Court on 29 Aug. for leave to seek judicial review.
Leave refused
Legal representatives for C3 and OfReg, appeared before Judge Ian Kawaley in Grand Court on 20 Nov. to argue the case.
“I find that leave to seek judicial review should be granted where the application has arguable merits,” Kawaley said in his judgment.
However, it should be refused when the application has no realistic prospect of success, he said.
In his summary, he declined to postpone the case to a further hearing as the court had received “the benefit of full inter-partes argument on two discrete points of law”.
And he refused leave because, he said, the respondent has validly made regulations prescribing the licence fee.
The judge added that publication of the regulatory fee to the “world at large” was not a condition that preceded liability to pay it.
He also said that “by notifying the applicant of the amount of the regulatory fee, the respondent has complied with the requisite publication requirements in any event”.
The judge granted an application for a stay of the enforcement notice pending an appeal.
“This is consistent with basic principles of fairness notwithstanding the refusal of the judicial review leave application since the appeal is still before the court,” the judge said.
“The parties shall have liberty to apply for such further directions as may be required.”
The spokesperson for OfReg said, “In this particular case, once the full legal process has completed, we will issue a further statement on the outcomes and enforcement actions.”
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