Supreme Court dismisses Digicel (Vanuatu) Ltd Judicial Review claim against the Regulator

The Supreme Court of Vanuatu has struck out and delivered as “unarguable” case brought by Digicel against the Regulator, TRR.

In brief, Digicel filed a judicial review claim against TRR in 2011 alleging that TRR, inter alia, has no power to carry out any internal review of a prior internal review under section 52 of the Act. This happened after TRR, through the draft decision 02 of 2011, proposed to issue interconnection rates for fixed and mobile termination which based on cost, after TRR had conducted a cost study to find out what should be the appropriate and proper interconnection rates for Vanuatu. The proposed interconnection rates are much lesser than the benchmark rates determined in 2010. During the consultation of the draft decision with both Digicel and TVL, Digicel, however, filed the judicial review claim against the action of TRR.

The Supreme Court heard the submission in June 2012 under Rule 17.8 of the Civil Procedure Rule, to establish whether Digicel had an arguable case or otherwise prior hearing the claim. Two years later, the Court finally issued its judgment in favour of TRR. Justice Fatiaki, in dealing with each of the grounds raised by Digicel challenging TRR’s approach and draft decision, held that:

1.    The Regulator has the power to carry out any internal review of a prior internal review under Section 52 of the TRR Act.
2.    There is no reason for a review to be confined to the subject matter of a previous decision.
3.    The Regulator wasn’t bound to apply the ICA between TVL and Digicel because he was not a party to that agreement.
4.    The Regulator is not estopped by the ICA to apply his powers under the TRR Act.

The case is a landmark case for the telecom industry in Vanuatu and has shed light to the issues raised by Digicel against the Regulator.



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