Symbiote Investments Ltd v Minister of Science and Technology
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Brooks JA,P Wiliams JA |
| Judgment Date | 29 April 2019 |
| Neutral Citation | JM 2019 CA 28 |
| Date | 29 April 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA App 8
SUPREME COURT CIVIL APPEAL NO 87/2018
The Hon Mr Justice Brooks JA
The Hon Mrs Justice McDonald-Bishop JA
The Hon Miss Justice P Williams JA
Lord Anthony Gifford QC and Patrick Bailey instructed by Patrick Bailey for the applicant
Miss Althea Jarrett instructed by the Director of State Proceedings for the respondent
Mrs Daniella Gentles-Silvera and Miss Kathryn Williams instructed by Livingston Alexander and Levy for the interested party
Civil practice and procedure - Application for an interim injunction or a stay of implementation of an order made by a Minister — Whether the court could grant a stay in connection with a Minister's decision — Whether the grounds of appeal had a real prospect of success.
On 29 March 2019, after consideration of the very helpful submissions of counsel for the respective parties, for which the court is grateful, we made the following orders:
At that time, the court promised to put its reasons in writing. We now do so.
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“1. The order granting permission to appeal is set aside.
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2. The application for stay of execution is refused.
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3. Costs to the respondent and to the interested party to be agreed or taxed.”
This is an application by Symbiote Investments Limited (Symbiote) for an interim injunction or a stay of the implementation, pending appeal, of an order made by the Minister of Science and Technology (the Minister) on 12 June 2018. By that order, the Minister had revoked six licences that he had previously issued to Symbiote under the Telecommunications Act (the Act).
After the revocation, Symbiote promptly applied to the Supreme Court for leave to apply for judicial review of the Minister's decision. Stamp J heard the application, and on 7 December 2018, refused it. He also refused permission to appeal.
Symbiote applied to this court for permission to appeal and for an injunction or a stay of the implementation of the Minister's decision, pending the outcome of the appeal. The court considered the applications at short notice on 17 December 2018. At that time, the court granted permission to appeal, as a conservatory measure, but adjourned the application for the injunction or stay to 14 January 2019. The court also sought to preserve the status quo and granted a temporary stay of the implementation of the Minister's order pending the hearing of the substantive application for the stay. Stamp J had granted a similar stay of implementation pending the outcome of the application before him.
The present application came on before the court on 14 January 2019, and was adjourned part-heard over the course of a number of days stretched over the course of 10 weeks. During that period, the stay was extended and remained in force.
The issues to be decided on this application are whether Symbiote has a real prospect of succeeding on appeal and whether the justice of the case requires an extension of the stay pending the outcome of the appeal. The revocation of the grant of leave to appeal arises as a collateral issue to the question of the prospects of success.
An understanding of the analysis of these issues first requires an outline of the background leading to the Minster's revocation of the licences.
Symbiote was incorporated in 2011. In March 2014, it applied for a number of telecommunication licences to allow it to provide telecommunication (including mobile and fixed line telephone) services to the public. The applications were refused because of its connection with Mr George Neil, with whom, the regulator for the telecommunications industry, the Office of Utilities Regulation (the OUR), said “adverse traces” were associated.
Symbiote re-applied for the licences in October 2014. Its then attorneys-at-law informed the OUR, by letter, in November 2014, that Mr Neil's connection with Symbiote had been terminated. Thereafter, between 2015 and 2016, the Minister granted Symbiote, on the recommendation of the OUR, six telecommunication licences, to allow it to provide telecommunication services to the public.
Symbiote later applied for a radio frequency spectrum licence (spectrum licence) to facilitate the use of wireless technology. That application proved to be controversial, but the Spectrum Management Authority (SMA) eventually recommended the grant of the licence. The Minister granted the spectrum licence to Symbiote on 14 September 2016. The licence was for a period of 15 years. Importantly, the letter accompanying the licence specifically prohibited the involvement of Mr George Neil in the company. Mrs Minett Lawrence, Symbiote's company secretary, signed a copy of the letter agreeing that Symbiote would be bound by the terms and conditions of the spectrum licence.
In December 2016, the SMA and the OUR separately notified Symbiote, by letter, that they were investigating threats, through Symbiote's operation, to the national security of this country as well as the security of a foreign government. The reasons given for the notice included the fact that the Office of the Minister of National Security had indicated that there had been the continued participation by someone with an ongoing adverse trace in the operations of Symbiote. Both letters warned of the intention to carry out investigations into the assertions by the Minister of National Security and the possibility of a suspension or revocation of the respective licences that had been issued to Symbiote.
In May and October of 2017, the OUR requested certain information of Symbiote, including information relating to its banking arrangements. The OUR particularly asked for information concerning Mr Neil. Symbiote cited confidentiality issues, refused to provide the information, and refused to authorise the OUR to obtain the information from Symbiote's bankers.
Undaunted, the OUR secured the banking information, and copies of certain banking documents, from the Office of the Contractor General (OCG). The information secured showed that Symbiote had informed the bank, through documents signed respectively in January and in March 2015, that Mr Neil was the chairman of its board of directors. The documents also showed that Symbiote had also designated Mr Neil as a signing officer on its account with the bank. Signature cards, bearing his signature, were included in the information that the OUR secured through the OCG. The signatures of Mr Lowell Lawrence (a director and the chief executive officer of Symbiote) and Mr George Neil both appeared on a number of the acquired documents, which also bore Symbiote's corporate seal.
The OUR brought the documents to Symbiote's attention and sought an explanation. Symbiote sought to impugn the validity of the documents and protested the OUR's acquisition and use of the documents.
By letter dated 17 November 2017, the Minister informed Symbiote that the OUR had recommended the revocation of its licences. The basis for the recommendation, he said, was that Symbiote had knowingly failed to provide information that may have resulted in a refusal to grant the licences. He invited Symbiote to show cause why the licences should not be revoked. Symbiote responded, but the Minister was not satisfied with the response and, by letter dated 10 April 2018, the Minister informed Symbiote that its licences had been revoked. The reason that was ascribed to the revocation was that Symbiote had failed to show cause why the licences should not be revoked.
Symbiote protested the revocation. It contested the accuracy of the bank's information. It protested the OCG's securing of the information and it sought to get the police to investigate the validity of the documentation. It also contended that not only was Mr Neil never the chairman of its board or a signatory to its account, but that the prohibition of an association with Mr Neil was imposed after the grant of the telecommunication licences.
Symbiote made representations to the Minister, who stayed the decision to revoke the licences in order to accommodate discussions with Symbiote and to facilitate the police investigations. On 12 June 2018, despite the fact that the police had not provided a report on their investigations, the Minister confirmed his revocation of Symbiote's licences.
During the validity of its licences, Symbiote had invested heavily in its business. By the time of the revocation, on Symbiote's account, it had invested over US$79,000,000.00 in the enterprise, had over 75 employees and over 15,000 subscribers to its services. The spectrum licence, it pointed out, cost it US$20,833,332.00.
Symbiote filed its application for leave to apply for judicial review, but the Minister and the OUR, appearing as an interested party, successfully resisted the application, as is evidenced by the decision of Stamp J.
Before analysing the issues identified in the introduction, it is necessary to analyse an issue that consumed much of the efforts of the parties, namely, whether it would be proper to grant a stay in connection with the Minister's decision. The conclusion will depend on the nature of the discretion, which the Minister exercised.
Lord Gifford QC, for Symbiote, commenced his submissions by responding to one aspect of written submissions by Miss Jarrett for the Minister. Miss Jarrett's stance was that the Minister, having confirmed the revocation of the licences, had no further authority under the Act. She argued that his decision was an exercise of executive authority and that authority was spent and therefore was not amenable to a stay of execution. Learned counsel relied upon Minister of Foreign Affairs Trade and Industry v Vehicles and Supplies...
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