'Stubborn'! - Court of Appeal judge slams gov't agencies, Caricel

A Court of Appeal judge slammed Symbiote Investments Limited and two state agencies for being "stubborn", as the company withdrew its application for permission to appeal a lower court's decision against it.

Symbiote, which trades as Caricel, was seeking to appeal last month's Supreme Court decision rejecting its application to quash steps by the Government to revoke its mobile spectrum licence.

At yesterday's hearing, Symbiote's lead lawyer, Douglas Leys, applied for the case to be dropped, saying he had clarity on a December 7 notice from the Office of Utilities Regulation (OUR) and the Spectrum Management Authority (SMA), which advised of an investigation.

Leys also wanted OUR and SMA letters containing an error reissued, with a reference to Section 14 (1) of the Telecommunications Act removed. The two agencies admitted it was erroneously included. That section said a licence could be suspended or revoked if the OUR "has reason to believe" that the company violated the conditions of the licence or failed to pay regulatory fees.

The probe is being done under Section 14 (6), which must be read with Section 14 (7), which requires the OUR to investigate first before being satisfied that the company, among other things, failed to give information that would have resulted in the licence not being granted.

Symbiote feels that the reference to Section 14 (1) would have introduced the national security concerns, an issue not listed among those in Section 14 (6) that could lead to the licence suspension or revocation.

WILL NOT REISSUE

Saying they will not reissue the notice, the agencies' lawyers said they only became aware of the "trifling typographical error" when Symbiote took the issue to court in December, which was clarified in the lower court's judgment.

"Does the regulator with responsibility by law to carry out its functions have any responsibility, having seen in that judgment of the court that it made an error, to correct this error?" asked Justice Carol Edwards.

"It hasn't replaced the notice," the OUR's attorney, Daniella Gentles Silvera, said, "but it has clarified it. Subsequent letters after that have clarified it - not once but twice - and the judgment has clarified it. So I don't think it's now for the regulator to now do that (reissue notice)."

"The stubbornness on both sides is regrettable," said Justice Edwards, one of the three judges who heard the matter.

The court ordered each party to meet their own costs.

The Government is under pressure over the issuance of the telecoms licences to Symbiote, which the United States feels has implications for national security because of "adverse traces" linked to a Caricel player.