GT&T wins 1997 surcharge appeal
Stabroek News
October 9, 2002
Consumers may soon discover a surcharge on their phone bills as a result of GT&T winning a case in the Court of Appeal allowing it to recover certain sums owed to them almost seven years ago.
The case was heard by Chief Justice Carl Singh in association with Justices of Appeal, Nandram Kissoon and Ian Chang, who in writing the panel's decision stated that GT&T has grounds for recouping its outstanding sum by way of surcharge and awarded costs in the sum of $150,000.
The issue goes back to October 11, 1995 when the PUC made an order (No.7 of 1995) temporarily reducing the fixed final rates of charge. A dissatisfied GT&T filed an application in the High Court and Justice Carl Singh on January 13, 1997 issued a writ of certiorari quashing the temporary reduction order. GT&T shortly after published an advertisement informing consumers that as of 19th January, 1997 they would be charged the rates prior to the quashed PUC order and a surcharge would be applied over a number of months to recover the difference between the original rates and those made by the PUC between October 1995 and January 1997.
But on April 29, 1997 the Consumers Advisory Bureau (CAB) filed a writ in the High Court seeking; "a declaration that no surcharge could be unilaterally imposed by GT&T on consumers....without the permission of the PUC and that the proposed surcharge was illegal and void."
This action was heard by the then High Court Judge Claudette Singh who on November 30 1997 granted the injunction.
GT&T subsequently appealed the decision on the grounds that they were entitled to recoup arrears owed to them. The central question of the appeal was whether GT&T was prohibited by provisions in the PUC Act from recovering or recouping arrears owed them by fixing an additional rate on the fixed final rate over an amortized period of eighteen months without first obtaining the PUC's permission.
While both the appellant GT&T, and the respondents, CAB and the PUC, agreed that the phone company was entitled to recover and recoup its arrears resulting from the declaration of PUC Order 7 of 1995 being declared null and void by then Justice Carl Singh, the respondents had contended that the mode of recovery by GT&T saw an additional charge or surcharge on payment for services provided being passed on to consumers and as such, this charge fell within the definition of "rate" under Section 3 (1) (h) of the PUC Act. The respondents further argued that such a charge could not be imposed without the permission of the PUC.
In arriving at their decision the panel sought to show that the act by GT&T in seeking to recover or recoup monies owed them was not in contravention of Section 40(1) of the PUC act. Further, the Justices of Appeal stated that section 46 (1) was of little relevance in the determination of the question whether GT&T could have imposed the temporary additional rate. They submitted that the words "shall be permitted" in that section imposed on the PUC a negative obligation not to prevent the utility from recovering the outstanding sum since it was by their coercive but now unlawful order in 1997 that the company found itself in that state.
Chang writes: "I fail to see that the PUC should by an unlawful order cause arrears to be owing to GT&T which would not otherwise be owing and then claim that GT&T has to first obtain its permission to undo the consequences of its own (PUC's) unlawful order.... The manner or mode by which a public utility chooses to recover arrears due under fixed final rates, falls within the managerial or administrative function of such public utility in relation to its own affairs."