The Supreme Court yesterday rejected an application to dismiss a proceeding Hardell Entertainment Limited and Hardell Cable TV Limited brought against The Minister of Telecommunications and E-Commerce.

The companies owned by Harold Darrell requested a judicial review of the manner in which the Minister of Telecommunications issued World on Wireless (WOW) a licence for its cable television service.

On Monday, WOW lawyer Megan Lewin and Solicitor General Wilhelm Bourne asked Puisne Judge John Riihiluoma to dismiss the proceedings on the grounds that Hardell had failed to initiate them within the specified time period.

Ms Lewin argued that under the Administration of Justice (Prerogative Writs) Act, Hardell had just six months from the date that WOW was granted its licence to initiate the proceedings.

Mr. Justice Riihiluoma agreed with the lawyers that Hardell was out of time in respect of the initial granting of a PTS licence that was issued on January 21, 2003.

However, he agreed with Hardell lawyer Richard Horseman that the companies were not out of time to request a judicial review in respect of the secondary grant of WOW's Class 7 Equipment Licence.

The Judge said: "Seven days after the Applicants commenced the proceedings, the Respondent granted WOW the Class 7 Equipment Licence.

"Clearly, the Applicants' proceedings contemplated a grant of a licence and in the circumstances I am not minded to dismiss the Applicants' complaints in respect of the grant of the Equipment Licence. In this regard I note that the Applicant would not be out of time to bring a fresh claim for certiorari in respect of the grant of WOW's Equipment Licence. WOW's Equipment Licence was granted on April 23, 2004 and accordingly by the six month period lapses on October 24, 2004."

The judicial review will continue after the Minister and WOW respond to issues brought up in a second affidavit filed by Mr. Darrell.

The lawyers had questioned the late filing of the affidavit but the judge rejected this argument on the grounds that the timing had been due to the death of Mr. Darrell's mother-in-law.

The judge did, however, agree with WOW and the Minister of Telecommunications that there was some justification to criticise the more than 30-page affidavit. It was meant to be a reply to affidavits filed by the Minister and WOW, but the judge said that besides elaborating on Mr. Darrell's contention that the Minister could not grant WOW an Equipment Licence to use the UHF spectrum, it also alleged specific breaches of telecommunications legislation and regulations concerning the granting of WOW's Equipment Licence.

"It is only right that the Respondents and WOW be given the opportunity of addressing these specific allegations," the judge said.

The judge noted that large sections of the affidavit dealt with issues not of concern to the particular proceeding including an attack on the initial granting of WOW's PTS licence and information on Hardell's dispute with the Minister over its own licensing issues.

While he was not minded to strike the second affidavit from record, Mr. Justice Riihiluoma ordered Hardell to file a further affidavit dealing only with matters directly related to the proceedings.

Mr. Horseman requested and was granted 14 days to file a new affidavit from Mr. Darrell. WOW and the Minister of Telecommunications have been granted the same amount of time to file their responses.

After the ruling, Mr. Horseman told The Royal Gazette: "We are happy the application was dismissed and we look forward to our day in court."

Mr. Bourne said that yesterday's judgment showed: "The judge tried to reach a fair decision for all parties. The Minister will be happy with the decision in that the judge seemed to be striking a fair balance. In the end, the evidence will bear out that the Minister acted properly."