Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

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Conduct of appeals

107. (1) The respondent to an appeal shall be the Commission.

(2) A person that brings an appeal,or an application under section 105 (3)(a)—

(a) may include in such appeal or application, as the case may be, any ground that could, but for section 104 , be relied upon by the appellant in an application seeking judicial review, and

(b) shall, on the same date as it makes such appeal or application, as the case may be, notify the respondent of the fact that it has made the appeal or application, and of the grounds on which it has made the appeal or application.

(3) The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, give directions in respect of the conduct of the appeal.

(4) An appellant shall, when making an appeal precisely state all of the grounds in law and fact upon which the appeal is made and shall provide to the Court all of the documents and evidence which it is alleged support the granting of the appeal or upon which the appellant intends to rely to support those grounds.

(5) A party to an appeal other than the appellant shall, when responding to an appeal, state all of the grounds upon which he or she responds to the appeal and provide to the Court all of the documents and evidence upon which he or she intends to rely to support those grounds.

(6) Subject to subsection (7), a party to an appeal shall not be entitled during the course of an appeal to make submissions to the Court other than submissions related to the grounds stated, or documents and evidence provided under subsections (4) and (5).

(7) The Court may, upon application and where it considers it necessary for the fair and proper determination of an appeal, require or permit a party to an appeal to—

(a) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided under subsections (4) and (5), and

(b) provide documents or evidence to the Court other than documents or evidence provided under subsections (4) and (5).

(8) Notwithstanding subsection (7), the Court shall refuse to consider submissions, documents or evidence where it considers that—

(a) the submissions, documents or evidence are not relevant to the appeal, or

(b) it is appropriate to do so in order to avoid undue repetition of submissions.

(9) Where the Court has granted leave to deliver additional submissions, documents or evidence on an application under subsection (7), the Court shall give directions as to the scope, form and time-frame for delivery of such additional submissions, documents or evidence.

(10) The Court may receive evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(11) The Court, on hearing an appeal against a decision, may consider—

(a) whether the jurisdiction existed to make the decision,

(b) whether the law was correctly applied in reaching the decision,

(c) whether the decision is supported by the evidence including evidence admitted in accordance with subsection (7), and

(d) in the case of an appeal against an adjudication, whether an administrative sanction was imposed as part of the adjudication that was appropriate, effective, proportionate and dissuasive.

(12) In considering an appeal, the Court shall have regard to—

(a) the record of the decision the subject of the appeal,

(b) the grounds stated by the parties to the appeal, and documents and evidence relied upon by the parties to support those grounds, under subsections (4) and (5), and

(c) any submissions, documents or evidence admitted under subsection (7).

(13) The Court may, on the hearing of an appeal against a decision—

(a) confirm the decision, or

(b) where it is satisfied by reference to the grounds of appeal that a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error, was made in making the decision, or that the decision was made without complying with fair procedures, annul the decision in its totality or in part, and—

(i) remit the decision for reconsideration by the adjudicator, or, in the case of a decision to serve an urgent interim measures notice, the Commission subject to such directions as the Court considers appropriate, including, in the case of a decision by an adjudicator, whether the matter should be reconsidered by another adjudicator, or

(ii) vary the decision and substitute such other decision as the Court considers appropriate.

(14) The Court shall, in determining an appeal act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals under section 105 (1).