On 1 November 2023, the Federal Court (the apex court in Malaysia), presided over by YAA Tan Sri Abang Iskandar Abang Hashim (President of the Court of Appeal) and hearing together with YA Datuk Zabariah Mohd Yusof and YA Datuk Harmindar Singh Dhaliwal, unanimously dismissed the Malaysia Competition Commission's ("MyCC") application under Rule 137 of the Rules of the Federal Court 1995 to review an earlier decision made by the Federal Court.
The earlier decision of the Federal Court refused MyCC the leave to challenge the decision of the Court of Appeal (an appellate court in Malaysia), which set aside MyCC's RM10 million fine imposed on AirAsia and MAS for an alleged market sharing infringement under the Competition Act 2010 ("CA 2010"). In setting aside MyCC's infringement decision, the Court of Appeal inter alia endorsed that MyCC, a quasi-judicial body, is not "a person who is adversely affected by the decision" within the meaning of Order 53 rule 2(4) of Rules of Court 2012 and hence, has no locus standi to apply for a judicial review against the decision of the Competition Appeal Tribunal ("CAT"), the superior body to the MyCC.
During the review application before the Federal Court, MyCC argued inter alia that there was a breach of natural justice as a result of the dismissal of its leave to challenge the Court of Appeal's decision as the Commission was unable to make further submissions on a novel issue at the Federal Court.
Counsels of Air Asia and MAS respectively submitted inter alia that the Federal Court in refusing the leave had applied the law to the facts of this case and concluded that it was not the appropriate case to answer all the leave questions framed by MyCC. Therefore, there is no injustice within the meaning of Rule 137 of the Rules of the Federal Court 1995. There is also no grave injustice done to MyCC since it has accepted the Court of Appeal's decision and is now in the process of amending the CA 2010 to allow MyCC to appeal the Competition Appeal Tribunal's decisions to the High Court. It was also highlighted that there was no question of leave before the Federal Court in respect of the Court of Appeal's finding that the Collaboration Agreement, which MyCC relied on as the basis for its market-sharing finding against AirAsia and MAS, would be relieved from liability pursuant to Section 5 of the Act. As such, even if all proposed leave questions were answered in favour of MyCC, MyCC would not have succeeded in its appeal before the Federal Court.
Having considered both oral and written submissions by the parties, the Federal Court unanimously ruled that MyCC has not met the threshold to invoke Rule 137 of the Rules of the Federal Court 1995. The Federal Court agreed that there is not an iota of evidence that the previous Federal Court's decision in refusing the leave to challenge Court of Appeal's decision was tainted with denial of natural justice on MyCC. Therefore, the Federal Court dismissed the review application by MyCC and ordered it to pay costs of RM50,000 to each MAS and AirAsia, subject to allocator.
AirAsia was represented by Messrs. Wen & Co with Dato' Ambiga Sreenevasan acting as counsel (together with her team, Janini Rajeswaran and Tan Yoong Chang) in the review application before the Federal Court.
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