PUTRAJAYA (Feb 9): The Federal Court on Wednesday (Feb 9) granted the Malaysia Competition Commission (MyCC) an interim stay of a judicial review hearing sought by Grab Holdings Inc, along with GrabCar Sdn Bhd and MyTeksi Sdn Bhd, that was scheduled to begin in the High Court next Monday (Feb 14).
A three-member bench led by Court of Appeal President Tan Sri Rohana Yusuf allowed the interim stay requested by MyCC’s lead counsel Datuk Seri Gopal Sri Ram, who appeared with Datuk Lim Chee Wee, Kwan Will Sen, Austen Emmanuel Pereira, Annabel Tan and Muayyad Khairulmaini.
Justice Rohana allowed the stay on the basis that MyCC is seeking grounds of the Court of Appeal’s decision last April granting leave to Grab and its two units to have the merits of the judicial review heard.
“We will adjourn the matter and grant an order of an interim stay of the judicial review hearing pending the disposal of MyCC's leave application. The court orders a mention date of three months be given,” she said.
Justice Rohana also directed the Federal Court registrars to check with the Court of Appeal over the grounds. Sitting with Justice Rohana were Federal Court Judges Datuk Abdul Rahman Sebli and Datuk Mary Lim Thiam Suan.
Sri Ram had sought a stay of the hearing of the judicial review as the grounds of the Court of Appeal decision were still not available for the formulation of questions of law in the apex court.
“You cannot compartmentalise whether leave should be granted in the first place. It is necessary for MyCC to obtain the grounds of the issue. We would be grateful if an interim stay [of the High Court] hearing be granted until the application for MyCC's leave to appeal is disposed of.
“If not, the application for leave by MyCC would be rendered academic,” the former Federal Court judge said.
Datuk Malik Imtiaz Sarwar, the lead counsel for Grab and the subsidiaries, had opposed the interim stay application and wanted the apex court to proceed in hearing the questions of law.
“I do not think you need the grounds of the Court of Appeal [decision] as this is a threshold issue,” he argued.
Previously on Jan 17, High Court Judge Datuk Wan Ahmad Farid Wan Salleh refused MyCC's stay application and ordered for the hearing to proceed on Feb 14.
MyCC had wanted to impose a proposed fine of RM86.77 million on Grab and its two units as it said that they had abused their dominant position by imposing a restrictive clause on Grab's drivers, which effectively prevented them from promoting the company's current and potential competitors on e-hailing platforms and in transit media advertising.
On April 19, 2021, a three-member appellate bench led by Justice Datuk Hanipah Farikullah allowed leave for Grab to have the merits of the judicial review heard.
"This is not a frivolous and vexatious application by the appellants. The High Court judgement is set aside,” she said in the unanimous decision.
Grab Holdings and the two subsidiaries sought the judicial review in the High Court in February 2020, following MyCC’s proposed fine.
However, the application was initially dismissed as the High Court deemed the move premature, given that the proposed decision was not yet final.
Following the appellate court decision last April, MyCC filed an application for leave to appeal to the Federal Court.