PUTRAJAYA (Nov 1): A three-member Federal Court bench on Wednesday dismissed Malaysia Competitions Commission's (MyCC) application to review an apex court decision made last year that refused to grant leave for the regulatory body to challenge the Court of Appeal (COA) decision to set aside the RM10 million fine imposed on AirAsia and Malaysian Airline System (MAS).

COA president Tan Sri Abang Iskandar Abang Hashim, who led the bench, said the decision was unanimous as it ruled that MyCC has not passed the threshold under Rule 137 of the Federal Court Rules.

“We agree there is not an iota of evidence that the previous apex court decision was tainted with denial of justice on MyCC. The law in allowing a review to an apex court decision is trite.

“Hence, we dismiss the review application by MyCC and order it to pay costs of RM60,000,” he said.

Abang Iskandar sat together with Federal Court judges Datuk Zabariah Mohd Yusoff and Datuk Harmindar Singh Dhaliwal on the bench.

MyCC, led by Datuk Lim Chee Wee, sought a review of the apex court’s decision made in February last year that refused MyCC leave to appeal the COA decision which set aside the compound.

Lim had argued that the February 2022 decision had resulted in the regulatory body not being able to review the decision of its Competitions Appeal Tribunal (CAT) in court, whereby other litigants are allowed to do so.

MyCC, Lim said, was seeking the Federal Court, as the court of last resort and court of justice, to further prevent injustice to MyCC by allowing it leave to review CAT's and the earlier Federal Court decision.

It was reported that MyCC had imposed the fine following MAS and AirAsia entering into a corroboration agreement to share routes back in 2012.

CAT, however, allowed a lifting of the fine, following MAS and AirAsia’s appeals, after which MyCC filed a judicial review at the High Court, where it reversed CAT’s decision.

The appellate court subsequently reversed the High Court’s decision, ruling that MyCC cannot challenge its appellate authority and that the commission is not considered an aggrieved party under Order 53 Rule 2, to initiate legal challenge against CAT.

MyCC, in applying for leave to appeal, had failed to do so last February 2022, resulting in this review.

Lim, in arguing for a review, said MyCC — as a regulator — not being able to challenge its appellate authority in CAT’s decision had resulted in “a shut door”, where it is not able to address the issue.

“This resulted in a grave injustice to MyCC and there should be a reversal that allows MyCC access to justice (when the CAT decision did not fall in its favour),” he said, adding there was no prior Federal Court decision on this, and by not allowing it, would deprive the matter from being decided on.

Senior counsel Logan Sabapathy for MAS said there was no grave injustice to MyCC as the regulator had somewhat accepted the COA decision and is now amending its provision to allow it to review CAT’s decision.

This amendment, Logan said was done since Oct 2022, in amending Section 44 of the Competition Act to give MyCC the locus standi (legal standing) to review the CAT decision.

“This shows MyCC had accepted the COA decision and went down the amendment exercise to address the issue,” he said.

Harmindar then interjected to enquire if the amendment would allow MyCC to be a party in the High Court and Logan replied in the affirmative, saying it would allow MyCC to question CAT’s decision. 

Logan said this was lifted from MyCC’s own document on the proposed amendment.

He further argued that the matter should be put to bed, as MAS is in liquidation but yet faces such proceedings.

Datuk Ambiga Sreenevasan, appearing for AirAsia, said that it was not only an issue of legal standing that MyCC faces, but also one of liability, which it did not address before the Federal Court.

She said MyCC is required to get permission from CAT, if it wants to review CAT’s decision, but in this case, MyCC did not and the issue was addressed by the Court of Appeal, further saying that MyCC had not taken this point up to the earlier bench.

For these reasons, Logan and Ambiga applied that a review of the earlier apex court decision should not be granted.

Lim in reply to Logan, said that with regards to the proposed amendment, MyCC was uncertain when or if it would be passed to address the issue.

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