KUALA LUMPUR (Jan 16): The High Court has denied the Malaysia Competition Commission (MyCC) leave (permission) for a judicial review of the Competition Appeal Tribunal (CAT)'s 2022 decision in favour of Persatuan Insurans Am Malaysia (Piam) and its 22 members.
In his brief judgement, High Court judge Datuk Ahmad Kamal Md Shahid said the judicial review application did not have merit, and the MyCC also does not have locus standi (capacity or right to bring an action to court) to challenge the decision by CAT.
“This is because they are not a person who is adversely affected by the decision, action or omission by CAT in the execution of public duty,” he said.
The judge said the question of whether a person has been adversely affected by the decision of CAT has been answered by the Court of Appeal in the cases of AirAsia and Malaysia Airlines Systems Bhd (MAS) against MyCC, which were heard together.
He said his court is bound by the outcomes of the AirAsia and MAS cases in coming to a decision.
“Upon perusal of the decisions of the Court of Appeal, I find that the Court of Appeal in both cases has made a decision that the applicant (MyCC), being a body corporate under the Competitions Act 2010, cannot challenge the decision and that they are not an affected person.
“In light of judicial precedence being the heart of the administration of justice in our country, this court is bound by the Court of Appeal decision in MAS, AirAsia’s leave application,” he said, and awarded costs of RM10,000 to all respondents except two.
In that decision, MyCC had failed last year to get the Federal Court to review its previous decision to give the regulatory body leave to pursue its appeal to reinstate RM10 million in fines imposed on MAS and AirAsia for breaching a market-sharing prohibition.
MyCC was seeking leave to appeal a decision by the Court of Appeal on April 26, 2021, which quashed the fines imposed on the air carriers by the commission in 2014 after both airlines were found to have breached the market sharing prohibition under Section 4(2) of the Competition Act by entering into an agreement on sharing markets in the air transport services sector within Malaysia.
In December 2022, MyCC filed the current application at the High Court to obtain permission to initiate a judicial review of CAT’s decision to allow an appeal by Piam and its 22 members against the commission's decision in 2020 where it had deemed that an agreement on the application of trade discounts on automotive parts, prices and hourly labour rates for motor vehicle repairs done under the PIAM Approved Repairers Scheme (PARS) was a breach of the Competition Act 2010.
In its application, MyCC sought to quash CAT’s decision and reinstate MyCC’s original decision made three years ago.