PUTRAJAYA (Aug 18): A three-member Court of Appeal bench has on Tuesday upheld the High Court’s decision that had dismissed leave (permission) for a judicial review sought by competition regulatory body Malaysia Competition Commission (MyCC) to challenge a decision by the Competitions Appeal Tribunal (CAT).
CAT had allowed 22 insurance companies’ appeal to offer trade discounts on automotive parts prices and hourly labour rates for motor vehicle repairs, after having found that the insurers had not breached the Competition Act 2010 (CA).
On Sept 8, 2022, CAT had allowed Persatuan Insurans Am Malaysia (Piam) and its 22 members — comprising insurance companies — to appeal a MyCC decision that had deemed an agreement on the application of trade discounts on automotive parts prices and hourly labour rates for motor vehicle repairs by workshops under the PIAM Approved Repairers Scheme (PARS) as a breach of the CA.
Subsequently, MyCC had filed a judicial review over CAT’s decision, and in 2024, the High Court had dismissed leave (permission) to have the judicial review.
In Tuesday’s decision, the appellate bench, led by Datuk Azizul Azmi Adnan, also ordered MyCC to pay total costs of RM270,000 to the nine solicitors representing the 22 insurance companies and Piam.
Azizul sat with judges Datuk Ahmad Fairuz Zainol Abidin and Datin Paduka Evrol Mariette Peters in the unanimous decision.
All four grounds argued dismissed
Evrol, who read the decision, dismissed all four grounds laid out by MyCC’s lead counsel Datuk V Sithambaram and firstly said that MyCC’s argument that the High Court’s reliance in the Malaysia Airlines System (MAS) case was erroneous and cannot stand.
She ruled that under the Competition Act, the statutory scheme gives the right of appeal to persons aggrieved, but not to MyCC itself.
“Allowing MyCC to appeal could undermine the statutory hierarchy and amount to administrative insubordination,” she said.
The MAS-AirAsia case, better known as the MAS case, refers to the imposition of fines on the two airlines by MyCC in 2012, where CAT had set aside the fines.
In 2018, the High Court had reinstated MyCC’s decision to impose the fines, but in 2021, the Court of Appeal quashed the fines ruling in favour of the airlines, and imposed CAT’s decision. In 2022, the Federal Court had dismissed MyCC’s leave to appeal.
Foreign decisions are persuasive, but not necessarily applicable
As to the second issue, Evrol rejected MyCC’s reliance on an Indian Supreme Court decision which had allowed a regulatory body’s judicial review. Evrol said foreign decisions are only persuasive where the statutory frameworks are analogous.
“In this case, the Indian legislation expressly permits the Competition Authority to appeal, whereas the Malaysian CA does not. Secondly, and more importantly, MyCC was acting in an adjudicatory and not in a regulatory capacity. It was exercising a quasi-judicial function and not formulating policy or regulating the industry prospectively.
“Having completed that function, MyCC had no continuing interest that entitled it to challenge the CAT decision,” she ruled.
Regarding the third issue, the judge said MyCC’s argument that the MAS decision violated Article 8 of the Federal Constitution on equality is misplaced.
“Article 8 does not require identical treatment where there is a reasonable classification bearing a rational nexus to the legislative objective.
“The distinction between MyCC and other statutory bodies was justified by the CA’s unique structure, under which CAT is the final appellate authority, and MyCC, having acted adjudicatively, must accept its ruling. The different appeal rights under other statutory regimes, therefore, did not render the distinction arbitrary or discriminatory.”
Amendment to CA shows MyCC has no right to appeal
On the fourth ground, Evrol said the bench rejected MyCC’s contention that the MAS decision had loosened judicial power or denied it (MyCC) access to justice.
This, she said, is because decisions by CAT remain subject to the High Court's supervisory jurisdiction.
“However, MyCC, having acted quasi-judicially and become functus officio (having performed his office), was not entitled to challenge the decision of CAT.
“The bench stresses that where Parliament has not conferred [MyCC] a right of appeal, the courts cannot create one. In fact, MyCC's subsequent proposal to introduce Section 58A in CA (amendment to CA), expressly granting such a right, further confirms that no right existed under the existing CA.
“We also note that MyCC's application for leave to appeal against the MAS decision and for a review of the decision to dismiss the leave application were both dismissed by the Federal Court. This reinforced the authority of [the] MAS [case], and MyCC's failure to establish any exceptional basis for departing from it,” she said.
Following this, Evrol ruled that the bench unanimously dismissed the appeal with costs.
Counsel Khoo Guan Huat and Shanti Kandiah from Messrs SK Chambers appeared for Piam; Anand Raj, Jeevitha Thurai Ratham and Srriya Nithiananda Jawahar of Messrs Shearn Delamore & Co appeared for MPI Generali Insurance Bhd, AmGeneral Insurance Bhd, Allianz General Insurance Co Bhd, Liberty Insurance Bhd, RHB Insurance Bhd, and AXA Affin General Insurance Bhd.
Manshan Singh of Messrs Skrine appeared for AIA Bhd, AIG Malaysia Insurance Bhd, and Zurich General Insurance Bhd; Tunku Farik Tunku Ismail and Tan Sixin from Messrs Azim, Tunku Farik and Wong appeared for Tokio Marine Insurance (M) Bhd, Lonpac Insurance Bhd, Berjaya Sompo Insurance Bhd, and Tune Insurance (M) Bhd.
Lee Jing Long of Messrs Adnan, Sundra & Low appeared for Great Eastern General Insurance (M) Bhd; Kristen Tan of Messrs Steven Thiru & Sudhar Partnership appeared for Chubb Insurance (M) Bhd.
Besides Sithambaram, Kwan Will Sen and Muayyad Khairulmaini of Messrs Lim Chee Wee Partnership appeared for MyCC.