In MyTeksi Sdn Bhd & Ors v Suruhanjaya Persaingan [2020] 8 CLJ 94, the High Court had the opportunity to consider the nature of a proposed decision under the Competition Act 2010 ("CA 2010") in the context of an application for leave to commence a judicial review of the proposed decision.
Brief facts
On 3 October 2019, the Malaysian Competition Commission ("MyCC") issued a proposed decision against Grab Inc, GrabCar Sdn Bhd and MyTeksi Sdn Bhd (collectively "Grab") for collectively abusing their dominant position by imposing various restricted covenants on their e-hailing drivers that prevented the drivers from promoting and providing advertising services for Grab's competitors in the e-hailing and transit media advertising market in breach of section 10 of the CA 2010 and proposed to impose a financial penalty of RM86,772,943.76 on Grab, as well as a daily penalty of RM15,000.00 from the date of service of the Proposed Decision for each day that Grab fails to take remedial actions as directed by MyCC to address the competition concerns ("Proposed Decision").
In response to the Proposed Decision, Grab applied to the High Court for leave to commence judicial review against the Proposed Decision and sought various reliefs, including an order that the Proposed Decision be quashed.
The MyCC opposed the leave application on the grounds
that:
- it is premature and that the Proposed Decision is not amenable to judicial review;
- Grab had failed to make full and frank disclosure by failing to disclose that they had filed a written representation and notified the MyCC of their intention to make oral representations before the MyCC in relation to the Proposed Decision; and
- the internal remedy of appeal to the Commission Appeal Tribunal ("CAT") as provided under the CA 2010 has not been exhausted.
Decision of the High Court
The application by Grab was dismissed by the High Court. The main grounds of the decision are set out below.
What is a 'decision' in the context of a judicial review?
After considering various authorities1, the High Court held that in the context of an application for judicial review under of Order 53 rule 2(4) of the Rules of Court 2012 ("RC 2012"), the decision in question must be one that disposes the rights of the parties which is also a final decision.
Analysis of a proposed decision under CA2010
The Court then analysed the decision making process under the CA
2010. The learned Judge's analysis can be summarised in the
following terms:
- Upon completing an investigation, the MyCC would issue a proposed decision and serve it on each party directly affected by such decision (section 36);
- If any affected party wishes to make oral representations, the MyCC shall convene a session to hear the oral representations before making any decision (section 37);
- After hearing the oral representations, the MyCC will decide whether there is an infringement or non-infringement of the relevant provisions of the CA 2010 pursuant to sections 39 and 40 respectively of the CA 2010 (section 38);
- Any finding of non-infringement under section 39 or infringement under section 40 is appealable to the CAT (section 51); and
- The CAT may confirm or set aside the decision appealed against in whole or in part (section 58).
The High Court concluded that the provisions referred to above show that a proposed decision under section 36 of CA 2010 is subject to further process before the MyCC decides whether there is a non-infringement or an infringement under sections 39 and 40 respectively of the CA 2010. Based on the features of the aforesaid provisions of the CA 2010, the Court concluded that the Proposed Decision does not dispose or alter the rights of the parties; it is therefore not a final decision as the final decision is when the MyCC decides whether there is an infringement or otherwise.
The Judge added that his finding was supported by the fact that there is no provision in the CA 2010 for an appeal against a proposed decision.
Based on the above, Nordin Hassan J decided that the application for judicial review was pre-mature and as such, was frivolous and vexatious.
Internal remedies under the CA 2010
In addition, the Judge found that had a decision been made as to whether there was an infringement or otherwise under section 39 or 40 of the CA 2010, where none exists in the present case, an aggrieved party must first exhaust the internal remedy of an appeal to the CAT under section 51 of CA2010 before commencing any judicial review application.
Although the Judge acknowledged that judicial review is at the discretion of the Court and leave to commence such proceedings may be granted in exceptional circumstances, such as those laid down by the Supreme Court in Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 1852, Grab had in this instance failed to establish any exceptional circumstances to justify bypassing the domestic appeal process under section 51 of the CA 2010.
The learned Judge was of the view that the failure by Grab to disclose that they had filed written representations to the MyCC and had notified the MyCC of their intention to make oral representations was a material fact that supports the fact that the Proposed Decision is not final but is subject to a final decision on the finding of a non-infringement or an infringement under sections 39 and 40 respectively.
Comments
This decision is noteworthy as it is the first reported local decision which examines the nature of a proposed decision under the CA 2010 in relation to an application for leave to commence judicial review of such a decision under the RC 2012. It provides guidance on the procedures that have to be complied with before an affected party may seek leave to commence judicial review of a decision on a non-infringement or an infringement under the CA 2010.
The decision also emphasises the need for full and frank disclosure of all material facts in the leave application to the Court.
It should be noted that an appeal has been fied by Grab to the Court of Appeal against the decision of the High Court.
Case summary prepared by Angela Hii (Associate) of Skrine.
Footnotes
1. See Ahli-Ahli Suruhanjaya Siasatan Mengenai Klip Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Perlantikan Hakim-Hakim v Tun Dato' Seri Ahmad Fairuz Dato Sheikh Abdul Halim &Other Appeals [2012] 1 CLJ 805 (FC), section 3 of the Courts of Judicature Act 1964 and Kempadang Bersatu Sdn Bhd v Perkayuan OKS No.2 Sdn Bhd [2019] 4 CLJ 131 (FC).
2. Examples of exceptional circumstances cited in Jagdish Singh were a clear lack of jurisdiction or a blatant failure to perform a statutory duty or a serious breach of the principles of natural justice.
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