High Court Rejects Leave Application For Judicial Review Of Proposed Decision Under The Competition Act

• Published date: 21 September 2020
• Subject Matter: nti-trust/Competition Law, Antitrust, EU Competition
• Law Firm: SKRINE
• Author: Angela Hii Hui Chi

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:

1. it is premature and that the Proposed Decision is not amenable to judicial review;
2. 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
3. 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:

1. Upon...