MyCC can’t challenge own tribunal’s rulings, Court of Appeal rules

 The bench says the competition watchdog must accept the Competition Appeal Tribunal's decisions unless Parliament expressly gives it a right of appeal.

The Court of Appeal ordered the Malaysia Competition Commission to pay RM30,000 in costs to each of the nine sets of solicitors.

PUTRAJAYA:

The Malaysia Competition Commission (MyCC) cannot use judicial review to challenge decisions made by its own appellate body, the Competition Appeal Tribunal (CAT), the Court of Appeal has ruled.

A bench comprising Justices Azizul Azmi Adnan, Ahmad Fairuz Zainol Abidin and Evrol Mariette Peters dismissed MyCC’s appeal against the High Court’s refusal to grant leave for judicial review of CAT’s decision to set aside financial penalties imposed on 23 insurers.

MyCC was also ordered to pay RM30,000 in costs to each of the nine sets of solicitors.

The case arose from MyCC’s 2020 finding that the General Insurance Association of Malaysia and 22 insurers had engaged in anti-competitive practices by collectively setting spare parts discount rates and labour charges for vehicle repairs under the industry’s Approved Repairers Scheme.

MyCC imposed financial penalties on the insurers, including Allianz Malaysia Bhd. However, CAT overturned the decision in 2022, finding that the insurers had not infringed the Competition Act 2010.

MyCC subsequently sought to challenge CAT’s ruling through judicial review. The central issue before the Court of Appeal was whether the commission had legal standing to challenge a decision by its own appellate tribunal.

The High Court dismissed MyCC’s leave application, saying it was bound by an earlier Court of Appeal ruling involving Malaysian Airline System Bhd (MAS), which held that the commission had no standing to seek judicial review of a CAT decision.

MyCC argued that the MAS decision was made per incuriam – meaning it had been decided without regard to a binding law or precedent – and the court should therefore depart from it.

However, Peters, who delivered the broad grounds, said the exception was narrow and could only be applied where an earlier court had clearly overlooked a binding statute or precedent that would necessarily have led to a different conclusion.

The judges also rejected MyCC’s reliance on a previous case involving the Penang Municipal Council and its appeal tribunal, saying it did not establish a general right for a primary decision-maker to challenge an appellate tribunal’s decision.

Under the Competition Act, the court said, the right of appeal was given to persons aggrieved by a CAT decision, but not to MyCC.

The panel also rejected MyCC’s argument that its regulatory and adjudicatory functions should be treated separately.

Quasi-judicial capacity

Peters said MyCC was acting in a quasi-judicial capacity when it imposed the penalties. It was not performing its broader regulatory role of formulating policy or regulating the industry prospectively.

Once it had completed that adjudicatory function, MyCC became functus officio, meaning its role in deciding that particular matter had ended. Thus, the commission was not entitled to challenge CAT’s decision.

The panel also rejected MyCC’s contention that the MAS decision had effectively ousted the High Court’s supervisory jurisdiction and that it violated Article 8 of the Federal Constitution, which guarantees equality before the law.

Peters said CAT’s decisions remain subject to the High Court’s supervisory jurisdiction, but MyCC itself was not entitled to invoke that jurisdiction after having acted in a quasi-judicial capacity.

“Where Parliament has not conferred a right of appeal, the courts cannot create one,” Peters said.

She said that MyCC had subsequently proposed introducing Section 58A to the Competition Act to expressly give it a right of appeal. She said this reinforced the conclusion that no such right existed under the current law.

Peters also noted that MyCC’s applications to the Federal Court for leave to appeal the MAS decision and to review the dismissal of that application had both been dismissed.

Failure to make full and frank disclosure

She further agreed with the High Court that MyCC had failed to make full and frank disclosure when seeking leave for judicial review, a particularly serious omission given its heightened duty as a statutory regulator to act with integrity and candour when approaching the court.

The court said MyCC had withheld documents acknowledging that it had no statutory right of appeal following the MAS decision and intended to seek legislative amendments to create one. - FMT