AirAsia Bhd has gone to court to quash the RM2 million fine imposed by the Malaysian Aviation Commission (Mavcom) over alleged breach of regulation on airfare.
The local budget airline, through legal firm Messrs Zul Rafique & Partners, filed the judicial review leave application at the Kuala Lumpur High Court Registry on Feb 18.
On Jan 20, it was reported that Mavcom has imposed an RM2 million financial penalty on AirAsia for violating the Malaysian Aviation Consumer Protection Code 2016 (MACPC).
According to a copy of the leave application sighted by Malaysiakini today, AirAsia is seeking a declaration that Mavcom’s decision on Jan 16 to impose the RM2 million financial penalty on the airline was invalid, null and void and/or of no effect.
They are also seeking an order of certiorari to quash the regulator’s related decision on Dec 13 last year over alleged non-compliance with Paragraph 3 (2) of the MACPC.
Paragraph 3(1) states that an airline shall indicate the final price of airfares to be paid for the air transport service offered or published by the airline in any form, including on the internet.
AirAsia was alleged to have contravened Paragraph 3(2), which states that the final price of airfares shall include any government-imposed taxes and fees, fees and charges imposed by the Mavcom, charges, surcharges and other related fees which are unavoidable and foreseeable at the time of publication.
On Dec 13 last year, Mavcom concluded that AirAsia had breached Paragraph 3(2) of the MACPC. On Jan 16 this year, the regulator fixed the related fine as RM2 million.
According to the cause papers, AirAsia claimed that Mavcom’s decisions on Dec 13 and Jan 16 amounted to procedural unfairness and/or breached the principle of natural justice, because the regulator failed to give the airline an opportunity to be heard over the allegation among others.
The airline claimed that the regulator failed to consider the former’s earlier written representation where it (AirAsia) alleged that it had not deliberately refused to comply with Paragraph 3 (2) and sought to justify why the imposition of the processing fee was not in breach of the said subparagraph, among others.
In the written representation, AirAsia claimed that the removal of the processing fees is not a straightforward process and it required time to implement it, among others.
The airline claimed that the regulator acted beyond its legal authority bestowed under the Malaysian Aviation Commission Act 2015 and related regulations, and had exercised its (regulatory) power “unreasonably, unfairly, irrationally, and/or disproportionately”, among others.
Meanwhile, according to a copy of a letter dated March 17 by Mavcom’s solicitors from law firm Skrine to the Kuala Lumpur High Court, the regulator intends to oppose the judicial review leave application and will attend the hearing of the said application.
The letter also mentioned that they took note that the initially scheduled hearing of the leave application on March 23 has been vacated to another date to be fixed.
Following the imposition of the movement control order (MCO) on March 18, all court hearings nationwide have been postponed.
When contacted by Malaysiakini, Kwan Will Sen, who is part of the legal team from Skrine, confirmed the legal action by AirAsia against their client Mavcom.
In confirming that the regulator seeks to challenge AirAsia’s leave application, Kwan explained that as the initial leave application was made ex-parte (which means the applicant had sought for the hearing of the leave application be commenced with only it being present), they will check first if counsels for Mavcom could also present arguments during the hearing.
Explaining that Mavcom’s legal team is also comprised of Lim Chee Wee and Muayyad Khairulmaini, he also added that they will be filing submissions in preparation to challenge AirAsia’s leave application.
Kwan added that following the initial scheduled hearing on March 23 being vacated due to the MCO, no new date has been fixed yet and that the court will write to parties later to set a new date.
AirAsia and Mavcom have been embroiled in legal action previously, with the Edge Markets on June 25 last year reporting that the Kuala Lumpur High Court dismissed the airline’s leave application to challenge the regulator’s refusal to act as a mediator in a dispute between the airline and Malaysia Airports Holdings Bhd.
Through a media statement on Jan 20, Mavcom said RM2 million financial penalties were imposed on AirAsia and AirAsia X respectively due to the airlines’ continued charging of credit card, debit card and online banking processing fees separate from their base fares, in contravention of the MACPC, from Aug 10 to Sept 11, last year.
“This is the second time AirAsia and AirAsia X have been found not in compliance with MACPC’s requirement,” claimed the commission. - Mkini
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