Judicial review leave principles reaffirmed as high court dismisses AirAsia's leave application

Facts
Decision

Despite the notably low threshold for obtaining leave to commence judicial review, on 25 June 2019 the Kuala Lumpur High Court dismissed a judicial review leave application brought by AirAsia Berhad and AirAsia X Berhad (collectively, AirAsia) against the Malaysian Aviation Commission (MAVCOM), with Malaysia Airports (Sepang) Sdn Bhd (MA Sepang) being named as the second respondent.

Facts

MA Sepang initiated multiple civil suits against AirAsia for its failure to collect from its passengers and pay to MA Sepang the newly revised passenger service charge rate, which had been prescribed by MAVCOM via the Malaysian Aviation Commission (Aviation Services Charges) (Amendment) Regulations 2017.

In its defence, AirAsia argued that the passenger service charge rates prescribed in the regulations were ceiling rates rather than fixed rates and, as such, AirAsia was not required to pay the revised amount.

AirAsia then applied to strike out or stay the civil suits filed against it on the basis that:

• a dispute had arisen; and
• such disputes between aviation service providers ought to be decided solely by MAVCOM and not the courts, by virtue of Sections 74 to 78 of the Malaysian Aviation Commission Act 2015.

MA Sepang challenged this striking out and stay application on the basis that (among other things):

• no bona fide dispute had arisen;
• MAVCOM did not have the requisite jurisdiction to determine such matters; and
• any jurisdiction that MAVCOM may have was optional and in the alternative to the court's jurisdiction.

While its striking out and stay application was still pending, AirAsia wrote to MAVCOM instructing it to decide on the AirAsia and MA Sepang disputes. By way of two letters, MAVCOM wrote back stating that it was unable to decide on the disputes pending the court's decision.

As a result, AirAsia applied for leave to commence judicial review proceedings against MAVCOM for an order of certiorari to quash the alleged decision made by MAVCOM in declining to determine the pending passenger service charge suits. Further, AirAsia also sought an order of mandamus to compel MAVCOM to resolve these matters.

Both the attorney general's chambers and MA Sepang objected to AirAsia's leave application.

Decision

In dismissing AirAsia's application for leave to commence judicial review, the Kuala Lumpur High Court agreed with both grounds of objection raised by the attorney general's chambers on behalf of MAVCOM and by counsel for MA Sepang, namely that:

• AirAsia's application had been premature as no decision amenable to judicial review as envisaged under Order 53 of the Rules of Court 2012 had been made. The purported decision by MAVCOM by way of its two letters had in fact been a deferment pending the court's clarification of its jurisdiction to deal with such matters.
• AirAsia's application had been frivolous and vexatious as the same issues relating to MAVCOM's jurisdiction to deal with such matters were already pending determination in AirAsia's application to strike out or stay the passenger service charge suits.

In coming to this decision, the Kuala Lumpur High Court reaffirmed two areas of law concerning judicial review:

• Although Order 53 Rule 3 of the Rules of Court 2012 specifies that a judicial review leave application is ex parte, the court retains the discretion to hear all concerned parties at the leave stage.
• Despite the notably low threshold for obtaining leave to commence judicial review, the court will dismiss such applications if valid procedural objections are raised that do not relate to the merits of the case.

For further information on this topic please contact Shannon Rajan or Eric Gabriel Gomez at SKRINE by telephone (+603 2081 3999) or email (shannonrajan@skrine.com or eric.gomez@skrine.com). The SKRINE website can be accessed at www.skrine.com.