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10 July 2019
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.
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:
MA Sepang challenged this striking out and stay application on the basis that (among other things):
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.
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:
In coming to this decision, the Kuala Lumpur High Court reaffirmed two areas of law concerning judicial review:
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