AirAsia’s bid for judicial review against Mavcom dismissed

(From left): Senior federal counsels Shamsul Bolhassan and Mazlifah Ayob. Photo by Paw Ai Chin/The Edge

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KUALA LUMPUR (June 25): AirAsia Group Bhd today failed in its bid to obtain leave to challenge the Malaysian Aviation Commission's (Mavcom) refusal to mediate an ongoing dispute between the budget airline and Malaysia Airports Holdings Bhd (MAHB).

Senior federal counsels Shamsul Bolhassan and Mazlifah Ayob, who represent the Attorney-General's Chambers (AGC), told theedgemarkets.com that High Court Judge Datuk Nordin Hassan had dismissed the application for leave for a judicial review by AirAsia in chambers today, with no order as to costs.

Under Order 53 rule 2(4) of Rules of Court 2012, the first issue is to ascertain whether there is any decision was made, they said.

Shamsul said the High Court agreed with the AGC that Mavcom has not decided on the MAHB-AirAsia dispute but has merely deferred the decision.

"Thus, this does not amount to a decision that renders AirAsia adversely affected or aggrieved and therefore entitled the budget airline to make the (judicial review) application," he explained.

In addition, the High Court also agreed with the AGC that there is a multiplicity of proceedings with the judicial review application, given that the same subject matter is being litigated before another Civil Court and will shortly be decided upon, Mazlifah added.

The AGC had opposed to the leave application by AirAsia on June 14.

AirAsia Group, comprising AirAsia Bhd and AirAsia X Bhd (AAX), filed the judicial review application on May 14 this year against Mavcom and Malaysia Airports (Sepang) Sdn Bhd (MASSB), a unit of MAHB.

In the application, AirAsia sought a certiorari order to quash Mavcom's decision not to rule on the budget airline's dispute with MAHB, and a mandamus order to compel the commission to decide on the dispute.

AirAsia maintained that Mavcom has a statutory duty to mediate the dispute and has erred in law by its refusal to do so. Under section 74 and 75 of Mavcom Act 2015, Mavcom will have to decide on a dispute between aviation service providers if mediation fails after a specified time frame.

The civil suit in question arose in December last year after MAHB claimed uncollected airport taxes from AirAsia Group and AAX amounting to RM36.12 million. The next hearing is scheduled on July 4 before High Court Judge Datuk Azimah Omar.

Counsel Anand Ponnudurai, who appeared on behalf of the airline today, and Datuk Lim Chee Wee, representing MASSB, both confirmed the High Court's decision.

Anand said he will seek his clients' instruction as to whether they want to appeal against the High Court decision.

At 11am, AirAsia was flat at RM2.75 with 3.06 million shares traded, while AAX fell 2.17% or 0.5 sen to 22.5 sen with 553,400 shares done.