This article first appeared in The Edge Financial Daily on June 26, 2019
KUALA LUMPUR: AirAsia Group Bhd yesterday 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, representing the Attorney-General's Chambers (AGC), told The Edge Financial Daily that High Court Judge Datuk Nordin Hassan had dismissed AirAsia’s application for leave for a judicial review in chambers yesterday, with no order as to costs.
Under Order 53 rule 2(4) of Rules of Court 2012, the first issue is to ascertain whether 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 its 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 AirAsia’s leave application 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 its 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 sections 74 and 75 of the Mavcom Act 2015, Mavcom will have to decide on a dispute between aviation service providers if mediation fails after a specified timeframe.
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 for July 4 before High Court Judge Datuk Azimah Omar.
Counsel Anand Ponnudurai, who appeared on behalf of the airline yesterday, and Datuk Lim Chee Wee, representing MASSB, both confirmed the High Court's decision.
Anand said he will seek his clients' instruction on whether to appeal against the decision.