SURUHANJAYA PERSAINGAN MALAYSIA v 1. ) MYTEKSI SDN. BHD. 2. ) GRABCAR SDN. BHD. 3. ) GRAB INC.

Case Significance

Confirms that a MyCC Proposed Decision under section 36 of the Competition Act 2010 is judicially reviewable where the Act affords no statutory appeal, and that a competition investigation must observe procedural fairness, including proper notification and separate treatment of distinct complaints.

This Court of Appeal decision concerns the amenability to judicial review of a Proposed Decision issued by the Malaysian Competition Commission (Suruhanjaya Persaingan, MyCC) under section 36 of the Competition Act 2010, in proceedings brought by three ride-hailing companies. MyCC had issued a Proposed Decision against the respondents in the course of a competition investigation; the respondents obtained judicial review in the High Court, which quashed the Proposed Decision, and MyCC appealed. All the parties are corporate or institutional entities and are named accordingly.

The first question was whether a Proposed Decision under section 36 could be challenged by judicial review at all, or whether such a challenge was premature because the statutory process had not run its course. The Court of Appeal upheld the High Court's view that the Proposed Decision was subject to judicial review, reasoning that sections 35 to 40 of the Act do not provide any statutory appeal mechanism against a Proposed Decision under section 36. In the absence of an alternative statutory remedy, judicial review was available and was not premature.

On the merits, the Court found that MyCC's investigation had been conducted with procedural impropriety. It agreed with the High Court that there had been a lack of proper notification and a failure to distinguish between different complaints — the Commission having conflated the investigations of earlier 2018 complaints with a later 2019 complaint in issuing the Proposed Decision. Describing the Commission's approach to the 2019 complaint as cavalier, the Court held that this was unfair and amounted to procedural impropriety, and found no appealable error in the High Court's decision to quash the Proposed Decision. The judgment is a useful illustration of two propositions: that a Proposed Decision under section 36 of the Competition Act 2010 is judicially reviewable where the statute affords no appeal against it, and that a competition regulator's investigation must observe basic procedural fairness, including proper notification and the separate treatment of distinct complaints.