Malaysia Airports Sdn. Bhd. v My Jet Xpress Airlines Sdn Bhd. (BA-22NCvC-146-04/2023)

The Plaintiff has demands and repeatedly requesting for payment of the outstanding parking, landing and late payment charges for the sum of RM1,070,411.21 for all the airports where the Plaintiff provided Defendant with aviation and airport services. Due to the failure, refusal and/or neglected to pay to the Plaintiff, this suit is filed (18-4-2023).

The Defendant had entered the appearance (10-5-2023) and the defence is filed on 12-6-2023.

On 22-5-2023, the Plaintiff has filed its Amended Statement of Claim. 11/10/2023 14:36:52 BA-22NCvC-146-04/2023 Kand. 54

The Defendant’s application to strike out the Plaintiff suit is filed on 12-6-2023 (Enclosure 22) pursuant to Order 18 rule 19 (1)(b), (1)(c) and/or (1)(d) Rules of Court 2012.

The grounds stated by the Defendant are that, the Plaintiff claims are scandalous, frivolous or vexatious; and/or embarrasing; and/or abuse of the process of the Court. The Defendant also gave the alternative for the claims to be stayed or adjourned pending the disposal of the application of the dispute resolution provisions set out in sections 74 to 78 of the Malaysian Aviation Commission Act 2015 (Act 771). The affidavit in support for application is filed.

The Defendant pleaded that the Plaintiff has not complied with the procedure for dispute resolution as set out in sections 74 to 78 of the Act

As providers of aviation services as defined in section 2 of Act 771, the Plaintiff and Defendant have statutory obligation to mediate any dispute regarding any matter under the Act. In the event that there is no resolution of the dispute through mediation, the Malaysian Aviation Commission (after this is refer to as “the Commission”) shall commence to decide on dispute and shall provide a reasoned decision which is enforceable through registration in the High Court and appealable by any person aggrieved by the decision. [7] On 29-8-2022, I allowed the striking out. The Plaintiff appeals. The statement of claim [8] The Plaintiff and the Defendant are companies incorporated in Malaysia under the Companies Act 1965. The Plaintiff manages, operates, maintains and provides aviation and passenger related services at 21 designated airports in Malaysia. [9] The Defendant is involved in the business of aerial transportation operator. [10] The Plaintiff pleaded that –

there is a binding contract between the Plaintiff and the Defendant via Conditions of Use for the Designated Airports

This document is available at the Plaintiff’s website.

upon request by the Defendant, the Plaintiff has provided aviation and airport services including parking and landing facilities to the Defendant at the airports i.e. Kota Kinabalu, Penang, Kuching, Labuan, Miri and Tawau.

the Plaintiff refer and rely on the provisions, terms and conditions as stipulated under Clauses 1(b), 2, 3, 4, paragraph 1 and 2 of Schedule 3 and Note to Schedule 3 of Conditions of Use for the Designated Airports 2022. The Plaintiff also refer to Conditions of Use for the Designated Airports years 2017 and 2019.

the Defendant has no objection and has accepted the terms and conditions as stated in that Conditions of Use for the Designated Airports 2022, 2019 and 2017. [11] Pursuant to Act 771 and the regulations enacted under Act 771, the Commission is granted the power to regulate charges for aviation services amongst others, parking and landing charges. [12] The Plaintiff claims for the parking and landing charges from the Defendant is made legally as provided by Act 771 and the Malaysian Aviation Commission (Aviation Services Charges) Regulation 2016 [P.U(A) 100/2016]. [13] Based on the invoices sent to the Defendant and/or based on the agreement formed between the Plaintiff and the Defendant, the Plaintiff has pleaded that the Plaintiff is entitled to charge the Defendant for parking and landing and the Defendant must settle the charges within 30 days from the date of the invoices and any late payments, the Plaintiff is entitled to charge Late Payment Charges (LPC) at the rate of 1% per month on the outstanding sum due. [14] The total sum charges that is due and payable by the Defendant is RM1,070,411.21 i.e. the outstanding parking and landing charges is RM1,011,654.13 and the LPC is RM58,757.08. This amount has taken into consideration the deduction of all payments made by the Defendant previously. [15] The Plaintiff has detailed the breakdown of particulars for the RM1,070,411.21 that consists of the aviation and airports services at the airports Kota Kinabalu, Kuching, Labuan, Miri, Penang and Tawau. [16] Therefore, the Plaintiff seeks reliefs from this Court to allow the sum of RM1,070,411.21; interest at the rate of 5% per annum on total of RM1,070,411.21 from the date of judgment entered up to the date of full settlement; and costs. Striking out Application (Enclosure 22) [17] The Defendant in its affidavits stated that according to Act 771, the disputes faced by the Plaintiff and the Defendant shall first be resolved by way of mediation. The reasons are –

both parties are defined as “providers of aviation services” under section 2 of Act 771.

sections 74 to 78 of Act 771 are the statutory structure for dispute resolution. The structure provides a complete mechanism for dispute resolution and the Plaintiff is required to resort to. [18] The Defendant admitted that there exists a dispute on the parking and landing charges claimed by the Plaintiff, therefore the Plaintiff’s claim is misconceived, invalid and/or premature as the Plaintiff has not complied with and/or availed itself of the statutory provisions for dispute resolution within Act 771. Objections by the Plaintiff on the striking out’s application [19] The Plaintiff had objected and opposed to the application to strike out the Plaintiff claims against the Defendant. [20] The learned counsel for the Plaintiff submitted that –

the Defendant had disputed the sum of RM1,070,411.21 claimed by the Plaintiff because the Plaintiff failed to consider the payment made by the Defendant for the sum of RM45,716.82. As such the LPC imposed by the Plaintiff is wrong and inaccurate.

the Defendant’s admission that the Defendant has paid the sum of RM45,716.82 showed that there is no bona fide dispute. The Defendant’s payment further proves and is consistent with the admission of debt made by the Defendant in the email dated 1-3-2023.

in accordance with Clause 13 of that Conditions of Use for the Designated Airports 2022, both Plaintiff and Defendant had agreed to refer and submit any disputes to the jurisdiction of Courts in Malaysia. [21] There exist disputes as raised by the Defendant but that are not bona fide disputes, therefore the Plaintiff contends that the Commission has no jurisdiction. The disputes are not justified for mediation under sections 74 to 78 Act 771. [22] The Plaintiff submits that the Defendant’s alleged disputes are at best a mere afterthought and at worst is a blatant attempt to wrest jurisdiction away from this Court. The alleged disputes cannot possibly amount to a bona fide dispute. [23] Pursuant to the Defendant’s email dated 1-3-2023, there is a global settlement plan to settle all the outstanding sum owed to the Plaintiff and the Defendant has admitted and accepted the global settlement plan offer. [24] Thus, the Defendant is estopped from making any allegations to refer the alleged disputes to the Commission or on discrepancy in Plaintiff’s statement of account. [25] In comparison to the Arbitration Act 2005 (Act 646), the Plaintiff submits that Act 771 does not define the word dispute and/or the threshold for finding a dispute. In section 8 and section 18 of Act 646, the arbitral tribunals have been granted the express power to exclude court’s interference in any arbitration matters and to rule on their own jurisdiction. In Act 771, there are no provisions explicitly conferred to it by section 8 and section 18 of Act 646. [26] The learned counsel for the Plaintiff submits that the principle of kompetenz-kompetenz does not extend to the Commission. [27] The Plaintiff is rightful and validly filed this claim against the Defendant to this Court who has the proper jurisdiction to determine whether there is a bona fide “dispute” which warrants the striking out or staying of the present suits pending determination by the Commission. [28] The learned counsel for the Plaintiff further compare Act 771 with other statutory bodies like other judicial/quasi-judicial functions such as the Competition Commission and the Industrial Court. The learned counsel for the Plaintiff submits that the Commission has insufficient legislative framework to resolve such dispute. [29] The learned counsel of the Plaintiff interprets and submits as follows: • any decision made by the Commission under section 75 of Act 771 is not appealable. Under section 88 of Act 771, the scope of any appeal to the High Court is limited solely to decisions made by the Commission under Part VII which is the competition provision. • the dispute resolution mechanism under Act 771 is purely optional process and not mandatory. • the matters as claimed by the Plaintiff in its statement of claim are inappropriate to be resolved via the Commission. • the word “shall” in section 74 of Act 771 is not equivalent to the word “must”. • section 23(1) of the Court of Judicature Act 1964 (Act 91) expressly grants the High Court to have jurisdiction to try all civil proceedings. • section 74(2) of Act 771 confirms that, save for the stipulated 30-day period for mediation, any mediation under Act 771 is not governed by the Mediation Act 2012 (Act 749). • section 4 of the Mediation Act 2012 (Act 749) provides that no applicable mediation can prevent the commencement of any civil action in Court. The Law on Striking Out [30] Both counsels had referred and cited the law on striking out as per the provision in Order 18 Rule 19 (1) of the Rules of Court 2012 and in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. [31] This Court needs to decide whether the principles as held in Bandar Builder Sdn Bhd & Ors are met for the Defendant’s application to strike out the Plaintiff’s claims, namely –

it is only in plain and obvious cases that recourse should be had to the summary process under this rule.

when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’.

if there is a point of law which requires serious discussion.

the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [32] The summary procedure cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence. [33] The learned counsel for the Defendant has highlighted and cited the following cases regarding the applicable legal principles on striking out application:

Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v. Malaysian Airlines Bhd and other appeals [2019] 1 MLJ 59, regarding the basic test for striking out, is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’. … The established rule on this point is that the court should not examine the evidence in summary proceedings in such a way as to amount to conducting a trial on the conflicting affidavit evidence.”.; and

Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192, where the Court of Appeal held, an abuse of the process of court means that “where the process of the court has not been used in a bona fide manner and the process has been abused.”. Issue: Whether the dispute for mediation in accordance with the Mediation Aviation Commission Act? If the answer is in the affirmative, is the Plaintiff’s claim against the Defendant is an abuse of the process of Court? Act 771 [34] In 2015, the Parliament has enacted an Act to establish the Malaysian Aviation Commission to regulate economic matters relating to the civil aviation industry and to provide for its functions and powers and related matters. [35] The Minister responsible for the Act is the Minister charged with the responsibility for transport. [36] Section 2 of Act 771 does not provide the interpretation of the word’s “dispute”, “dispute resolution mechanism” nor “mediation”. However, Part XI had detailed out the dispute resolution provision. [37] The following provisions in Act 771 must be scrutinized in order to determine the arguments by the Plaintiff and the Defendant:

A body corporate to be known as the “Suruhanjaya Penerbangan Malaysia” or “Malaysian Aviation Commission” is established. Section 5: Membership of the Commission

The Commission shall consist of the following members:

the Executive Chairman who shall be appointed by the Prime Minister;

two representatives of the Federal Government consisting of—

the Secretary General of the Ministry of

(ii) the Director General of the Economic Planning Unit of the Prime Minister’s Department; and

not less than four but not more than six other members who shall be appointed by the Minister after consultation with the Prime Minister, and who, in the opinion of the Minister, have experience or shown capacity and professionalism in matters relating to economics, finance, aviation, business, administration, law or any other matter relevant to the functions of the Commission.

The Executive Chairman shall be a person who, in the opinion of the Prime Minister, has experience, shown capacity and professionalism in matters relating to economics, finance, aviation, business or administration relevant to the functions of the Commission.

No person shall be a member of the Commission if he—

holds office or employment in or relating to aviation services;

is involved in any business or other activity carried on for the purpose of gain in or relating to aviation services; or

is or becomes involved in any activity which may interfere with his independence in discharging his duties.

Without prejudice to subsection (3), any member of the Commission, other than the members specified in paragraph 5(1)(b), shall not, while being a member of the Commission, hold any other office or employment, whether remunerated or not, without the prior written approval of the Prime Minister. Section 17: Functions of the Commission

The Commission shall have the following functions:

to regulate economic matters relating to the civil aviation industry including—

to improve connectivity, both globally and locally, so as to promote economic ties, integration and growth, and trade, investment and tourism;

(ii) to encourage effective competition within the civil aviation industry by promoting an economic environment which allows Malaysian carriers to maintain their ability to compete effectively in the civil aviation market in a sustainably profitable, efficient and fair manner;

(iii) to promote the efficient, economic and profitable operation of aerodromes and ground handling services;

(iv) to promote timely investments in the civil aviation industry to meet Malaysia’s evolving demand and development needs; and

to maximise the economic value of any financial support granted by the Federal Government to the civil aviation industry and to seek and promote ways to reduce any such financial support over time;

to provide a mechanism for the protection of consumers including—

to promote an environment which allows consumers in relation to the civil aviation industry to have access in a transparent manner to choices of products and services of high quality and at fair prices;

(ii) to receive and disseminate information and views on matters of interest to consumers or services provided by licensees and permit holders;

(iii) to consult the industry, government and other consumer groups on matters of interest to consumers; and

(iv) to provide a mechanism for the resolution of consumer complaints;

to provide a mechanism for dispute resolution between the providers of aviation services;

to administer, allocate and manage air traffic rights;

to monitor slot allocation for airlines or other aircraft operators;

to administer and manage public service obligations;

to facilitate and co-ordinate matters of interest to the Malaysian civil aviation industry between the providers of aviation services and government agencies, locally and internationally; and

to perform any other functions that are incidental or consequential to any of its functions under this Act.

Subject to this Act, the Commission shall be independent in the performance of its functions.

The Commission in performing its functions shall have regard to any international agreement to which Malaysia is a party and shall not act contrary to the international obligation or the interest of Malaysia. Section 18: Powers of the Commission

The Commission shall have the power to do all things necessary or expedient for or in connection with the performance of its functions under this Act.

Without prejudice to the generality of subsection (1), the powers of the Commission shall include the power—

to carry on all activities which appears to the Commission to be requisite, advantageous or convenient for or in connection with the performance of its functions;

to co-operate or act in association with any government agency, any company or corporation, or any body or person, whether local or foreign;

to require the furnishing of information by the stakeholders in the civil aviation industry to assist the Commission in the performance of its functions;

to utilise all the property of the Commission, movable and immovable, in such manner as the Commission thinks expedient including the raising of loans by mortgaging such property;

to appoint such agents, experts or consultants as the Commission thinks fit for the purpose of performing its functions;

to impose fees, costs, or any other charges as the Commission thinks fit for services rendered by the Commission; (fa) to impose and collect charges on passengers at airports in Malaysia for regulatory services rendered by the Commission pursuant to this Act; [Ins. Act A1559/2018]

to formulate and implement human resource development and funding and co-operation programmes for the proper and effective performance of its functions;

to grant loans and scholarships to employees of the Commission for such purposes as may be approved by the Minister;

to publish and disseminate information about matters relevant to the functions of the Commission; and

to do anything incidental to any of its functions and powers.

The Commission may bring proceedings before the High Court against any person who fails to comply with a direction given by the Commission under section 57 or a decision under section 59.

If the High Court finds that the person referred to in subsection (1) has failed to comply with the direction or decision, the High Court shall make an order requiring the person to comply with the direction or decision.

For the purposes of subsection (2), where the High Court finds that the failure to comply with the decision includes a failure to pay a penalty within the specified period, the High Court shall, in addition to ordering that person to pay the penalty, order the person to pay interest at the normal judgment rate running from the day following that on which the payment was due.

Any breach of an order of the High Court made pursuant to this section shall be punishable as a contempt of court.

Any dispute between two or more providers of aviation services regarding any matter under this Act shall first be resolved through mediation.

Notwithstanding any provision in the Mediation Act 2012 [Act 749] to the contrary, the parties shall resolve the dispute through mediation within a period of thirty days or such longer period as the Commission may approve which shall not exceed sixty days. Section 75: Commission to decide on If the parties to the dispute fail to resolve the dispute through mediation within the time specified under subsection 74(2), the Commission shall commence to decide on the dispute. Section 76: Decisions to be in writing

The terms and conditions of any resolution of a dispute by the Commission shall be in writing and shall contain reasons for such decision.

The Commission shall provide the parties to the dispute with a copy of its decision as soon as practicable. Section 78: Enforcement of decisions

A decision given by the Commission, upon application to the High Court to be registered as a judgment of the High Court, shall be enforced as such.

For the purposes of subsection (1), if the High Court finds that a person referred to in the decision has failed to comply with the decision, the High Court shall make an order requiring such person to comply with the decision.

Any person or body aggrieved by any decision of the Commission under Part VII, may, at any time within the period of three months beginning from the date on which the decision was communicated to him, appeal to the High Court.

Any such appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the High Court shall make such order as it considers just.

In this section, “decision” includes any act, omission, refusal, direction or order. [38] The relevant provisions are material to determine the issues before this Court. This Court must well-understand and well-equip with the provisions in Act 771 and not to refer to only certain provisions. The Decision [39] On 29-8-2023, the Court allowed the application to strike out the Plaintiffs’ claims with costs (subject to allocator fees). The judgment of this Court as follows: KEPUTUSAN PERMOHONAN PEMBATALAN WRIT SAMAN DAN PERNYATAAN TUNTUTAN TERPINDA (LAMPIRAN 22) [1] Mahkamah ini telah meneliti Notis Permohonan sebagaimana dalam Lampiran 22 yang difailkan oleh Defendan, kertas kausa, afidavit dan hujahan bertulis pihak-pihak. [2] Mahkamah ini mendapati Badan Perundangan dengan jelas telah menggubal suatu Akta mengenai mekanisma mengenai penyelesaian pertikaian yang menjadi subjek dalam tuntutan ini. Kewujudan legal framework ini tidak boleh dipandang remeh oleh Mahkamah ini [3] Mahkamah membenarkan permohonan sebagaimana dalam Lampiran 22 dengan kos sebanyak RM6000.00 (tertakluk kepada fi alokatur). Evaluations and Findings of this Court [40] The issue to be decided is whether the Plaintiff’s claims are “plain and obvious”, whether there is any credible evidence to prove the claims as stated in the statement of claim had occurred or not in order for the Plaintiffs to say there is a cause of action against the Defendant. [41] Next, this Court must decide on the Defendant’s application to strike out the claims, whether the Defendant is protected under the provision of Order 18 rule 19 to protect them from vexed by hopeless litigation. And whether Act 771 is a must statute to be referred to before the Plaintiff can file its writs of summon? [42] In Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117, the Court of Appeal held − “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issue and expect the court to make out the case on its own for one party or other. … Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. [43] The Plaintiff had clearly pleaded that according to the Plaintiff’s statement of account (Account No. 10926) as at 20-3-2023, the outstanding Parking and Landing Charges are for the sum of RM1,011,654.13 and Late Payment Charges are for the sum of RM58,757.08 that is due to the Defendant. The Plaintiff has provided the Defendant with aviation and airport services for the Airports as stated in the statement of claim. Therefore, the Defendant is liable and responsible to pay these charges to the Plaintiff. [44] In order for this Court to allow striking out, this Court is mindful to the decision in the case of Tractors Malaysia Bhd v. Tio Chee Hing [1975] 2 MLJ 1 − “The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution”. [45] In the case of Muniandy v. Tan Peck Soo & Ore [1990] 1 MLJ 502 where it is also trite that powers of the Court to strike out pleadings ought to be sparingly exercised and only in very exceptional cases. [46] This Court had scrutinized the pleadings that all the facts pleaded. The decision made by this Court is not to say that the Plaintiff cannot claim the amount of RM1,070,411.21 from the Defendant. This claim should be adjudged by the Commission. [47] The claims are disputed by the Defendant and the claims are pertaining to the charges imposed by the Plaintiff under the law to the Defendant. [48] The Commission is an independent entity to regulate economic and commercial matters related to civil aviation in Malaysia. One of its functions is to provide a mechanism for dispute resolution between aviation industry players. The Commission is governed by its own Act 771 and the subsidiary legislations made under the Act. [49] When the learned counsel for the Defendant submits that “the dispute between the parties ought to be referred to the Commission to give effect to the Parliament’s intention in tabulating section 74 of Act 771. Failing which, it is akin to this Court stepping into the shoes of the legislator and usurping the role of the legislator and blurring the lines of the separation of powers”, this Court cannot disagree with that. [50] Act 771 is enacted in the year of 2015 not only to regulate economic matters relating to the civil aviation industry but also create its commission with functions and powers in imposing fees, costs, or any other charges as the Commission thinks fit for services rendered by the Commission. [51] The Commission may bring proceedings before the High Court against any person who fails to comply with a direction given by the Commission under section 57 or a decision under section 59. [52] Next question is whether the Plaintiff may bring proceedings before the High Court against the Defendant who fails to pay the Plaintiff the amount of RM1,070,411.21? What is the purpose of Part X1-Dispute Resolution? [53] This Court in reading Part XI is satisfied that this Part seeks to provide the dispute resolution mechanism whereby any dispute between two or more providers of aviation services regarding any matter under Act 771 shall first be resolved through mediation. This mechanism structure is a statutory structure and it does provide a complete mechanism for dispute resolution. [54] The other statutes as cited by the Plaintiff i. e. the Arbitration Act 2005 (Act 646), and the Court of Judicature Act 1964 and other commission/court i.e. the Competition Commission and the Industrial Court are not applicable when this Court decides in favour of the Defendant. [55] In enacting Act 771, the legislature has set the policies pertaining to the aviation services, creation of the Commission, add the provision on the dispute resolution, etc all to ensure that the disputes amongst its players are resolved by the key-players in the aviation industry. [56] As the members of the Commission comprised of nonetheless, the Executive Chairman who shall be appointed by the Prime Minister; the Secretary General of the Ministry of Transport; the Director General of the Economic Planning Unit of the Prime Minister’s Department; and not less than four but not more than six other members who shall be appointed by the Minister after consultation with the Prime Minister, and who, in the opinion of the Minister, have experience or shown capacity and professionalism in matters relating to economics, finance, aviation, business, administration, law or any other matter relevant to the functions of the Commission, this Court after understanding the whole and full facts of the disputes pertaining to the “debt” owed by the Defendant, it is better and wisely to be resolved by the Commission who has been established for 7 years. [57] All the contentions, issues and disputes as raised by the parties fall well within the ambit of Part X1 specifically section 74, namely – • the charges imposed were not in accordance with the formula provided by Act 771 and its Regulations; • the discrepancies regarding the parking and landing charges; • the invoices and the Plaintiff’s Statement Account; • whether or not the Conditions of Use for Designated Airports 2022 was given by the Plaintiff to the Defendant; whether the said the Conditions of Use for Designated Airports 2022 was drafted by the Plaintiff unilaterally without consultation and/or inputs from the Defendant; • whether the formula of charges stipulated in the Regulations 2016 and the Conditions of Use for Designated Airports 2022 are the same? In the event that there are discrepancies or contradiction or inconsistency, which laws shall take precedence? [58] It is clear that the Plaintiff and the Defendant are providers of aviation services as defined in section 2 of Act 771. This case must be differentiate from the decision in the case of Malaysia Airports (Sepang) Sdn Bhd v. AIRASIA X Bhd [2020] 7 CLJ 678. [59] The learned counsel for the Plaintiff submits that the Commission has no jurisdiction because there is no bona fide disputes in existence. The Defendant’s alleged disputes in the striking out application are a mere afterthought and at worst is a blatant attempt to wrest jurisdiction away from this Court. The disputes and/or the matters cannot be concluded as a dispute to sections 74 to 78 of Act 771. [60] In rebutting the learned counsel for the Plaintiff’s submissions, the learned counsel for the Defendant submits that the disputes raised by the Defendant are pertaining to – • failure by the Plaintiff to adhere to the formula provided in the Conditions of Use for the Designated Airports 2022 for both parking charges and landing charges. • as a consequent, the Defendant contends that the the failure has led to the discrepancies in the charges imposed against the Defendant. The discrepancies were pleaded by the Defendant in paragraph 24 • the same formula for parking charges and landing charges was also provided in the Malaysian Aviation Commission (Aviation Services Charges) Regulations 2016/Peraturan-Peraturan Suruhanjaya Penerbangan Malaysia (Caj Perkhidmatan Penerbangan) 2016 [P.U (A) 100/2016] in regulation 4 (First Schedule on the Landing Charges) and subregulation11(1) (Ninth Schedule on Housing and Parking Charges). • the Defendant denial on the validity and applicability of the Conditions of Use for the Designated Airports 2022. The Defendant contends that there is no proof given by the Plaintiff about notice was duly given to the Defendant of the Conditions of Use for the Designated Airports 2022. In Clause 1 (c) of the Conditions of Use for the Designated Airports 2022 provides for the notification. • the Defendant agreed to the formula as in the Conditions of Use for the Designated Airports 2022 is simply because it matches (same formula) as in the Regulations 2016 [P.U (A) 100/2016]. [61] This Court emphasized it again that −

the Commission is an entity who possesses comprehensive knowledge of aviation matters and is fully equipped and clothed with the necessary skills and powers to decide on the disputes as enumerated above.

this Court should not rob the Defendant’s statutory right to refer the disputes/issues/questions to the Commission.

this Court should not allow the Plaintiff to bypass andor to circumvent section 74 of Act 771.

the website link of the Commission is clear and well written that “MAVCOM’s decisions on disputes referred to it by aviation service providers under Part XI of the Act will be published and a copy of the said decision will be provided to the parties to the dispute. MAVCOM’s decisions are final and will be registered as judgment of the High Court. If any person referred to it the decision fails to comply with MAVCOM’s decisions, the High Court shall make an order requiring such person to comply with the decision.”.

in the case of Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd and Ors And Another Appeal [2014] 4 MLJ 377; [2014] 1 LNS 264, the Court of Appeal held that – “... with regard to the statutory remedy ... we are of the view that the position in such a case is rather trite. This court is guided by a slew of cases emanating from high authority such as Manggai v. Government of Sarawak & Anor [1970] 2 MLJ 41, Government of Malaysia & Anor v. Jagdis Singh 2 MLJ 185, and Robin Tan Pang Heng v. Ketua Pengarah Sekerja Malaysia & Anor [2010] 9 CLJ 505. These cases have decided that where a statute has provided for a further internal remedy to an aggrieved party, then it would become incumbent that recourse must first be had to that grievance mechanism. In other words, the respondent is statutorily obliged to exhaust that remedy first before running, as it were, to the courts for what is essentially a discretionary relief.”. [62] Regarding the rights of the Plaintiff to commence this civil action in this Court, the provision in section 74(2) of Act 771 confirms that, save for the stipulated 30-day period for mediation, any mediation under Act 771 is not governed by the Mediation Act 2012 (Act 749) and section 4 of the Mediation Act 2012 (Act 749) provides that no applicable mediation can prevent the commencement of any civil action in Court, should not be confused. The structure for mediation and/or dispute resolution to be heard by the Commission are not just a cosmetic provision in act 771. [63] The intention of Act 771 is clearly to provide for the players in the aviation industry to commence the grievances to the Commission first before filing the case in the Court. [64] This Court agrees with the learned counsel for the Plaintiff’s submission that the mediation process under Act 771 is merely an alternative dispute resolution process which is purely on voluntarily basis. Be that as it may, this Court give full support and the force of law to the Commission to hear the disputes that are in the scope of the Commission’s jurisdiction. [65] The possibility of settlement of all or any of the issues in the action or proceedings is also been provided in Order 34 r. (2) of the Rules of Court 2012 where the Court require and give appropriate orders and directions to the parties including mediation to secure the just, expeditious and economical disposal of the action or proceedings. [66] The Commission is granted the power to regulate charges for aviation services amongst others, parking and landing charges, therefore, any non-compliance, non-adherence, etc also within the jurisdiction of the Commission. The Commission is well-versed with the imposition of the charges. Conclusion [67] In view of the foregoing, it is my judgment that having evaluated Enclosure 22 and its supporting documents, I find that the Defendant had successfully proved that the Plaintiff’s claims against the Defendant to be struck out. [68] The civil action filed by the Plaintiff is premature, frivolous and is abuse of the Court process. This Court must not legislate because the duty lies with the Parliament. [69] This Court must give full force to the intention of Parliament in enacting the dispute resolution structure in Act 771. [70] As such, I allow Enclosure 22 with costs. Dated: 10 October 2023 RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 The Counsels: For the Plaintiff: Sri Nagavarnan A/L Subramaniam Messrs. Rizal Many & Logan, Shah Alam, Selangor For the Defendant: Syereen Tang Messrs. Kesavan, Kuala Lumpur