Pohleh Auto Workshop Sdn Bhd v Bank Negara Malaysia (WA-22NCC-431-06/2023)

This was the Defendant’s application in Enclosure 16 to strike out the Plaintiff’s Writ of Summons dated 27.5.2023 and Statement of Claim filed in Enclosure 2 pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012 (“this Application”).

After hearing submissions from both parties and carefully considering the affidavit evidence and written submissions, I allowed the Defendant’s application and struck out the Plaintiff’s Writ and Statement of Claim. These are my reasons. S/N vZuohS1hj0Ob0d6qh3fgtw Page 2 of 34 A]

The Plaintiff is a company carrying on the business of motor vehicle repairs, including vehicles involved in accidents. Since 2010, the Plaintiff was listed as a workshop under the PIAM Approved Repairers Scheme (“PARS”), which authorised it to carry out repairs on motor vehicles involving insurance claims.

The Defendant is Malaysia’s central bank and regulatory authority with statutory powers under, inter alia, the Central Bank of Malaysia Act 2009 (“Central Bank Act 2009”) and the Financial Services Act 2013 (“Financial Services Act 2013”). The Defendant’s Consumer and Market Conduct Department supervises the market conduct practices of licensed insurers and takaful operators (“ITOs”) and registered adjusters, and issues guidelines stipulating minimum standards to be adhered to by these entities.

The Defendant had issued Guideline No.: BNM/RH/GL/003-9 entitled “Guideline on Claims Settlement Practices (Consolidated)” (“the Guideline”) pursuant to section 201 of the Insurance Act 1996. This Guideline sets out minimum standards for ITOs in claims settlement practices.

On 27.7.2020, the Federation of Automobile Workshop Owners’ Association (“FAWOAM”) submitted a written representation to the Defendant’s Consumer and Market Conduct Department regarding alleged unfair practices by S/N vZuohS1hj0Ob0d6qh3fgtw Page 3 of 34 ITOs, including complaints about non-compliance with the Guideline. Although issued by FAWOAM, the complaints predominantly concerned grievances by the Plaintiff against ITOs.

On 18.9.2020, a meeting was convened between the Defendant and FAWOAM (“the FAWOAM Meeting”). During this meeting, the Defendant requested specific details including the identity of ITOs and motor vehicle registration numbers to enable meaningful investigations into the complaints.

The Plaintiff’s case centres on the meeting the FAWOAM Meeting. The Plaintiff pleads at paragraph 29 of the Statement of Claim that at this meeting, the Defendant gave assurances to FAWOAM members that their identities as informants would be kept secret and confidential. The Plaintiff further pleads at paragraph 30 that it was in reliance on this “representation, encouragement and promise” that it provided evidence of the alleged wrongdoings by ITOs.

Significantly, the Plaintiff concedes in its pleadings and affidavits that the Defendant did not at any point during the FAWOAM Meeting mention the WPA 2010 or its applicability to the complaints being made. The Plaintiff did not invoke the WPA 2010 in its complaints, nor did it seek protection under that Act at the material time. S/N vZuohS1hj0Ob0d6qh3fgtw

Between October 2020 and March 2022, the Plaintiff provided the Defendant with specific details of alleged unfair practices by individual ITOs, referenced by motor vehicle registration numbers. The Plaintiff submitted these complaints through emails to the Consumer and Market Conduct Department and through BNMTELELINK (the Defendant’s online customer service channel). The Defendant investigated these complaints and notified the Plaintiff of its findings between 19.11.2021 and 30.5.2022.

In January 2022, certain ITOs, including Allianz General Insurance Company (M) Berhad, AXA Affin Insurance (M) Berhad, and Etiqa, objected to the Plaintiff’s application to renew its PARS registration. The Plaintiff’s PARS licence was suspended from 28.3.2022 and ultimately rejected on 26.5.2023.

On 30.3.2022, the Plaintiff notified the Defendant through the Defendant’s whistleblowing channel that it had been subjected to detrimental action (retaliatory action) by the ITOs and requested recognition as a whistleblower under the Whistleblower Protection Act 2010 (“the WPA 2010”). The Defendant responded that the Plaintiff’s complaints did not come within the parameters of the WPA 2010 as they were not made pursuant to the Defendant’s specific whistleblowing channel. S/N vZuohS1hj0Ob0d6qh3fgtw

Dissatisfied with the Defendant’s position, the Plaintiff filed this action on 27.5.2023 claiming, inter alia, a declaration that it should be recognised as a whistleblower under the WPA 2010 from 12.11.2020 onwards, and seeking special damages of RM10,421,578.30, general damages, and exemplary damages of RM1,000,000.00. B]

The Plaintiff’s claim is premised entirely on an alleged breach of the WPA 2010. The Plaintiff contends that: i) It made disclosures of “improper conduct” by ITOs to the Defendant as an enforcement agency, which disclosures related to non-compliance with the Guideline; ii) The Guideline was issued pursuant to section 201 of the Insurance Act 1996 and remains enforceable under sections 271 and 272 of the Financial Services Act 2013, constituting “standards” under that Act; iii) Breaches of the Guideline amount to a “disciplinary offence” within the meaning of section 2 of the WPA 2010, and therefore constitute “improper conduct”; iv) The WPA 2010 does not require disclosures to be made through any specific channel, and the Defendant’s S/N vZuohS1hj0Ob0d6qh3fgtw Page 6 of 34 conduct in investigating the complaints demonstrates that it accepted the Plaintiff’s complaints as disclosures of improper conduct; v) The Defendant breached its statutory obligations under the WPA 2010 by disclosing the Plaintiff’s identity to the ITOs, failing to recognise the Plaintiff as a whistleblower, and failing to protect the Plaintiff from detrimental action; vi) The Defendant permitted or participated in detrimental action against the Plaintiff by allowing ITOs to take retaliatory action, in breach of section 10(3)(b) of the WPA 2010; vii) The immunity provisions in Section 87 of the Central Bank Act 2009 and section 267 of the Financial Services Act 2013 do not apply because the Plaintiff’s claim is based on the WPA 2010, not those Acts. In any event, the immunity is not absolute and does not apply where the Defendant has not acted in good faith.

The Plaintiff essentially sought the following reliefs against the Defendant in paragraph 98 of the Statement of Claim: “a. Deklarasi bahawa Plaintif diiktiraf sebagai pihak pemberi maklumat (‘whistleblower’) di bawah Akta Perlindungan Pemberi Maklumat 2010 sejak 12.11.2020 dan masih berterusan; S/N vZuohS1hj0Ob0d6qh3fgtw Page 7 of 34 b. Deklarasi bahawa Defendan bertanggungjawab mengambil tindakan terutamanya dibawah Bahagian V Akta Perlindungan Pemberi Maklumat 2010 untuk melindungi Plaintif daripada tindakan penindasan Syarikat-syarikat Insurans; c. Injunksi terhadap Defendan untuk berhenti pendedahan dan/atau penyebaran maklumat yang diberikan oleh Plaintif dan/atau identiti Plaintif berbangkit dari aduan-aduan yang dibuat oleh Plaintif kepada Defendan dengan serta merta; d. Gantirugi khas sebanyak RM10,421,578.30 yang dikira sehingga 27.5.2023; e. Ganti rugi am untuk ditafsir; f. Ganti rugi teladan sebanyak RM1,000,000.00” (own emphasis added) C] THE DEFENDANT’S CASE AND GROUNDS IN SUPPORT

The Defendant’s principal submissions and grounds in support of this Application are as follows: i) The Defendant is clothed with statutory immunity under section 87 of the Central Bank Act 2009 and section 267 of the Financial Services Act 2013 for acts done in S/N vZuohS1hj0Ob0d6qh3fgtw Page 8 of 34 good faith in pursuance of those statutes. The Plaintiff has not pleaded any bad faith on the part of the Defendant; ii) The Plaintiff does not fall within the definition of “whistleblower” under the WPA 2010 because: a) The complaints were not made through the Defendant’s designated whistleblowing channel as required by the Defendant’s Whistleblowing Policy; b) The complaints do not constitute disclosures of “improper conduct” because breaches of the Guideline do not amount to a “disciplinary offence” or “criminal offence” as defined in section 2 of the WPA 2010. The definition of “disciplinary offence” refers to breaches “as provided by law or in a code of conduct, a code of ethics or circulars or a contract of employment”, and does not encompass standards or guidelines issued pursuant to statutes; c) The Guideline is only enforceable by the Defendant against ITOs, and the Plaintiff has no privity with the Guideline and thus no locus standi to invoke the WPA 2010 in relation to breaches thereof; iii) The Defendant did not disclose the Plaintiff’s identity to the ITOs. Any detrimental action by the ITOs cannot be attributed to the Defendant; S/N vZuohS1hj0Ob0d6qh3fgtw Page 9 of 34 iv) The Defendant, as a regulatory body, has no control over decisions made by ITOs or PIAM regarding the Plaintiff’s PARS status. If the Plaintiff suffered loss due to actions by ITOs, the proper defendants are the ITOs, not the Defendant; D] THE PLAINTIFF ENTIRE CAUSE OF ACTION IS BASED ON

The Plaintiff’s case is based on the allegation that the Defendant disclosed the Plaintiff’s identity and details of its complaints to the ITOs during the investigations, in breach of its duties under the WPA 2010. As a result, the Plaintiff suffered retaliatory actions by the ITOs, including strong objections to the renewal of its PARS licence and removal from preferred panel workshops, which caused financial losses.

The Defendant is also said to have breached its statutory duties under sections 10, 14, and 15 of the WPA 2010 by failing to recognise the Plaintiff as a whistleblower and by not taking protective steps, thereby allowing or contributing to the harm suffered by the Plaintiff.

Therefore, the Plaintiff’s pleaded cause of action is essentially founded on an alleged breach of the WPA 2010 by the Defendant. S/N vZuohS1hj0Ob0d6qh3fgtw

This is evident from, inter alia: i) The Statement of Claim, which expressly pleads breaches of specific provisions of the WPA 2010 by the Defendant; ii) The reliefs sought in paragraphs 98(a) and (b), where the Plaintiff prays for declaratory orders that: a) the Plaintiff is a whistleblower; and b) the Defendant is under a statutory obligation, under Part V of the WPA, to protect the Plaintiff from oppressive or retaliatory acts by the insurance companies. iii) The reliefs in paragraph 98(c) to (f) are directly linked to and flow from the declaratory reliefs sought in prayers (a) and (b). When read as a whole, the Plaintiff’s claim makes clear that these subsequent reliefs are consequential upon the earlier ones (paragraphs 98(a) and (b)). If the Plaintiff fails to obtain reliefs (a) and (b), the entire claim will necessarily fail. iv) The Plaintiff’s Written Submissions in Enclosure 23, particularly paragraphs 27(a)–(b), which confirm that the Plaintiff’s cause of action is based on the WPA. S/N vZuohS1hj0Ob0d6qh3fgtw

The central event in the Plaintiff’s case is the FAWOAM Meeting held on 18.9.2020. According to the Statement of Claim, it was during this meeting that the Defendant gave an assurance to members of the FAWOAM, including the Plaintiff, that the identities of informants would be kept confidential and not disclosed. Paragraph 29 of the Statement of Claim states: “Defendan turut memberi keyakinan kepada ahli-ahli FAWOAM untuk membekalkan bukti dan butir-butir sepertimana yang diminta dengan memberi jaminan bahawa identiti ahli-ahli FAWOAM sebagai pemberi maklumat akan dirahsiakan dan tidak dibocorkan. Jaminan tersebut telah diberikan kerana ahli-ahli FAWOAM khuathir bahawa Syarikat-syarikat Insurans akan bertindak balas untuk menindas mereka sebagaimana telah diutarakan dalam Kertas Hujahan FAWOAM dan dalam Mesyuarat

At paragraph 30 of the Statement of Claim, the Plaintiff further pleads that it was in reliance on this representation, encouragement, and promise by the Defendant that the Plaintiff found the courage to come forward and provide evidence of alleged misconduct by the insurance companies.

Therefore, the Plaintiff’s entire case rests on the question of whether it falls within the scope of the WPA; if the Plaintiff fails to establish this, the claim must necessarily fail. S/N vZuohS1hj0Ob0d6qh3fgtw Page 12 of 34 E] WHETHER THE PLAINTIFF FALLS WITHIN THE AMBIT OF

The threshold question is whether the Plaintiff can invoke the protections of the WPA 2010. This depends on whether the Plaintiff made a “disclosure of improper conduct” to the Defendant as an “enforcement agency” within the meaning of the Act.

Section 2 of the WPA 2010 defines the relevant terms: “"whistleblower" means any person who makes a disclosure of improper conduct to the enforcement agency under section 6; "improper conduct" means any conduct which if proved, constitutes a disciplinary offence or a criminal offence; "disciplinary offence" means any action or omission which constitutes a breach of discipline in a public body or private body as provided by law or in a code of conduct, a code of ethics or circulars or a contract of employment, as the case may be.” (own emphasis added)

For the Plaintiff to be a “whistleblower”, it must have made a disclosure of “improper conduct”, which requires the conduct complained of to constitute either a “disciplinary offence” or a “criminal offence”. S/N vZuohS1hj0Ob0d6qh3fgtw

The Plaintiff contends that breaches of the Guideline constitute a “disciplinary offence” because the Guideline was issued pursuant to statutory power and is enforceable as a “standard” under the Financial Services Act 2013. The Plaintiff argues that the wide definition of “disciplinary offence” should encompass non-compliance with such standards.

However, the definition of “disciplinary offence” in section 2 of the WPA 2010 is clear and specific. It refers to “any action or omission which constitutes a breach of discipline in a public body or private body as provided by law or in a code of conduct, a code of ethics or circulars or a contract of employment”.

The words “as provided by law” in the definition must be read in context with the other enumerated categories: codes of conduct, codes of ethics, circulars, and contracts of employment. These are all instruments that typically establish internal disciplinary frameworks within organisations. The phrase “as provided by law” refers to disciplinary regimes established by statute within public or private bodies, not to every breach of any regulatory standard or guideline.

The wording in Section 2 of the WPA 2010 does not encompass any standards or guidelines issued under statutory authority. The principle of statutory interpretation requires that clear and unambiguous words should not be improved upon or expanded to achieve a desired result S/N vZuohS1hj0Ob0d6qh3fgtw Page 14 of 34 Bonifac Lobo a/l Robert Lobo v. Dr. Zubaidah binti Ibrahim & ors [2018] MLJU 452 and Foo Fatt Chuen v. Axis Identity Group International Sdn Bhd & Anor [2011] LNS 1584).

The Plaintiff’s central argument is that breaches of the Guideline constitute “disciplinary offences” because: i) the Guideline was issued pursuant to section 201 of the Insurance Act 1996; ii) following the repeal of that Act, the Guideline is deemed to be a “standard” under section 272(b) of the Financial Services Act 2013; iii) section 234(1)(d) of the Financial Services Act 2013 provides that a person commits a breach under that Act if the person fails to comply with “any standards ... under this Act”; and iv) the Defendant has enforcement powers under section 234(3) including ordering compliance and imposing monetary penalties. The Plaintiff submits that this enforcement framework should bring breaches of the Guideline within the definition of “disciplinary offence” under the WPA 2010. S/N vZuohS1hj0Ob0d6qh3fgtw

This argument conflates two entirely distinct legal concepts: regulatory breaches and disciplinary offences. Just because breaking a regulation can lead to enforcement action under a regulatory law does not mean it automatically becomes a disciplinary offence under the WPA 2010.

The distinction is fundamental. The Financial Services Act 2013 establishes a regulatory regime whereby the Defendant, as the central bank and regulatory authority, supervises and enforces standards of conduct upon financial institutions in the public interest. When an ITO breaches the Guideline, it commits a regulatory breach under section 234(1)(d) of the Financial Services Act 2013, for which the Defendant may impose regulatory sanctions including compliance orders, monetary penalties, reprimands, or orders for remedial action. This is the exercise of public regulatory power by a statutory authority over regulated entities.

In contrast, a “disciplinary offence” under the WPA 2010 refers to breaches of internal disciplinary frameworks within organisations. The definition speaks of “breach of discipline in a public body or private body as provided by law or in a code of conduct, a code of ethics or circulars or a contract of employment”. These are mechanisms by which organisations maintain discipline over their own officers, employees, or members. Examples include: S/N vZuohS1hj0Ob0d6qh3fgtw Page 16 of 34 i) Breaches of civil service disciplinary codes; ii) Breaches of professional disciplinary codes (e.g., for lawyers, doctors, or engineers); iii) Breaches of employment contracts or staff codes of conduct; iv) Breaches of internal codes of ethics or circulars within organisations.

The Guideline sets out minimum standards for claims settlement practices by ITOs and registered adjusters. It covers matters such as the processing and settlement of claims, communication with policyholders and claimants, the use of replacement parts, and betterment charges. Of particular relevance to this case, clause 8.4 of the Guideline provides that “new franchise parts must be used for vehicles below 5 years old with no betterment charges applicable.” The complaints made by the Plaintiff concerned alleged breaches by ITOs of this and other provisions of the Guideline, including the use of non-genuine parts instead of franchise parts for vehicles under 5 years old, the imposition of unfair terms requiring policyholders to use particular workshops, and concerns about the independence of adjusters appointed by ITOs. S/N vZuohS1hj0Ob0d6qh3fgtw

The Guideline, whilst issued pursuant to statutory power and enforceable by the Defendant through administrative sanctions under section 234 of the Financial Services Act 2013, does not establish an internal “disciplinary” regime within the ITOs. It is a regulatory instrument that sets external standards imposed upon regulated entities by a statutory regulator. When an ITO breaches the Guideline, it is the Defendant (as regulator) that enforces compliance through regulatory action under the Financial Services Act 2013. This is fundamentally different from an internal disciplinary process within the ITO itself.

It must also be noted that the Guideline is not a “regulation” made under section 234(1)(B) of the Financial Services Act

It is also not a “code of conduct, ethics, circular, or employment contract” (section 2 of the WPA 2010) used in an organisation’s internal disciplinary process.

To accept the Plaintiff’s interpretation would lead to an absurd expansion of the WPA 2010. Every breach of every regulatory standard, guideline, or requirement imposed by any regulatory authority under any statute would become a “disciplinary offence” attracting whistleblower protection.

Non-compliance with the Guideline may attract regulatory enforcement action by the Defendant, including orders for compliance and monetary penalties under section 234 of the Financial Services Act 2013, but this does not make such non-S/N vZuohS1hj0Ob0d6qh3fgtw Page 18 of 34 compliance a “disciplinary offence” for purposes of the WPA

2010.

The Plaintiff’s broad interpretation would expand the scope of the WPA 2010 far beyond what Parliament intended. If every breach of a regulatory standard or guideline issued under statutory authority were to constitute a “disciplinary offence” under the WPA 2010, the scope of the Act would be vastly enlarged to cover virtually all types of complaints. This cannot have been Parliament’s intention.

The Plaintiff has not alleged that the ITOs’ conduct constituted a “criminal offence”. Thus, the complaints made by the Plaintiff do not fall within the definition of “improper conduct” under section 2 of the WPA 2010.

In short, a breach of the Guideline does not constitute “improper conduct” under the WPA 2010. It is neither a “disciplinary offence” nor a “criminal offence” under the

Having concluded that the Plaintiff’s complaints do not constitute disclosures of “improper conduct”, it follows that the Plaintiff does not meet the definition of “whistleblower” under the WPA 2010 and cannot invoke the protections under the Act. S/N vZuohS1hj0Ob0d6qh3fgtw

On this ground alone, the Plaintiff’s action can be struck out. However, for completeness, I will also address the other grounds raised by the Defendant. F] WHETHER THE COMPLAINTS WERE MADE THROUGH

The Defendant also contends that the Plaintiff’s complaints were not made through the Defendant’s designated whistleblowing channel and therefore do not attract the protections of the WPA 2010.

The Plaintiff’s respond is that the WPA 2010 does not prescribe any particular channel through which disclosures must be made, and that section 6(3) provides that disclosures may be made orally or in writing.

Section 3(1) of the WPA 2010 confers upon enforcement agencies: “The enforcement agency shall have the general direction, control and supervision of all matters relating to whistleblower protection” (own emphasis added)

Hence, it is within this power that enforcement agencies (which includes the Defendant) may establish procedures for receiving and dealing with whistleblowing complaints. S/N vZuohS1hj0Ob0d6qh3fgtw

The Defendant operates two distinct complaint mechanisms: i) its regular complaints channel through the Consumer and Market Conduct Department and BNMTELELINK for consumer complaints about financial institutions; and ii) a specific whistleblowing channel (generalcounsel-wb@bnm.gov.my) governed by the Defendant’s Whistleblowing Policy for complaints under the WPA

2010.

The evidence shows that the Plaintiff made its complaints through the regular complaints channels (CMC Department and BNMTELELINK), not through the designated whistleblowing channel at generalcounsel-wb@bnm.gov.my. Only on 30.3.2022, two days after the Plaintiff’s PARS license was suspended on 28.3.2022, did the Plaintiff first contact the Defendant through the proper whistleblowing channel, claiming detrimental action by the insurers.

The Plaintiff’s complaints were treated by the Defendant as ordinary regulatory complaints about ITOs’ compliance with the Guideline, and were assessed and dealt with in that capacity. Between October 2020 and May 2022, the Defendant investigated the complaints and kept the Plaintiff informed of its findings. The Plaintiff raised no concerns about the Defendant’s handling of its complaints during this period. S/N vZuohS1hj0Ob0d6qh3fgtw

Whilst I accept that section 6(3) of the WPA 2010 does not in terms require disclosures to be made through any particular channel, the reality is that enforcement agencies must have mechanisms to distinguish between ordinary complaints (which may number in the thousands) and complaints that invoke the specific protections of the WPA 2010. The Defendant’s establishment of a dedicated whistleblowing channel for this purpose is a reasonable exercise of its powers under section 3 of the WPA 2010.

Further, the Plaintiff admits that the Defendant did not refer to the WPA 2010 during the FAWOAM Meeting, nor did the Plaintiff seek protection under the WPA 2010 at the material time. G]

The Plaintiff has no locus standi to initiate this action because the Guideline is only enforceable between the Defendant and the ITOs, and the Plaintiff is not privy to it.

Further and in any event, the Plaintiff’s alleged loss flows not from any breach of the Guideline by the ITOs, but from the decision by PIAM and individual ITOs not to renew the Plaintiff’s PARS registration. S/N vZuohS1hj0Ob0d6qh3fgtw Page 22 of 34 H]

The Defendant relies on the immunity provisions in section 87 of the Central Bank Act 2009 and section 267 of the Financial Services Act 2013. Both provisions provide that no action or suit shall lie against the Defendant or its officers for acts done in pursuance of those Acts, provided such acts were done in good faith.

Section 267 of the Financial Services Act 2013 provides as follows: “No action, suit, prosecution or other proceeding shall lie or be brought, instituted, or maintained in any court or before any other authority against—

the Minister;

the Bank;

the Governor;

the Deputy Governor; or

any of its director, officers or employees or any person acting on behalf of the Bank, for or on account of, or in respect of, any act done or statement made or omitted to be done or made, or purporting to be done or made or omitted to be done or made, in pursuance or in execution of, or intended pursuance or execution of, this Act, or any order in writing, direction, instruction, notice or other thing issued under this Act if such S/N vZuohS1hj0Ob0d6qh3fgtw Page 23 of 34 act or such statement was done or made, or was omitted to be done or made, in good faith”. (own emphasis added)

Section 87 of the Central Bank Act 2009 has similar wording with section 267 of the Financial Services Act 2013 except that it specifically refers to the officers or employees of the Defendant which includes the Governor, the Deputy Governors and the other directors.

The Plaintiff contends that these immunity provisions are inapplicable because its claim is brought under the WPA 2010, not under the Central Bank Act 2009 or the Financial Services Act 2013. The Plaintiff further argues that even if the immunity provisions apply, they are not absolute and can be displaced by proof of bad faith, which can only be determined at trial.

The Plaintiff’s argument is misconceived. The immunity provisions protect the Defendant from suits arising out of the exercise of its regulatory functions under the relevant statutes. The investigation of complaints about ITOs’ conduct is quintessentially a regulatory function carried out pursuant to the Defendant’s powers under the Central Bank Act 2009 and the Financial Services Act 2013.

The fact that the Plaintiff has framed its claim as a breach of the WPA 2010 does not change the underlying nature of the S/N vZuohS1hj0Ob0d6qh3fgtw Page 24 of 34 Defendant’s conduct, which was the exercise of its regulatory powers in investigating and assessing complaints about regulated entities. The immunity provisions apply to protect the Defendant in the exercise of these functions.

As to the issue of good faith, the Plaintiff has not pleaded any facts demonstrating bad faith on the part of the Defendant. The Plaintiff’s Statement of Claim contains no averments of fraud, collusion, ulterior motive, or any decision made for an improper, illegal or immoral purpose.

In Fauziah Khanom binti Irshad Ali Khan v. Pegawai Pejabat Daerah Johor Bahru & ors [2013] 7 MLJ 737, the Court identified the hallmarks of mala fides as including “conduct tainted with fraud, collusion, participation in wrongdoing”, or decisions made with ulterior motive, for improper, illegal or immoral purposes. None of these are pleaded here.

The Plaintiff seeks to rely on Ashby Construction Sdn Bhd v. Bank Negara Malaysia [2014] 5 CLJ 955, where the High Court held that the question of good faith is a matter to be determined at trial. However, that case is distinguishable. In Ashby Construction (supra), bad faith was specifically pleaded as a central issue. The plaintiff there alleged that a freezing order and seizure order were issued mala fide. The Court held that these allegations required evidence to be tested at trial. S/N vZuohS1hj0Ob0d6qh3fgtw

In the present case, no bad faith has been pleaded. The Plaintiff’s belated attempt in its written submissions to read mala fides into the Statement of Claim cannot be permitted. It is trite law that parties are bound by their pleadings and cannot improve their case through submissions. In this regard, the Court in Pang Chin Huey v. Universiti Teknologi Mara [2018] MLJU 612 held as follows: “[9] The Court agrees with this contention of the Defendant as it is clear from perusing the Statement of Claim filed by the Plaintiff there is no mention that the Defendant had acted mala fide in rejecting the letter withdrawing the resignation. Mala fide is only mentioned in the Plaintiff’s affidavit opposing the Defendant’s application to strike out. It is trite law that the parties are bound by their pleading and no extrinsic matters to those facts mentioned in the pleading can be entertained by the Court.” (own emphasis added)

The Plaintiff’s dissatisfaction with the outcome of the Defendant’s investigations does not establish bad faith. The evidence shows that the Defendant investigated the Plaintiff’s complaints diligently and kept the Plaintiff informed of its findings. The Plaintiff raised no concerns about the Defendant’s conduct until after its PARS registration was not renewed. S/N vZuohS1hj0Ob0d6qh3fgtw

In these circumstances, the statutory immunity applies. No cause of action can lie against the Defendant for acts carried out in good faith in the exercise of its regulatory functions. I] DISCLOSURE OF THE PLAINTIFF’S IDENTITY (BY THE

The crux of the Plaintiff’s case is that the Defendant disclosed its identity to the ITOs, leading to detrimental action. The Plaintiff points to an email from AXA attached to its objection to the Plaintiff’s PARS renewal, which allegedly contains information provided by the Plaintiff to the Defendant.

However, the evidence also shows that the Plaintiff itself copied the Defendant (through BNMTELELINK and officers of the Consumer and Market Conduct Department) in its correspondence with ITOs. For example, the Plaintiff sent emails to AXA on 15.10.2021, 9.12.2021 and 20.12.2021, copying the Defendant. It is therefore untenable for the Plaintiff to now argue that any knowledge the ITOs had of the Plaintiff’s complaints can be attributed solely to disclosures by the Defendant. This is particularly so given that the Plaintiff disclosed its own identity in the very complaints.

Moreover, the Defendant based its investigations on motor vehicle registration numbers provided by the Plaintiff. When making enquiries with ITOs about specific incidents, it is S/N vZuohS1hj0Ob0d6qh3fgtw Page 27 of 34 inevitable that the ITOs would be able to identify the workshop involved from their own records. This does not constitute a disclosure of confidential information by the Defendant.

The fact remains that the Plaintiff is unable to state with certainty that the Defendant wrongfully disclosed its identity, or that such disclosure directly caused the alleged retaliatory actions. The Plaintiff merely “believes” it can prove this at trial. However, as the initiator of this civil action, the Plaintiff cannot proceed on the basis of speculation or trial and error - it must be certain of its allegations. J] WHETHER THE DEFENDANT CAUSED THE

The Plaintiff relies on section 10 of the WPA 2010 which provide as follows: “(1) No person shall take detrimental action against a whistleblower or any person related to or associated with the whistleblower in reprisal for a disclosure of improper conduct.

A whistleblower may make a complaint to any enforcement agency of any detrimental action committed by any person against the whistleblower or any person related to or associated with the whistleblower. S/N vZuohS1hj0Ob0d6qh3fgtw Page 28 of 34

A person is deemed to take detrimental action against a whistleblower or any person related to or associated with the whistleblower if –

the person takes or threatens to take the detrimental action because-

a whistleblower has made a disclosure of improper conduct; or

(ii) he person believes ha a whistleblower has made or in ends o make a disclosure of improper conduct; or

the person incites or permits another person to take or threaten to take the detrimental action for any reason under subparagraph (a)(i) or (ii).” (own emphasis added)

The Plaintiff contends that the Defendant participated in or permitted detrimental action against it, contrary to section 10(3)(b) of the WPA 2010, which deems a person to have taken detrimental action if that person “incites or permits another person to take or threaten to take the detrimental action”.

This argument fails for several reasons. S/N vZuohS1hj0Ob0d6qh3fgtw

First, as I have found, the Plaintiff is not a “whistleblower” under the WPA 2010 and cannot invoke section 10.

Second, the Defendant, as a regulatory body, has no power or control over decisions made by PIAM regarding PARS registrations, or decisions made by individual ITOs regarding which workshops they choose to engage. The Defendant cannot be said to have “permitted” actions over which it has no control.

Third, the evidence shows that the ITOs’ objections to the Plaintiff’s PARS renewal were based on their own independent assessments of the Plaintiff’s conduct and business practices, not on any disclosure by the Defendant. The Statement of Claim itself records various disputes between the Plaintiff and ITOs from October 2020 onwards, disputes that arose in the ordinary course of business dealings and were independently assessed by each ITO. These disputes formed the basis for the Plaintiff’s specific complaints to the Defendant between October 2020 and March 2022.

Further, the Plaintiff has not shown that PIAM’s non-renewal of its PARS registrations was the result of retaliatory actions arising from those complaints. Rather, PIAM’s decision was based on its own independent assessment of concerns about the Plaintiff’s conduct and business practices as evidenced by the objections raised by Allianz, AXA, and Etiqa, objections which themselves were premised on the ITOs’ independent S/N vZuohS1hj0Ob0d6qh3fgtw Page 30 of 34 evaluations of the Plaintiff’s conduct, not on any disclosure by the Defendant.

The Plaintiff’s argument that the Defendant should have exercised its powers under the Financial Services Act 2013 to compel the ITOs to cease any detrimental action is unsustainable. The Defendant’s regulatory powers must be exercised in accordance with law and in the public interest. The Defendant cannot be compelled to use its regulatory powers to benefit a particular complainant in the manner the Plaintiff suggests. K]

The Defendant has no control over the decisions of the ITOs and PIAM regarding the Plaintiff’s PARS registration.

The proper defendants, if the Plaintiff suffered loss due to wrongful conduct, are the ITOs that allegedly took detrimental action, not the Defendant.

The Plaintiff is seeking to use the Court process to compel the Defendant to exercise its regulatory powers in a particular way for the Plaintiff’s private benefit.

The Plaintiff’s claim seeks to hold the Defendant liable for losses flowing from decisions made by PIAM and individual ITOs over which the Defendant has no control. The Plaintiff’s S/N vZuohS1hj0Ob0d6qh3fgtw Page 31 of 34 issue or complaint is fundamentally with the ITOs that objected to its PARS renewal and with PIAM’s decision not to renew its registration. The Defendant is not the proper party to be sued in respect of such losses.

Moreover, the Plaintiff is effectively attempting to use the Court process to obtain a declaration that it qualifies as a whistleblower under the WPA 2010, and thereby compel the Defendant to exercise its regulatory powers under the Financial Services Act 2013 to take action against the ITOs on the Plaintiff’s behalf. This is an improper use of Court process (Boo Are Ngor (p) v. Chua Mee Liang (p) (sued as public officer of Kim Leng Tze Temple) [2009] 6 MLJ 145).

Further, the Plaintiff disclosed its own identity by copying the Defendant in its correspondence with the ITOs, and therefore cannot claim that the Defendant was responsible for it.

This is plainly and obviously a case where the Plaintiff’s claim is unsustainable and cannot succeed. The Statement of Claim discloses no reasonable cause of action against the Defendant (Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7).

The Plaintiff’s claim is frivolous, vexatious (Amazing Place Sdn Bhd v. Couture Homes Sdn Bhd & anor [2011] 7 MLJ 52) and an abuse of process (Boo Are Ngor (supra)). S/N vZuohS1hj0Ob0d6qh3fgtw

For the reasons stated above, I allowed this Application with costs in favour of the Defendant. Dated this 10th day of October, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA COUNSEL FOR THE PLAINTIFF : Cheah Sin Chin (Sandra Lee Yen Ping and Nur Adila Binti Abdul Rahim together with him) Messrs A.R. Adila Law Chambers A4-19-02, Residensi Prima Alam Damai, No. 8, Persiaran Bistari, Alam Damai, 56000 Kuala Lumpur Tel: 016-2177582 Emel: adilalawchambers@gmail.com S/N vZuohS1hj0Ob0d6qh3fgtw Page 33 of 34 COUNSEL FOR THE DEFENDANT : Janice Leo (Adrienne Sena together with her) Messrs Steven Thiru & Sudhar Partnership Unit A1-12-01, Arcoris Mont Kiara, Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur Tel: 03-64119000 Emel: info@steventhiru.my LEGISLATION / RULES CITED Rules of Court 2012  Order 18 rule 19(1)(a), (b) and/or (d) Insurance Act 1996  Section 201 Financial Services Act 2013  Section 234  Section 267  Section 271  Section 272 Whistleblower Protection Act 2010  Section 2  Section 3  Section 6(3)  Section 10  Section 14  Section 15 Central Bank Act 2009  Section 87 S/N vZuohS1hj0Ob0d6qh3fgtw Page 34 of 34

Ashby Construction Sdn Bhd v. Bank Negara Malaysia [2014] 5

Amazing Place Sdn Bhd v. Couture Homes Sdn Bhd & anor [2011] 7 MLJ 52

Bonifac Lobo a/l Robert Lobo v. Dr. Zubaidah binti Ibrahim & ors [2018] MLJU 452

Boo Are Ngor (p) v. Chua Mee Liang (p) (sued as public officer of Kim Leng Tze Temple) [2009] 6 MLJ 145

Bandar Builder Sdn Bhd v. United Malayan Banking Corporation

Foo Fatt Chuen v. Axis Identity Group International Sdn Bhd &

Fauziah Khanom binti Irshad Ali Khan v. Pegawai Pejabat Daerah Johor Bahru & ors [2013] 7 MLJ 737

Pang Chin Huey v. Universiti Teknologi Mara [2018] MLJU 612 S/N vZuohS1hj0Ob0d6qh3fgtw