Suruhanjaya Persaingan v Tribunal Rayuan Persaingan & Ors

Appellant(s): Suruhanjaya Persaingan Malaysia

Respondent(s):

• Tribunal Rayuan Persaingan
• Persatuan Insurans Am Malaysia (Piam)
• Chubb Insurance Malaysia Berhad
• Great Eastern General Insurance (M) Berhad
• Pacific & Orient Insurance Co. Bhd.
• Tokio Marine Insurans (Malaysia) Berhad
• Lonpac Insurance Bhd
• Berjaya Sompo Insurance Berhad
• Tune Insurance Malaysia Berhad
• Mpi Generali Insurance Berhad
• Prudential Assurance Malaysia Berhad
• Progressive Insurance Berhad
• Amgeneral Insurance Berhad
• Allianz General Insurance Company (Malaysia) Berhad
• Liberty Insurance Berhad
• Rhb Insurance Berhad
• Aia Bhd
• Aig Malaysia Insurance Berhad
• Axa Affin General Insurance Berhad
• Zurich General Insurance Malaysia Berhad
• Msig Insurance (M) Berhad
• Etiqa General Insurance Berhad
• The Pacific Insurance Berhad
• Qbe Insurance (Malaysia) Berhad
• Bank Negara Malaysia

• YA Dato' Azizul Azmi Bin Adnan
• YA Dato' Ahmad Fairuz bin Zainol Abidin
• YA Datin Paduka Evrol Mariette Peters

• The competition regulator found 23 enterprises had infringed section 4 of the Competition Act 2010 by entering into prohibited horizontal/vertical agreements, and imposed financial penalties totalling over RM173 million.
• The affected enterprises successfully appealed to the Competition Appeal Tribunal, which set aside the regulator's decision, prompting the regulator to seek leave for judicial review of the Tribunal's decision.
• The High Court dismissed the leave application, holding that the regulator lacked locus standi under Order 53 rule 2(4) of the Rules of Court 2012 (following binding Court of Appeal precedent) and that the regulator had failed to make full and frank disclosure in its ex parte application.

• Whether the regulator had locus standi to seek judicial review of a decision of its own appellate tribunal, and whether the earlier binding Court of Appeal decision holding it lacked such standing was wrongly decided per incuriam so as to justify departure from stare decisis.
• Whether the earlier precedent was per incuriam for failing to consider relevant authorities on administrative tribunals' rights to challenge appellate decisions, the regulatory/adjudicatory function dichotomy, Article 8 equality, and the judiciary's constitutional role as final arbiter.
• Whether the regulator had breached its duty of full and frank disclosure in its ex parte leave application by withholding material facts, and whether this warranted dismissal irrespective of the standing issue.

• The Court held that the per incuriam doctrine is a narrow exception to stare decisis, applicable only where a prior decision overlooked a binding authority or statutory provision that would necessarily have compelled a different outcome; mere disagreement or the existence of alternative arguments is insufficient.
• The Court found none of the four grounds advanced (comparative administrative law authorities, regulatory/adjudicatory dichotomy including foreign Indian jurisprudence, Article 8 equality, and separation of powers/access to justice) established that the earlier precedent was per incuriam; the statutory scheme under the Competition Act deliberately did not confer on the regulator any right to challenge Tribunal decisions, and the regulator's own subsequent legislative proposal to create such a right confirmed the correctness of that precedent.
• The Court upheld the finding that the regulator had failed in its duty of full and frank disclosure by withholding documents evidencing its own acknowledgment that it lacked standing under the existing law, and dismissed the appeal with costs of RM30,000 to each set of respondents' solicitors.