A party must exhaust all domestic remedies before filing for judicial relief, especially when the case involves a regulatory body whose decisions are under scrutiny.

JUDGMENT

S Nantha Balan JCA:

Introduction

[1] This is an appeal by Awesome Broadcasting Sdn Bhd (plaintiff) against the decision of the learned Judicial Commissioner ("the JC") of the High Court at Kuala Lumpur dated 11 January 2024 dismissing the plaintiff's application dated 30 October 2023 (per High Court encl 7) for injunctive reliefs against MYTV Broadcasting Sdn Bhd (defendant). The decision of the High Court in dismissing encl 7 is reported as Awesome Broadcasting Sdn Bhd v. MYTV Broadcasting Sdn Bhd. We heard oral arguments on 26 March 2024. On 8 April 2024, we dismissed the plaintiff's appeal and gave broad grounds. This Judgment contains our full grounds.

Nomenclature

[2] For convenience, we shall refer to the Appellant and Respondent as "plaintiff" and "defendant". In the contemporaneous letters between the parties, the plaintiff is referred to as "ATV" and the defendant as "MYTV". Next, and although not named as a party, the Malaysian Communication and Multimedia Commission is also tied up to the factual matrix of this case. They shall be referred to in this Judgment as "MCMC". The Communications and Multimedia Act 1998 ('Act 588') shall be referred to as "the Act". The Minister of Communication and Multimedia is referred to as "the Minister". The services that were provided by the defendant to the plaintiff is known as Digital Terrestrial Television Services and shall be referred to as "DTTS". The plaintiff is technically known as a Content Application Service Provider or "CASP" (plural — "CASPs").

The Problem — In Brief

[3] The pith and substance of the plaintiff's complaint is that the defendant, being in a monopolistic/dominant position, had discriminated against the plaintiff in terms of the rates chargeable for the DTTS. In this regard, the plaintiff's complaint is that the defendant had charged the other CASPs less for the DTTS by giving a 50% discount. The discount was made possible by way of subsidies that are given by the MCMC.

[4] Pursuant to an Access Agreement dated 17 July 2020 ("the Access Agreement") and a Supplementary Agreement dated 14 July 2021 (collectively, "Agreements") the defendant agreed to provide DTTS to the plaintiff at RM500,000.00 per month (RM6,000,000.00 per year). In April 2022, the plaintiff defaulted on its payment obligations. Later they remedied the position and paid up the amounts outstanding. Then, the plaintiff again failed to make payments between February 2023 and October 2023.

[5] As at 6 October 2023 the amount outstanding was RM5,038,191.38. On 5 October 2023, MCMC attempted to mediate the dispute between the plaintiff and the defendant. This led to the defendant making a proposal for the plaintiff to transition the services to the Standard Definition ("SD") at RM2,500,000.00 per annum but conditional upon the plaintiff adhering to the payment plan stipulated in the said proposal. The plaintiff declined to take up the offer.

[6] The issue which is at the heart of the dispute is the plaintiff's deep dissatisfaction with the fact that other CASPs who are similarly receiving DTTS from the defendant are being charged at 50% less than the amounts being paid by the plaintiff to the defendant. As mentioned earlier, the reduction in the amount chargeable to the other CASPs for DTTS was made possible by subsidies given by MCMC.

[7] The Agreements were registered by MCMC (see: s 150 of the Act). It is material to note that pursuant to s 91 of the Act, MCMC shall register the Agreements only if it is satisfied that the Agreements are consistent with:

(a) the objects of this Act;

(b) any relevant instrument under this Act; and

(c) any relevant provisions of this Act or its subsidiary legislation.

[8] Hence, arising out of the disputes between the plaintiff and defendant over the former's failure to make payments for the DTTS, the plaintiff made representations and implored upon MCMC to intervene to "address the unlevel playing field of the pricing" which was set by the defendant. Acco