Judicial review is not applicable to decisions made by a corporate entity acting under statutory powers in a purely commercial context, confirming the private law nature of the dispute.

[1] Leave was applied for at the High Court by the appellant pursuant to O 53 r 3 of the Rules of the High 1980 (the Rules), for a judicial review of a decision made by Tenaga Nasional Berhad (the respondent), a decision which aggrieved the appellant. The High Court dismissed the leave application. The appellant then filed the relevant appeal to the Court of Appeal but was dismissed too.

[2] Being dissatisfied, the appellant forthwith applied for leave to appeal to the Federal Court, with the question for determination being:

Whether judicial review lies against Tenaga Nasional Berhad to challenge the exercise of its power conferred pursuant to s 38 of the Electricity Supply Act , 1990 (read together with other relevant sections of the , 1990 thereto and/or applicable regulations pursuant to the Licensee Supply Regulations 1990 thereto)?

[3] The appellant was successful in its application and leave to appeal was granted. We subsequently heard the appeal proper and today is for decision of the appeal.

Background Facts

[4] The appellant runs and operates factories, and manufactures amongst others, disposable latex and synthetic gloves. On information received, the respondent on 14 November 2009 raided the appellant's factory premises, and there found the electricity meter having been tampered with, causing it to fail to record the correct usage of electricity. The respondent then discontinued the electricity but reconnected it some eight hours later.

[5] Vide a letter dated 22 January 2010, in which were enclosed a Form A notice dated 22 January 2010 and a bill carrying number 2197471 ("the two documents"), all issued pursuant to s 38 of the Electricity Supply Act 1990 (the Act), the respondent notified the appellant that as a result of a meter inspection carried out on 14 November 2009 at the factory premises, it was discovered that the meter located there was found tampered with. The Form A notice was issued in relation to the commission of an offence under s 37(3) of the Act. This tampering had resulted in inaccurate reading of the electricity consumption thus undercharging up to RM5,485,463. 87. The bill details out the amount. Through the letter the appellant was then instructed to pay that amount within 14 days, failing which the electricity supply would be disconnected on 5 February 2010.

[6] It was due to the dissatisfaction of the decision in the 22 January 2010 letter and the two documents that the appellant filed the application for a judicial review under O 53 of the Rules. But the appellant had to circumvent the first hurdle ie, the leave stage. It failed. The High Court when dismissing the appellant's application for leave held, inter alia, that there was no element of discretion in the issuance of the notice under s 38(1) of the Act. Under it, once it was discovered that there was evidence of meter tampering, the respondent was empowered to disconnect electricity supplied, subject to the issuance of a notice. The High Court too opined that s 38(1) of the Act was drafted to specifically safeguard the interest of the respondent and allow it to take immediate action to prevent misuse of electricity. It was not open to the appellant to challenge the power given to the respondent under the Act to disconnect electricity supply and to demand the amount claimed.

[7] At the Court of Appeal the appellant's appeal was dismissed on the ground that the relationship between the appellant and the respondent was purely comm