A party must exhaust all domestic remedies before seeking court relief, and all necessary parties must be included in the application for an injunction.

JUDGMENT

Leong Wai Hong JC:

Introduction

[1] The plaintiff filed encl 7 for an ex parte interim injunction to restrain the defendant from suspending the plaintiff's licence to provide Digital Terrestrial Television Services ("DTT Services") within Malaysia pending trial.

[2] I heard plaintiff's lead counsel Tan Sri Muhammad Shafee bin Abdullah ex parte on 1 November 2023 and granted para 1 of encl 7 pending inter parte hearing on 10 November 2023 subject to undertaking to damages by the plaintiff. I then heard encl 7 inter parte on 10 November 2023, 27 November 2023 and 8 December 2023 and reserved my decision. I dismissed the plaintiff's application on 11 January 2024 on these two broad grounds:

First Ground

i. A person shall not apply to the court for reliefs unless that person has first exhausted all other domestic remedies available to him under an applicable Act.

ii. In the instant case, the Malaysian Communications and Multimedia Act 1998 ("Act 588") provides for an aggrieved party, ie the plaintiff here, to lodge an appeal to the Appeals Tribunal [if he is aggrieved or his interest is adversely affected by a decision or direction (but not a determination) of the Malaysian Communications and Multimedia Commission ("MCMC")], or to the Minister [if he is aggrieved or his interest is adversely affected by a determination of the MCMC] pursuant to s 120 of the MCMC Act.

iii. If the plaintiff is still not satisfied, then the plaintiff can file for judicial review pursuant to s 121 of Act 588;

Second Ground

iv. All parties affected by a court order must be made parties to the suit. In the instant case, the MCMC has not been made a defendant to the suit.

Erinford Injunction

[3] At the plaintiff's oral application, I had granted an Erinford injunction in favour of the plaintiff effective till 11 March 2024. I allowed the Erinford based on the principles set out in See Teow Guan v. Kian Joo Holdings Sdn Bhd & Ors, 1997 MarsdenLR 1538 and Subashini Rajasingam v. Saravanan Thangathoray & Other Appeals; 2007 MarsdenLR 2506 ; 2008 MarsdenLR 4185 .

[4] The plaintiff has now filed an appeal dated 19 January 2024 to the court of Appeal against my decision. I now give my full grounds of judgment. In the grounds and in the letters exhibited by parties the plaintiff may sometimes be referred to as Awesome TV and the defendant as MYTV.

[5] For the record, the plaintiff filed written submissions encl 19, 26 and 35. The defendant filed written submissions encl 30, 32 and 37.

Relevant Background Facts

[6] I set down below the relevant facts in chronological order that I can glean from parties' submissions. My task is not made easier as both counsel failed to narrate all the relevant background facts in chronological order in their respective submissions. Instead counsel set down only selective background facts that they rely on to support their arguments.

Parties And Agreements Between The Parties

[7] The plaintiff holds a license granted by the Minister of Communications and Multimedia Malaysia. Under the terms of this licence, the plaintiff is permitted to provide content application services such as video, television programming and broadcasting activities exclusively through Terrestrial Free to Air ("FTA") TV via a digital terrestrial television ("DTT") broadcasting.

[8] The defendant is the sole provider of DTT services in Malaysia.

[9] The defendant was appointed by the Government of Malaysia to develop and operate the infrastructure and network facilities for DTT in Malaysia.

[10] Thus, any television station holding a licence to provide content application services, which includes the plaintiff here, needs to use the DTT service operated by the defendant.

[11] On 17 July 2020, the defendant and the plaintiff entered into an Access Agreement for the provision of Digital Terrestrial Television Services ("Access Agreement"), whereby the plaintiff requested access to the services of the defendant in respect of its content application services through the DDT