JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] The Respondent filed a Notice of Application dated 1 September 2023 (encl 20) seeking inter alia the following orders:

1.1 That the Ex-Parte Leave Order (the 2nd Judicial Review (JR), dated 31 July 2023 is to be set aside on the ground of illegality for being in breach of the Communications and Multimedia Act 1998 (CMA 1998);

1.2 That an interim stay of all proceedings in this Suit be granted until the full and final disposal of this Application;

1.3 That in the event the Applicant be granted the leave to file a Notice of Hearing of the Judicial Review Application (Form 110), consequently, for the said Notice of Hearing of the Judicial Review Application (Form 110) to be set aside on the ground of illegality;

1.4 Costs on an indemnity basis to be paid by the Applicant to the Respondent; and

1.5 Any further or other reliefs that this Honourable Court deems fit and proper.

[2] In essence, the Respondent filed this application to set aside the Ex-Parte Leave Order dated 31 July 2023 granted by this Honourable Court as well as the Notice of Hearing of the application for Judicial Review.

[3] The grounds of this Notice of Application in support of the Setting Aside Application are summarized below:

(a) The Applicant had obtained the Ex-Parte Leave Order in breach of s 121 of the CMA 1998 as the Applicant had not exhausted the mandatory statutory remedies under the CMA 1998;

(b) The Applicant had failed to make full and frank disclosure of material facts and had misled this Honourable Court by alleging, inter alia, that the Respondent had approved the collaboration agreement between the Applicant and YTL Communications Sdn Bhd (YTLC) dated 28 March 2013 (Collaboration Agreement) to continue until 2054, despite having the knowledge that via the Respondent's letter dated 29 June 2022, the Respondent had expressly stated that the collaboration with YTLC can only continue until 31 December 2022;

(c) The 2nd JR Suit is frivolous, vexatious and amounts to an abuse of this Honourable Court 's process; and

(d) The Applicant had failed to file the Notice of Hearing of the JR Application (Form 110) on the Respondent within 14 days from the grant of such leave as required under O 63 r 4(1) of the Rules of 2012.

[4] After the hearing, I allowed the Respondent's application (encl 20). This Judgment contains the full reasons for my decision.

Background Facts

[5] The background facts were gathered from the cause papers and submissions of the parties. I respectfully adopt them subject to some modifications and can be summarized as follows:

5.1 On 30 March 2007, a company known as Asiaspace Dotcom Sdn Bhd (ADSB) was awarded a 2.3GHz spectrum in the 2300MHz to 2330MHz frequency band (the Spectrum) under an Apparatus Assignment. Under this Apparatus Assignment, ADSB was required to meet certain minimum targets set out by the Respondent. ADSB was later renamed to Asiaspace Sdn Bhd (ASB).

The Collaborative Arrangement between the Applicant and YTLC

5.2 Sometime around June 2012, the former Minister for Information, Communication and Culture advised and recommended that the Applicant collaborate with YTLC by combining ASB's Spectrum with YTLC's spectrum.

5.3 In July 2012, ASB and YTLC jointly applied to the Respondent for approval to collaborate under a Third-Party Authorisation (the Collaborative Arrangement) pursuant to s 167 of the CMA 1998 and reg 25 of the Communications and Multimedia (Spectrum) Regulations (the CMR) 2000 to provide wireless broadband services by sharing the Spectrum.

5.3.1 Under the Collaborative Agreement, ASB will share the Spectrum with YTLC for it to operate network facilities which ASB will utilise the capacity and bandwidth from YTLC's network facilities to provide network and application services; and

5.3.2 Such an arrangement is necessary to optimise the use of the spectrums assigned to ASB and YTLC which will result in increased broadband penetration and higher utilisation of the 2.3GHz