JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] The Respondent filed a Notice of Application dated 7 April 2023 (Encl 17) seeking inter alia the following orders:

1.1 That the Ex-Parte Order dated 2 March 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 Consequently, the Applicant's Notice of Hearing of the Application for Judicial Review dated 3 March 2023 (Form 110) is to be set aside on the ground of illegality;

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

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 Order dated 2 March 2023 granted by this Honourable Court (the Ex-Parte Leave Order) as well as the Notice of Hearing of the Application for Judicial Review dated 3 March 2023 (the Notice of Hearing).

[3] The grounds of the application in support of the setting Aside Application are summarized as follows:

3.1 The Ex-Parte Leave Order dated 2 March 2023 (Ex-Parte Order) and the subsequent filing of the Notice of Hearing dated 3 March 2023 according to Form 110 of the Rules of 2012 was done in breach of s 121 of the CMA 1998, as the Applicant had not exhausted the internal remedies available to them under the CMA 1998;

3.2 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 allowed 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 full knowledge that the Respondent had not done so;

3.3 The Ex-Parte Leave Order and the application for judicial review are also defective and vexatious as it seeks to set aside the Respondent's Decision dated 24 November 2022 which is a revised offer for the spectrum assignment (SA) (Respondent's Decision/Revised SA Offer), that allowed the Applicant to collaborate with YTLC for 2 years from the offered 5 years SA. However, the Applicant has not challenged the original SA offer made vide the Respondent's letter dated 1 July 2022 (SA Offer), which had offered the Applicant 5 years SA but prohibits the Applicant from collaborating with YTLC for the entire 5 years period;

3.4 The Ex-Parte Leave Order contains a stay order against the execution or implementation of the Respondent's Decision/Revised SA Offer pending the disposal of the "Respondent's Stay Application" is also flawed, as there was no stay application filed by the Respondent and a stay order cannot be obtained on an ex-parte basis; and

3.5 The Applicant named in the intitulement of this Suit is not the entity upon which the Respondent's Decision/Revised SA Offer is directed.

[4] After the hearing, I allowed the Respondent's application (Encl 17). 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).

(See: The Respondent's letter dated 30 March 2007, Exhibit DAG-2, Applicant's Affidavit in Support (Encl 3), p 43)

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 wit