JUDGMENT

Aziah Ali JCA:

[1] The appellant had filed an application for judicial review under inter alia for an order of certiorari to quash the decision of the 1st respondent, the Director General of Trade Unions, Malaysia dated 27 December 2010 to register the 2nd respondent as an in-house union in RHB Bank Berhad ("RHB"). The High Court dismissed the appellant's application, hence this appeal. We heard submissions made by all parties, considered the appeal record and by a unanimous decision we dismissed the appeal with costs of RM5,000.00 each to the 1st and 2nd respondent. We now give our reasons below.

Background Facts

[2] The appellant is a trade union registered under the Trade Unions Act 1959 ("the Act"), whose membership is open to all workmen classified as Class II Officers and Internal Officers employed in banks which are members of the Malayan Commercial Banks' Association ("MCBA"). RHB is a member of MCBA (pp 86-89 Appeal Record).

[3] The 2nd respondent, Kesatuan Eksekutif RHB Bank Berhad had applied under s 10 of the Act to be registered as an in-house trade union covering officers in category E1 to E4 in RHB. The Pengarah Kanan, Jabatan Hal Ehwal Kesatuan Sekerja Malaysia then wrote to the appellant requesting the appellant to list out the category and grades of officers that it represented in RHB. The appellant replied stating that any application to register an inhouse union in RHB ought to be rejected because the appellant claims that its membership covers all executives at RHB. However on 27 December 2010 the 1st respondent registered the 2nd respondent as a trade union under s 12(1) of the Act (p 74 Appeal Record). The appellant thereupon filed the application for judicial review.

[4] The appellant's application seeking reliefs are premised on Wednesbury unreasonableness and non-compliance with the rules of natural justice by the 1st respondent in not affording the appellant a reasonable opportunity to be heard before registering the 2nd respondent. The appellant says that the 1st respondent has failed to consider relevant facts, had taken into consideration irrelevant facts and had acted arbitrarily and in excess of jurisdiction. The appellant alleged that the 1st respondent has failed to:

(a) consider s 12(2) of the Act which allows the 1st respondent to refuse registration where there is already in existence a trade union representing the workmen;

(b) consider that the appellant has members of executive capacity who are employees of RHB;

(c) observe the rules of natural justice under s 12(2) of the Act;

(d) consider the fact of multiplicity of union resulting from such registration.

[5] Before the learned judge, a preliminary objection was raised by learned Senior Federal Counsel for the 1st respondent that the appellant has failed to exhaust the remedy of appeal to the Minister provided under s 71A of the Act against any decision of the 1st respondent made under s 12 of the Act. We note that this objection has also been raised in paras 24 and 25 of the 1st respondent's affidavit in reply opposing the appellant's application (p 61 Appeal Record). In the appellant's affidavit in reply (pp 69-72 Appeal Record) the appellant has not responded to this objection.

[6] For the appellant it is submitted that there are special circumstances that does not bar the application for judicial review notwithstanding the remedy of appeal to the Minister as provided under s 71A of the Act. It is contended that special circumstances exist in this application because the 1st respondent has failed to observe the rule of natural justice by not calling the appellant for any discussion before considering registering the 2nd respondent. Therefore it is submitted that this application falls within the exception as stated in the case of ; [1987] 2 MLJ 185; [1987] CLJ 110.

[7] The learned judge found that under s 12 of the Act there is no requirement for the 1st respondent to call for evidence whether orally or by document. There is no statutory