The background already given is needed for an understanding of the case.
But we repeat that the case is not an appeal from the Commissioner's
findings on causation or other matters. The applicants acknowledge that
they have no rights of appeal. What they attack are certain paragraphs
in the Commission report which deal very largely, not with the causes
and circumstances of the crash, but with what the Commissioner calls
'the stance' of the airline at the inquiry before him. The applicants
say that in these paragraphs the Commissioner exceeded his powers or
acted in breach of natural justice; and further that some of his
conclusions were not supported by any evidence whatever of probative
value. Their counsel submit that a finding made wholly without evidence
capable of supporting it is contrary to natural justice.
The arguments on the other side were presented chiefly by Mr Baragwanath
and Mr Harrison, who had been counsel assisting the Commission and
appeared in this Court for the Attorney-General, not to advance any view
on behalf of the Government but to ensure that nothing that could
possibly be said in answer to the contentions of Mr Brown and Mr
Williams for the applicants was left unsaid before the Court. This was
done because it has not been usual for a person in the position of the
Commissioner to take an active part in litigation concerning his report.
Mr Barton, who appeared for the Commissioner, did not present any
argument, adopting a watching role. He indicated that he would only have
played an active role if the Commissioner had been required for
cross-examination. As already mentioned, it was agreed otherwise. At
that stage the Commissioner, by his counsel, very properly stated that
he would abide the decision of the Court.
Mr Baragwanath's submissions were to the general effect that the Court
had no jurisdiction to interfere with the opinions expressed in the
Commission's report, which were not 'findings' and bound no one; and
that in any event they were conclusions within the Commissioner's
powers, open to him on the evidence and arrived at without any breach of
natural justice.
We now set out the various paragraphs under attack, bearing in mind that
they cannot properly be considered in isolation from the context in the
report. The paragraphs vary in importance, but it is convenient to take
them in the numerical order of the report. We will indicate as regards
each paragraph or set of paragraphs the essence of the complaint. After
doing this we will state how we propose to deal with the complaints.