The applicants ask for an order quashing one of the Commissioner's
decisions as to costs. The decision in question and the reasons for it
are stated in an appendix to the report:
... I asked the airline for its submissions on the question of
costs. The general tenor of the submissions is that the
establishment of this Royal Commission was directed by the New
Zealand Government and that the airline should not be ordered to
meet any part of the public expenditure so incurred. As a statement
of general principle, this is correct. But there is specific
statutory power to order that a party to the inquiry either pay or
contribute towards the cost of the inquiry, and that the power
should be exercised, in my opinion, whenever the conduct of that
party at the hearing has materially and unnecessarily extended the
duration of the hearing. This clearly occurred at the hearings
which took place before me.
In an inquiry of this kind, an airline can either place all its
cards on the table at the outset, or it can adopt an adversary
stance. In the present case, the latter course was decided upon.
The management of the airline instructed its counsel to deny every
allegation of fault, and to counter-attack by ascribing total
culpability to the air crew, against whom there were alleged no
less than 13 separate varieties of pilot error. All those
allegations, in my opinion, were without foundation. Apart from
that, there were material elements of information in the possession
of the airline which were originally not disclosed, omissions for
which counsel for the airline were in no way responsible, and which
successively came to light at different stages of the Inquiry when
the hearings had been going on for weeks, in some cases for months.
I am not going to burden this recital with detailed particulars,
but I should have been told at the outset that the flight path from
Hallett to McMurdo was not binding on pilots, that Captain Wilson
briefed pilots to maintain whatever altitudes were authorised by
McMurdo Air Traffic Control, that documents were ordered by the
chief executive to be destroyed, that an investigation committee
had been set up by the airline in respect of which a file was held,
and that one million copies of the Brizindine article had been
printed, a fact never revealed by the airline at all. So it was not
a question of the airline putting all its cards on the table. The
cards were produced reluctantly, and at long intervals, and I have
little doubt that there are one or two which still lie hidden in
the pack. In such circumstances the airline must make a
contribution towards the public cost of the Inquiry.
...
6. The costs incurred by the Government in respect of this Inquiry
have been calculated by the Tribunals Division of the Department of
Justice at $275,000. A substantial liability for the burden of such
costs must lie upon the State but in my opinion the State ought to
be in part reimbursed in respect of the cost to the public of the
Inquiry, and I accordingly direct that Air New Zealand Limited pay
to the Department of Justice the sum of $150,000 by way of
contribution to the public cost of the Inquiry.
The order is in any event invalid because the amount is far greater than
the maximum allowed by the long out-of-date but apparently still extant
scale prescribed in 1903 (1904 Gazette 491). It is only fair to the
Commissioner to say that the scale seems never to have been drawn to his
attention by any counsel, although he gave an opportunity to make
submissions on costs. But there is a deeper objection to the validity of
the order, to which we will come shortly.