Having set out the various complaints we now state our conclusions more
specifically than in the earlier part of this judgment.
As to the jurisdiction of the Court in the present proceedings, the
application is made solely under the Judicature Amendment Act 1972.
Under that Act a decision cannot be set aside unless it was made in
exercise of a statutory power and _either_ it could have been quashed in
certiorari proceedings at common law--that is the effect of s. 4
(1)--_or_ the applicant is entitled to a declaration that it was
unauthorised or invalid, in which case s. 4 (2) empowers the Court to
set aside the decision instead.
The Erebus Commission, like others in the past in New Zealand when a
Supreme Court Judge has been the Chairman or the sole Commissioner, was
expressed to be appointed both under the Letters Patent delegating the
relevant Royal Prerogative to the Governor-General and under the
authority of and subject to the provisions of the Commissions of Inquiry
Act 1908. Some of us have reservations on various legal
questions--whether the Commission had statutory authority for its
inquiry as well as Prerogative authority; whether the findings in the
body of the report amounted to 'decisions', whether complete absence of
evidence is relevant in considering natural justice or can be redressed
in proceedings of this kind. These questions may be of more importance
in cases concerning the Thomas Commission which are to come before this
Court next year. Moreover, though most important in principle, they are
highly technical. It seems to us preferable that the Court should not
determine them now unless it is essential to do so. And we do not think
it is essential, because we are agreed on what now follows and it
enables substantial justice to be done in the present case.
It is established in New Zealand that in appropriate proceedings the
Courts may prevent a Commission of Inquiry--whether a Royal Commission,
a statutory Commission or perhaps a combination of the two--from
exceeding its powers by going outside the proper scope of its inquiry.
That basic principle was clearly accepted by this Court in _Re Royal
Commission on Licensing_ 1945 N.Z.L.R. 665. See especially the judgment
of Myers C.J. at pp. 678 to 680. As he indicated, the principle is
implicit in the judgment of the Privy Council in _Attorney-General for
Commonwealth of Australia v. Colonial Sugar Company_ 1914 A.C. 237. It
is also clear that in a broad sense the principles of natural justice
apply to Commissions of Inquiry, although what those principles require
varies with the subject-matter of the inquiry. The leading authority is
the decision of this Court in _Re Royal Commission on State Services_
1962 N.Z.L.R. 96.
In recent times Parliament has shown an increasing concern that natural
justice should be observed by Commissions. In 1958 s. 4A was inserted in
the Commissions of Inquiry Act 1908, expressly giving any person
interested in the inquiry, if he satisfied the Commission that he had an
interest apart from any interest in common with the public, a right to
appear and be heard as if he had been cited as a party. Then in 1980,
just as the Erebus Commission was about to start, the section was
replaced and strengthened. The main changes made are that any person who
satisfies the Commission that any evidence given before it may adversely
affect his interests must be given an opportunity to be heard in respect
of the matter to which the evidence relates; and every person entitled
to be heard may appear in person or by his counsel or agent. In giving
this right to representation by counsel the Legislature has gone further
than observations made in this Court in the _State Services_ case at pp.
105, 111 and 117.
Some statements in the judgments in that case are very relevant to the
present case. They are also entirely consistent with the spirit of the
changes made by Parliament in 1980. Gresson P. at p. 105 and North J. at
p. 111 both gave an inquiry into a disaster as an example of the kind of
inquiry where the requirements of natural justice would be more
extensive than in inquiries into a general field. Cleary J. stressed at
p. 117 that, while Commissions have wide powers of regulating their own
procedure, there is the one limitation that persons interested (i.e.
apart from any interest in common with the public) must be afforded a
fair opportunity of presenting their representations, adducing evidence,
_and meeting prejudicial matter_.
In both the _Licensing_ and the _State Services_ cases the Commissions
were presided over by Supreme Court Judges. It is implicit in the
judgments that this status on the part of the Chairman does not
emancipate a Commission from judicial review on jurisdictional or
natural justice grounds. We hold that the position can be no different
when a High Court Judge is sole Commissioner. He will, however, have
the powers, privileges and immunities mentioned in s. 13 (1) of the
Commissions of Inquiry Act. For instance he will have immunity from
defamation actions.
A further important point, clear beyond argument, is that an order for
costs made by a Commission under s. 11 of the Commissions of Inquiry Act
is the exercise of a statutory power of decision within the meaning of
the Judicature Amendment Act 1972. Accordingly it is subject to judicial
review. The judgments in this Court in _Pilkington_ v. _Platts_ 1925
N.Z.L.R. 864 confirm that if an order for costs has been made by a
Commission acting without jurisdiction or failing to comply with
procedural requirements the Court will by writ or prohibition or other
appropriate remedy prevent its enforcement. We add that, notwithstanding
an argument by Mr Harrison to the contrary, we are satisfied that s. 11
was the only possible source of the Commissioner's power to award costs
and s. 13 was not and could not have been invoked.
The order for costs under challenge in the present case is the
Commissioner's order that Air New Zealand pay $150,000 by way of
contribution to the public cost of the inquiry. In our view there can be
no doubt that this order is and was intended to be, in the words of
Williams J. delivering the judgment of this Court in _Cock_ v.
_Attorney-General_ (1909) 28 N.Z.L.R. 405. 421, '... in fact, though not
in name, a punishment'. What is more important, although Mr Baragwanath
argued otherwise we have no doubt that reasonable readers of the report
would understand that this order is linked with and consequential upon
the adverse conclusions stated by the Commissioner in the section of the
report headed by him 'The Stance adopted by the Airline before the
Commission of Inquiry'. It is true that the reasons for the costs order
open with a proposition about unnecessarily extending the hearing. But
the passage develops and the later reasons go further. The words chosen
convey that the punishment was not simply for prolonging the hearing. In
particular the statements about cards in the pack are a reversion to the
theme of the 'Stance' section, with its exceedingly strong allegations
in paragraph 377 of 'a pre-determined plan of deception' and 'an
orchestrated litany of lies'.
Applying the well-settled principles already mentioned, we think that if
in making those statements the Commissioner exceeded his terms of
reference or acted in violation of natural justice, the costs order is
not realistically severable from that part of the report and should be
quashed. For the purposes of the present case that is sufficient to
dispose of the argument based on _Reynolds_ v. _Attorney-General_ (1909)
29 N.Z.L.R. 24 that after a Commission has reported it is functus
officio and beyond the reach of certiorari or prohibition.
Naturally the stance of the airline at the inquiry directed by the terms
of reference was not included expressly in those terms. The argument
presented in effect for the Commissioner on the question of jurisdiction
is that comments, however severe, on the veracity and motives of
witnesses were incidental to the carrying out of the express terms. We
accept unhesitatingly that what is reasonably incidental is authorised
(as was recognised in _Cock's_ case at p. 425) and also that to some
degree any Commission of Inquiry has the right to express its opinion of
the witnesses, much as a Court or statutory tribunal has that right.
But we think that it is a matter of degree. For present purposes it is
not necessary to decide whether the law of New Zealand is still, as held
in _Cock's_ case, that a Commission of Inquiry cannot lawfully be
constituted to inquire into allegations of crime. That issue may be
raised more directly by the litigation regarding the Thomas Commission.
The issue now to be decided is whether the Commissioner had powers,
implied as being reasonably incidental to his legitimate functions of
inquiry into the causes and circumstances of the crash, to make
assertions amounting to charges of conspiracy to perjure at the inquiry
itself.
In considering that issue the importance of not unreasonably shackling a
Commission of Inquiry has to be weighed. It is also material, however,
that such a charge is calculated to attract the widest publicity, both
national and international. It is scarcely distinguishable in the public
mind from condemnation by a Court of law. Yet it is completely without
the safeguards of rights to trial by jury and appeal. In other words, by
mere implication any Commission of Inquiry, whatever its membership,
would have authority publicly to condemn a group of citizens of a major
crime without the safeguards that invariably go with express powers of
condemnation.
We are not prepared to hold that the Commissioner's implied powers went
so far. We hold that he exceeded his jurisdiction in paragraph 377.
If, contrary to the view just expressed, the Commissioner did have
jurisdiction to consider allegations of organised perjury, natural
justice would certainly have required that the allegations be stated
plainly and put plainly to those accused. That was not done. If it had
been done, what we have said earlier is enough to show that they could
well have made effective answers.
So we conclude that in making the findings or allegations stated in
paragraph 377 of the report the Commission acted in excess of
jurisdiction and contrary to natural justice. As previously mentioned,
the conspiracy postulated in paragraph 377 is evidently intended to
include as participants the chief executive of the airline, the
executive pilots and members of the navigation section. If the order for
$150,000 costs is quashed on the ground that the statements about a
pre-determined plan of deception and an orchestrated litany of lies were
made without jurisdiction and contrary to natural justice, we think that
substantial justice will be done to the company and those individuals.
In our opinion that costs order must be quashed on those grounds as well
as on the ground that it was invalid as to amount.
Further, during the proceedings in this Court there occurred
developments which in themselves threw a different light on matters
dealt with in the paragraphs under attack affecting Captain Gemmell
particularly. These should be publicly recorded.
It was acknowledged by all parties, including the Commissioner, that the
reference to Captain Gemmell in paragraph 352, concerning a notebook
belonging to Captain Collins, was a mistake. The Commissioner evidently
had in mind some evidence given by Captain Crosbie, the welfare officer
of the Air Line Pilots Association. This disposes of any inference
against Captain Gemmell that might be taken from that paragraph.
Much the same applies to the other paragraphs affecting him which are
complained of. We have set them out in full and it will be seen that
they all relate to two flight bags. It had seemed that paragraph 359
(1), in its context, might have conveyed the impression that Captain
Gemmell had removed these bags from the McMurdo store and brought them
or their contents back from Antarctica. At our hearing, however, Mr
Davison, who was one of the counsel for the Pilots Association both
before the Commission and in this court, made it clear responsibly and
fairly that this is not suggested.
As to Captain Eden, it has already been stated that the transcript
shows that the allegation expressed or implied in paragraph 348 was
never put to him. Having said so plainly, we need only add as regards
this particular complaint that the allegation, although it would
naturally have caused concern to Captain Eden and Air New Zealand, was
not as serious as the others that are complained of.
Whether the Court has jurisdiction to quash particular passages in the
report in addition to the costs order is a difficult and technical
question. We prefer not to lengthen this judgment with an unnecessary
discussion of it.
In modern administrative law, as a result of developments in both case
and statute law, the power of the Courts to grant declarations and quash
decisions is wider than was thought in the _Reynolds_ case in 1909 (29
N.Z.L.R. at 40). It may be that in a sufficiently clear-cut case the
jurisdiction, either under the Act or at common law, will be found to
extend to parts of Commission reports even when they are not linked with
costs orders.
But in the end that jurisdictional question does not have to be decided
in this case, and we reserve our opinion on it. If the jurisdiction does
go so far, it must be discretionary, as the grant of declarations always
is. The Court would have to be satisfied that grounds so strong as to
require it to act in that unusual way had been made out. In our opinion
they would be made out clearly enough as regards paragraph 377, which
stands out from the general body of the report. But the quashing of the
costs order because of its association with that paragraph is enough to
do justice there.
The position is less clear as regards the other paragraphs complained
of. For various reasons they are all in a marginal category. What has
been said in this judgment may help to enable them to be seen in
perspective. On balance we would not be prepared to hold that as to
these other paragraphs the applicants have made out a sufficiently
strong case to justify this Court in interfering, assuming that there is
jurisdiction to do so.
In the result, the application for review having succeeded on the main
issue, we see no need to and are not prepared to go further in granting
relief. Our decision is simply that the $150,000 costs order be quashed
on the grounds already stated.
As to the costs of the present proceedings, they should be reserved, as
there has been no argument on the matter.
_Solicitors_
Russell McVeagh McKenzie Bartleet & Co., Auckland, for First and Second
Applicants.
Sheffield Young & Ellis, Auckland, for Third Applicant.
Crown Law Office, Wellington, for First, Fourth and Sixth Respondents.
Keegan Alexander Tedcastle & Friedlander, Auckland, for Fifth
Respondent.