Several important questions arise in this case. Is there jurisdiction in
the Courts to review in such a context as this taking into account the
ambit of ss. 3 and 4 of the Judicature Amendment Act 1972? And if there
is such power is it by reason of the award of costs in this case? Or on
grounds relating to excess of jurisdiction on the part of the
Commissioner? Or considerations of natural justice? Or by reference to
all three of those matters? For the reasons that follow we are satisfied
that the findings are reviewable and that each one of those three
matters is properly within the scope of the Court's jurisdiction.
As already mentioned, the proceedings are by way of application for
review under the Judicature Amendment Act 1972 and are directed against
certain findings in the Report, to which we have referred. The
applicants claim that those findings are invalid, in excess of
jurisdiction or made in circumstances involving unfairness or breach of
natural justice. They seek declarations to that effect and orders
setting aside the findings and quashing the order that Air New Zealand
pay $150,000 as a contribution to the public cost of the inquiry. It is
necessary to consider whether under the Act the Court has jurisdiction
to grant such relief in this case.
By ss. 3 and 4 of the Act relief may be granted only where a "statutory
power" is involved. That term includes a "statutory power of decision".
Since liberalizing amendments made in 1977, "statutory power" includes
power conferred by or under any Act "to make any investigation or
inquiry into the rights, powers, privileges, immunities, duties, or
liabilities of any person" and "statutory power of decision" includes
power conferred by or under any Act "to make a decision ... affecting"
any such rights, powers, privileges, duties or liabilities. Generally
the relief available is confined by s. 4 to that which the applicant
would have been entitled to in any one or more of the proceedings for
mandamus, prohibition, certiorari, declaration or injunction; but there
is a relevant exception in s. 4 (2) whereby if the applicant is entitled
to an order declaring that a decision made in the exercise of a
statutory power of decision is unauthorized or otherwise invalid the
Court may set aside the decision instead.
The first question as to jurisdiction is therefore whether, apart from
the 1972 Act, the applicants could have obtained relief by any of the
proceedings mentioned. The Commission having ceased to exist, it would
be too late to apply for prohibition or an injunction against the first
respondent and mandamus would also be inappropriate. The decision of
this Court in _Reynolds_ v. _Attorney-General_ (1909) 29 N.Z.L.R. 24,
37-38, suggests that once the report has been forwarded to the
Governor-General it may be permanently beyond the reach of certiorari;
this is perhaps a corollary of the view, to which we referred in the
judgment concerning discovery in _Environmental Defence Society Inc._
v. _South Pacific Aluminium Limited_ (C.A. 59/81, judgment 15th June
1981), that a prerogative remedy may not lie against the Sovereign's
representative.
But we need not go further into the rather technical question of the
scope of certiorari in this kind of case. As has been said in the
_Environmental Defence Society_ case and _Ng_ v. _Minister of Immigration_
(C.A. 100/81, judgment 10th August 1981), a declaration may be granted
in the discretion of the Court whether or not certiorari would have
lain. That a declaration may be an appropriate remedy for both
jurisdictional errors and closely analogous defects such as unfairness
or breaches of natural justice is shown by such Privy Council and House
of Lords decisions as _De Verteuil_ v. _Knaggs_ (1918) A.C. 557, _Pyx
Granite Co. Ltd._ v. _Ministry of Housing_ (1960) A.C. 260, and _Ridge_
v. _Baldwin_ (1964) A.C. 40. The statement apparently to the contrary at
the end of the _Reynolds_ judgment at p. 40 is obsolete. And if a
declaration could have been granted that a decision made under a
statutory power is invalid the Court has power under the 1972 Act to set
the decision aside.