In argument in the present case it was common ground that if the order
for $150,000 costs is invalid the Court can set it aside. That is
clearly so. The order was made in reliance on s. 11 of the Commissions
of Inquiry Act 1908 which (notwithstanding an argument to the contrary
by Mr Harrison) is in our opinion undoubtedly the only source of any
authority for a Royal Commission or a Commission of Inquiry to award
costs. If valid it is enforceable by virtue of s. 12 of that Act as a
final judgment of the High Court in its civil jurisdiction. Plainly it
is the exercise of a statutory power of decision. The jurisdiction of
the New Zealand Courts to determine the validity of orders for costs by
Commissions is well established: _Hughes_ v. _Hanna_ (1909) 29 N.Z.L.R.
16; _Whangarei Co-operative Bacon-Curing Co._ v. _Whangarei
Meat-Supply Co._ (1912) 31 N.Z.L.R. 1223; _Pilkington_ v. _Plaits_
(1925) N.Z.L.R. 864.
What was in dispute in the argument in this connection was principally
whether the order is so linked with the challenged findings in the
Report that if those findings are invalid for excess of jurisdiction or
breach of natural justice the order will fall with them. There was a
subsidiary argument about whether the order was in any event invalid
because the amount may greatly exceed the maximum allowed by the long
out-of-date but still apparently extant scale prescribed in 1903 (1904
Gazette 491). We propose to consider the main argument, however, and in
doing so to confine attention to whether there is a sufficient link
between the order and the main findings complained of in the Report,
those in paragraph 377.
At the beginning of his reasons for ordering costs the Commissioner
expressed the opinion that the power should be exercised whenever the
conduct of a party at the hearing has materially and unnecessarily
extended the duration of the hearing. His following reasons include
criticisms of the management of the airline for prolonging the hearing,
and it was contended before us by Mr Baragwanath that they go no
further. We are unable to accept that contention. In reciting the
circumstances leading to the orders for costs the Commissioner expressly
includes the chief executive's order for documents to be destroyed and
says, "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". We think that such language would naturally be understood by
a reasonable reader to refer back to the matters more fully developed in
the section of the Report headed "The stance adopted by the airline
before the Commission of Inquiry", a section culminating in paragraph
377 with its references to "a pre-determined plan of deception ... an
attempt to conceal a series of disastrous administrative blunders ... an
orchestrated litany of lies". The impression almost inevitably created
is that, to adapt words used by Williams J. delivering the judgment of
this Court in _Cock_ v. _Attorney-General_ (1909) 28 N.Z.L.R. 405, 421,
the judgment for costs was in fact, though not in name, a punishment.
The reasons given for the costs orders have definite echoes of
paragraph 377 and the immediately preceding paragraphs. The airline was
being required to pay costs, and not for delaying tactics simply. A
significant part of the reasons was that in the view of the Commissioner
its chief witnesses had been organized to conceal the truth.
It is true that, on purely verbal grounds, refined distinctions can be
drawn between the sections of the Report dealing with the airline's
stance at the inquiry and with costs; but we have no doubt that their
overall effect is that most readers would understand them as closely
associated. It follows, we think, that if the findings in paragraph 377
are invalid for excess of jurisdiction or breach of natural justice they
should be seen as playing a material part in the order for $150,000
costs and as requiring the Court to set aside that order. Irrespective
of the order for costs, we think that there are strong arguments to
support the view that there is jurisdiction to review the findings in
challenged paragraphs on grounds relating to jurisdiction and natural
justice. There is a good deal of support in the authorities for
excluding or strictly limiting judicial review of Commission findings
and Mr Baragwanath carefully put the arguments forward. But, as we say,
there are reasons why the Court ought not to adopt the facile approach
of saying that the function of the Commission was merely to inquire and
report and that as the Commission's findings bind no-one they can be
disregarded entirely as having no legal effect.