The Order for Costs

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out-of-date but still apparently extant scale prescribed in 1903 (1904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.

Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster C.A. 95/81 · 第 16 / 41 题