This Court has had to examine and apply the principles concerning
natural justice and fairness quite often in recent years. In translating
the ideals of natural justice and fairness into current operation in New
Zealand we have been influenced as to general principles mainly by
decisions of the Privy Council and the House of Lords but, of course, we
have had New Zealand conditions and practicalities very much in mind.
The result has been a pragmatic approach.
Some overseas Courts have held that if all that occurs is inquiry and
report and the report is not in law a condition precedent to some
further step the rules of natural justice are automatically excluded.
That was the premise, for instance, of the High Court of Australia in
_Testro Bros. Pty. Ltd._ v. _Tait_ (1963) 109 C.L.R. 353. A contrary
approach is to be found in the judgement of Schroeder J.A. representing
the view of the majority of the Ontario Court of Appeal in _Re Ontario
Crime Commission_ (1962) 133 C.C.C. 116, although that case depends
partly on Ontario statute law. There is little attraction in the idea of
automatic exclusion. Commissions of Inquiry have compulsory statutory
powers of insisting on evidence and their findings can affect rights in
the ways already outlined. It seems to us highly unlikely that the New
Zealand Parliament intended them to be wholly free of the elementary
obligation to give persons whom they have in mind condemning a fair
opportunity for correcting or contradicting any relevant allegation.
Some reinforcement for the view that they are under that obligation is
to be found in some added considerations. Section 4A of the Commissions
of Inquiry Act, enacted in 1980 in place of briefer provisions and in
time for the Erebus inquiry, provides:
"4A. Persons entitled to be heard--(1) Any person shall, if he is
party to the inquiry or satisfies the Commission that he has an
interest in the inquiry apart from any interest in common with the
public, be entitled to appear and be heard at the inquiry.
(2) Any person who satisfies the Commission that any evidence given
before it may adversely affect his interests shall be given an
opportunity during the inquiry to be heard in respect of the matter
to which the evidence relates.
(3) Every person entitled, or given an opportunity, to be heard
under this section may appear in person or by his counsel or
agent."
The section may be seen as a recognition by Parliament that natural
justice should apply. It does not purport to enact a complete code of
procedure or to cover the whole field of natural justice, which would
not be easy in a statute of this general kind. The statute specifically
requires an opportunity to be heard to be given to any person who shows
that evidence may adversely affect his interests. In the parallel
situation of the statutory investigation which must be undertaken
following any aircraft accident considerations of fairness are carefully
spelled out in Regulation 15 (1) of the Civil Aviation (Accident
Investigation) Regulations 1978. There it is provided that "where it
appears to an Inspector that any degree of responsibility for an
accident may be attributable to any person, that person or, if he is
dead, his legal personal representatives, shall, if practicable, be
given notice that blame may be attributed to him, and that he or they
may make a statement or give evidence, and produce witnesses, and
examine any witnesses from whose evidence it appears that he may be
blameworthy". In the case of the earlier investigation by Mr.
Chippindale into the Erebus disaster that very step was taken.
In his judgment in the Court in _Re the Royal Commission on the State
Services_ (1962) N.Z.L.R. 96, 117, Cleary J. while stressing the wide
discretion of Commissions to regulate their own procedure said plainly
that the one limitation is that parties cited and persons interested
must be afforded a fair opportunity of presenting their representations,
adducing their evidence, and meeting prejudicial matter. That judgment
was given with reference to the old s. 4A, now replaced by the section
already quoted. What Cleary J. said, particularly about the general
absence of a right to be represented by counsel, must now be read
subject to the new provisions. But his expression "prejudicial matter"
was a general one. It ought not, we think, to be read down in some way
so as to exclude suggestions of conspiracy which may have evolved in the
mind of a Commission without being specifically raised in evidence or
submissions.
A suggestion of an organized conspiracy to perjure is different from the
possibility commonly faced by individual witnesses that their evidence
may be disbelieved. Grave findings of concerted misconduct in connection
with the inquiry ought not to be made without being specifically raised
at the inquiry. Once the thesis of such a conspiracy had emerged in the
Commissioner's thinking as something upon which he might report, he
would have had power, if that question were indeed reasonably incidental
to his terms of reference, to reconvene the hearing if necessary so that
the alleged conspirators could be fairly confronted with the allegation.
See the speech of Lord Russell of Killowen in _Fairmount Investments
Ltd._ v. _Secretary of State for the Environment_ (1976) 2 All E.R. 865,
and the judgement of Lord Parker C.J. in _Sheldon_ v. _Bromfield
Justices_ (1964) 2 Q.B. 573, 578. In fact in the present case but for a
far less significant reason the Commissioner himself actually considered
the possible need to reconvene the hearing after certain enquiries had
been made on his instructions following the taking of evidence in
public. The matter is mentioned in paragraph 358 of the Report.
_Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380,
402-405, was decided in the end on just such a ground. It was held that
a Commissioner, who happened to be a distinguished Judge, had failed to
put to the person whose conduct was expressly subjected to investigation
by the terms of reference of the Commission a very serious allegation
upon which a finding was made in the report; and that the Commission
should have been reconvened for that purpose. There the relevant rule of
natural justice was fully embodied in a statutory provision. We think
that the position is the same under the New Zealand Commissions of
Inquiry Act supplemented by the common law.
All these considerations suggest that the Commission was bound by the
broad requirements of natural justice. These included a reasonable
opportunity of meeting the unformulated allegation of organized
deception and concealment that was apparently passing through the
Commission's mind. Some of the reasons why experience has shown the
importance of this sort of opportunity were well put by Megarry J. in
_John_ v. _Rees_ (1970) 1 Ch. 345, 402.:
"It may be that there are some who would decry the importance which
the courts attach to the observance of the rules of natural
justice. 'When something is obvious,' they may say, 'why force
everybody to go through the tiresome waste of time involved in
framing charges and giving an opportunity to be heard? The result
is obvious from the start.' Those who take this view do not, I
think, do themselves justice. As everybody who has anything to do
with the law well knows, the path of the law is strewn with
examples of open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were completely answered;
of inexplicable conduct which was fully explained; of fixed and
unalterable determinations that, by discussion, suffered a change.
Nor are those with any knowledge of human nature who pause to think
for a moment likely to underestimate the feelings of resentment of
those who find that a decision against them has been made without
their being afforded any opportunity to influence the course of
events."
In this particular case something more should be said. The applicants
contend that this is not simply a case where the conspiracy suggestion
could not have been rebutted. They plead in their statement of claim
that the Commissioner's findings to that effect are not based on
evidence of probative value. Elsewhere in the present judgment we deal
with aspects of these arguments. Here, dealing with principles, we add
that fairness is not necessarily confined to procedural matters. It can
have wider range. Remedies in this field are discretionary and the law
not inflexible. If a party seeks to show not only that he did not have
an adequate hearing but also that the evidence on which he was condemned
was insubstantial, the Court is not compelled to shut its eyes to the
state of the evidence in deciding whether, looking at the whole case in
perspective, he has been treated fairly.