The applicants seek relief in the form of an order that the findings be
set aside or for a declaration that the various findings are invalid or
made in excess of jurisdiction; or were made in circumstances involving
unfairness and breaches of the rules of natural justice. In addition we
are asked to make an order quashing the decision of the Commissioner
that the airline should pay to the Department of Justice the sum of
$150,000 by way of costs.
Earlier in this judgment we have said that if the challenged findings
were made without jurisdiction or contrary to natural justice then it
would be possible for the Court to take steps by way of declaration to
offer at least some form of redress. And we went on to explain why we
think the Royal Commission was bound by the broad requirements of
natural justice. As an example of what would be required to meet
obligations of fairness we then referred to the need for a reasonable
opportunity of meeting unformulated suspicions of deception and
concealment that had been in the Commissioner's mind. However, before we
turn to the natural justice part of the case it is convenient to
consider the claim of excess jurisdiction, and that by confining our
attention to the terms of reference.
The submission of counsel for the sixth respondent is that the
statements contained in each of the two paragraphs 348 and 377 are
relevant to and justified by the following items of the terms of
reference:
(g) Whether the crash of the aircraft or the death of the
passengers and crew was caused or contributed to by any person
(whether or not that person was on board the aircraft) by an act
or omission in respect of any function in relation to the
operation, maintenance, servicing, flying, navigation, manoeuvring,
or air traffic control of the aircraft, being a function which that
person had a duty to perform or which good aviation practice
required that person to perform?
(j) And other facts or matters arising out of the crash that, in
the interests of public safety, should be known to the authorities
charged with the administration of civil aviation in order that
appropriate measures may be taken for the safety of persons engaged
in aviation or carried as passengers in aircraft.
In its essentials the argument is that in order to answer the questions
posed by paragraph (g) the Commissioner found it necessary or was
entitled to explain the process by which he reached his final
conclusions; that in doing so he was entitled to comment upon the
quality of the evidence that was given in the course of the Royal
Commission Inquiry; that the assessment of witnesses was a necessary
part of the findings he reached as to the cause of the accident; that
the assessment was not a part of the substantive findings of the
Commission; and "whether having reached his conclusion he expresses
himself vehemently or refrains from pungent comment is entirely a matter
for him". Similar submissions were made in relation to the second cause
of action and natural justice.
In certain circumstances it is obvious enough that reasons for rejecting
evidence would not merely be relevant but often a necessary part of a
decision. But considerations of that kind are far removed from the
conclusions expressed in paragraph 377. There it is said that the ten
senior members of this airline had been involved in organized deception.
"Palpably false sections of evidence ... a pre-determined plan of
deception ... an attempt to conceal a series of disastrous
administrative blunders ... an orchestrated litany of lies". These are
unlikely phrases to associate with a mere assessment of the credibility
of witnesses.
In the Courts it is constantly necessary to indicate a preference for
the evidence of one witness or to make a decision to put evidence
completely to one side; sometimes it even seems necessary to describe
evidence in terms of perjury. But in the Courts Judges always attempt to
be most circumspect in handling issues of this kind, particularly if
misconduct seems apparent which is not immediately associated with the
central issues in the case. There can be no less reason for
circumspection in the case of a Royal Commission at least where the
terms of reference do not directly give rise to inquiries into criminal
dealing. In _Re The Royal Commission on Licensing_ (1945) N.Z.L.R. 665
Sir Michael Myers C.J. dealt with the point in the following way (at p.
680):
"A Commission of Inquiry under the statute and a Royal Commission
under the Letters Patent are alike in this respect--each of them is
an inquiry, not an inquisition. By that I mean that the Commission
is not a roving Commission of a general character authorizing
investigation into any matter that the members of the Commission
may think fit to inquire into and that the ambit of the inquiry is
limited by the terms of the instrument of appointment of the
Commission."
It must always be sensible for any Commission of Inquiry or other
tribunal to keep those words in mind.
We are satisfied that the findings contained in each of paragraphs 348
and 377 are collateral assessments of conduct made outside of and were
not needed to answer any part of the terms of reference. The
Commissioner had no authority or jurisdiction to deal with the affected
officers in such a fashion and the findings themselves are a regrettable
addition to the Report.