Award of Costs

We have explained earlier in this judgment that an order for costs was

made against Air New Zealand in favour of parties other than the Civil

Aviation Division. As a matter of company policy the airline decided

that it would comply with that order although in doing so it has made no

admission that the order was validly made. In addition, however, the

airline was ordered to pay the Department of Justice the large sum of

$150,000 by way of contribution to the public cost of the inquiry. It is

that last order which is challenged in the present proceedings on two

grounds. The first is that the award involved a wrong exercise of the

discretion provided by s. 11 of the Commissions of Inquiry Act 1908. The

second ground is that in any event no award greater than $600 could be

made by reason of Rule III of rules made in terms of the statute and

gazetted on 11th February 1904.

The reasons given by the Commissioner for making the respective orders

against Air New Zealand are set out in a passage from the appendix to

the Report which is mentioned in this judgment under the heading

"Airline's attitude at Inquiry". And on behalf of the Attorney-General

it is said that the discretion was properly exercised for reasons

expressed to be related to "conduct at the hearing (which materially and

unnecessarily extended the duration of the hearing)[2]". However, the

reasons given[3] by the Commissioner do not stop there. The appendix goes

on--

"The management of the airline instructed its counsel to deny every

allegation of fault, and to counter-attack by ascribing total

culpability to the air crew ... Apart from that, there were

material elements of information in the possession of the airline

which were originally not disclosed ... it was not a question of

the airline putting all its cards on the table. 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."

When discussing the legal implications of the order for costs under that

particular heading earlier in the judgment we stated that on purely

verbal grounds it might be possible to draw refined distinctions between

parts of the Report which are highly critical of the position taken up

by the airline at the inquiry on the one hand and the effect this had on

the duration of the hearing on the other. But there can be no doubt that

in the context of this Report and the conclusions reached by the

Commissioner concerning conspiracy and otherwise any ordinary reader

would feel satisfied that the imposition of an order for costs in the

sum of $150,000 was nothing less than the exaction of a penalty. In

those circumstances and by reason of the conclusions we have reached

concerning the invalidity of the challenged paragraphs we are satisfied

that the order must be set aside.

Concerning the second ground advanced on behalf of the airline it is

sufficient to say that even if it had been appropriate to make an award

of costs in this case the amount was limited to the modest sum of $600.

At the beginning of this judgment we said that we had felt it necessary

to go at some length into the facts. This we have done both in order to

analyse the important questions raised in the areas of natural justice

and excess of jurisdiction and also because we have thought it to be in

the public interest to attempt to explain the factual issues that are

involved in the proceedings. We now express our conclusion that for the

reasons already given we are satisfied that the complaints of the

applicants are justified. Against that finding we return to the

beginning of this judgment where we said that we felt sure that

reputation can be vindicated and the interests of justice met by a

formal decision of this Court that will have the effect of quashing the

order of the Commissioner requiring Air New Zealand to pay costs in the

large sum of $150,000. We would make an order accordingly.

The Court being unanimous as to the result there will be an order

quashing the order of the Royal Commissioner that Air New Zealand pay to

the Department of Justice the sum of $150,000 by way of contribution to

the public cost of the Inquiry. There have been no submissions

concerning the costs of the present proceedings and that matter is

reserved.

_Solicitors_

Messrs. Russell, McVeagh, McKenzie, Bartleet & Co. of Auckland for

appellants.

Crown Law Office, Wellington, for first, fourth and sixth respondents.

Messrs. Keegan, Alexander, Tedcastle & Friedlander of Auckland for fifth

respondent.

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 38 / 41 题