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

by New Zealand. Court of Appeal

In an inquiry of this kind, an airline can either place all its cards on the table at the outset, or it can adopt an adversary stance. In the present case, the latter course was decided upon. 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, against

whom there were alleged no less than 13 separate varieties of pilot error. All those allegations, in my opinion, were without foundation. Apart from that, there were material elements of information in the possession of the airline which were originally not disclosed, omissions for which counsel for the airline were in no way responsible, and which successively came to light at different stages of the Inquiry when the hearings had been going on for weeks, in some cases for months. I am not going to burden this recital with detailed particulars, but I should have been told at the outset that the flight path from Hallett to McMurdo was not binding on pilots, that Captain Wilson briefed pilots to maintain whatever altitudes were authorised by McMurdo Air Traffic Control, that documents were ordered by the chief executive to be destroyed, that an investigation committee had been set up by the airline in respect of which a file was held, and that one million copies of the Brizindine article had been printed, a fact never revealed by the airline at all. So 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. In such circumstances the airline must make a contribution towards the public cost of the Inquiry.
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6. The costs incurred by the Government in respect of this Inquiry have been calculated by the Tribunals Division of the Department of Justice at $275,000. A substantial liability for the burden of such costs must lie upon the State but in my opinion the State ought to be in part reimbursed in respect of the cost to the public of the Inquiry, and I accordingly direct that Air New Zealand Limited pay to the Department of Justice the sum of $150,000 by way of contribution to the public cost of the Inquiry.

The order is in any event invalid because the amount is far greater than the maximum allowed by the long out-of-date but apparently still extant scale prescribed in 1903 (1904 Gazette 491). It is only fair to the Commissioner to say that the scale seems never to have been drawn to his attention by any counsel, although he gave an opportunity to make submissions on costs. But there is a deeper objection to the validity of the order, to which we will come shortly.

Conclusions

Having set out the various complaints we now state our conclusions more specifically than in the earlier part of this judgment.

As to the jurisdiction of the Court in the present proceedings, the application is made solely under the Judicature Amendment Act 1972. Under that Act a decision cannot be set aside unless it was made in exercise of a statutory power and either it could have been quashed in certiorari proceedings at common law—that is the effect of s. 4 (1)—or the applicant is entitled to a declaration that it was unauthorised or invalid, in which case s. 4 (2) empowers the Court to set aside the decision instead.

The Erebus Commission, like others in the past in New Zealand when a Supreme Court Judge has been the Chairman or the sole Commissioner, was expressed to be appointed both under the Letters Patent delegating the relevant Royal Prerogative to the Governor-General and under the authority of and subject to the provisions of the Commissions of Inquiry Act 1908. Some of us have reservations on various legal questions—whether the Commission had statutory authority for its inquiry as well as

Prerogative authority; whether the findings in the body of the report amounted to 'decisions', whether complete absence of evidence is relevant in considering natural justice or can be redressed in proceedings of this kind. These questions may be of more importance in cases concerning the Thomas Commission which are to come before this Court next year. Moreover, though most important in principle, they are highly technical. It seems to us preferable that the Court should not determine them now unless it is essential to do so. And we do not think it is essential, because we are agreed on what now follows and it enables substantial justice to be done in the present case.

It is established in New Zealand that in appropriate proceedings the Courts may prevent a Commission of Inquiry—whether a Royal Commission, a statutory Commission or perhaps a combination of the two—from exceeding its powers by going outside the proper scope of its inquiry. That basic principle was clearly accepted by this Court in Re Royal Commission on Licensing 1945 N.Z.L.R. 665. See especially the judgment of Myers C.J. at pp. 678 to 680. As he indicated, the principle is implicit in the judgment of the Privy Council in Attorney-General for Commonwealth of Australia v. Colonial Sugar Company 1914 A.C. 237. It is also clear that in a broad sense the principles of natural justice apply to Commissions of Inquiry, although what those principles require varies with the subject-matter of the inquiry. The leading authority is the decision of this Court in Re Royal Commission on State Services 1962 N.Z.L.R. 96.