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 considering that issue the importance of not unreasonably shackling a Commission of Inquiry has to be weighed. It is also material, however, that such a charge is calculated to attract the widest publicity, both national and international. It is scarcely distinguishable in the public mind from condemnation by a Court of law. Yet it is completely without the safeguards of rights to trial by jury and appeal. In other words, by mere implication any Commission of Inquiry, whatever its membership, would have authority publicly to condemn a group of citizens of a major crime without the safeguards that invariably go with express powers of condemnation.

We are not prepared to hold that the Commissioner's implied powers went so far. We hold that he exceeded his jurisdiction in paragraph 377.

If, contrary to the view just expressed, the Commissioner did have jurisdiction to consider allegations of organised perjury, natural justice would certainly have required that the allegations be stated plainly and put plainly to those accused. That was not done. If it had been done, what we have said earlier is enough to show that they could well have made effective answers.

So we conclude that in making the findings or allegations stated in paragraph 377 of the report the Commission acted in excess of jurisdiction and contrary to natural justice. As previously mentioned, the conspiracy postulated in paragraph 377 is evidently intended to include as participants the chief executive of the airline, the executive pilots and members of the navigation section. If the order for $150,000 costs is quashed on the ground that the statements about a pre-determined plan of deception and an orchestrated litany of lies were made without jurisdiction and contrary to natural justice, we think that substantial justice will be done to the company and those individuals. In our opinion that costs order must be quashed on those grounds as well as on the ground that it was invalid as to amount.

Further, during the proceedings in this Court there occurred developments which in themselves threw a different light on matters dealt with in the paragraphs under attack affecting Captain Gemmell particularly. These should be publicly recorded.

It was acknowledged by all parties, including the Commissioner, that the reference to Captain Gemmell in paragraph 352, concerning a notebook belonging to Captain Collins, was a mistake. The Commissioner evidently had in mind some evidence given by Captain Crosbie, the welfare officer of the Air Line Pilots Association. This disposes of any inference against Captain Gemmell that might be taken from that paragraph.

Much the same applies to the other paragraphs affecting him which are complained of. We have set them out in full and it will be seen that they all relate to two flight bags. It had seemed that paragraph 359 (1), in its context, might have conveyed the impression that Captain Gemmell had removed these bags from the McMurdo store and brought them or their contents back from Antarctica. At our hearing, however, Mr Davison, who was one of the counsel for the Pilots Association both before the Commission and in this court, made it clear responsibly and fairly that this is not suggested.

As to Captain Eden, it has already been stated that the transcript shows that the allegation expressed or implied in paragraph 348 was never put to him. Having said so plainly, we need only add as regards this particular complaint that the allegation, although it would naturally have caused concern to Captain Eden and Air New Zealand, was not as serious as the others that are complained of.

Whether the Court has jurisdiction to quash particular passages in the report in addition to the costs order is a difficult and technical question. We prefer not to lengthen this judgment with an unnecessary discussion of it.

In modern administrative law, as a result of developments in both case and statute law, the power of the Courts to grant declarations and quash decisions is wider than was thought in the Reynolds case in 1909 (29 N.Z.L.R. at 40). It may be that in a sufficiently clear-cut case the jurisdiction, either under the Act or at common law, will be found to extend to parts of Commission reports even when they are not linked with costs orders.