(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."
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.