Part 3
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.
In recent times Parliament has shown an increasing concern that natural justice should be observed by Commissions. In 1958 s. 4A was inserted in the Commissions of Inquiry Act 1908, expressly giving any person interested in the inquiry, if he satisfied the Commission that he had an interest apart from any interest in common with the public, a right to appear and be heard as if he had been cited as a party. Then in 1980, just as the Erebus Commission was about to start, the section was replaced and strengthened. The main changes made are that any person who satisfies the Commission that any evidence given before it may adversely affect his interests must be given an opportunity to be heard in respect of the matter to which the evidence relates; and every person entitled to be heard may appear in person or by his counsel or agent. In giving this right to representation by counsel the Legislature has gone further than observations made in this Court in the _State Services_ case at pp. 105, 111 and 117.
Some statements in the judgments in that case are very relevant to the present case. They are also entirely consistent with the spirit of the changes made by Parliament in 1980. Gresson P. at p. 105 and North J. at p. 111 both gave an inquiry into a disaster as an example of the kind of inquiry where the requirements of natural justice would be more extensive than in inquiries into a general field. Cleary J. stressed at p. 117 that, while Commissions have wide powers of regulating their own procedure, there is the one limitation that persons interested (i.e. apart from any interest in common with the public) must be afforded a fair opportunity of presenting their representations, adducing evidence, _and meeting prejudicial matter_.
In both the _Licensing_ and the _State Services_ cases the Commissions were presided over by Supreme Court Judges. It is implicit in the judgments that this status on the part of the Chairman does not emancipate a Commission from judicial review on jurisdictional or natural justice grounds. We hold that the position can be no different when a High Court Judge is sole Commissioner. He will, however, have the powers, privileges and immunities mentioned in s. 13 (1) of the Commissions of Inquiry Act. For instance he will have immunity from defamation actions.
A further important point, clear beyond argument, is that an order for costs made by a Commission under s. 11 of the Commissions of Inquiry Act is the exercise of a statutory power of decision within the meaning of the Judicature Amendment Act 1972. Accordingly it is subject to judicial review. The judgments in this Court in _Pilkington_ v. _Platts_ 1925 N.Z.L.R. 864 confirm that if an order for costs has been made by a Commission acting without jurisdiction or failing to comply with procedural requirements the Court will by writ or prohibition or other appropriate remedy prevent its enforcement. We add that, notwithstanding an argument by Mr Harrison to the contrary, we are satisfied that s. 11 was the only possible source of the Commissioner's power to award costs and s. 13 was not and could not have been invoked.
The order for costs under challenge in the present case is the Commissioner's order that Air New Zealand pay $150,000 by way of contribution to the public cost of the inquiry. In our view there can be no doubt that this order is and was intended to be, in the words of Williams J. delivering the judgment of this Court in _Cock_ v. _Attorney-General_ (1909) 28 N.Z.L.R. 405. 421, '... in fact, though not in name, a punishment'. What is more important, although Mr Baragwanath argued otherwise we have no doubt that reasonable readers of the report would understand that this order is linked with and consequential upon the adverse conclusions stated by the Commissioner in the section of the report headed by him 'The Stance adopted by the Airline before the Commission of Inquiry'. It is true that the reasons for the costs order open with a proposition about unnecessarily extending the hearing. But the passage develops and the later reasons go further. The words chosen convey that the punishment was not simply for prolonging the hearing. In particular the statements about cards in the pack are a reversion to the theme of the 'Stance' section, with its exceedingly strong allegations in paragraph 377 of 'a pre-determined plan of deception' and 'an orchestrated litany of lies'.
Applying the well-settled principles already mentioned, we think that if in making those statements the Commissioner exceeded his terms of reference or acted in violation of natural justice, the costs order is not realistically severable from that part of the report and should be quashed. For the purposes of the present case that is sufficient to dispose of the argument based on _Reynolds_ v. _Attorney-General_ (1909) 29 N.Z.L.R. 24 that after a Commission has reported it is functus officio and beyond the reach of certiorari or prohibition.
Naturally the stance of the airline at the inquiry directed by the terms of reference was not included expressly in those terms. The argument presented in effect for the Commissioner on the question of jurisdiction is that comments, however severe, on the veracity and motives of witnesses were incidental to the carrying out of the express terms. We accept unhesitatingly that what is reasonably incidental is authorised (as was recognised in _Cock's_ case at p. 425) and also that to some degree any Commission of Inquiry has the right to express its opinion of the witnesses, much as a Court or statutory tribunal has that right.
But we think that it is a matter of degree. For present purposes it is not necessary to decide whether the law of New Zealand is still, as held in _Cock's_ case, that a Commission of Inquiry cannot lawfully be constituted to inquire into allegations of crime. That issue may be raised more directly by the litigation regarding the Thomas Commission. The issue now to be decided is whether the Commissioner had powers, implied as being reasonably incidental to his legitimate functions of inquiry into the causes and circumstances of the crash, to make assertions amounting to charges of conspiracy to perjure at the inquiry itself.
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.
But in the end that jurisdictional question does not have to be decided in this case, and we reserve our opinion on it. If the jurisdiction does go so far, it must be discretionary, as the grant of declarations always is. The Court would have to be satisfied that grounds so strong as to require it to act in that unusual way had been made out. In our opinion they would be made out clearly enough as regards paragraph 377, which stands out from the general body of the report. But the quashing of the costs order because of its association with that paragraph is enough to do justice there.
The position is less clear as regards the other paragraphs complained of. For various reasons they are all in a marginal category. What has been said in this judgment may help to enable them to be seen in perspective. On balance we would not be prepared to hold that as to these other paragraphs the applicants have made out a sufficiently strong case to justify this Court in interfering, assuming that there is jurisdiction to do so.
In the result, the application for review having succeeded on the main issue, we see no need to and are not prepared to go further in granting relief. Our decision is simply that the $150,000 costs order be quashed on the grounds already stated.
As to the costs of the present proceedings, they should be reserved, as there has been no argument on the matter.
_Solicitors_
Russell McVeagh McKenzie Bartleet & Co., Auckland, for First and Second Applicants.
Sheffield Young & Ellis, Auckland, for Third Applicant.
Crown Law Office, Wellington, for First, Fourth and Sixth Respondents.
Keegan Alexander Tedcastle & Friedlander, Auckland, for Fifth Respondent.
C.A. 95/81
In the Court of Appeal of New Zealand--Between Air New Zealand Limited. First Appellant, and Morrison Ritchie Davis, Second Appellant, and Ian Harding Gemmell, Third Appellant, and Peter Thomas Mahon, First Respondent, and the Attorney-General, Fourth Respondent, and New Zealand Airline Pilots Association, Fifth Respondent, and the Attorney-General, Sixth Respondent.
_Coram_
Woodhouse P. Cooke J. Richardson J. McMullin J. Somers J.
_Hearing_
5th-12th October 1981.
_Counsel_
L.W. Brown, Q.C., for first and second appellants, with R.J. McGrane.
D.A.R. Williams for third appellant, with L.L. Stevens.
G.P. Barton for first respondent, with R.S. Chambers.
C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to withdraw.
A.F. MacAlister for fifth respondent, with P.J. Davison.
W.D. Baragwanath for sixth respondent, with G.M. Harrison.
_Judgment_
22 December 1981
JUDGMENT OF WOODHOUSE P. AND McMULLIN J.--DELIVERED BY WOODHOUSE P.
On 28th November 1979 a DC10-30 aircraft owned and operated by Air New Zealand Limited crashed during daylight hours at a point 1465 feet above mean sea level on the ice-covered lower slopes of Mount Erebus in the Antarctic. It was a tragedy in which 257 lives were lost. The magnitude of the disaster resulted in two separate investigations into the causes of and circumstances surrounding the accident. The second inquiry took the form of a Royal Commission appointed by Letters Patent and also pursuant to the provisions of the Commissions of Inquiry Act 1908. Mr Justice Mahon, a Judge of the High Court at Auckland, was appointed sole Commissioner on 11th June 1980. He prepared the Commission's Report and presented it on 16th April 1981.
The case now before this Court is entirely concerned with that Report. But lest there be any misunderstanding it is necessary to emphasize at the outset that no attack can be or indeed has been made upon the conclusions it reaches as to the cause of the crash. Instead the proceedings are brought by way of judicial review under the Judicature Amendment Act 1972 in order to challenge statements in the Report about the conduct of certain officers of Air New Zealand.
Senior officers of the airline are severely criticized in the Report and in one paragraph on the basis of "a pre-determined plan of deception ... to conceal a series of disastrous administrative blunders ... an orchestrated litany of lies". These findings are challenged on grounds that they were made unfairly, in disregard of basic principles of natural justice and without jurisdiction. We are satisfied that those complaints of the applicants are justified and that the statements should never have been made. It was done without authority of the terms of reference of the Commission and without any warning to the officers affected. Thus they were given no opportunity at all to answer and deny as they claim in affidavits now before this Court they were in a position to do.
Because of the view we take of some aspects of the facts and of the law we would be prepared to go further than the other members of the Court in regard to the formal order to be made in this case. We also find it necessary to go further in our conclusions in regard to a number of matters of fact. We feel sure, however, that reputation can be vindicated and the interests of justice met by the formal decision of this Court which will have the effect of quashing a penal order of the Commissioner requiring Air New Zealand to pay the large sum of $150,000 as costs in the Royal Commission Inquiry.
The Two Inquiries
Before the Royal Commission was appointed and began its work a statutory investigation had already been carried out in terms of the Civil Aviation (Accident Investigation) Regulations 1978. Immediately it was known that the aircraft had crashed on Mount Erebus the standard procedures for aircraft accident investigation were invoked by the Chief Inspector of Air Accidents, Mr R. Chippindale. And he arrived in the Antarctic with a small team of experts on the day following the disaster. They included mountaineers, police, surveyors, the chief pilot of Air New Zealand (Captain Gemmell), and a representative of the Airline Pilots Association, named in the present proceedings as the fifth respondent (First Officer Rhodes).
Mr Chippindale conducted intensive inquiries at the site of the crash and instructed that all reasonable steps were to be taken to recover equipment that would bear upon the cause of the accident and any documents which were still accessible before they were blown away into crevasses or covered with snow. Two important items were soon discovered: the cockpit voice recorder was found at once and after a period of systematic digging into the snow the digital flight data recorder was recovered as well. The first piece of equipment provided a tape recording of much that was said on the flight deck during a period of 30 minutes preceding the time of the collision with the ice slope. The second, often described as the "black box", provided conclusive information concerning course, altitude, and other data relating to the flight and functioning of the aircraft at the relevant period of time.
Mr Chippindale continued his investigation in New Zealand where he inspected records gathered from the airline. He also interviewed pilots and other officers with relevant information. In addition he travelled overseas. At that point he prepared an interim report so that he could give notice of his tentative findings to all those whom he felt might have some degree of responsibility for the accident. Thus the airline and representatives of the deceased pilots and others were given an opportunity to provide any appropriate answer to the chief inspector before he completed his final report. All this was attended to and his report, which is dated 31st May 1980, was made available to the Minister of Transport on 3rd June 1980. The Minister then approved the report for release as a public document on 12th June 1980. As mentioned, the Royal Commission was appointed for the purpose of conducting a public inquiry at that same time.
There is a difference in the two reports upon the cause of the accident. Mr Chippindale considered the probable cause to have been pilot error. On the other hand the Royal Commission exonerated the pilots completely and spoke instead of "incompetent administrative airline procedures". Since this case is concerned with allegations by the Commissioner that the affected officers of Air New Zealand had engaged "in a pre-determined plan of deception ... to conceal a series of disastrous administrative blunders" (administrative mistakes which he himself had found to be the real cause of the disaster) it is not unimportant to ask what relevant information the airline had actually been able to provide which was not supplied to Mr Chippindale. For that last reason the material made available for consideration by Mr Chippindale deserves some examination. An example concerns the change made to the final stage of the computer flight track to the Antarctic which the Commissioner regarded as a central reason for the accident. During a period of fourteen months prior to the fatal flight Air New Zealand's ground computer had contained an incorrect geographical reference to the southern waypoint of the journey at McMurdo. Accordingly, in that period it was shown incorrectly on any computer print-outs of the flight plan. But a few hours before departure of the DC10 an amendment was made and the flight crew was not informed that amended co-ordinates (since their briefing 19 days earlier) had thus been fed into the aircraft's computer.
In paragraph 44 the Report explains that the chief executive of the airline was told of this matter on 30th November. Then in paragraph 45 it is said that the chief executive "determined that no word of this incredible blunder was to become publicly known". There follows a statement that a direction was thereupon given "that all documents relating to Antarctic flights, and to this flight in particular, were to be collected and impounded. They were all to be put on one single file which would remain in strict custody. Of these documents all those which were not directly relevant were to be destroyed". The reference in this context to the amendment to the co-ordinates invites the question as to whether Mr Chippindale had been given that particular information by the airline during his own investigation. It is made plain in his own report that this had been done immediately.
He himself was not uncritical of the administrative work of the airline as it touched upon the fatal flight and concerning this matter he said:
"3.5 The flight planned route entered in the company's base computer was varied after the crew's briefing in that the position for McMurdo on the computer printout used at the briefing, was incorrect by over 2 degrees of longitude and was subsequently corrected prior to this flight."