Part 9

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.

P.D. HASSELBERG, GOVERNMENT PRINTER, WELLINGTON, NEW ZEALAND--1982

76534J--82PT

TRANSCRIBER'S NOTES

There were no footnotes in this text. The following correction have been made.

[Transcriber note 1: The original has here a double "the" which seems superfluous in the context.]

[Transcriber note 2: In the original, the closing bracket is missing.]

[Transcriber note 3: In the original, the word "give" instead of "given" is used.]