Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission Part 3

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 quas.h.i.+ng 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 a.s.sociation, 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 doc.u.ments which were still accessible before they were blown away into creva.s.ses or covered with snow. Two important items were soon discovered: the c.o.c.kpit 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, alt.i.tude, 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 doc.u.ment 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 doc.u.ments 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 doc.u.ments 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."

The variation in the computer _after the crew of the DC10 had been briefed_ (as Mr Chippindale realized) is the matter which is mentioned by the Commissioner in paragraph 44 and which in paragraph 45 is offered as the motive for what is there described as an immediate decision by the chief executive that no word of the matter was to become publicly known, with doc.u.ments to be impounded and others destroyed. This information was given into Mr Chippindale's hands by Air New Zealand in a written statement on the day following his return from the crash site in Antarctica.

The Chippindale report then states in paragraph 3.6 that the computer error had remained in the flight plans for some fourteen months. Then it is said:

"3.7 Some diagrams and maps issued at the route qualification briefing could have been misleading in that they depicted a track which pa.s.sed to the true west of Ross Island over a sea level ice shelf, whereas the flight planned track pa.s.sed to the east over high ground reaching to 12450 feet AMSL.

3.8 The briefing conducted by Air New Zealand Limited contained omissions and inaccuracies which had not been detected by either earlier partic.i.p.ating aircrews or the supervising Airline Inspectors."

So these various matters (also mentioned by the Commissioner) were well within Mr Chippindale's knowledge. However he came to a final conclusion that pilot error had been involved as a probable cause of the accident while the Commissioner (who decided this was an incorrect finding) was satisfied instead that the cause of the accident was not pilot error at all. He said:

"393. In my opinion therefore, the single dominant and effective cause of the disaster was the mistake made by those airline officials who programmed the aircraft to fly directly at Mt. Erebus and omitted to tell the aircrew. That mistake is directly attributable, not so much to the persons who made it, but to the incompetent administrative airline procedures which made the mistake possible.

394. In my opinion, neither Captain Collins nor First Officer Ca.s.sin nor the flight engineers made any error which contributed to the disaster, and were not responsible for its occurrence."

Jurisdiction to Review

Several important questions arise in this case. Is there jurisdiction in the Courts to review in such a context as this taking into account the ambit of ss. 3 and 4 of the Judicature Amendment Act 1972? And if there is such power is it by reason of the award of costs in this case? Or on grounds relating to excess of jurisdiction on the part of the Commissioner? Or considerations of natural justice? Or by reference to all three of those matters? For the reasons that follow we are satisfied that the findings are reviewable and that each one of those three matters is properly within the scope of the Court's jurisdiction.

As already mentioned, the proceedings are by way of application for review under the Judicature Amendment Act 1972 and are directed against certain findings in the Report, to which we have referred. The applicants claim that those findings are invalid, in excess of jurisdiction or made in circ.u.mstances involving unfairness or breach of natural justice. They seek declarations to that effect and orders setting aside the findings and quas.h.i.+ng the order that Air New Zealand pay $150,000 as a contribution to the public cost of the inquiry. It is necessary to consider whether under the Act the Court has jurisdiction to grant such relief in this case.

By ss. 3 and 4 of the Act relief may be granted only where a "statutory power" is involved. That term includes a "statutory power of decision".

Since liberalizing amendments made in 1977, "statutory power" includes power conferred by or under any Act "to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person" and "statutory power of decision" includes power conferred by or under any Act "to make a decision ... affecting"

any such rights, powers, privileges, duties or liabilities. Generally the relief available is confined by s. 4 to that which the applicant would have been ent.i.tled to in any one or more of the proceedings for mandamus, prohibition, certiorari, declaration or injunction; but there is a relevant exception in s. 4 (2) whereby if the applicant is ent.i.tled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid the Court may set aside the decision instead.

The first question as to jurisdiction is therefore whether, apart from the 1972 Act, the applicants could have obtained relief by any of the proceedings mentioned. The Commission having ceased to exist, it would be too late to apply for prohibition or an injunction against the first respondent and mandamus would also be inappropriate. The decision of this Court in _Reynolds_ v. _Attorney-General_ (1909) 29 N.Z.L.R. 24, 37-38, suggests that once the report has been forwarded to the Governor-General it may be permanently beyond the reach of certiorari; this is perhaps a corollary of the view, to which we referred in the judgment concerning discovery in _Environmental Defence Society Inc._ v. _South Pacific Aluminium Limited_ (C.A. 59/81, judgment 15th June 1981), that a prerogative remedy may not lie against the Sovereign's representative.

But we need not go further into the rather technical question of the scope of certiorari in this kind of case. As has been said in the _Environmental Defence Society_ case and _Ng_ v. _Minister of Immigration_ (C.A. 100/81, judgment 10th August 1981), a declaration may be granted in the discretion of the Court whether or not certiorari would have lain. That a declaration may be an appropriate remedy for both jurisdictional errors and closely a.n.a.logous defects such as unfairness or breaches of natural justice is shown by such Privy Council and House of Lords decisions as _De Verteuil_ v. _Knaggs_ (1918) A.C. 557, _Pyx Granite Co. Ltd._ v. _Ministry of Housing_ (1960) A.C. 260, and _Ridge_ v. _Baldwin_ (1964) A.C. 40. The statement apparently to the contrary at the end of the _Reynolds_ judgment at p. 40 is obsolete. And if a declaration could have been granted that a decision made under a statutory power is invalid the Court has power under the 1972 Act to set the decision aside.

The Order for Costs

In argument in the present case it was common ground that if the order for $150,000 costs is invalid the Court can set it aside. That is clearly so. The order was made in reliance on s. 11 of the Commissions of Inquiry Act 1908 which (notwithstanding an argument to the contrary by Mr Harrison) is in our opinion undoubtedly the only source of any authority for a Royal Commission or a Commission of Inquiry to award costs. If valid it is enforceable by virtue of s. 12 of that Act as a final judgment of the High Court in its civil jurisdiction. Plainly it is the exercise of a statutory power of decision. The jurisdiction of the New Zealand Courts to determine the validity of orders for costs by Commissions is well established: _Hughes_ v. _Hanna_ (1909) 29 N.Z.L.R.

16; _Whangarei Co-operative Bacon-Curing Co._ v. _Whangarei Meat-Supply Co._ (1912) 31 N.Z.L.R. 1223; _Pilkington_ v. _Plaits_ (1925) N.Z.L.R. 864.

What was in dispute in the argument in this connection was princ.i.p.ally whether the order is so linked with the challenged findings in the Report that if those findings are invalid for excess of jurisdiction or breach of natural justice the order will fall with them. There was a subsidiary argument about whether the order was in any event invalid because the amount may greatly exceed the maximum allowed by the long out-of-date but still apparently extant scale prescribed in 1903 (1904 Gazette 491). We propose to consider the main argument, however, and in doing so to confine attention to whether there is a sufficient link between the order and the main findings complained of in the Report, those in paragraph 377.

At the beginning of his reasons for ordering costs the Commissioner expressed the opinion that the power should be exercised whenever the conduct of a party at the hearing has materially and unnecessarily extended the duration of the hearing. His following reasons include criticisms of the management of the airline for prolonging the hearing, and it was contended before us by Mr Baragwanath that they go no further. We are unable to accept that contention. In reciting the circ.u.mstances leading to the orders for costs the Commissioner expressly includes the chief executive's order for doc.u.ments to be destroyed and says, "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". We think that such language would naturally be understood by a reasonable reader to refer back to the matters more fully developed in the section of the Report headed "The stance adopted by the airline before the Commission of Inquiry", a section culminating in paragraph 377 with its references to "a pre-determined plan of deception ... an attempt to conceal a series of disastrous administrative blunders ... an orchestrated litany of lies". The impression almost inevitably created is that, to adapt words used by Williams J. delivering the judgment of this Court in _c.o.c.k_ v. _Attorney-General_ (1909) 28 N.Z.L.R. 405, 421, the judgment for costs was in fact, though not in name, a punishment.

The reasons given for the costs orders have definite echoes of paragraph 377 and the immediately preceding paragraphs. The airline was being required to pay costs, and not for delaying tactics simply. A significant part of the reasons was that in the view of the Commissioner its chief witnesses had been organized to conceal the truth.

It is true that, on purely verbal grounds, refined distinctions can be drawn between the sections of the Report dealing with the airline's stance at the inquiry and with costs; but we have no doubt that their overall effect is that most readers would understand them as closely a.s.sociated. It follows, we think, that if the findings in paragraph 377 are invalid for excess of jurisdiction or breach of natural justice they should be seen as playing a material part in the order for $150,000 costs and as requiring the Court to set aside that order. Irrespective of the order for costs, we think that there are strong arguments to support the view that there is jurisdiction to review the findings in challenged paragraphs on grounds relating to jurisdiction and natural justice. There is a good deal of support in the authorities for excluding or strictly limiting judicial review of Commission findings and Mr Baragwanath carefully put the arguments forward. But, as we say, there are reasons why the Court ought not to adopt the facile approach of saying that the function of the Commission was merely to inquire and report and that as the Commission's findings bind no-one they can be disregarded entirely as having no legal effect.

Scope of Royal Commission

As has been the practice in New Zealand when a Commission of Inquiry consists only of or is chaired by a High Court Judge, the Erebus Commission was a Royal Commission in that the warrant was expressed to be issued under the authority of the Letters Patent of 1917 const.i.tuting the office of Governor-General. One of the powers delegated by the Letters Patent to the Governor-General is to "const.i.tute and appoint, in Our name and on Our behalf, all such ... Commissioners ... as may be lawfully const.i.tuted or appointed by Us". The warrant was also expressed to be issued under the authority of and subject to the provisions of the Commissions of Inquiry Act 1908, and s. 15 of that Act extends and applies not only to inquiries under statutory Commissions appointed by the Governor-General or Governor-General in Council but also to inquiries under the Letters Patent. This means inter alia that statutory-powers of summoning witnesses and requiring the production of doc.u.ments apply, that a Judge of the High Court acting as Commissioner has the ordinary judicial immunity, and that interested persons have statutory rights to be heard under s. 4A, inserted by an amendment made in 1980 shortly before the inquiry now in question began. Section 2 of the 1908 Act empowers the Governor-General by Order-in-Council to appoint any person to be a Commission to inquire into and report upon any question arising out of or concerning a range of matters. The relevant one is "(e) Any disaster or accident (whether due to natural causes or otherwise) in which members of the public were killed or injured ..." In giving statutory power to appoint Commissions and listing permissible subjects the Act differs from the Evidence Acts considered in Australian cases. The Australian Acts presuppose the existence of Commissions appointed under prerogative or inherent executive powers and merely confer ancillary powers of compelling evidence and the like. Under Acts of that type the validity of the Commission depends on the common law and the division of powers in the Australian Const.i.tution. Under the New Zealand Act a Commission can be given a statutory source for its basic authority even if it is a Royal Commission and has a prerogative source as well.

The Erebus Commission was appointed to inquire into the causes and circ.u.mstances of the crash. Among the particular questions referred to it was:

(g) Whether the crash of the aircraft or the death of the pa.s.sengers and crew was caused or contributed to by any person (whether or not that person was on board the aircraft) by an act or omission in respect of any function in relation to the operation, maintenance, servicing, flying, navigation, manoeuvring, or air traffic control of the aircraft, being a function which that person had a duty to perform or which good aviation practice required that person to perform?

All the terms of reference fall well within s. 2 (e). The Commission was not appointed to inquire into allegations of crime so we are not now called upon to go into the question whether a Royal Commission can be appointed for such a purpose, on which New Zealand and Australian authorities diverge (see _In re The Royal Commission on Licensing_ (1945) N.Z.L.R. 665, 679; and D.R. Mummery "Due Process and Inquisitions", 97 L.Q.R. 287). Nevertheless paragraph 377 of the Royal Commission Report contains findings of organized perjury. The judgment in the leading New Zealand case, _c.o.c.k_ v. _Attorney-General_, while denying that the prerogative can authorize a Commission with the main object of inquiring into alleged crimes, recognizes at p. 425 that a Commissioner may investigate an alleged crime if to do so would be "merely incidental to a legitimate inquiry and necessary for the purpose of that inquiry". We think that the test must be what is reasonably incidental to valid terms of reference. In relation to paragraph 377 the allegation of excess of jurisdiction turns accordingly on whether the findings are reasonably incidental to an inquiry into the causes and circ.u.mstances of the crash.

It is difficult to find reasons why the Court should refuse to entertain that question. While Commissions of mere inquiry and report are largely free from judicial control, there is strong authority indicating that the Courts have at least a duty to see that they keep within their terms of reference. We agree with the opinion of Myers C.J. in the _Royal Commission on Licensing_ case at p. 680 that it is implicit in all the judgments in the Privy Council and the High Court in _Attorney-General for the Commonwealth of Australia_ v. _Colonial Sugar Refining Co. Ltd_ (1914) A.C. 237, 15 C.L.R. 182, that if it can be said in advance that proposed questions are clearly outside the scope of the inquiry they are irrelevant and cannot be permitted. In the _Royal Commission on Licensing_ case that very principle was applied in this Court, it being held that certain matters were not within the ambit of the Commission's inquiry. That decision was given on a case stated by the Royal Commission under ss. 10 and 13 of the 1908 Act, but the _Sugar Company_ case was an action for declaration and injunctions and the procedure was expressly approved in the judgment of their Lords.h.i.+ps delivered by Viscount Haldane L.C. ((1914) A.C. at 249-50). Similarly in _McGuinness_ v. _Attorney-General_ (1940) 63 C.L.R. 73 the High Court, on an appeal from a conviction for refusing to answer a question touching the subject matter of an inquiry by a Commissioner, accepted without any apparent difficulty that the Court had authority to determine whether the question was relevant.

We do not overlook that the cases just cited were concerned with the scope of questions that might be put to witnesses under compulsory powers given by statute. They were not directly concerned with the scope of findings in reports. But if the Court has jurisdiction to determine the true scope of a Commission's inquiry and require the Commission to keep within that scope there are obvious arguments that it should have a corresponding jurisdiction in the matter of findings. A vital part of the const.i.tutional role of the Courts is to ensure that all public authorities, whether they derive their powers from statute or the prerogative, act within the limits of those powers.

A different view was taken by Stephen J. sitting at first instance in chambers in _R._ v. _Collins_ (1976) 8 A.L.R. 691, but we note the opinion expressed in several Canadian cases that the Court will intervene where a Commissioner has inquired or seeks to inquire into matters outside his terms of reference: _Re Sedlmayr_ (1978) 82 D.L.R.

(3d.) 161; _Re Anderson_ (1978) 82 D.L.R. (3d.) 706; _Landreville_ v.

_The Queen_ (1973) 41 D.L.R. (3d.) 574; _Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380, 400-402.

In _Re Royal Commission on Thomas Case_ (1980) 1 N.Z.L.R. 602 a Full Court (Molier, Holland and Thorp JJ.) held inter alia that the Court may prohibit a Commission from acting in excess of its jurisdiction and that the creation of a Commission pursuant to the Letters Patent does not exempt it from the supervisory role of the Court. However part of the Full Court's decision in that case is the subject of a pending appeal to this Court and other proceedings relating to the Thomas Commission have been moved into this Court. So we refrain from expressing any final view upon it.

For the foregoing reasons we think that if the applicants make out their claim that the findings of the Erebus Commission in paragraph 377 are outside the commissioner's terms of reference, they could be granted a declaration to that effect at common law. To obtain a setting aside of the findings under s. 4 (2) of the Judicature Amendment Act 1977 they have to show in addition that the findings were made in the exercise of a statutory power of decision. We think this requirement should not present final difficulty if regard is had to the evident intent and spirit of the 1972 Act and particularly the amendments made by Parliament in 1977.

Judicature Amendment Act 1972

Was the statutory power one of _decision_? The 1977 Amendment Act brought statutory investigations or inquiries into rights or liabilities within the definition of "statutory power". An inquiry into whether any person caused or contributed to the crash by an act or omission in respect of his duties is an inquiry into liabilities. But that is less important for present purposes than the fact that the Amendment Act also extended the concept of statutory powers of decision to those "affecting" the rights of any person. The purpose was manifestly to make the ambit of review under the Act at least as wide as at common law.

This point is dealt with in _Daemar_ v. _Gilliand_ (1981) 1 N.Z.L.R. 61.

We think it would be very difficult to justify an argument that findings likely to affect individuals in their personal civil rights or to expose them to prosecution under the criminal law are decision "affecting"

their rights within the meaning of the Act. In the present case, for example, it was virtually certain that the findings of the Erebus Commission would be published by the Government. The effect on the reputation of persons found guilty of the misconduct described in the Report was likely to be devastating, at common law every citizen has a right not to be defamed without justification. Severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity affects that right especially when the officer has judicial status and none the less because he has judicial immunity.