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. 95/81New Zealand. Court of Appeal
History
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
New Zealand. Court of Appeal
Air New Zealand; Aircraft accidents; New Zealand. Royal Commission to Inquire into the Crash on Mount Erebus, Antarctica, of a DC10 Aircraft Operated by Air New Zealand Limited
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.
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