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
The present case is in many ways unique and, if the findings in
paragraph 377 were made without jurisdiction or contrary to natural
justice, it affords a striking instance of how contrary to the public
interest it would be if the Courts were not prepared to protect the
right to reputation. The magnitude of the disaster, bringing tragedy to
many homes in New Zealand and overseas, and the fact that the national
airline was involved meant that the national attention was focused on
the inquiry. There are imputations of collective bad faith which had
started from a high place in the company and all this was likely to
receive the widest publicity, further, the findings in paragraph 377
amounted to public and official disclosures of alleged criminal conduct
and led to investigation by the police to determine whether charges
should be laid. In the event it was announced shortly before the hearing
of the present case that there would be no such charges, but clearly the
individuals concerned were in fact exposed to the hazard of prosecution
as a natural consequence of the Report.
In interpreting the 1977 legislation we think that a narrow conception
of rights and of what affects rights would not be in accord with the
general purposes of the Act. A broad, realistic and somewhat flexible
approach would enable the Act to work most effectively as an aid to
achieving justice in the modern community.
Natural Justice
This Court has had to examine and apply the principles concerning
natural justice and fairness quite often in recent years. In translating
the ideals of natural justice and fairness into current operation in New
Zealand we have been influenced as to general principles mainly by
decisions of the Privy Council and the House of Lords but, of course, we
have had New Zealand conditions and practicalities very much in mind.
The result has been a pragmatic approach.
Some overseas Courts have held that if all that occurs is inquiry and
report and the report is not in law a condition precedent to some
further step the rules of natural justice are automatically excluded.
That was the premise, for instance, of the High Court of Australia in
_Testro Bros. Pty. Ltd._ v. _Tait_ (1963) 109 C.L.R. 353. A contrary
approach is to be found in the judgement of Schroeder J.A. representing
the view of the majority of the Ontario Court of Appeal in _Re Ontario
Crime Commission_ (1962) 133 C.C.C. 116, although that case depends
partly on Ontario statute law. There is little attraction in the idea of
automatic exclusion. Commissions of Inquiry have compulsory statutory
powers of insisting on evidence and their findings can affect rights in
the ways already outlined. It seems to us highly unlikely that the New
Zealand Parliament intended them to be wholly free of the elementary
obligation to give persons whom they have in mind condemning a fair
opportunity for correcting or contradicting any relevant allegation.
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