Mahon v Air New Zealand Ltd
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1981 |
| Year | 1981 |
| Date | 1981 |
Natural Justice - Opportunity to meet charge - Royal Commission's investigation - Airline crash in Antarctica - Commission's investigation into cause - Finding that airline's management planned to conceal cause of crash - Whether facts consistent with finding - Whether persons likely to be adversely affected given opportunity to adduce additional material - Whether finding contrary to natural justice - New Zealand - Royal Commission's report - Whether open to judicial review - Royal Commission's investigation of cause of air crash - Airline's management found to have planned to conceal cause of crash - Airline ordered to pay part of costs of commission - Whether order for costs open to judicial review - Whether to be quashed - Whether commission's finding contrary to natural justice -
The captain and the first officer of a DC-10 commercial aircraft belonging to Air New Zealand were briefed 18 days before an intended sightseeing flight over Antarctica on a route that would take the aircraft well to the west of Mount Erebus, a volcano of 12,500 feet. Shortly before the flight and without informing any member of the crew, the route was altered so that the aircraft would fly over the mountain and the revised flight plan was fed into the aircraft's computer which would have been used as the principal navigation aid. The aircraft while being flown at less than 2,000 feet crashed into the side of the mountain. The 237 passengers and crew of 20 were killed instantaneously. An inquiry was immediately held by the Chief Inspector of Air Accidents and he found that the probable cause of the accident was the decision of the captain to continue the flight at low level over an area of poor surface and horizon definition when the crew were not certain of their position. His report was published the day after a judge of the High Court, the appellant, had been appointed by the Governor-General as a Royal Commissioner to investigate the cause and circumstances of the disaster. The judge found that the dominant cause of the accident was the act of the airline in changing the computer track of the aircraft without telling the aircrew. He exonerated the captain and other members of the crew from blame. He also found that there had been a predetermined plan of deception on the part of officials of the airline with the result that he had had to listen “to an orchestrated litany of lies.” He made an order under section 11 of the Commissions of Inquiry Act 1908 that the airline should pay $150,000 towards the cost of the Royal Commission. The airline applied by motion for an order of judicial review of the order that it should pay part of the costs of the commission. The motion was removed from the High Court to the Court of Appeal and that court held, inter alia, that the judge, in making the order for costs, had acted in breach of the rules of natural justice.
On appeal by the judge to the Judicial Committee: —
Held, (1) that in making an order for costs under section 11 of the Commissions of Inquiry Act 1908, the judge was exercising a statutory power of decision and, therefore, the court had jurisdiction under section 4 of the Judicature Amendment Act 1972 to entertain the airline's application for judicial review of the order for costs contained in the Report of the Royal Commission (post, pp. 893H).
(2) That the rules of natural justice required the judge as a Royal Commissioner investigating the cause and circumstances of the accident to make findings based upon material that logically tended to show the existence of facts consistent with those findings and, if he disclosed his reasons to support those findings, to ensure that the reasoning was not self-contradictory; that natural justice also required the judge to ensure that any person represented at the inquiry that might be affected adversely by a finding should know of the risk of such a finding being made and be given an opportunity to adduce additional material that might have deterred the judge from making that finding; and that, since there was no material of probative value that tended by a process of logical reasoning to show that there had been a predetermined plan of deception and since certain witnesses had not been given an opportunity to answer the criticisms made against them, the order that the airline pay part of the costs of the Royal Commission had been properly set aside (post, pp. 895H–896F, 907D–F, 910D–H, 912C–D).
The following cases are referred to in the judgment of their Lordships:
Cock v. Attorney-General (
Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [
Royal Commission on Thomas Case, In re [
The following additional cases were cited in argument:
Attorney-General v. Ryan [
Australian Consolidated Press Ltd. v. Uren [
Barnard v. National Dock Labour Board [
Browne v. Dunn (
Bushell v. Secretary of State for the Environment [
Campbell (Donald) & Co. Ltd. v. Pollak [
Daemar v. Gilliand [
Daganayasi v. Minister of Immigration [
Dyson v. Attorney-General [
Edwards v. Bairstow [
Furnell v. Whangarei High Schools Board [
Geelong Harbor Trust Commissioners v. Gibbs Bright & Co. [
General Medical Council v. Spackman [
Harder v. Auckland District Law Society [
John v. Rees [
Kanda v. Government of Malaya [
Landreville v. The Queen (
Landreville v. The Queen (No. 2) (
Minister of Immigration and Ethnic Affairs v. Pochi (
O'Reilly v. Mackman [
Pergamon Press Ltd., In re [
Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [
Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [
Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [
Reg. v. Secretary of State for the Environment, Ex parte Brent London Borough Council [
Rex v. Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area, Ex parte B.E. Barrett Ltd. [
Ridge v. Baldwin [
Ritter v. Godfrey [
Royal Commission on Licensing, In re [
Royal Commission to Inquire into and Report upon State Services in New Zealand [
Thames Jockey Club Inc. v. New Zealand Racing Authority [
Timberlands Woodpulp Ltd. v. Attorney-General [
Webster v. Auckland Harbor Board (unreported) 22 March 1983
APPEAL (No. 12 of 1983) by the appellant, Peter Thomas Mahon, from the decision and order of the Court of Appeal of New Zealand (Woodhouse P., Cooke, Richardson, McMullin and Somers JJ.) [
The facts are stated in the judgment.
Sir Patrick Neill Q.C., David Baragwanath Q.C. (of the New Zealand Bar), Nicolas Bratza and Robert Chambers (of the New Zealand Bar) for the appellant.
Robert Alexander Q.C., Lloyd Brown Q.C. (of the New Zealand Bar) and R. J. McGrane (of the New Zealand Bar) for the first respondent.
D. A. R. Williams and L. L. Stevens (both of the New Zealand Bar) for the second and third respondents.
R. P. Smellie Q. C. (of the New Zealand Bar), David Widdicombe Q.C. and Noel Anderson (of the New Zealand Bar) for the fourth respondent.
20 October 1983. The judgment of their Lordships was delivered by LORD DIPLOCK.
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