‘Rules of natural justice’

Press, 22 October 1983, Page 2

‘Rules of natural justice’

To say of a person who held judicial office that he had failed to observe a rule of natural justice might sound to a lay ear as if it were a severe criticism of his conduct which carried with it moral overtones, the Judicial Committee of the Privy Council said in its judgment on the appeal by the Royal Commission on the Mount Erebus disaster, Mr Peter Mahon. “But this is far from being the case,” the committee said. There were two rules of natural justice which applied to the appeal. One was that the person making a finding in the exercise of an investigation jurisdiction must base his decision on evidence that had some probative value. The second rule was that he must listen fairly to any relevant evidence conflict-

ing with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests, including career or reputation, might be adversely affected by it, might wish to put before him or would have wished to do if he had been aware of the risk of the finding being made. Tht technical rules of evidence applicable to civil or criminal litigation formed no part of the rules of natural justice.

The committee said it was easy to slip over one or other of the two rules in civil litigation, particularly when there was pressure of time in preparing a judgment after hearing masses of evidence in a long and highly complex case. In the case of a judgment in ordinary civil litigation this kind of failure to observe rules of natural justice was simply one possible ground of appeal, among many others, and attracted no particular attention. “All their Lordships can remember highly respected colleagues who, as trial judges, have had appeals against judgments they had delivered allowed on this ground, and no-one thought any the worse of them for it,” the judgment said. “So their Lordships’ recommendation that the ap-

peal ought to be dismissed cannot have any adverse effect upon the reputation of the judge (Mr Mahon) among those who understand the legal position, and it should not do so with anyone else.” After praising the “brilliant and painstaking” investigation work of Mr Mahon and the counsel assisting him, the committee said they had been under a severe handicap to which, in the judicial committee’s view, the “unfortunate” results of the Royal Commission report were largely attributable.

“That handicap was pressure of time,” the committee said. It was understandable that the Executive Council should want the result of the inquiry to be made public with as little delay as possible; “but the short time limit of October 31,1980, for reporting that was set by the first Royal Warrant, meant that by June 23 when, acting with the utmost expedition, Mr Mahon was able to hold the preliminary hearing to discuss procedure, he had only a little over four months to undertake all necessary inquiries and investigations in New Zealand, Antarctica and, as it turned out, in other countries and to draft his report.”

The emergence of evidence piecemeal as a result of abandoning, under pressure of time, the original proposal that counsel for the parties at the inquiry should furnish written briefs of witnesses in advance, had unfortunate effects in colouring Mr Mahon’s veiw of what he referred to as the “stance” Air New Zealand management had adopted as soon as the nevys of the crash- reached it, and to which he thought it had adhered from the beginning to the end of the inquiry. On the decision to make no order on costs, the committee said that Mr Mahon’s costs were being met by the New Zealand Government, and that as the sole shareholder in Air New Zealand, the legal costs incurred by the airline in the appeal would also fall ultimately upon the Government, so that the main financial consequences of their Lordships’ decision might be limited to avoiding the expense of taxation of the parties’ costs.

“It is nevertheless intended also to be indicative of their Lordships’ view that the time for bitter feelings is over, although their Lordships appreciate that nothing can console the relatives and friends of the victims of the disaster.”