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High Court of New Zealand Decisions |
Last Updated: 18 September 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2012-485-1441 [2012] NZHC 2404
BETWEEN JOHN ALAN STUART DOW First Applicant
AND RAYMOND FRANCIS MEYER Second Applicant
AND STUART JOHN NATTRASS Third Applicant
AND PETER WILLIAM WHITTALL Fourth Applicant
AND STEPHEN ELLIS Fifth Applicant
AND ROBB JOHN RIDL Sixth Applicant
AND ROYAL COMMISSION ON THE PIKE RIVER COAL MINE TRAGEDY
First Respondent
AND HER MAJESTY'S ATTORNEY- GENERAL
Second Respondent
AND DEPARTMENT OF CONSERVATION Third Respondent
AND THE LABOUR GROUP OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT (FORMERLY THE DEPARTMENT OF LABOUR)
Fourth Respondent
AND FAMILIES OF THE DECEASED Fifth Respondent
AND MINISTRY FOR THE ENVIRONMENT Sixth Respondent
JOHN ALAN STUART DOW V ROYAL COMMISSION ON THE PIKE RIVER COAL MINE TRAGEDY HC WN CIV 2012-485-1441 [17 September 2012]
AND THE ECONOMIC DEVELOPMENT GROUP OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT (FORMERLY THE MINISTRY OF ECONOMIC DEVELOPMENT)
Seventh Respondent
AND NEW ZEALAND AMALGAMATED ENGINEERING, PRINTING & MANUFACTURING UNION INC Eighth Respondent
AND NEW ZEALAND POLICE Ninth Respondent
AND PIKE RIVER COAL MINE LIMITED (IN RECEIVERSHIP)
Tenth Respondent
Hearing: 3 - 4 September 2012
Counsel: S B W Grieve QC, A Horne and A Gordon for Applicants
A J F Wilding for First Respondent
C Gwyn, D Soper and A Williams for Second, Third, Fourth, Sixth, Seventh and Ninth Respondents
N R W Davidson QC and J Mills for Fifth Respondent
K N Hampton QC for Eighth Respondent
No Appearance for Tenth Respondent
Judgment: 17 September 2012
JUDGMENT OF RONALD YOUNG J
Introduction
[1] On 19 November 2010 an explosion occurred at the Pike River Coal Mine. At the time 31 men were underground. Two escaped, the other men did not. There was a second explosion at the mine on 24 November 2010. By that stage the men were considered to be dead.
[2] On 14 October 2010 the Government released the terms of reference for a Royal Commission of Inquiry (the Commission) into the tragedy. The terms of reference were much wider than just a direct inquiry into the causes of the tragedy. They involved an inquiry into the search and rescue operation that followed the explosions, consideration of existing relevant law, and its administration and implementation.
[3] The Commissioner was also invited to make recommendations relating directly to the future of mining for the prevention of similar disasters and more generally for the safety of miners. The Commission is currently required to provide its report to the Governor-General by 28 November 2012.
[4] The applicants in these proceedings are all past employees or Board members of Pike River Coal Limited which owned and operated the mine at the time of the disaster. That company is now in receivership. The applicants have been jointly represented at the inquiry and were also in these proceedings.
[5] After the close of hearings before the Commission on 4 April 2012 the Commission continued to receive further evidence. In particular and as relevant to this case, it received briefs of evidence from three past employees of Pike River Coal, Mr Udo Renk, Mr Terrence Moynihan and Mr Greg Borichevsky. This evidence was only part of over 600 documents received by the Commission after its
4 April hearing. The Commission issued a series of minutes describing how it proposed to give participants in the inquiry the opportunity to respond to the evidence filed with the Commission after its hearings.
[6] In these proceedings the applicants say the rulings made by the Commission relating to this further evidence were in breach of natural justice and had the potential to adversely affect their fair trial rights. As a result the applicants seek orders that the hearings before the Commission be reconvened to hear the oral evidence and cross-examination of these three witnesses and any other relevant witnesses; that after such evidence is heard the applicants be permitted to file further closing submissions; and that there be orders that the Commission not release its final report until any of the applicants who are the subject of adverse findings by the
Commission in the final report have had the opportunity to review those findings and take certain steps (including delaying publication of the final report) if required.
Factual background
[7] Mr Dow, the first applicant, was appointed as an independent non-executive director of Pike River Coal Mine Limited in February 2007.1 He was Chairman of the Board of Directors from May 2007 until September 2011 when he resigned. Of the other applicants, Mr Meyer and Mr Nattrass were also directors of the company. As at the date of the explosion Mr Whittall, the fourth applicant, was the Chief Executive Officer. He had replaced Mr Gordon Ward who had held the position for
12 years until he left the company six weeks before the 19 November 2010 explosion. Mr Whittall had been the General Manager of the company and had worked for the company since 2005. At the time of the explosion Mr Ellis was the Mine Manager.
[8] Pike River Coal applied for a mining permit for the Pike River coal field in
1996. In 1997 it was granted a permit for 40 years from 1 October 1997. Construction of an access road to the mine site commenced in 2005 and construction of the tunnel into the mine began in September 2006. Initially the tunnel was through rock but by October 2008 it had reached coal. The development of the mine continued during 2008 and 2009 and the company shipped its first coal to export in February 2010.
[9] At the time of the explosion Mr Moynihan was the Projects and Planning Manager for the mine and Mr Borichevsky was the Technical Services Coordinator. Mr Renk worked for Pike River Coal as the Technical Services Manager from January 2007 until May 2008. Mr Renk had previously filed a witness statement
with the Commission.
1 The tenth respondent.
The Commission’s inquiry
[10] The relevant portion of the terms of the reference of the Commission are:2
... to inquire into and report upon (making any recommendations that you think fit upon)–
(a) the cause of the explosions in the Pike River Coal Mine (the mine)
on, around, or after 19 November 2010; and
(b) the cause of the loss of life of the men working in the mine; and
(c) the practices used or other steps taken at the mine for, or related to, its operations and management, including, without limitation, their effectiveness in achieving–
(i) compliance with the law or recognised practices; and
(ii) a healthy and safe place of work; and
(d) the search, rescue, and recovery operations contemplated or undertaken after the explosion on 19 November 2010, including, without limitation,–
(i) the practices used, other steps taken, and the equipment and the other resources available; and
(ii) preparedness for those operations; and
(e) the requirements of the Acts, regulations, or other laws, or of any recognised practices, that govern each of the following:
(i) underground coal mining and related operations;
(ii) health and safety in underground coal mining and related operations; and
(f) how the requirements in paragraph (e) interact with other
requirements that apply to the mine or to the land in which it is situated, including, without limitation, those for conservation or
environmental purposes; and
(g) resourcing for, and all other aspects of, the administration and implementation of the laws or recognised practices that apply to the mine or to the land in which it is situated; and
(h) how the matters referred to in paragraphs (e) to (g) compare with any similar matters in other countries; and
(i) any other matters arising out of, or relating to, the foregoing that
come to the Commission’s notice in the course of its inquiries and
that it considers it should investigate:
Matters upon or for which recommendations required
And, without limiting the order of reference set out above, we declare and direct that this Our Commission also requires you to make recommendations upon or for–
(a) the prevention, as far as possible, of similar disasters, and the safe working in future of the mine and other mines; and
(b) what ought to be done, if the mine is not reopened, to ensure the safety of the mine and the surrounding area; and
(c) practices or other steps for the purposes of search, rescue, and recovery operations in similar disasters; and
(d) whether any changes or additions should be made to relevant laws
and practices.
2 “Royal Commission on the Pike River Coal Mine Tragedy” (16 December 2010) 173
New Zealand Gazette 4261 at 4262.
[11] As a respondent whose decision is the subject of challenge, the Commission adopted an appropriately neutral course during the course of the hearing of this case. It filed a report for the purpose of these proceedings. That report helpfully identified the process by which the Commission undertook its task. The Commission was faced with a substantial task of inquiry and they correctly anticipated a large volume of material would be provided during the course of the inquiry. The Commission’s database (on 1 August 2012) contained 67,570 documents totalling over 360,000 pages including over 200 witness briefs.
[12] The Commission decided that, given it was an inquisitorial body, an adversarial approach should be avoided. Evidence would primarily be written with participants filing documents and witness statements with the Commission. The Commission would then decide what, if any, oral hearings would be undertaken. Before any hearings began the Commission prepared and published a list of issues and chronologies.
[13] It divided the hearings into four phases.
(a) Phase 1: The New Zealand regulatory environment relating to mining law and the geography, conception, approval, design and development of the mine;
(b) Phase 2: The search and rescue operation; (c) Phase 3: What happened at Pike River;
(d) Phase 4: Policy aspects.
[14] The final phase (which involved no oral evidence) also included receiving submissions on the whole of the evidence and the terms of reference. A timetable for each phase was published.
[15] The Commission had to decide who was entitled to be a participant at the inquiry. Initially 60 expressions of interest were received by those wishing to participate. Expressions of interest in participating continued through the life of the Commission and by July 2012 there were over 100 participants.
[16] Participants were categorised as either “parties”, who had a direct and substantial interest in the subject matter of the inquiry; “interested persons” who had an interest above that of the general public; and “witnesses or submitters” who had material relevant to the inquiry. The applicants were classified as “interested persons” entitling them to participate and be heard in the inquiry.
[17] The Commission held a preliminary hearing in April 2011. It advised participants that evidence would be given in a number of ways and that the Commission would control the evidence gathering process. It would determine which witnesses would give oral evidence. Cross-examination would only be by leave. After hearing from participants an amended list of issues dated 28 April 2011 was released.3 The Commission could hear any evidence it thought might assist,
whether admissible in Court or not.4
[18] The list of issues for phase three ran to three pages and was detailed. Of particular significance to the applicants, beyond the immediate cause of the explosions (the first part of issues for phase three), were the issues headed “The Company’s Management and Operational Practices”. They were:
The Company’s management and operational practices
Management
3.5 The Company’s general management structure and systems in relation to decision making (including responsibilities, accountabilities and delegations).
3.6 The Company’s management systems for:
a. identifying and managing risk, and
3 Royal Commission on the Pike River Coal Mine Tragedy, Minute No. 2 : Post Preliminary
Hearing (28 April 2011).
4 Commissions on Inquiry Act 1908, s 4B.
Mine systems
3.7 The systems in place at the mine at the incident date for:
a. achieving adequate ventilation,
b. testing air quality and temperature,
c. effecting methane drainage of the coal seam, d. preventing the ignition of combustible matter,
e. preventing the occurrence of spontaneous combustion,
f. controlling and testing for the presence of flammable gas,
h. maintaining communications between the men underground
and those on the surface.
3.8 The systems in the mine and whether these:
a. met legal requirements,
b. complied with recognised practices, and c. were subject to periodic review.
3.9 The location, design and construction of the mine and whether these factors:
a. affected the level of operational risk, and
b. if so, the steps taken to manage that risk.
H&S Systems
3.10 The methods adopted by the Company:
b. to test the understanding, preparedness and ability of persons
engaged at the mine to implement health and safety systems and plans, and
c. to amend such practices, systems and plans as required.
3.11 The training, qualifications, experience and performance of the managers are certificated employees appointed by the Company pursuant to the Health and Safety in Employment (Mining Administration) Regulations 1996:
3.12 The methods adopted by the Company:
3.13 The level of compliance achieved by the Company, employees, contractors and others in relation to H&S requirements and recognised practices.
3.14 The Company’s record in relation to responding to any notice or
direction received from a regulatory agency.
Employees / Contractors
3.15 The methods adopted by the Company to ensure that employees and contractors:
a. were involved in the design, operation and review of the
H&S systems and plans,
b. were provided with training in relation to H&S in the mine, c. were competent in meeting H&S requirements, and
3.16 The steps taken by the Company to:
b. respond to such reports.
3.17 The experiences in relation to H&S of persons who worked or were engaged at the mine.
H&S impediments
3.18 The effect (if any) upon the Company’s development,
implementation and review of H&S initiatives arising from:
b. financial problems,
c. production delays, and d. other external factors.
3.19 The effect (if any) upon the achievement of H&S outcomes at the mine arising from:
a. issues relating to the recruitment of experienced personnel,
c. the work practices in the mine of the employees and
contractors, and
[19] H&S refers to Health and Safety.
[20] Some potential witnesses in phase three including Mr Whittall chose not to file witness statements relating to this phase exercising their right against potential self incrimination. The phase three oral hearings were held during
14-25 November 2011, 5-9 December 2011 and 8-17 February 2012.
[21] In parallel with the Commission’s inquiry the Department of Labour and the Police conducted their own investigation into the tragedy. The Department of Labour’s report of its investigation was made available to the Commission and
participants. It was evidence for the Commission as were the witness statements (including transcripts of interviews) which it was said supported the report. The Commission made it clear to all participants that although the report was evidence before it, the Commission would not consider the report or the information on which it was based, uncritically.
[22] In November 2011 the Department of Labour laid a number of charges against Mr Whittall (and two others) under the Health and Safety in Employment Act 1992. Those charges remain unsolved.
[23] At the beginning of each phase counsel assisting the Commission addressed the parties identifying, in part, what were the issues of particular interest to the Commission for that phase. Further, counsel for the Commission was first to question witnesses, indicating to participants areas of interest for the Commission.
[24] Throughout the hearings the applicants were represented by their solicitors. As it turned out 55,692 of the 67,570 documents received by the Commission were filed by the solicitors representing the applicants. The Commission allowed the applicants to be the last of all participants to cross-examine witnesses and to make final submissions.
[25] During the course of the hearing the Commission issued a number of practice notes governing practice at the inquiry. The first Practice Note contained a broad description of the way in which a Commission would conduct the inquiry. Of relevance to this case it said:5
The primary means by which participants may provide input into the Inquiry is by filing evidence statements, documents and submissions (together called “evidence”) no later than the date advised by the Commission as the deadline for the receipt of the evidence in relation to each of the hearing phases.
[26] As to oral evidence at the hearing, the Practice Note said:6
The Commission will determine which witnesses are also to be called to give oral evidence at the hearings. If participants consider that a particular witness should be called to give oral evidence, a written request to this effect should be given to the Commission at the time the evidence statement of the witness is filed, including the reasons, the parts of the evidence to which the request relates, and a time estimate for the oral evidence.
The decision to call a witness, or not, will reflect the significance of their evidence, whether the evidence appears to be inconsistent with other evidence and whether the evidence may adversely affect the interest of anyone.
Oral evidence at the hearings will be taken on oath or affirmation.
Where a witness is called to give oral evidence, their evidence will be led by counsel who represents the relevant participant, or by counsel assisting if the participant is unrepresented.
The nature and extent of the oral evidence will be subject to the direction of the Commission given in light of the factors set out in rule 14.
[27] As to cross-examination, it said:7
Cross examination of witnesses will be by leave of the Commission. Counsel for parties and interested persons may apply for leave within
10 working days of the evidence statement of the relevant witness becoming accessible on the website, or no later than 10 working days prior to the
commencement of the hearing to which the evidence relates, whichever is
the earlier.
At the time of filing the leave application with the Commission, the applicant shall serve a copy of the application on the participant whose witness is the subject of the application.
Applications for leave will need to identify the reasons why leave is sought, explain in outline the areas of evidence which the applicant wishes to explore in cross examination and provide a time estimate.
Leave may be sought in relation to a person who is not the maker of an institutional report, but who is identified as the appropriate witness pursuant to rule 10.
An oral application for leave to cross-examine may be made at the hearing where a party or interested person is taken by surprise by the oral evidence of a witness, or where some other exigency justifies an oral application.
Counsel assisting may question witnesses who provide oral evidence in order to test or elucidate such evidence.
6 At [13] to [17].
7 At [18] to[ 24].
Ordinarily, counsel assisting will question a witness after other counsel have cross-examined, but the Commission may vary the order of examination in the interests of fairness.
[28] In Minute No. 9 the Commission told participants “that leave to file evidence in reply to any matter contained in the report is granted to the participants who consider they are adversely affected by its contents, without the need for leave to be obtained by the Commission”.8
[29] The process ensured that as witness statements and documents were filed with the Commission all participants had access to those witness statements. There was provision for participants to seek management directions, for example, to mitigate the potential adverse affect of evidence upon the interest of others or where, for example, evidence was claimed to be speculative or unreliable or otherwise objectionable.
[30] Prior to the phase one to three hearings (phase four involved no witnesses), the Commission invited applications for witnesses to give oral evidence or to be cross-examined. The Commission considered those applications and issued minutes identifying a hearing plan and which witnesses would give oral evidence. Not all applications were granted. The Commission gave no reasons why particular witnesses were selected to give oral evidence. A number of applications were made for witnesses who were giving oral evidence to be cross-examined. The Commission invariably allowed cross-examination where applied for and where the witness was already giving oral evidence.
[31] The hearing process for each of the phases one to three, therefore, involved an opening address by counsel assisting and then witnesses giving evidence–in-chief and any cross-examination.
[32] The phase four hearings and the hearing of final submissions by the
Commission was complete on 4 April 2012. At the end of the hearing Commissioner
Justice Pankhurst said:
I repeat something that I think I said at the end of the Phase Three hearings that we anticipate that there may be a need for consultation with some of the agencies most affected by the policy questions and where that is the case and anything of an evidential nature is discussed or emerges, that will be carried onto the secure website as we’ve already done in relation to one meeting that was held in Brisbane. All in all the Commission remains open for business and there is, we recognise the possibility and scope for developments to occur in relation to some aspects and should that be the case of course we would welcome and expect that people possessing knowledge of any such developments keep us abreast of them.
Finally our report date is the 28th of September and there is a resolve to have a report ready to be issued at that time. Thank you.
(There has been a subsequent extension of the reporting date.)
[33] On 7 June 2012 the Commission issued Minute No. 13 relating to adverse findings. The Commission noted it had received a number of enquiries about how it proposed to afford “an opportunity to respond to adverse findings intended to be incorporated in the final report”. Some parties had asked for a draft copy of the report to facilitate a response.
[34] The Commission advised that given its terms of reference required the disclosure of the report “or its purport” only to the Governor-General then a draft copy of the report could not be released.
[35] The Commission’s approach to intended adverse findings was set out in
Minute No. 13 as follows:9
The Commission’s approach
The processes of the Commission were designed to ensure that evidence adverse to the interests of anyone was available to all participants and that there was opportunity to respond to such material. Numerous people and organisations did respond by filing witness statements answering actual, or implied, criticisms made of them. This means that affected parties have already been heard.
If, however, the Commission considers someone has not had an opportunity to meet a criticism, and an adverse finding is contemplated, it will write to that person to provide advice of the intended finding and the evidence relied upon to support it. The letter will invite a response within a defined timeframe.
An obligation of confidence
Anyone who receives an adverse finding letter will be subject to an obligation of confidence in relation to its contents, including the party’s reply. This obligation reflects the requirement upon the Commission referred to in paragraph 2.
[36] The Commission in its report to this Court said that after the conclusion of the oral hearings and submissions on 4 April 2012 they received a further 600 evidential documents. Those documents were placed on their website so that each of the participants could access the documents. Included amongst those were the three briefs of evidence, the subject of these proceedings.
[37] Briefs of evidence from these three witnesses had been sought by the Commission in late 2011 but had not become available until after the completion of the Commission’s formal hearings in April 2012. The statements of Mr Renk and Mr Moynihan were made available in late May 2012 and Mr Borichevsky’s statement in June.
[38] On 18 June 2012 (before they had received Mr Borichevsky’s statement) the applicants applied to the Commission to exclude the statement of Mr Renk and Mr Moynihan or alternatively exclude a number of paragraphs of those statements. The grounds were said to be that the late filing of the statements prevented the opportunity to cross-examine the two witnesses and was in breach of natural justice. Further, there was a heightened risk of prejudice to Mr Whittall’s fair trial rights. Shortly after this application Mr Borichevsky’s statement was received and disseminated through the Commission’s website.
[39] A replacement application was then filed by the applicants. The applicants sought orders that:
(a) the Commission reconvene its hearings and receive oral evidence from the three witnesses, allow cross-examination, evidence in response and permit recall of other relevant witnesses;
(b) the Commission allow further written closing submissions after the process in (a); and
(c) the Commission’s report not be released until those applicants who were to be subject to adverse findings had the opportunity to review the findings and to respond or obtain a partial or whole publication ban of the Commission’s final report.
[40] The Commission issued Minute No. 14 on 3 July in response. That Minute said, with respect to the new evidence, that the application highlighted natural justice issues which applied to all evidence that had been filed subsequent to the end of the hearings on 4 April 2012 which may have the potential to affect the interests of participants including the applicants.
[41] The Commission, therefore, agreed to grant leave to participants to file reply evidence and/or final submissions by 18 July 2012 in response to any evidence filed since 4 April and advised the Commission would then consider that information and decide “whether any further steps including a reconvened phase three hearing was
required in light of the reply evidence and further submissions”.10 The statements of
the three witnesses mainly covered operational matters and in particular mine ventilation, self rescue, geological formations, gas drainage, gas content, hydro panels, in-seam drilling and stoppings.
[42] As to the adverse findings process in Minute No. 14, the Commission noted Minute No. 13 and said that the adverse findings process would extend to findings based on evidence given post 4 April 2012.
[43] As to the release of the final report, the Commission in Minute No. 14 said:11
The 29 June 2012 application also sought orders which would enable the applicants to review adverse findings contained in the final report, respond to the commission and seek suppression orders to protect fair trial rights pending completion of any prosecutions.
The commission is required to provide its final report to the Governor-General by 28 September 2012. It may not disclose the report, or its purport, to anyone else and, accordingly, the commission cannot make orders of the kind sought by the applicants.
10 Royal Commission on the Pike River Coal Mine Tragedy, Minute No. 14 : New
Evidence/Release of Final Report (3 July 2012) at [3](b).
11 At [5] and [6].
[44] As a result of its invitation12 the Commission received two additional briefs of evidence. One from Mr Douglas White who was the Pike River statutory mine manager.13 He had previously filed a brief during the main hearings. And one from David John Carter who was a contractor of Pike River Coal.
[45] It received submissions from; the families of the deceased, Mr Cave a geologist who had worked for the Department of Conservation, Mr White (as well as his brief) and the Ministry of Business, Innovation and Employment, Department of Conservation and the Ministry for the Environment. None of those who filed evidence or filed submissions sought a reconvened hearing. The applicants did not file evidence or submissions.
[46] The Commission issued Minute No. 15 on 31 July 2012 advising that it did not propose to reconvene the hearing. It said:14
The purpose of the inquiry is not to determine individual legal rights and liabilities, but rather to establish what happened at the mine on
19 November 2010, why it happened and to make forward-looking recommendations. The practice of the commission was to control oral evidence by deciding in its discretion who was called at the hearings, and the
extent of the oral evidence they gave. The commission received a volume of evidence, both written and oral, in response to the list of issues provided to
participants at the commencement of the inquiry. In the commission’s view it has sufficient evidence to answer its terms of reference, including the contemporaneous mine documents for the period relevant to the tragedy.
Hence, it does not believe a further hearing is necessary.
In relation to the new evidence filed since the submissions hearing in April 2012, the commission is satisfied that sufficient protections exist. An opportunity to respond to it by filing evidence in reply, and/or submissions, has been afforded. In the main the evidence concerns operational matters already covered by earlier evidence, including the contemporaneous records. Where the new evidence is adverse to the reputation of someone, and if an adverse finding is contemplated by the commission on the basis of that evidence, an adverse finding letter (as per Minute No. 13) will be sent to the affected party before the report is finalised.
[47] These proceedings were then filed on 18 July 2012.
12 At [3](a).
13 Health and Safety in Employment (Mining Administration) Regulations 1996, reg 7(1)(a).
[48] The applicants have three grounds of review. Firstly, they seek to review the Commission’s decision requiring the parties to file reply evidence and final submissions. They say that decision without receiving oral evidence allowing cross-examination and recall of witnesses was in breach of natural justice. Secondly, they say the Commission’s decision not to reconvene phase three hearings was unlawful on the grounds of unfairness because it breached natural justice. Thirdly, and finally, the applicants say the Commission’s decision not to provide an opportunity for those affected by adverse comment, in advance of presenting its final report, to take steps to ban publication of parts of the report was also unlawful and in breach of natural justice.
The appellant’s case
Submissions
[49] It is common ground that natural justice applies to the Commission’s process both as required by the Commissions of Inquiry Act 1908,15 the New Zealand Bill of Rights Act 1990 and the common law.16 And so the Commission was obliged in its dealings to act fairly toward the participants especially those who may have been vulnerable to adverse comment in the Commission’s report.
[50] The applicants referred to the Inquiries Bill17 currently before Parliament and the Inquiries Act in the United Kingdom. Both provide a structured process for ensuring that a person has reasonable notice of an intention to make an adverse finding and a chance to respond by specific notice at the completion of an inquiry and before report release. Whatever the Bill and statute provide they do not change
the obligations of the Commission.
15 Section 4A.
16 New Zealand Bill of Rights Act 1990, s 27(1); Re Erebus [1983] 1 NZLR 662 (PC); Badger v
Whangarei Refinery Expansion Commission of Inquiry [1985] 2 NZLR 688.
17 Inquiries Bill 2008 (283-2).
[51] The obligation to act fairly given the applicants’ complaints comes down to
these propositions:
(a) the applicants are entitled to know the allegations against them; and
(b) the applicants are entitled to respond to the allegations against them. [52] The submissions of the Attorney-General contained a useful summary of the
principles to be adopted here. As to knowledge of the allegations, a notice of the allegations need not be formerly provided. A broad view is required to determine whether the allegations or prejudicial material has been raised during the inquiry; those affected can become aware through various means of the allegations. Adequate notice can be provided through the inquiry’s terms of reference; issue statements; and questioning of witnesses and submissions. The fact the applicants were represented by counsel and had have full access to all evidence is also relevant.
[53] As to entitlement to response, these factors are relevant. There is no right of cross-examination and natural justice only requires an opportunity to cross-examine in particular circumstances; there will be no breach of natural justice for a refusal to allow cross-examination where there was an equally effective alternative method of responding; and natural justice does not require recall of witnesses.
[54] Further, the Commissions of Inquiry Act itself reflects natural justice obligations.18
Causes of action relating to new witnesses evidence
[55] The applicants’ first challenge relates to the Commission’s decision in Minute No. 14 as to how the evidence of Mr Renk, Mr Moynihan and Mr Borichevsky was to be dealt with. The applicants say that the Commission’s Minute failed to follow its existing process for oral evidence and cross-examination
of witnesses and was therefore unfair and in breach of natural justice.
18 Commissions of Inquiry Act 1908, s 4A.
[56] Further, the Commission also breached natural justice because it required the filing of closing submissions in response to these witnesses’ evidence before providing a chance to cross-examine these witnesses. This failure to provide the chance to cross-examine, the applicants say, prevented them from making submissions on aspects of the new evidence that had been revealed in cross-examination to be unreliable, inconsistent or inaccurate compared with other evidence.
[57] The applicants also say that the consequence of the Commission’s refusal to allow cross-examination of the three witnesses before the applicants made their closing submissions heightens the risk that the report of the Commission will have adverse findings based on disputed evidence that has never been challenged. This failure the applicants say unfairly risks prejudice by reputational harm to the applicants.
[58] Further, and in particular with respect to Mr Whittall (who faces charges laid by the Department of Labour) the Commission’s Report if based on this evidence could unfairly prejudice Mr Whittall’s fair trial rights. It is also submitted the report may influence any Police decision to lay charges, and similarly influence any jury if charges were laid.
Changed process – first cause of action
[59] Firstly, the applicants’ submission that Minute No. 14 is contrary to the Commission’s process undertaken during the inquiry. This inconsistency between the treatment of the pre April 2012 and post April 2012 evidence is, they say, a breach of natural justice resulting in unfairness to the applicants. They submit a
public authority has a duty to act with fairness and consistency.19
19 Gisborne Mills Ltd v The Commissioner of Inland Revenue HC Auckland M531/87, 8 June 1989.
[60] The applicants say the same opportunities provided to participants by the Commission to test the evidence during the main part of the inquiry should also have been provided to test the evidence filed after the end of the Commission’s formal hearings in April 2012. The fact that this opportunity was not provided is the essence of the applicants’ case here.
[61] The applicants say that Practice Note 1 from the Commission identified the basis on which it would consider whether to allow a witness who had filed written evidence to give oral evidence.20 The important factors informing this judgement were:
(a) the significance of the evidence;
(b) whether the evidence appears to be inconsistent with other evidence;
and
(c) whether the evidence may adversely affect the interest of anyone.
[62] Importantly, the applicants accepted at the hearing of this case that the evidence of the three witnesses is not new in the sense that the topics covered by the witnesses were topics which had previously been the subject of evidence before the Commission. What is new, they say, is that these witnesses have given evidence covering these previously considered topics.
[63] The applicants say that the three criteria21 are met with respect to each of the three “new” witnesses. Further, during the course of the hearings, the Commission said with respect to applications to cross-examine witnesses:
If a witness is critical to the actions of someone else or if their evidence is significantly contradicted by other evidence, leave to cross-examine will be granted.
20 See at [27].
21 See at [61].
[64] Given the criteria identified by the Commission in Practice Note 1 and the Commission’s observations about such applications and applying it to the three witnesses’ evidence, the applicants submit:
(a) Significance: The evidence of the three witnesses is significant. That proposition can be tested, the applicants say, firstly, by considering its relevance to the Commission’s list of issues and its terms of reference; and secondly, by the fact that each of the three witnesses filed their statements after request by counsel assisting the Commission; and finally, the Commission itself has accepted the significance of this evidence in accepting such evidence is relevant to its assessment as to whether to make adverse comments about particular persons;
(b) Inconsistency: The applicants in an appendix to their submissions identified portions of the evidence of the three witnesses that they say are inconsistent with evidence given by other witnesses before the Commission about operational matters at the mine. Further, Mr White who filed response evidence to the three witnesses significantly challenged at least part of the evidence of Mr Borichevsky;
(c) Adverse effect/criticism: The applicants say there can be no doubt, given the list of issues the Commission identified as requiring its consideration, that the evidence of each of the three witnesses could adversely affect the interests of the applicants. Significant portions of the evidence of each of the three witnesses are critical, either directly or inferentially of some of the applicants and especially Mr Whittall. For example, there is considerable evidence from Mr Borichevsky and to a lesser extent Mr Renk relating to the underground fan and the escape way. These are issues that potentially directly, and adversely, affect Mr Whittall in relation to the Department of Labour charges;
Discussion
[65] Was the Commission’s decision with respect to the three witnesses inconsistent with its process undertaken during the inquiry designed for other witnesses?
[66] Firstly, the Commission’s evidence gathering process. In considering this question regard must be had to the totality of Commission minutes, practice notes and observations during the inquiry. Further, context is relevant. The evidence of the three witnesses was given in a different context from witnesses’ evidence given prior to 4 April 2012 and the closing submissions. Witnesses who gave evidence prior to April did so without full knowledge of all the evidence and submissions. Although lists of issues were circulated and significant efforts made to identify issues, knowledge of the issues would have significantly advanced by the time the parties came to make their closing submissions in April. And so decisions made with respect to oral evidence, cross-examination and the like, after April, would have been informed by the narrowed focus of the Commission informed by the evidence and final submissions already heard.
[67] Considering the various minutes, practice notes and statements by the Commission with respect to oral evidence, cross-examination, challenges and the like, it seems clear that the Commission approached the collection of evidence and challenges to evidence in this way:
(a) the primary evidence before the Commission was to be written evidence. There was no right to have oral evidence heard or cross-examination, which would be given by leave only;
(b) reply evidence could be filed with leave of the Commission. The leave application would have to identify: the intended reply evidence which illustrated why the substance of the other evidence was not anticipated; why the other evidence might adversely affect the interests of the applicants if their reply evidence was not received or
why the reception of the reply evidence was otherwise in the interests of justice;22
(c) as to oral evidence the Commission advised it would decide whether a witness would be called to give oral evidence.23 If a participant wanted a witness to be called to give oral evidence, then a written request needed to be given including the reasons and parts of the evidence to which the request related and a time estimate. Factors relevant are identified at [61];
(d) cross-examination was to be only by leave. An application for leave needed to identify the reasons why leave was sought, explain an outline of the areas of evidence which the applicant wished to explore and provide a time estimate;
(e) as to the adverse findings process, if an adverse finding was contemplated and the Commission concluded that the individual effected had not had an opportunity to meet the criticism during the inquiry process then the Commission would write to that person to advise of the intended finding. The Commission said “The letter will
invite a response within a defined timeframe”.24
[68] Once the three witness statements were filed, the last in June 2012, counsel for the applicants in an application dated 29 June 2012 sought orders from the Commission that they reconvene the hearings, allow cross-examination, allow
response evidence, recall other witnesses and file further submissions.
22 Royal Commission on the Pike River Coal Mine Tragedy, Practice Note No.1 (12 May 2011) at
[11]–[12].
23 At [13]–[17].
24 Royal Commission on the Pike River Coal Mine Tragedy, Minute No. 13 : Adverse Findings
(7 June 2012) at [4].
[69] The Commission rejected the applicants’ approach. They settled on a different approach. In Minute No. 14 the Commission acknowledged the concerns identified by the applicants did raise natural justice issues relating to all of the evidence filed since 4 April. They allowed any participant to file reply evidence and/or final submissions in relation to the evidence filed. The Commission said it would decide whether any further steps, including a reconvened phase three hearing, was required in light of that reply evidence and submissions.
[70] The Commission, therefore, made it clear that they accepted that participants should be able to file reply evidence to the post 4 April evidence. Further submissions were also allowed. This offer met at least in part the applicants’ application to be allowed to file reply evidence. Then based on any evidence or any submissions received, the Commission would decide whether phase three hearings needed to be reconvened. A reconvened hearing could logically include oral evidence from witnesses and potentially cross-examination of those witnesses.
[71] The Commission therefore clearly left open for consideration, depending upon the challenges to the three witnesses’ evidence from reply evidence and submissions, whether the criteria was met for oral evidence and cross-examination. This mirrored their pre-April 2012 process.
[72] The applicants accept the evidence of the three witnesses did not cover new topics or new matters. The evidence was “new” only in the sense that these three witnesses had not previously given this evidence directly to the Commission. Thus, the Commission already had evidence on the issues raised in the three witnesses’ evidence. Further, some of the evidence of Mr Borichevsky and Mr Moynihan was part of the Department of Labour evidence used to support its report that the applicants had access to.
[73] The Commission’s process did not suggest that calling oral evidence or cross-examination was a right. A party had to convince the Commission that oral evidence or cross-examination was required in the circumstances and met the
Commission’s criteria before the Commission would consider the application.25 The
25 See Practice Note No.1, cited at [28]–[29].
applicants’ claim with respect to these three witnesses that they should have been allowed as of right to cross-examine and then identify what was in issue. This was never an approved Commission process.
[74] The Commission’s post 4 April process permitted a response to the evidence of the three witnesses. It permitted further submissions in relation to the three witnesses, and arising from that material invited submissions on whether they should reconvene phase three hearings as a result of which applications for oral evidence and cross-examination could have been made.
[75] The Commission, therefore, left open in Minute No. 14 the possibility that oral evidence and cross-examination could be undertaken. Understandably a decision whether to reconvene phase three and allow oral evidence and cross-examination was going to depend upon the content of reply evidence and submissions as well as the Commission’s assessment of the three witnesses’ briefs and the other evidence already received by them on the topics covered by these three witnesses.
[76] The applicants elected not to file any evidence in response to the evidence of the three witnesses. The applicants elected not to make any further final submissions. They did not invite the Commission to reconvene the phase three hearings. It is, therefore, hardly surprising the Commission did not reconvene the hearings. It had no request from any participant subsequent to its Minute No. 14, to reconvene the phase three hearings or to allow cross-examination or oral evidence arising from the reply evidence and further submissions.
[77] The applicants chose to take no part in this process knowing the Commission had already rejected their request for a reconvened hearing, oral evidence and cross-examination as of right.
[78] The evidence of the three witnesses was filed as written evidence. Reply evidence and submissions were permitted as of right. The applicants then needed to justify in view of any reply evidence and/or submissions relating to the three witnesses why a reconvened hearing with oral evidence and cross-examination was
required. This essentially matches the Commission’s existing process. After all, many witnesses who gave evidence at the main hearing and whose evidence was contentious were not called to give oral evidence nor were they permitted to be cross-examined by the Commission.
[79] The applicants’ further point is that irrespective of any request for oral evidence and cross-examination the evidence of the three witnesses met the Commission’s own criteria for oral evidence and cross-examination.26 The evidence was significant, inconsistent with other evidence and adversely affected and was critical of the actions of some of the applicants. And so oral evidence and cross-examination should have been allowed.
[80] Further, the applicants submit that the Commission’s current advice that it intends to rely as part of the evidence before the Commission upon the post 4 April evidence in reaching adverse findings, emphasises the importance of this evidence. This, therefore, highlights the risk of prejudice to the applicants from adverse findings to which they have not had an adequate chance to respond, the applicants say.
[81] The Commission did not say that whenever these factors27 were present a witness was entitled to give oral evidence and could be cross-examined. Indeed, it seems clear a number of witnesses whose evidence may have encompassed these criteria were not called to give oral evidence or to be cross-examined during the main hearings. And so the Commission’s process did not guarantee a right of cross-examination even if the criteria were met.
[82] Further, the circumstances under which the request by the applicants was made, including the stage of the inquiry as well as the content of evidence, was important in the Commission’s decision. As I have noted, the content of the evidence was not new. There already had been cross-examination on some of the issues raised by the witnesses. The Commission was best placed to assess, taking
account of the evidence already given and its challenges, whether it required further
26 At [27]–[28].
27 See at [27]–[28].
cross-examination to assist it in answering its terms of reference. It decided it did not.
[83] As counsel for the Families noted if on reading the three witnesses’ briefs the applicants realised for the first time the thrust of particular allegations which affected them they had the chance to remedy this concern. They could have filed reply evidence and submissions. In those submissions they could have invited the Commission to reconvene the phase three hearing to ensure a fair chance to respond was given. They did not do so.
[84] The applicants suggested they could rely upon their original request of the Commission, where they asserted a right to cross-examine these witnesses, as still alive after the further reply evidence and submissions. That approach was rejected by the Commission. And so if the applicants wanted to convince the Commission to reconvene phase three oral hearings (and thereby allow oral evidence and cross-examination) the request had to be made after any further evidence and submissions were filed. Any submissions seeking reopening would have to at least focus on the evidence of the three witnesses; the reply evidence (if any); point to the Commission’s criteria for allowing oral evidence; and identify why, given the other relevant evidence heard by the Commission, fairness to the applicants and assistance to the Commission in answering its terms of reference required oral evidence. No such submission was ever made.
[85] In summary, therefore, I am satisfied that, taking account of the different context in which the evidence of the three witnesses was received, the Commission did follow its previously announced process in considering whether to require the witnesses to give oral evidence and be cross-examined. The participants were able to file reply evidence, make further submissions and an opportunity was provided to convince the Commission to allow oral evidence and cross-examination. The evidence from the three witnesses did not cover new topics for the Commission but covered issues already the subject of oral evidence and cross-examination. No unfairness or breach of natural justice resulted.
Process breached natural justice – second cause of action
[86] Further to the above complaint regarding different processes, the applicants say that the Commission’s process for considering this further evidence in any event breaches natural justice. This evidence, it is said, has the potential to have an adverse affect on the interests of the applicant. And so to comply with natural justice in this context such a potentially affected person must know about the factual material which affects their interest and have a chance to respond to such material.
[87] The applicants say the Commission’s Minute No. 14 did not give them an adequate chance to respond to the allegations made. They submit an adequate opportunity to identify and respond to the allegations (thereby complying with natural justice) required the provision of an opportunity for oral evidence and cross-examination of those witnesses. The failure to provide this opportunity was a breach of natural justice because the Commission’s approach risked adverse findings based on unreliable conclusions from untested or inadequately tested evidence.
[88] The applicants’ case is, therefore, based on these propositions:
(a) it is unfair and in breach of natural justice for the Commission to admit new evidence and produce a report which, in part, relies upon that new evidence to make adverse findings against Mr Whittall and any others without giving them a chance to challenge that evidence by reply evidence, oral evidence and cross-examination;
(b) if this evidence remains unchallenged then there is a heightened risk that adverse comments will not be justified and the applicants’ fair trial rights may be compromised illustrating the breach of natural justice; and
(c) the issues raised by the witnesses are the type of issues which require testing by cross-examination and so it is in breach of natural justice with respect to these witnesses not to allow oral evidence and cross-examination.
[89] In this aspect of the applicants’ case the major complaint is of a lack of opportunity to respond to criticisms made by the three witnesses. The applicants accepted this evidence did not itself relate to new issues. Given the extensive efforts of the Commission to ensure that issues of importance were known to all participants, the applicants could hardly complain that they did not know about allegations or prejudicial material relating to them from the evidence before the Commission. Issues were identified before each phase began. At the beginning of each phase counsel for the Commission emphasised the issues. There may be several witness statements from an organisation or an area of interest to the Commission but only one witness might be chosen to give representative evidence. When witnesses were called to give evidence counsel for the Commission was first to question illustrating the concerns of the Commission and ensuring the participants knew what they had to face. The applicants participated fully in the hearings, were represented by counsel throughout and were able to question witnesses and make submissions last of all the participants. These illustrate the lengths to which the Commission went to ensure the applicants had adequate notice of the allegations against them.
[90] I am also satisfied that the Commission did not breach natural justice as to the provision of an adequate opportunity by the applicants to respond to the evidence of the three witnesses.
[91] The applicants did not contend that they had a right to cross-examine any witness they chose nor require that a particular witness give oral evidence. However, they submitted that given the circumstances under which this evidence was introduced and the content of the evidence cross-examination should have been allowed.
[92] In R (D) v Secretary of State for the Home Department the English Court of
Appeal said in relation to an inquiry:28
The underlying obligation of the chairman is to act fairly. In discharging that obligation the chairman may or may not allow others to question witnesses depending upon the circumstances of the particular case. In some cases it may be appropriate to do so, in others it may not.
[93] In Kingham v Cole a Commissioner was conducting a Commission of Inquiry under the building and construction industry in Victoria.29 The Royal Commissioner issued a practice note advising that persons other than counsel assisting would not be permitted to cross-examine witnesses unless and until they had provided a signed statement of evidence advancing material contrary to the evidence of the witnesses.
[94] The Federal Court of Australia concluded that the practice direction was rational and reasonable. It related to the efficient performance of the obligations of the Commission and provided a means of ascertaining whether or not an applicant had demonstrated a sufficient interest in challenging the evidence for a particular witness. It also alerted the Commission and others to the true extent of factual disputes and thereby prompting the efficient resolution of these disputes.
[95] There is an obvious similarity between the facts of Kingham v Cole and this Commission’s decision to hold off making a decision whether to allow cross-examination of the three witnesses until such time as any opposing evidence and/or submissions were received.
[96] Here, as I have noted, the evidence of the three witnesses were not new. The applicants knew the thrust of the evidence these witnesses covered from other witnesses called during the main hearing. Further, the Department of Labour report contained references to some of Mr Borichevsky’s and Mr Moynihan’s criticisms. Only in the sense that these issues have not been raised by these particular witnesses
could it be said that the evidence was new.
29 Kingham v Cole [2002] FCA 45.
[97] Given the applicants’ knowledge of the criticisms of these three witnesses, they would have been in a position to respond to the subject matter of the evidence of the three witnesses during the main hearing. They were aware of the issues and had opportunity to provide, and indeed in many cases did provide, this response evidence. That is all that in law is required of the Commission.30 And so the fact that the Commission ensured the applicants had full access to the further three witness briefs and had a chance to respond to their witness briefs, emphasises the applicants were given every chance to identify and respond to these criticisms.
[98] As counsel for the Attorney-General and other respondents observed, the issue is not whether the applicants have had a fair chance to cross-examine any particular witness, the real issue is whether they have had, considered overall, a fair chance to respond to allegations or prejudicial material about their actions.
[99] The fact that much of the content of the evidence of the three witnesses was not new and had been raised during the main hearings before the Commission is relevant in determining whether this fair chance was given. The applicants could have, and with respect to many matters did, challenge the very issues raised in the evidence of the three witnesses.
[100] The Commission’s process ensured the open provision of evidence, participation by the applicants at the hearings and special consideration given to their interests. These all provided an informed opportunity to respond to and challenge all allegations against them.
[101] To repeat, the Commission provided a specific opportunity to respond to the evidence of the three witnesses by providing opportunity for reply briefs of evidence and submissions to be filed. And, as I have stressed, the Commission provided the applicants with the opportunity to convince the Commission that cross-examination and other oral evidence was required through the reopening of the phase three hearings. Natural justice requires the opportunity to fairly respond be given. The
applicants chose not to respond to this opportunity.
30 Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA).
[102] In any event the applicants have provided no evidence to identify the focus of any proposed challenge through cross-examination of the three witnesses beyond the challenges already made to the topics covered by the three witnesses. The absence of any reason for oral evidence and/or cross-examination of these witnesses would count significantly against remedy even if a breach of natural justice had been established.
[103] Finally, the Commission has said it intends to take into account some or all of this new evidence in making adverse comments about individuals. It has said it will provide a reasonable opportunity to those affected to respond if that chance has not previously been given. This is the final protection of the applicants’ rights.
[104] For these reasons, therefore, I am satisfied that with respect to the new evidence no breach of natural justice has occurred.
Refusal to reconvene hearings – third cause of action
[105] The third cause of action challenges the Commission’s decision not to recommence the hearings contained in Minute No. 15.31 The applicants submitted that it was unlawful and in breach of natural justice to refuse to reconvene the hearings for the same reasons advanced with regard to its challenge to the Commission’s decision reflected in its Minute No. 14.
[106] The applicants also say that the Commission’s reason for not reconvening the hearing, that “they had sufficient evidence to answer their terms of reference including contemporaneous mine documents” does not cure a breach of natural justice. They submit that it is not clear what “sufficient evidence” is. Further, they submit the Commission could not know if it had sufficient evidence to answer its terms of reference until it heard the new evidence and assessed its value after its reliability was tested. The applicants say they are not sure what contemporaneous
mine documents are being referred to.
31 At [46].
[107] I am satisfied for the same reasons given with respect to the applicants’ previous challenges that this cause of action must fail. The only reason to reconvene the hearings would be to allow oral evidence or cross-examination to be given. The Commission was entitled to decide that question based on the further evidence and submissions together with its knowledge of how the issues raised by those three witnesses had previously been dealt with at the hearing. No error in the Commission’s approach has been shown and no breach of natural justice is established here for the reasons I have given in rejecting the other grounds of challenge.
Final report decision
[108] In its application to the Commission, when the request that the phase three hearings be reconvened was made, the applicants also sought an undertaking from the Commission that it not release its final report until “any of the applicants who are the subject of adverse findings in that final report have had the opportunity to review those findings” and taken certain steps if required. The Commission did not directly respond to that application in its Minute No. 14 but did point out that its obligation in law was to provide its report, when ready, to the Governor-General.
[109] This ground of review alleges that, what the applicants take as the Commission’s refusal to delay its final report, is unlawful on the grounds of unfairness. They say that this decision breaches the obligation to observe the principles of natural justice by:32
(a) failing to provide any opportunity to obtain a ban on publication until completion of the Department of Labour or Police prosecutions of any parts of the final report which may prejudice any fair trial rights; and
(b) failing to provide any opportunity to obtain a ban on publication of any parts of the final report which are based on contested evidence in respect of which there has been no adequate opportunity to test or otherwise challenge it.
32 Applicants’ submissions at [142].
[110] Both grounds of complaint of breach of natural justice relate to an allegation of failure to provide an “opportunity” to do something. However, the Commission has neither failed to provide nor provided an opportunity to obtain a ban on publication. The reason relates to the Commission’s statutory obligations of reporting. The Commission does not publish its report nor make any decisions about its publication. Its obligation, once its report is complete, is to provide the report to
the Governor-General.33 Once it has done so it will be functus officio.
[111] The Attorney-General is the Minister in charge of the Commission of Inquiry and will presumably receive the report from the Govenor-General. Decisions about publication of the Commission’s report, therefore, will be for the Executive arm of Government. It is, therefore, to the Executive that any request for a ban is properly made. Such a request could presumably be made by the applicants at any time. And so the applicants do not have a decision of the Commission to review.
[112] The other aspect of the applicants’ challenge here appears to be based on a complaint about the refusal of the Commission to provide the applicants with a draft copy of its decision. The applicants claim is that the Commission’s process for adverse findings is unfair and in breach of natural justice. Its failure is that without providing a copy of its draft report to affected persons it has not provided an adequate chance for those subject to adverse comment to respond. This is so, the applicants say, because only through the provision of the draft report can an affected person properly and adequately assess what proper response is required. Without it, it is submitted the applicants are unaware of all the issues the Commission intends to make findings on. And so the applicants submit the publication of the report should
be delayed until a draft copy of the report is provided to those adversely affected.
33 Commissions of Inquiry Act 1908, s 2. Royal Commission on the Pike River Coal Mine Tragedy, Terms of Reference. The ‘General Provisions’ provide “... you are strictly charged and directed that you may not at any time publish or otherwise disclose, except to His Excellency The Governor-General of New Zealand in pursuance of this Our Commission or by His Excellency’s direction, the contents or purport of any reports so made or to be made by you.”
[113] The applicants submit that the Commission’s rationale for not providing a copy of its report, because its terms of reference require disclosure of the report only to the Governor-General, is an insufficient basis to refuse to provide a copy of the draft. They say a provision in the Commission’s terms of reference cannot be used to compromise natural justice rights.34 They point to other Commissions of Inquiry which they submit have provided copies of draft reports to affected persons, in particular, the Commission of Inquiry into Police Conduct undertaken by Dame Margaret Bazely.
[114] I do not consider that focussing on the provision of a draft report of the Commission is the real issue here. The question goes back to the natural justice obligations of a Commission of Inquiry. As relevant here the obligation is to ensure that the participants and those who may be subject to adverse comment know the allegations they have to face and have an opportunity to respond to those allegations. The provision of a draft report by particular Commissions of Inquiry has been done no doubt to fulfil those obligations. Here, the Commission proposed a different method of ensuring natural justice was complied with.
[115] As I have previously observed, the Commission has shown that it is alive to its obligations to comply with natural justice. It has attempted to ensure through its processes that all participants who might ultimately be the subject of adverse comment, were aware of the allegations against them and had a chance to respond during the hearings of the Commission. Where a participant against whom adverse comment is anticipated has been made aware of the complaints against their conduct which might be the subject of adverse comment and have had the chance to respond during the inquiry nothing further would be required of the Commission. It would have complied with its natural justice obligations. This the Commission recognised
in Minute No. 13.
34 Badger v Whangarei Refinery Expansion Commission of Inquiry [1985] 2 NZLR 688 (HC)
at 702.
[116] The Commission also recognised in Minute No. 13 that where there is reason to doubt that a person against whom adverse comment may be made is aware of the allegations against them or where there may not have been any or adequate opportunity to respond, then the Commission will advise those persons accordingly and invite response. The Commission has not said, because it cannot, what might happen as a result of any response by an affected person. No doubt that will depend upon the content of the response.
[117] In this process, therefore, the Commission has by its minutes, practice notes and actions ensured compliance with natural justice. Even if the Commission could provide a copy of the draft report to participants there would be no need to do so to comply with natural justice.
[118] The final aspect of this application to ban or delay publication of the Commission’s report relates to the proposition that Royal Commissions are subject to contempt of court.35 Here, the applicants allege that the Commission or indeed anyone publishing the Commission’s report would be in contempt of court where the report could unfairly prejudice the fair trial rights of Mr Whittall and any other applicant charged with a crime. The applicants, therefore, seek orders from this
Court banning publication of the Commission’s report as it relates to adverse findings with respect to the applicants until the applicants can review the findings and if necessary (in view of the findings) seek a ban on publication until the completion of any prosecution of the applicants.
[119] The applicants placed considerable reliance on the Federal Court of Australia’s judgment in Re Cyril Sharpe & Ors to support their submission.36 In that case Mr Cooke QC was appointed to enquire into alleged corruption and malpractice in the Queensland trade union movement. However, there were also Federal Court proceedings involving, in part, broadly the same issues. Proceedings came before the Federal Court seeking orders, preventing further public enquiry of particular issues before the Commission and to prevent the presentation of any report by the
Commission until the Court proceedings had been determined.
35 Fitzgerald v Commission of Inquiry into Marginal Lands Board [1980] 2 NZLR 368 (HC).
36 Re Cyril Sharpe & Ors [1989] FCA 426.
[120] In considering the application for such orders the Judge said:37
My view is not based on any supposed effect published evidence or findings of the Commission may have on a Federal Court Judge, but rather a concern for the preservation of the integrity of the Federal Court proceedings and public confidence in them. Any prejudgment of the very issues which the Federal Court is called upon to decide, in my view, is likely to weaken public confidence in the Court and such prejudgment is calculated to embarrass the proceedings in QI 6 (the Federal Court proceedings).
[121] And:38
The desirability if at all possible, of avoiding a public prejudgment of the issues in the Federal Court seems to me so basic and so clear that I find elaboration of the principle difficult. It is different from, but rather like, having to justify the desirability of a fair trial.
[122] The applicants submitted that this case illustrated the power of the Court to order Commissions of Inquiry not to publish findings until related litigation was heard to protect, in this case, fair trial rights. In the Cyril Sharpe case the Judge analysed his power to do so based on contempt of Court.39
[123] I am satisfied that the facts and circumstances of that case are quite different than the current circumstances. It is clear from the discussion in the Cyril Sharpe case that the first subject the Commissioner proposed to inquire into was a “matter directly in issue in the proceedings pending in the Federal Court”.40
[124] In this case there is no identified identity of issues as between the Commission of Inquiry and the current District Court prosecution of Mr Whittall. And so the concern of the Federal Court in the Cyril Sharpe case, in my view, does not arise here and does not assist the applicants.
[125] Mr Whittall currently faces prosecution under health and safety legislation. The maximum penalty for the offence he faces is a fine. The trial will be before a
Judge alone. Although charged almost 12 months ago, Mr Whittall has yet to plead
37 At [40].
38 At [79].
39 At [30]–[39].
40 At [93].
to the charge. It seems likely he will plead not guilty. A trial is, therefore, unlikely to be before 12 to 18 months from the release of the Commission’s report.
[126] The issues for a Judge considering a prosecution under the health and safety legislation, will be quite different than the terms of reference the Commission must answer. A prosecution for an alleged offence obliges the prosecuting authority to prove beyond reasonable doubt particular elements of the offence. This is not the role of the Commission. They take a much broader view. They are not directly concerned with liability, onus and standards of proof nor indeed need they take into account only admissible evidence.
[127] A Judge is by training and by virtue of his or her oath of office, required to set aside all extraneous matters and decide a case based solely on the evidence before him or her. That process is subject to appeal. There is no reason to expect that any Judge hearing this prosecution would be unable to perform their sworn duty.
[128] I do not consider that publication of the Commission’s report in those circumstances would be a contempt of court. It is difficult to see that publication would interfere with the course of justice at all let alone sufficiently to constitute a contempt.
[129] The applicants have also raised the possibility, given there is an ongoing police investigation, that they may be charged with crimes by the police. They say, therefore, that given the likelihood that any such charges might be of more serious criminal allegations than the health and safety legislation, trial by jury is a real possibility. They submit in those circumstances there are real questions of prejudice to fair trial rights for Mr Whittall, or other applicants who might be charged, should the Commission’s report be published in full.
[130] I accept the general principle that juries can be more vulnerable to influence of irrelevant matters than a Judge sitting alone. However the claim of unfair prejudice to a fair trial is simply speculative. Currently there is no trial because there are no charges. If charges are now laid it is likely to be at least 18 months before any jury trial is undertaken, distant from the release of the report. For reasons I have
previously given with respect to trial by Judge alone, the focus in any criminal trial will be quite different from the focus of the Commission of Inquiry.
[131] There is a further protection. If some of the applicants are charged with criminal offending and if by the time they are due to come to trial a Judge thinks that a fair trial is no longer possible then a permanent stay may be entered. I acknowledge Mr Grieve’s submissions that such a stay is rare if indeed unknown in New Zealand. But there remains a residual power to avoid an unfair trial. A Judge in such circumstances, if he or she is satisfied a fair trial is no longer possible, is obligated to stay the prosecution.
[132] If granted such a ban would have to be open ended. There is no limitation for laying serious criminal charges. When, therefore, could the ban be lifted on the applicants’ approach?
[133] Further, although the interests of the applicants are important the completion and publication of the Commission’s report is also important at many levels. It provides an explanation for families of the men who died in the tragedy and the causes. It will provide very important guidance for the future safety of those involved in underground mining. These factors point strongly toward an early release. The applicants’ claims a based in part on speculative possibilities and cannot override these imperatives. In those circumstances I can see no grounds for review.
[134] One further matter. During the course of submissions it became clear that what the applicants would like is an opportunity to make submissions to the Attorney-General and/or the Executive in an attempt to convince them to delay publication of at least part of the Commission’s Report that relates to any adverse comment of the applicants. Such a submission is appropriately made to the Executive given, as I have identified, it is their responsibility to decide if when and how the Commission’s report will be published.
[135] It would be possible for the applicants to write now to the Attorney-General in anticipation of the release of the report in the next few months to ask for suppression of adverse findings which may interfere with fair trial rights.
[136] After discussion with counsel I was advised that the Royal Commission of Inquiry into the Christchurch Earthquake had with respect to an interim report, released a public statement advising that it had sent its final report to the Govenor-General and that the release of its interim report would be a matter for the Government.
[137] I asked Mr Wilding, counsel for the Commission, whether the Pike River inquiry intended also to adopt such a procedure. Mr Wilding needed to obtain instructions. He has now done so. The Commission have said they “will issue a media release on the day of presentation of its report to the Governor-General advising of that presentation”. A copy of that advice will be given to the solicitors for the applicants.
[138] This advice means that, before the public release of the report, the applicants will have the opportunity to try to convince those responsible for any public release of the report that they should in some way limit the publication of the full report at least until the applicants have read the report and are in a position to make a fuller reasoned application for a limited ban on publication.
[139] For the reasons given I reject this ground of review.
Summary
[140] I am satisfied that the provision of opportunity by the Commission to participants in the Pike River Coal Mine inquiry to respond to evidence received by them after the close of hearings on 4 April 2012 was:
(a) consistent with the Commission’s process followed throughout the inquiry to provide participants with all the evidence received by the Commission and an opportunity for participants to respond to that
evidence. The actions of the Commission was, therefore, in accordance with natural justice; and
(b) in any event the actions of the Commission as set out in the minutes of the Commission after 4 April 2012 establishes that the applicants were aware of all evidence filed with the Commission after
4 April 2012 and were provided with a fair opportunity to respond to that evidence. The Commission’s actions were, therefore, not in breach of natural justice.
[141] Further, I am satisfied that the applicants have during the main inquiry been informed of all evidence before the Commission, of any allegations made against them, and have had the opportunity to respond to that evidence in those allegations. Where any doubt exists with respect to the above propositions, the Commission have said they will (and have) before the release of their report, provide an opportunity to respond to any proposed adverse comment.
[142] Finally, I am satisfied there is no reason based on prejudice to any fair trial rights of the applicants to delay release of the report nor any breach of natural justice requiring delay to the release of the report. The Commission makes no decisions about publication but provides its report to the Governor-General. The applicants, in any event, are entitled to approach the Executive, who decide if and when the Royal Commission’s report is to be published, to request publication delay.
[143] For the reasons given, therefore, the various applications by the applicants are dismissed.
Costs
[144] Should the respondents seek costs they should file memoranda within 14 days from the date of this judgment. The applicants have a further 14 days within which
to respond.
Ronald Young J
Solicitors:
S B W Grieve QC, Auckland, email: stuart@grieve.co.nz
A Horne, Partner, Minter Ellison Rudd Watts, Wellington, email: andrew.horne@minterellison.co.nz
A Gordon, Solicitor, Minter Ellison Rudd Watts, Wellington,
email: alison.gordon@minterellison.co.nz
C Gwyn, Crown Law, Wellington, email: cheryl.gwyn@crownlaw.govt.nz
A J F Wilding, Christchurch, email: james.wilding@royalcommission.govt.nz
D Soper, Crown Law, Wellington, email: david.soper@crownlaw.govt.nz
A Williams, Crown Law, Wellington, email: anthea.williams@crownlaw.govt.nz
N R W Davidson QC, Canterbury Chambers, Christchurch, email: nicholas@davidsonqc.co.nz
J Mills, Barrister & Solicitor
K N Hampton QC, Christchurch, email: nigel.hampton@gmail.com
M Colson, Partner, Bell Gully, Wellington, email: mike.colson@bellgully.com
F Tregonning, Senior Associate, Bell Gully, Wellington, email: fiona.tregonning@bellgully.com
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