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Karalus v Royal Commission of Inquiry into the sinking of the MV Princess Ashika [2010] TOLawRp 21; [2010] Tonga LR 133 (9 August 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 111/2010

Karalus

v

Royal Commission of Inquiry into the sinking of the MV Princess Ashika

Ford CJ
3 August 2010; 9 August 2010

Practice and procedure – Royal Commission of Inquiry – application for leave for judicial review – case not made out - declined

Close to midnight on Wednesday 5 August 2009 the interisland vehicular and passenger ferry MV Princess Ashika capsized and sank southwest of the island of Nomuka en route from Nuku'alofa to Ha'apai. The tragedy, with the loss of 74 lives, was Tonga's worst recorded maritime disaster. A Royal Commission of Inquiry ("the Commission") was established pursuant to the Royal Commissions Act (Cap 41) to inquire into the events surrounding the sinking of the vessel. After some five months of public hearings and deliberations the Commission, on 31 March 2010, presented its report and findings (in context referred to as "the report") to His Majesty, King George Tupou V in Council. At the time of the sinking, the applicant, Paul David Karalus, was the Minister of Transport. The applicant sought leave for judicial review of specific findings of what he described as "serious misconduct and dishonesty" made against him in the Commission's final report.

Held:

1. None of the complaints made by the Commission in its report about the applicant in the present case were serious enough to come within the description of an "extreme finding".

2. The English Court of Appeal recognised that there may be exceptional situations where it was necessary at the leave stage to explore the issues of a judicial review application in greater depth than would otherwise be the case (Davey v Aylesbury Vale DC [2007] EWCA Civ 1166; [2008] 2 All ER 178). The court considered this was one of those exceptional cases.

3. The court was not persuaded that the applicant made out an arguable case and declined to grant leave for judicial review of the Commission's report.

Cases considered:

Campbell v Mason Committee [1990] 2 NZLR 577

Commission of Inquiry Report by Commissioner G P Lala v Emperor Gold Mining Co Ltd [2006] FJCA 18

Davey v Aylesbury Vale DC [2007] EWCA Civ 1166; [2008] 2 All ER 178

Erebus (No 2), Re [1981] 1 NZLR 618

Inland Revenue Comrs v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 All ER 93

Peters v Davison [1999] 2 NZLR 164 (NZCA)

R v Stratford-on-Avon DC [1985] 3 All ER 769

R (Datafin PLC) v Panel on Take-overs [1986] EWCA Civ 8; [1987] 1 All ER 564

Reynolds v Attorney-General [1909] NZGazLawRp 238; (1909) 29 NZLR 24

Royal Commission to Inquire into and Report upon State Services in New Zealand, Re the [1962] NZLR 96

Statute considered:

Royal Commissions Act (Cap 41)

Rules considered:

Supreme Court Rules 2007

Supreme Court Rules (UK)

Counsel for the applicant : Mr Afeaki
Amicus Curiae : Mr Kefu

Ruling

The application

[1] Close to midnight on Wednesday 5 August 2009 the interisland vehicular and passenger ferry MV Princess Ashika capsized and sank southwest of the island of Nomuka en route from Nuku'alofa to Ha'apai. The tragedy, with the loss of 74 lives, was Tonga's worst recorded maritime disaster. A Royal Commission of Inquiry ("the Commission") was established pursuant to the Royal Commissions Act (Cap 41) to inquire into the events surrounding the sinking of the vessel. After some five months of public hearings and deliberations the Commission, on 31 March 2010, presented its report and findings (in context referred to as "the report") to His Majesty, King George Tupou V in Council.

[2] At the time of the sinking, the applicant, Paul David Karalus, was the Minister of Transport. In this proceeding Mr Karalus seeks leave for judicial review of specific findings of what he describes as "serious misconduct and dishonesty" made against him in the Commission's final report.

[3] Judicial review is not the same as an appeal and so the Court is not concerned with reviewing the merits of the findings and conclusions of the Commission. As is stated in Halsbury, vol 1(1), p.60:

"The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected. It is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matter in question. The duty of the court is to confine itself to the question of legality. It's concern is with whether a decision-making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal 80 could have reached or abused its powers."

The issue before the Court is whether, in the present case, leave to apply for judicial review should be granted or refused.

The requirements for leave

[4] The relevant provisions in the Tonga Supreme Court Rules 2007 relating to judicial review are contained in Order 39 which is comparable with Order 53 of the former (English) Supreme Court Rules. Even though the English situation in relation to judicial review is now governed by the Civil Procedure Rules, it is the authorities decided under former Supreme Court Order 53 which have particular relevance to the application of Order 39 of the Tongan rules. The relevant provisions in Order 39 read as follows:

"O.39 Rule 1. When remedy available

This order applies to any action against an inferior Court, tribunal or public body (including an individual charged with public duties) in which the relief claimed includes an order of mandamus, probation or certiorari, or a declaration or injunction (in this order referred to as "judicial review").

O. 39 Rule 2. Leave of Court required

(1) No application shall be made for judicial review unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending that period.

(3) An application for leave shall be made ex parte by filing:

(a) an application notice which is to set out concisely the relief claimed and the grounds therefore;

(b) a copy of the proposed writ and statement of claim; and

(c) an affidavit verifying the facts relied on

O. 39 Rule 3. Court's powers

(1) The Court may grant the application without a hearing, but shall not refuse it without hearing the applicant.

(2) The Court shall not grant leave unless satisfied that the applicant has a sufficient interest in the matter to which the application relates."

[5] Commenting on the purpose of the leave requirement, Lord Diplock, in Inland Revenue Comrs v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 All ER 93, said at 106:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for that relief."

[6] In Davey v Aylesbury Vale DC [2007] EWCA Civ 1166; [2008] 2 All ER 178, 182, Sedley LJ noted that in the same vein as Lord Diplock, Lord Woolf in his 1989 Hamlyn Lecture, Protection of the Public -- a New Challenge said:

"In practice the requirement, far from being an impediment to the individual litigant, can even be to his advantage since it enables a litigant expeditiously and cheaply to obtain the view of a High Court judge on the merits of his application."

[7] The 1991 edition of The Supreme Court Practice (the White Book) states (53/1-14/8:

"The purpose of the requirement of leave is to eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter partes judicial review hearing, and to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing."

Delay

[8] Any application for leave to issue judicial review proceedings must be made promptly (O.39 r.2(2) ). Dealing with the issue of delay, the White Book (53/1-14/34) states:

"Application for leave to move for judicial review must be made promptly, which in this context means as soon as practicable or as soon as the circumstances of the case will allow, and in any event such application must be made within three months from the date when grounds for the application first arose. A limitation period of three months has thus been imposed for the making of an application for judicial review, and this period begins to run from the date when the grounds for the application first arose. . . . On the other hand, the Court has power to extend this period but only if it considers that there is "good reason" for doing so. . . The court will consider whether the grant of an extension of time for applying for judicial review will be likely to cause substantial hardship or prejudice, not only to the instant parties, but to a wider public or may be detrimental to good administration."

[9] The text then goes on to refer to the decision of the Court of Appeal in R v Stratford-on-Avon DC [1985] 3 All ER 769 and notes:

"The essential requirement of the rule is that the application must be made "promptly". The fact that an application has been made within the three month period does not necessarily mean that it has been made promptly. There could be cases where, even though the application for leave was made within the three-month period, the applicant would nevertheless have to seek an extension of time because, on the facts, he had not acted promptly. . . . The question is whether, on the facts, there is a reasonable excuse for the delay and there are good reasons for extending time. . . . The court retains the discretion to refuse to grant leave if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration."

[10] In the present case application for leave was filed on 30 June 2010 - three months to the day after the presentation of the Commission's report. No explanation is provided in the supporting documentation for the delay.

The hearing

[11] It is necessary at this point to explain developments after the application for leave was filed on 30 June 2010. On 1 July 2010 an order was issued confirming that the application for leave would proceed to a hearing and a directions hearing was fixed for 28 July to set a hearing date. By letter dated 13 July 2010 counsel for the applicant, Mr Kahungunu Afeaki, wrote to the Chief Registrar requesting an adjournment of the 28 July date explaining that in his capacity as a commissioner, he would be involved in Royal Land Commission duties in the United States of America until the end of July. He confirmed that he would be available, however, to "attend on 2nd of August or thereafter."

[12] On 19 July 2010 the Court issued a further order directing that the application for leave would be heard on 3 August 2010. That resulted in a letter to the Chief Registrar from Mr Afeaki, dated 29 July 2010 requesting the matter be brought forward from 3 August to Friday 30 July 2010, "due to an urgent family matter in New Zealand that I will need to attend."

[13] A Minute was then issued by the Court on 29 July reminding counsel that judicial review leave applications needed to be made promptly. I agreed to see counsel in Chambers at 9 a.m. the following day but it was made clear in the final paragraph of the Minute that the hearing fixed for 3 August would not be adjourned unless there were "exceptional circumstances". At the Chambers hearing on 30 July Mr Afeaki declined to reveal to the Court the nature of the "urgent family matter in New Zealand" he had referred to in his letter of 29 July and he agreed (albeit obviously reluctantly) to accept the fixture made for 3 August. Mr Kefu, as amicus curiae, also attended that Chambers hearing and confirmed his availability for the 3 August fixture.

[14] When the case was then called in Court on the morning of 3 August 2010, Mr Afeaki explained that his instructions had been withdrawn by Mr Karalus and he was no longer acting for the applicant. Mr Karalus, who was present in Court, then came forward and confirmed that advice. He could not give any convincing explanation as to why he had suddenly revoked his instructions to Mr Afeaki but he requested an adjournment for two months to enable other counsel to be instructed in the matter. He also objected to my hearing the application on the grounds that he knew me. I immediately indicated that I knew many of the litigants who had appeared before me over my 10 years on the Bench in Tonga and I was not going to recuse myself for that unconvincing reason.

[15] At the same time I indicated to Mr Karalus that as Mr Afeaki had acted for him throughout the Commission hearing and had prepared the very detailed and lengthy documentation filed in connection with the application for leave for judicial review, I was not prepared to adjourn the matter any further but I would decide the question of leave on the basis of the documentation before the Court. At that point, Mr Kefu explained that he had prepared written submissions which he handed up to the Bench and to Mr Karalus. Mr Karalus indicated that he would like the opportunity to reply to Mr Kefu's submissions and so I allowed him until 6 August to file any such submissions. Those submissions in reply were duly filed and I have given them careful consideration. I record that Mr Karalus also told the Court that he would be appealing if leave was not granted.

[16] One of the points made forcefully by Mr Kefu in his helpful written submissions was that the application for leave had not been filed promptly and that no explanation whatever had been tended to the court explaining the delay and why it was that the application had not been filed until the very last day of the three-month time limitation specified in the rules. That submission from the Solicitor General is soundly based. In line with the authorities referred to above, I do not consider that the application for leave was made promptly in terms of the rules of court and that is a matter which I will need to weigh up in the exercise of my discretion in determining whether to grant leave. I should add that I am left with the very clear impression that, for whatever reason, the applicant and his counsel have gone out of their way to try and prolong the hearing of the application for leave for as long as possible. The narrative I have just outlined does not reflect well on Mr Afeaki as a Senior Counsel and an Officer of the Court.

Standing

[17] One of the other requirements under the rules is that the applicant must have sufficient interest in the matter to which the application relates. This requirement is known as the requirement of locus standi or standing.

[18] The White Book (53/1-14/33) describes having sufficient interest in the subject matter as the overriding rule governing the standing of an applicant for judicial review. The text goes on to note: " If the applicant has a direct personal interest in the relief which he is seeking, he will very likely be considered as having a sufficient interest in the matter to which the application relates. I accept that the plaintiff in the present case is able to satisfy the "standing" requirement.

Is the remedy available?

[19] The principal issue for determination at this preliminary stage is whether the remedy of judicial review is available in the Kingdom in respect of the final report of a Royal Commission of Inquiry and, if so, whether a sufficiently arguable case has been made out for granting leave for judicial review in the particular circumstances of the present case.

[20] Order 13 rule 2 of the Supreme Court Rules 2007 sets out the requirements as to the contents of an application for an order from the Court and this would include an application for leave for judicial review. Sub-rule (c) of Order 13 r.2 provides that an application must "identify any statutory provision, rule or principle of law relied upon."

[21] The application in the present case does not comply with the requirements of Order 13. It does not specify the statutory provision, rule or principle of law relied upon. Presumably, however, reliance is placed on Order 39 rule 1 (set out above) which provides that judicial review is available against, "an inferior court, tribunal or public body (including an individual charged with public duties)". Mr Kefu submitted that the Commission was, obviously, not a court or tribunal, nor did it fall within the definition of a public body. Counsel described it as "an entity established at the instigation of His Majesty the King only." In his submissions, Mr Karalus submitted that Order 39 "is the clear, obvious and only avenue for review of the Commission's processes and resultant findings" and that it was "complete nonsense" to assert that the findings of the Commission were not subject to review by the Supreme Court.

[22] I do not consider that Order 39 should be given a restrictive interpretation. The clear objective of order 39 was to extend to the Supreme Court the same supervisory jurisdiction exercised by the High Court in England over inferior courts, tribunals or other persons or bodies which perform public duties or functions. The Commission's source of power in this case was statutory, not domestic or private, and it had a duty to act judicially. As Lloyd LJ stated in R (Datafin PLC) v Panel on Take-overs [1986] EWCA Civ 8; [1987] 1 All ER 564, 583:

"If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review."

[23] I do not see why the position should be any different in the Kingdom. I am prepared to accept that, for the duration of its short life, the Commission in the present case was subject to judicial review.

Royal Commission of Inquiry

[24] Section 2 of the Royal Commissions Act (Cap 41) provides:

"(1) The King in Council may whenever he shall deem it advisable to do so issue a Commission under his hand appointing one or more Commissioners and authorising such Commission or Commissioners to inquire into any matter in which an inquiry would in his opinion be for the public welfare.

(2) Every Commission shall specify the subject, nature and extent of the inquiry, and may contain directions generally for the carrying out of the inquiry and in particular as to the following matters –

(a) the manner in which the Commission is to be executed;

(b) the appointment of a chairman;

(c) the constitution of a quorum;

(d) the place and time where and within which the inquiry should be made and the report thereof rendered;

(e) whether or not the inquiry shall be held in public."

[25] The Royal Warrant in the present case was issued by His Majesty on the 13th day of August 2009. It required the Commission to furnish to the King and Council and the Legislative Assembly an interim report "no later than 30 November 2009 and their final report of the results of their inquiry and such recommendations as the Commission considers appropriate no later than the 31 March 2010." The matters to be inquired into and reported upon were to include:

"1. The facts about the disaster and the accompanying search, rescue and recovery of the disaster victims

2. The cause of the disaster

3. Evidence leading to any criminal act contributing to the disaster

4. Evidence leading to any civil responsibility for the disaster

5. The reasons why the loss of lives attained such magnitude and to

6. Present proposals for any measures that would help to prevent the future occurrence of a similar disaster or may assist in future surge, rescue and recovery of disaster victims."

[26] An unusual feature of the Royal Commision is that it was funded principally by AUSAID. The three Commissioners were Hon Justice Andrew (chairman); Mr Michael Handfield of Queensland, Australia, Master Mariner and Mr Richard James of Queensland, Australia, Naval Architect. Counsel appointed to assist the Royal Commission was Mr Manuel Varitimos of the Queensland Bar. The Commission sat for 54 days of public hearings and heard from 87 witnesses. It established a formal website and the transcript of the public hearings ran to 6455 pages. There were 496 exhibits tendered and produced in evidence. The Commission's final report was presented in two volumes, the first comprising 628 pages and the second volume (made up of appendices) comprised of 184 pages.

[27] In an Executive Summary to the report, the Commission summarised the causes of the disaster in these terms:

"There were many causes of the disaster. The tragedy is that they were all easily preventable and the deaths were completely senseless. It was scandalous that such a maritime disaster could ever have been allowed to occur. It was a result of systematic and individual failures.

Broadly put, the causes were:

• Purchasing the MV Princess Ashika even though its design was totally unsuited for service in the open seas of Tonga.

• Purchasing the vessel, even though it was clearly in an unseaworthy and unsafe condition.

• Allowing the vessel to be sent to sea, even though its design was totally unsuited for service in the open seas of Tonga.

• Sending the vessel to sea, even though it was clearly in an unseaworthy and unsafe condition

At the heart of the above causes was:

• The failure to have independent due diligence conducted prior to both the purchase of the vessel and its operation in Tonga.

• The failure of those in authority when exercising their powers or performing their duties, to do so properly and adequately."

Status of Royal Commission of Inquiry

[28] As was stated by North J. in Re the Royal Commission to Inquire into and Report upon State Services in New Zealand [1962] NZLR 96, 109:

"A Commission of Inquiry is certainly not a Court of law. Nor is a Commission of Inquiry to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties. There is nothing approaching a lis, a Commission has no general power of adjudication, it determines nobody's rights, its report is binding on no one."

[29] To like effect, the New Zealand Court of Appeal in Re Erebus (No 2) [1981] 1 NZLR 618 at 653 stated:

"This is not an appeal. Parties to hearings by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of the disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice."

Is Commission's report amenable to judicial review?

[30] While it is clear that commissions of inquiry are susceptible to judicial review during the currency of the inquiry itself, the issue that arises in the present case is whether the final report of a commission of inquiry can also be reviewed. Invariably, under the terms of appointment, once a commission of inquiry has presented its final report it is functus officio. Any action by a commissioner to exercise powers given under the commission after it has expired is ultra vires the appointment and null and void - see Commission of Inquiry Report by Commissioner G P Lala v Emperor Gold Mining Co Ltd [2006] FJCA 18.

[31] The issue in relation to the status of a commission's final report was considered by the New Zealand Court of Appeal in Peters v Davison [1999] 2 NZLR 164. The respondent in that case, the Rt Hon Sir Ronald Davison, was a former Chief Justice of New Zealand. The appellant, the Rt Hon Winston Peters - the Member of Parliament for Tauranga, sought to challenge parts of the report of a commission of inquiry Sir Ronald had presided over relating to taxation matters involving the Cook Islands - commonly known as the Winebox Inquiry because the papers which gave rise to the inquiry were presented to the House of Representatives in a winebox. In a joint judgment, Richardson P and Henry and Keith JJ at p 183 said:

"While an inquiry is in progress, there is still a body, process and task to be affected by the Court's ruling. This is not true of an inquiry that has completed its task and reported to the Governor-General. It has been argued that although judicial review during the course of an inquiry serves some useful purpose, namely to ensure that the commission proceeds in accordance with the law, once the final report is published its nature means that anything the Court may subsequently say about it is legally meaningless."

[32] Notwithstanding those observations the court, after reviewing the relevant authorities, went on to conclude that the report of a commission of inquiry was amenable to judicial review and the only issue for determination in that case concerned the extent of the grounds on which a commission's report may be reviewed. Counsel had conceded that such a report would be reviewable on the grounds of breach of the principles of natural justice and excess of the terms of reference. The court made it quite clear that those concessions were properly made. The issue then became whether the grounds for review of a report could also include a material error of law. The court concluded in the affirmative. I respectfully adopt the conclusions of the New Zealand Court of Appeal in this regard and hold that a report of a Royal Commission of Inquiry can be subject to judicial review.

Grounds for review in present case

[33] The affidavit filed in support of the application for leave is a lengthy document comprised of 263 paragraphs. Likewise, the statement of claim is lengthy and discursive. The statement of claim (para 11) lists the following "accusations" made by the Commission against the plaintiff:

"That Mr Karalus:

(I) was "dishonest"

(II) "made unsubstantiated and inaccurate statements"

(III) "he was unaware that many of the positive statements and representations he made in relation to the Princess Ashika were obviously false."

(IV) " . . from a number of the answers he gave which sought to distance himself from any responsibility for the tragedy."

(V) "We [the Commission] found Mr Karalus, in many respects to be an untruthful witness -- his evidence often lacked any credibility or plausibility."

(VI) "We did not accept Mr Karalus as being honest in this regard."

(VII) "Mr Karalus must accept considerable responsibility for, (sic) is nothing short of scandalous."

(VIII) "it was nonsense to suggest, as Mr Karalus does . . "

(IX) "he was aware that many of the positive statements . . were obviously false"

(X) " . . it defies any sense of the responsibility for the Minister not to sought (sic) . . ."

(XI) "deliberately failed to produce vital documents to the Commission."

(XII) "dishonest, this was untrue . . . even from a very cursory inspection of the vessel."

(XIII) "there was absolutely no basis to suggest . . ."

(XIV) "he made unsubstantiated and inaccurate statements."

(XV) "he was aware that many of the positive statements . . . were obviously false."

[34] The pleadings continue:

"12. There is no material evidence of any probative value, available to the Commission upon which to properly base the accusations of serious misconduct and dishonesty made against the plaintiff -- that he was dishonest, untruthful and lacked any credibility or plausibility, knew of the vessel's poor condition and unseaworthiness before the sinking disaster and sought to avoid responsibility.

13. These adverse findings against the plaintiff also amount to a very serious accusation that the plaintiff committed perjury while giving evidence during the inquiry by way of knowingly making untrue statements to the Commission while under oath.

14. This grave and serious accusation that the plaintiff committed a serious criminal offence was also found by the Commission without any supporting evidence of a probative value, available to the Commission to support such a conclusion.

15. The report in effect reported its findings relating to committing perjury but, fell short of stating this allegation directly.

16. The Commission's report reached conclusions of serious misconduct and dishonesty against the plaintiff in the excess of its authority as a Royal Commission of Inquiry that were:

a. In excess of their jurisdiction;

b. contrary to principles of natural justice;

c. patently unreasonable

d. seriously lacking or in absence of supporting probative evidence;

e. substantively unfair."

[35] One of the main complaints made in the statement of claim is about the "writing style" of the report. Paragraph 51 alleges:

"51. In the context of the writing style of the report, use of this continuous tense has given the clear but, misleading understanding to the reader that the plaintiff knew of the vessel's poor condition and its unseaworthiness before the sinking disaster."

[36] Two particular passages of the report are then cited and relied upon to illustrate instances of "serious misconduct and dishonesty" where the Commission had not properly considered the evidence in reaching its conclusions. The first is referred to in paragraph 75 of the statement of claim:

"75. The first instance is page V, paragraph 2 of the executive summary made (sic) accusations of serious misconduct against the plaintiff by stating:

" Seaworthiness of MV Princess Ashika

The evidence before the Commission as to the seaworthiness and condition of MV Princess Ashika from well before the time it arrived in Tonga on 1 July 2009, until it sank on 5 August 2009, is clear. The MV Princess Ashika was unquestionably unseaworthy and in an appalling condition. It should never have been allowed to sail to Tonga under any conditions. Any suggestion to the contrary, including by Mr John Jonesse (the CEO of Shipping Corporation of Polynesia Ltd until he was suspended by the Board of Shipping Corporation on 6 November 2009) and Mr Paul David Karalus (the former Minister for Transport), to the effect that the vessel was in good condition or well maintained is not only patently absurd, but dishonest. The evidence as to the seaworthiness and appalling state of the vessel is overwhelming and compelling. Mr Sione Mafi Kavaliku, a Marine Officer in the employ of the Ministry of Transport, when asked by the Acting Director of Marine and Ports as to his opinion about the vessel aptly responded by advising that "any fool (could) tell how bad the ship was". (T1378F)"

[37] It is alleged that the Commission failed properly to take into account the available evidence and was therefore not entitled to make "the above finding of dishonesty against the plaintiff." It is further alleged in relation to the passage cited that:

"78. In the context of the writing style of the report, use of this continuous tense has given the clear understanding to the reader that the plaintiff knew of the vessel's poor condition and its unseaworthiness before the sinking disaster."

[38] The second passage quoted from the report to illustrate allegations of "serious misconduct" made against the plaintiff by the Commission (para 6.520) appears at paragraph 102 of the statement of claim:

"We accept that Mr Lisiate Vuni Latu (Surveyor at the Ministry of Transport), told Mr Karalus at a meeting after the vessel arrived in Tonga, in the presence of Mr Tu'ipulotu, that the MV Princess Ashika was "no good". (T 1240-1243) Mr Karalus denied this was ever said (T 6327). We did not accept Mr Karalus as being honest in this regard. Mr Karalus nevertheless accepts that he was told by Mr Latu "in a very brief crossing of ways" in response to a question in Tongan " What's our ship?" That "quite a number of things" were missing (T 6327 R - T 6328 A). Mr Karalus says he talked of Mr Jonesse about missing documents in relation to the MV Princess Ashika, but was assured that these documents were in hand and that it had been squared away with Mr Viliami Tu'ipulotu the Acting Director of Marine. However, Mr Karalus never raised the subject with any officers at the Ministry of Transport. (T 6328) If one of the surveyors raised concerns about documents being missing, which is probably the case, Mr Karalus should have followed up with his officers and Mr Tu'ipulotu to ensure that they could be and were obtained. He never did so. This comment was made on Friday afternoon after the first sailing on the third and I was getting things ready for leaving that night. However I did ask Jonesse and he did say it had been sorted out withTu'ipulotu. Tu'ipolotu claimed this meeting never took place . . . see his transcript . . . he said he was not aware of Vuni making this."

[39] The two highlighted sentences at the end of the above passage do not appear in the Commission's report. Where they have been taken from is not clear. The pleading is not, however, an accurate transcription of the passage complained about in the Commission's report. The fact that the additional sentences do not appear in paragraph 6.520 of the report takes away part of the sting of the complaint made by the plaintiff about the passage, in that in paragraph 104 the statement of claim it is alleged that the meeting could never have occurred because the plaintiff was in Japan between 4 and 14 July 2009. That allegation can only have relevance to the added sentences because the passage in the report does not purport to pinpoint the date the comment was made.

[40] What is highlighted in the report, however, in the paragraphs immediately following on from the passage in question is the fact that Mr Karalus went on board the MV Princess Ashika on three separate occasions between 1 July 2009, the day the vessel arrived in Tonga, and when it sank on 5 August 2009 and during his visit on 1 July 2009 he said in a media interview: "It's an old ship with the latest technology and equipment". The Commission noted: "There was absolutely no basis for Mr Karalus to state that the ship had the latest technology and equipment".

[41] The complaint made in the statement of claim about the passage referred to above (para 6.520) is that Tu'ipulotu could not recall witnessing Latu telling the plaintiff that "the boat was no good" and in the "light of the vagueness of Latu's evidence as to dates and the obvious factual clashes of testimony the probative value of the evidence of Latu must be rendered at the least -- uncertain." The crux of the complaint is then encapsulated in paragraph 108 as follows:

"108. To then proceed to a conclusion that the evidence of Latu was accepted and "We [the Commission] did not accept Mr Karalus as being honest in this regard." -- being based on the above evidence available to the Commission is unlawful, contrary to the principles of natural justice and unfair."

[42] Mr Kefu described the statement of claim as "severely inadequate". He submitted that it is unclear, not concise and it does not set out the facts that form the basis of the claim but instead relies on generalised statements and repeatedly alludes to the "numerous allegations" that are "peppered" in the report without identifying specifically where the "numerous allegations" appear. He further notes that case law and judgments are quoted throughout the statement of claim in a way which is not appropriate or permissible and he concludes:"It is respectfully submitted that the Court should have sympathy on any person who would be required to defend against this claim in a way because they would not know where to start." There is some substance to all these allegations.

Relief claimed

[43] In his prayer for relief, the plaintiff seeks:

• Certiorari quashing the Commission's findings in the report of specified allegations of serious misconduct against the plaintiff;

• A declaration that the specified allegations of serious misconduct against the plaintiff are unlawful, unfair and against the principles of natural justice;

• An injunction prohibiting continued publication in the report and on the official website of the specified allegations of serious misconduct against the plaintiff;

• An apology to be widely published by the Commission;

• Damages against the Commission arising from the making of the specified allegations of serious misconduct against the plaintiff together with costs.

Discussion

[44] As was stated in Reynolds v Attorney-General [1909] NZGazLawRp 238; (1909) 29 NZLR 24 after a Commission has reported it is functus officio and beyond the reach of certiorari or prohibition. Under a 2009 amendment to the Royal Commissions Act, commissioners were given the same protection as a Supreme Court judge and so, therefore, there can be no question of an apology or damages. Likewise, it is totally unrealistic to expect the court to order the severance of particular passages from a commission of inquiry's final report which has been widely disseminated through the print and electronic media. The only practical relief recognised by the authorities upon judicial review of a report of a commission of inquiry is a declaration and the question that arises upon an application for leave for judicial review is whether a sufficiently arguable case has been established on the pleadings, having regard to recognised criteria, to warrant the court interfering and granting relief.

[45] It is not every complaint of unfairness in relation to the contents of a commission of inquiry's report that will warrant intervention by the court by way of judicial review. The authorities have repeatedly recognised that any commission of inquiry has a right to express its opinion of witnesses, however robust, in the same way as a court or statutory tribunal. The authorities indicate that it is only where a commission of inquiry has made an extreme finding without any apparent supporting evidence that the court will be prepared to intervene.

[46] One of the judicial review authorities relied upon by the applicant, which is probably the high watermark of alleged breach of natural justice cases, is the decision of the New Zealand Court of Appeal in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618. That case arose out of a Royal Commission of Inquiry into the crash of an Air New Zealand DC10 aircraft on Mount Erebus in the Antarctic on 28 November 1979. None of the 257 passengers and crew on board the aircraft survived the crash. The sole commissioner, Mr Justice Mahon, concluded that the cause of the disaster was the mistake made by airline officials in programming the aircraft to fly directly at Mount Erebus without informing the aircrew. The original route would have taken the aircraft south over McMurdo Sound. The commissioner exonerated the crew from any error contributing to the disaster. The airline, its chief executive, and its technical flight manager brought judicial review proceedings seeking orders quashing specific paragraphs in the commission's report that alleged certain employees were guilty of serious misconduct and grave improprieties. An order was also sought to quash the $150,000 costs award against the airline.

[47] The applicants attacked four particular passages in the commissioner's report in which they claimed he had exceeded his powers, acted in breach of natural justice or made findings not supported by evidence of probative value. These are similar allegations to those made by the applicant in the present case. I will refer briefly to each:

(1) The first passage under attack was the suggestion that Air New Zealand's chief executive, Mr Morrison Davis, had deliberately ordered the destruction of certain documents so that no word of the computerised programming change would become publicly known. The commissioner described this direction on the part of the chief executive as being "one of the most remarkable executive decisions ever to have been made in the corporate affairs of a large New Zealand company." It was alleged that these allegations were based on mistake of fact, not on evidence of probative value and that Mr Davis was not given a fair opportunity to put his case in relation to such findings.

(2) The second passage attacked by the applicants contained the implication that members of the navigation section of the airline had deliberately concealed evidence about the route programming change. The motive for the alleged concealment was that New Zealand Civil Aviation Division had only ever approved a route over Mount Erebus but the navigation section knew that the American authorities would object to that route for safety reasons and so the new co-ordinates were never forwarded to McMurdo Air Traffic Control. Instead of providing the new co-ordinates showing the route directed at Mount Erebus, the information the navigation section sent to United States air traffic controller at McMurdo Station simply mentioned the word "McMurdo". It was alleged in the commissioner's report that in acting in this way members of the navigation section had deliberately concealed important information and had concocted a false story. The applicants attacked the finding on the basis that the allegations had never been put squarely to members of the navigation section for their input.

(3) The third passage attacked by the applicants related to paragraphs suggesting that Captain Gemmell (the Flight Manager, Technical, and former Chief Pilot for New Zealand) had recovered from Antarctica certain documents relevant to the flight, in particular pages within the cover of a ring binder notebook belonging to the pilot, Captain Collins, but he had failed to hand them over to the Chief Inspector of Air Accidents. The applicants alleged that this finding constituted a mistake of fact and it was based on information or evidence gathered by the commissioner after the conclusion of the public hearings. They also claimed that Captain Gemmell had never been given a fair opportunity to answer this criticism and finding.

(4) Finally, came the most serious complaint, which related to paragraph 377 of the report, a passage building up to what the Court of Appeal referred to as "a quotable phrase that has become well-known in New Zealand and abroad", namely the words: "I am forced reluctantly to say that I had to listen to an orchestrated litany of lies." The applicants claimed that the commissioner's conclusion in this regard that there had been a predetermined plan of deception by Air New Zealand was not based on evidence of probative failure and that the affected employees were never given a fair opportunity of answering such a serious charge.

[48] In a joint judgment Cooke, Richardson & Somers JJ, carefully considered each of the passages complained of and concluded in relation to the first three complaints that they were not sufficiently serious to warrant the court's intervention. The judges described all the paragraphs in question as being within the "marginal category" and held that the applicants had not made out a sufficiently strong case to justify the court in interfering on review. In relation to the "litany of lies" complaint, however, the court concluded that what the commissioner was postulating in that paragraph was that a group of citizens had conspired to commit organised perjury (described as a "major crime") at the inquiry and even had the commissioner had jurisdiction to consider such matters, natural justice required the need for such serious allegations to be stated plainly and put plainly to the accused for their "effective answers". The court concluded that in making the findings or allegations stated in paragraph 377, the commissioner exceeded his jurisdiction and acted contrary to natural justice. It described paragraph 377 as "standing out from the general body of the report".

[49] The Privy Council upheld the Court of Appeal decision in Erebus (No 2) but explicitly did not make a decision on the excess of jurisdiction point - instead disposing of the appeal solely on the natural justice ground - [1984] AC 808, 820.

[50] In a subsequent decision in the New Zealand High Court, Campbell v Mason Committee [1990] 2 NZLR 577, Robertson J. was faced with an application for judicial review where the plaintiffs sought declarations that adverse or critical allegations, findings and statements contained in the report of a Committee of Inquiry were invalid and orders were also sought prohibiting the publication of the report or alternatively parts of the report. The judge reaffirmed that the courts will not intervene in judicial review proceedings to suppress a comment or finding simply because it is prejudicial or critical. The test was the quality of the procedure which was adopted in reaching that position, not the nature of the assessment made. In that case the three plaintiffs had not given evidence at a formal hearing and the only contact that they had had with the Committee of Inquiry was through one informal gathering which had lasted for approximately 6 hours. Against that unusual background, the parties accepted that there had been a denial of natural justice and they did not oppose the orders sought. Nevertheless, the court, in the exercise of its discretion, refused to grant all the relief sought and noted that the courts have traditionally limited relief in such circumstances to a declaration.

Conclusions

[51] It seems to me that none of the complaints made by the Commission in its report about the applicant in the present case are serious enough to come within the description of an "extreme finding", which was the terminology used by the Court of Appeal in relation to the commissioner's conclusions in paragraph 377 of the Erebus report. It cannot be said that any of the paragraphs criticised by the applicant stand out from the general body of the report in the same way as the Court of Appeal concluded that paragraph 377 stood out from the general body of the Erebus report. The passages picked out by counsel and enumerated in [33] [36] and [38] above are opinions which the Commission was perfectly entitled to express. As was stated in Re Erebus (No 2), p 662:

"It is possible that some individual witnesses did give some false evidence during this inquiry. The applicants accept that this was for the commissioner to consider and that it is not for us to interfere with his assessment of witnesses."

[52] Unlike the plaintiffs in Campbell v Mason Committee, the applicant cannot claim that he was not given every opportunity to tell his story in the proper forum. The record of the inquiry shows that he gave evidence before the Commission on eight different occasions between 30 October 2009 and 27 February 2010. In a different context, the applicant accepted in his written submissions that, "the Commission was in fact the most publicized and transparent public body in the history of modern Tonga." Very few major players in an inquiry into a disaster of the magnitude of the MV Princess Ashika could realistically expect to walk away completely unscathed. I have no doubt that in his closing submissions, counsel for the applicant would have forcefully put forward every conceivable submission that tended to exculpate the applicant from blame or criticism. A commission of inquiry is not to be seen as a dress rehearsal for a subsequent court based judicial review hearing.

[53] Even though the Court of Appeal in Re Erebus (No 2) made strong comments in relation to the "extreme findings" the commissioner had made in paragraph 377, the court declined to quash the particular passage in the report and even queried whether it had the jurisdiction to do so. It was content to quash the costs order. In the present case, in my view, the complaints are not as serious as the other three complaints dealt with in Re Erebus (No 2) which the Court of Appeal described as "marginal" but even if they could be said to fit into the marginal category, it is significant that in the Erebus case no relief was granted by the Court of Appeal in relation to any of those marginal paragraphs.

[54] Then there are the added practical considerations in the present case touched upon in [26] above. The Commission was principally Australian funded. The two lay commissioners and senior counsel assisting the Commission all returned to Australia after the presentation of the report. The chairman, Hon Justice Andrew, has resigned his appointment in Tonga and will be returning to take up a judicial position in Sydney within the next few weeks. The reality is that having presented its final report, the Royal Commission is functus officio and no longer exists in law. As Robertson J. stated in Campbell, p 585,:

"A court can only operate where it has jurisdiction. It is true that the court has certain inherent jurisdiction but the ambit of operation for that is properly circumscribed and there remains a fundamental principle that justice according to the law requires jurisdiction to exist before the courts can provide relief."

[55] Quite apart from this jurisdictional consideration, it is difficult to see how justice could be done by the Court in carrying out an extensive review of the Commission's report without, at the very least, having the assistance of senior counsel assisting the Commission in ensuring that all relevant aspects of the inquiry were properly and appropriately presented to the Court. Finally, there is the reality that the passages in the report which the applicant now seeks to suppress or to have made the subject of declarations by the court have been in the public domain for in excess of four months.

[56] I am conscious that in this ruling I have gone into matters in more detail than would normally be the case in dealing with an application for leave. The English Court of Appeal in Davey v Aylesbury Vale DC [2007] EWCA Civ 1166; [2008] 2 All ER 178, 182, recognised, however, that there may be exceptional situations where it is necessary at the leave stage to explore the issues of a judicial review application in greater depth than would otherwise be the case. For the reasons explained, I consider this to be one of those exceptional cases.

[57] Having given the matter careful consideration, I am not persuaded that the applicant has made out an arguable case and I decline to grant leave for judicial review of the Commission's report.

[58] Mr Kefu has applied for costs against the applicant submitting that, "the applicant is responsible for filing the application and bringing the Crown into this matter." Counsel is quite correct. Without obtaining any service direction from the Court, the applicant proceeded to serve the application and pleadings on the Crown Law Office on 13 July 2010. Mr Karalus took strong exception in his written submissions to Mr Kefu representing the Crown in this matter because he had been a witness at the Commission hearings. The application for leave, however, has not involved any consideration of the merits of the Commission's findings.

[59] Mr Kefu appeared out of courtesy to the Court as amicus curiae stressing the fact that the Crown did not represent the respondent nor did the Crown have any instructions from the respondent. Mr Kefu noted, in fact, that the respondent is incorrectly named in the statement of claim as, "The Royal Commission of Inquiry into the Sinking of the MV Princess Ashika on 5th August 2009" and he correctly pointed out that no entity of that name ever existed. Again, this is a further example of careless pleading. It is a matter, however, which could have been rectified by appropriate amendment if such a step had become necessary.

[60] I accept the thrust of Mr Kefu's submissions in relation to costs. The Court is obliged to him for his contribution and assistance as amicus curiae. The Crown is awarded costs against the applicant in a sum to be agreed or taxed.