Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster - C.A. 95/81 by Duncan Ivor L. M. Richardson R. B. Cooke Sir Owen Woodhouse;Wallace McMullin;Sir Edward Somers
page 46 of 115 (40%)
page 46 of 115 (40%)
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inquiry into the rights, powers, privileges, immunities, duties, or
liabilities of any person" and "statutory power of decision" includes power conferred by or under any Act "to make a decision ... affecting" any such rights, powers, privileges, duties or liabilities. Generally the relief available is confined by s. 4 to that which the applicant would have been entitled to in any one or more of the proceedings for mandamus, prohibition, certiorari, declaration or injunction; but there is a relevant exception in s. 4 (2) whereby if the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid the Court may set aside the decision instead. The first question as to jurisdiction is therefore whether, apart from the 1972 Act, the applicants could have obtained relief by any of the proceedings mentioned. The Commission having ceased to exist, it would be too late to apply for prohibition or an injunction against the first respondent and mandamus would also be inappropriate. The decision of this Court in _Reynolds_ v. _Attorney-General_ (1909) 29 N.Z.L.R. 24, 37-38, suggests that once the report has been forwarded to the Governor-General it may be permanently beyond the reach of certiorari; this is perhaps a corollary of the view, to which we referred in the judgment concerning discovery in _Environmental Defence Society Inc._ v. _South Pacific Aluminium Limited_ (C.A. 59/81, judgment 15th June 1981), that a prerogative remedy may not lie against the Sovereign's representative. But we need not go further into the rather technical question of the scope of certiorari in this kind of case. As has been said in the _Environmental Defence Society_ case and _Ng_ v. _Minister of Immigration_ (C.A. 100/81, judgment 10th August 1981), a declaration may be granted |
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