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+The Project Gutenberg eBook, 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, by Sir Owen
+Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan Wallace McMullin,
+and Sir Edward Somers
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: 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
+
+
+Author: Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan
+Wallace McMullin, and Sir Edward Somers
+
+
+
+Release Date: June 25, 2005  [eBook #16130]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+
+***START OF THE PROJECT GUTENBERG EBOOK 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***
+
+
+E-text prepared by Jonathan Ah Kit, Ralph Janke, and the Project Gutenberg
+Online Distributed Proofreading Team (https://www.pgdp.net)
+
+
+
+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
+
+In the Court of Appeal of New Zealand--Between Air New Zealand Limited,
+First Applicant, and Morrison Ritchie Davis, Second Applicant, and Ian
+Harding Gemmell, Third Applicant, and Peter Thomas Mahon, First
+Respondent, and the Attorney-General, Fourth Respondent, and New Zealand
+Airline Pilots Association, Fifth Respondent, and the Attorney-General,
+Sixth Respondent.
+
+
+_Coram_
+
+Woodhouse P.
+Cooke J.
+Richardson J.
+McMullin J.
+Somers J.
+
+
+_Hearing_
+
+5, 6, 7, 8, 9 and 12 October 1981.
+
+
+_Counsel_
+
+L.W. Brown Q.C. and R.J. McGrane for first and second applicants.
+
+D.A.R. Williams and L.L. Stevens for third applicant.
+
+G.P. Barton and R.S. Chambers for first respondent.
+
+C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
+withdraw.
+
+A.F. MacAlister and P.J. Davison for fifth respondent.
+
+W.D. Baragwanath and G.M. Harrison for sixth respondent.
+
+
+_Judgment_
+
+22nd December 1981.
+
+
+
+
+JUDGMENT OF COOKE, RICHARDSON and SOMERS JJ.
+
+
+On 5 August 1981, for reasons then given, this Court ordered that these
+proceedings be removed as a whole from the High Court to this Court for
+hearing and determination. They are proceedings, brought by way of
+application for judicial review, in which certain parts of the report of
+the Royal Commission on the Mount Erebus aircraft disaster are attacked.
+In summary the applicants claim that these parts are contrary to law, in
+excess of jurisdiction and in breach of natural justice.
+
+One of the reasons for ordering the removal was that it was important
+that the complaints be finally adjudicated on as soon as reasonably
+practicable. We had in mind that the magnitude of the disaster--257
+lives were lost--made it a national and indeed international tragedy, so
+the early resolution of any doubts as to the validity of the report was
+a matter of great public concern. Also the report contained very severe
+criticism of certain senior officers of Air New Zealand. Naturally this
+criticism must have been having damaging and continuing effects, as
+evidenced for instance by the resignation of the chief executive, so it
+was right that the airline and the individuals should have at a
+reasonably early date a definite decision, one way or the other, on
+whether their complaints were justified.
+
+In the event the hearing in this Court was completed in less than six
+days. We had envisaged that some further days might be required for
+cross-examination, as there were applications for leave to cross-examine
+the airline personnel and the Royal Commissioner himself on affidavits
+that they had made in the proceedings. But ultimately the parties
+elected to have no cross-examination--and it should be made clear that
+this was by agreement reached between the parties, not by decision of
+the Court. With the benefit of the very full written and oral arguments
+submitted by counsel, the Court is now in a position to given judgment
+before the end of the year.
+
+We must begin by removing any possible misconception about the scope of
+these proceedings. They are not proceedings in which this Court can
+adjudicate on the causes of the disaster. The question of causation is
+obviously a difficult one, as shown by the fact that the Commissioner
+and the Chief Inspector of Air Accidents in his report came to different
+conclusions on it. But it is not this Court's concern now. 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 a
+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.
+
+Although this is not an appeal on causation or on any other aspect of
+the Commission's report, the issues with which this Court is properly
+concerned--the extent of the Commissioner's powers in this inquiry, and
+natural justice--cannot be considered without reference to the issues
+and evidence at the inquiry. We are very conscious that we have not had
+the advantage of seeing and hearing the witnesses. It can be very real,
+as all lawyers know. It is true that the kind of analytical argument we
+heard from counsel, with concentration focused on the passages of major
+importance in the report and the transcript of evidence, can bring
+matters into better perspective than long immersion in the details of a
+case. Necessarily this Court is more detached from the whole matter than
+was the Commissioner. And several different judicial minds may combine
+to produce a more balanced view than one can. But as against those
+advantages, which we have had, there is the advantage of months of
+direct exposure to the oral evidence, which he had. So we have to be
+very cautious in forming opinions on fact where there is any room for
+different interpretations of the evidence.
+
+Having stressed those limitations on the role of this Court, we think it
+best to state immediately in general terms the conclusions that we have
+reached in this case. Then we will go on to explain the background, the
+issues and our reasoning in more detail. Our general conclusion is that
+the paragraph in the report (377) in which the Commissioner purported to
+find that there had been 'a pre-determined plan of deception' and 'an
+orchestrated litany of lies' was outside his jurisdiction and contained
+findings made contrary of natural justice. For these reasons we hold
+that there is substance in the complaints made by the airline and the
+individuals. Because of those two basic defects, an injustice has been
+done, and to an extent that is obviously serious. It follows that the
+Court must quash the penal order for costs made by the Commissioner
+against Air New Zealand reflecting the same thinking as paragraph 377.
+
+
+The Disaster
+
+In 1977 Air New Zealand began a series of non-scheduled sightseeing
+flights to the Antarctic with DC10 aircraft. The flights left and
+returned to New Zealand within the day and without touching down en
+route. The southernmost point of the route, at which the aircraft turned
+round, was to be at about the latitude of the two scientific bases,
+Scott Base (New Zealand) and McMurdo Station (United States), which lie
+about two miles apart, south of Ross Island. On Ross Island there are
+four volcanic mountains, the highest being Mount Erebus, about 12,450
+feet. To the west of Ross Island is McMurdo Sound, about 40 miles long
+by 32 miles wide at the widest point and covered by ice for most of the
+year.
+
+It was originally intended that the flight route south would be over
+Ross Island at a minimum of 16,000 feet. From October 1977, with the
+approval of the Civil Aviation Division, descent was permitted south of
+the Island to not lower than 6000 feet, subject to certain conditions
+concerning weather and other matters. However, the evidence is that the
+pilots were in practice left with a discretion to diverge from these
+route and height limitations in visual meteorological conditions; and
+they commonly did so, flying down McMurdo Sound and at times at levels
+lower than even 6000 feet. This had advantages both for sightseeing and
+also for radio and radar contact with McMurdo Station. Moreover from
+1978 the flight plan, recording the various waypoints, stored in the Air
+New Zealand ground computer at Auckland actually showed the longitude of
+the southernmost waypoint as 164° 48' east, a point in the Sound
+approximately 25 miles to the west of McMurdo Station.
+
+The evidence of the member of the airline's navigation section who typed
+the figures into the computer was that he must have mistakenly typed
+164° 48' instead of 166° 48' and failed to notice the error. Shortly
+before the fatal flight the navigation section became aware that there
+was some error, although their evidence was that they understood it to
+be only a matter of 10 minutes of longitude. In the ground computer the
+entry was altered to 166° 58' east, and this entry was among the many in
+the flight plan handed over to the crew for that flight for typing into
+the computerised device (AINS) on board the aircraft. The change was not
+expressly drawn to the attention of the crew. The AINS enables the pilot
+to fly automatically on the computer course ('nav' track) at such times
+as he wishes.
+
+The crash occurred at 12.50 pm on 28 November 1979. The aircraft struck
+the northern slopes of Mount Erebus, only about 1500 feet above sea
+level. There were no survivors. The evidence indicates that the weather
+was fine but overcast and that the plane had descended below the cloud
+base and was flying in clear air. The pilot, Captain Collins, had not
+been to the Antarctic before, and of the other four members of the
+flight crew only one, a flight engineer, had done so. The plane was on
+nav track.
+
+The Chief Inspector of Air Accidents, Mr R. Chippindale, carried out an
+investigation and made a report to the Minister, dated 31 May 1980,
+under reg. 16 of the Civil Aviation (Accident Investigation) Regulations
+1978. It was approved by the Minister for release as a public document.
+The Chief Inspector concluded that 'The probable cause of the accident
+was the decision of the captain to continue the flight at low level
+toward an area of poor surface and horizon definition when the crew was
+not certain of their position and the subsequent inability to detect the
+rising terrain which intercepted the aircraft's flight path'. He adhered
+to this in evidence before the subsequent Royal Commission.
+
+The Royal Commission was appointed on 11 June 1980 to inquire into 'the
+causes and circumstances of the crash', an expression which was
+elaborated in terms of reference consisting of paragraphs (a) to (j).
+Mr. Justice Mahon was appointed sole Commissioner. In his report,
+transmitted to the Governor-General by letter dated 16 April 1981 and
+subsequently presented to the House of Representatives by Command of His
+Excellency and later printed for public sale, the Commissioner found
+that '... the single dominant and effective cause of the disaster was
+the mistake made by those airline officials who programmed the aircraft
+to fly directly at Mt. Erebus and omitted to tell the aircrew'. He
+exonerated the crew from any error contributing to the disaster.
+
+The Commissioner and the Chief Inspector were at one in concluding that
+the crash has occurred in a whiteout. The Commissioner gave this vivid
+reconstruction in the course of para. 40 of his report:
+
+     I have already made it clear that the aircraft struck the lower
+     slopes of Mt. Erebus whilst flying in clear air. The DC10 was at
+     the time flying under a total cloud cover which extended forward
+     until it met the mountain-side at an altitude of somewhere between
+     2000 and 2500 feet. The position of the sun at the time of impact
+     was directly behind the aircraft, being in a position approximately
+     to the true north of the mountain and shining at an inclination of
+     34°. The co-existence of these factors produced without doubt the
+     classic 'whiteout' phenomenon which occurs from time to time in
+     polar regions, or in any terrain totally covered by snow. Very
+     extensive evidence was received by the Commission as to the
+     occurrence and the consequences of this weather phenomenon. So long
+     as the view ahead from the flight deck of an aircraft flying over
+     snow under a solid overcast does not exhibit any rock, or tree, or
+     other landmark which can offer a guide as to sloping or uneven
+     ground, then the snow-covered terrain ahead of the aircraft will
+     invariably appear to be flat. Slopes and ridges will disappear. The
+     line of vision from the flight deck towards the horizon (if there
+     is one) will actually portray a white even expanse which is
+     uniformly level.
+
+     What this air crew saw ahead of them as the aircraft levelled out
+     at 3000 feet and then later at 1500 feet was a long vista of flat
+     snow-covered terrain, extending ahead for miles. Similarly, the
+     roof of the solid overcast extended forward for miles. In the far
+     distance the flat white terrain would either have appeared to have
+     reached the horizon many miles away or, more probably, merged
+     imperceptibly with the overhead cloud thus producing no horizon at
+     all. What the crew could see, therefore, was what appeared to be
+     the distant stretch of flat white ground representing the flat long
+     corridor of McMurdo Sound. In reality the flat ground ahead
+     proceeded for only about 6 miles before it intercepted the low ice
+     cliff which marked the commencement of the icy slope leading
+     upwards to the mountain, and at that point the uniform white
+     surface of the mountain slope proceeded upwards, first at an angle
+     of 13°, and then with a gradually increasing upward angle as it
+     merged with the ceiling of the cloud overhead. The only feature of
+     the forward terrain which was not totally white consisted of two
+     small and shallow strips of black rock at the very bottom of the
+     ice cliff, and these could probably not be seen from the flight
+     deck seats owing to the nose-up attitude of 5° at which the
+     aircraft was travelling, or they were mistaken for thin strips of
+     sea previously observed by the crew as separating blocks of pack
+     ice.
+
+     The aircraft had thus encountered, at a fateful coincidence in
+     time, the insidious and unidentifiable terrain deception of a
+     classic whiteout situation. They had encountered that type of
+     visual illusion which makes rising white plateaux appear perfectly
+     flat. This freak of polar weather is known and feared by every
+     polar flier. In some Arctic regions in the Canadian and in the
+     north European winter, it is responsible for numbers of light
+     aircraft crashes every year. Aircraft fly, in clear air, directly
+     into hills and mountains. But neither Captain Collins nor First
+     Officer Cassin had ever flown at low altitude in polar regions
+     before. Even Mr Mulgrew [the commentator for the passengers], with
+     his antarctic experience, was completely deceived. The fact that
+     not one of the five persons on the flight deck ever identified the
+     rising terrain confirms the totality of this weird and dangerous
+     ocular illusion as it existed on the approach to Mt. Erebus at
+     12.50 p.m. on 28 November 1979.
+
+Paragraph 165 of the Commissioner's report also merits quotation. We
+have underlined some of it, indicating that in this particular part of
+his report the Commissioner seems to accept that when they first heard
+of the crash the management of the airline must have been unaware of the
+true nature and danger of a whiteout. If so, they would have had no
+reason to suppose that the pilot would have elected to fly at such a low
+level without real visibility. That is an aspect which could well have
+been strongly relied on if, when giving evidence before the
+Commissioner, they had realised that they were being accused of trying
+to cover up the cause of the crash from an early stage:
+
+     The term 'whiteout' has more than one meaning as being descriptive
+     of weather conditions in snow-covered terrain. For aviation
+     purposes it is often described as the cause of the visual
+     difficulty which occurs when a aircraft is attempting to land
+     during a snowstorm. As already stated, the United States Navy
+     maintains a special whiteout landing area situated to the south of
+     its normal landing strips near McMurdo Station. This area is used
+     when an aircraft, which is committed to a landing, is required to
+     land when visibility is obscured by a snowstorm. The snow in
+     Antarctica is perfectly dry, and a wind of only 20 kilometres can
+     sweep loose snow off the surface and fill the air with these fine
+     white particles. A landing on the special whiteout landing field
+     can be accomplished only by an aircraft equipped with skis or, in
+     the case of an aircraft without skis, then it must make a belly-up
+     landing on this snow-covered emergency airfield. Flying in a
+     'whiteout' of that description is no different from flying in thick
+     cloud. The pilot cannot know where he is and must land in
+     accordance with strict radio and radar directions. So far as I
+     understand the evidence, I do not believe that either the airline
+     or Civil Aviation Division ever understood the term 'whiteout' to
+     mean anything else than a snowstorm. I do not believe that they
+     were ever aware, until they read the chief inspector's report of
+     the type of 'whiteout' which occurs in clear air, in calm
+     conditions, and which creates this visual illusion which I have
+     previously described and which is, without doubt, the most
+     dangerous of all polar weather phenomena.
+
+While largely agreed about the whiteout conditions, the Commissioner and
+the Chief Inspector took quite different views as to whether the crew
+had been uncertain of their position and visibility. This disagreement
+is associated with a major difference as to the interpretation of the
+tape recovered from the cockpit voice recorder covering the conversation
+on the flight deck during the 30 minutes before the crash.
+
+Both the Commissioner and the Chief Inspector found difficulty in
+arriving at an opinion about what was said and by whom. Whereas the
+Chief Inspector thought that the two flight engineers had voiced
+mounting alarm at proceeding at a low level towards a cloud-covered
+area, the Commissioner thought that Captain Collins and First Officer
+Cassin had never expressed the slightest doubt as to where the aircraft
+was and that 'not one word' was ever addressed by either of the flight
+engineers to the pilots indicating any doubt. This is not a question on
+which the present proceedings call for any opinion from this Court, nor
+are we in any position to give one.
+
+A major point in the Commissioner's reasoning, and one that helps to
+explain the difference between the two reports, is that on the basis of
+evidence from the wife and two daughters of Captain Collins he accepted
+that, at home the night before the flight, the Captain had plotted on an
+atlas and two maps a route of the flight; and he drew the inference that
+Captain Collins must then have had with him a computer print-out. Any
+such print-out would have been made before the alteration and
+consequently would have shown the longitude of the southernmost waypoint
+as 164° 48' E. The Commissioner accordingly concluded that Captain Collins
+had plotted a route down the Sound. No doubt this tended to reinforce
+his view that the Captain, flying on nav track, had never doubted that
+he was in fact over the Sound.
+
+
+The Challenged Paragraphs
+
+The background already given is needed for an understanding of the case.
+But we repeat that the case is not an appeal from the Commissioner's
+findings on causation or other matters. The applicants acknowledge that
+they have no rights of appeal. What they attack are certain paragraphs
+in the Commission report which deal very largely, not with the causes
+and circumstances of the crash, but with what the Commissioner calls
+'the stance' of the airline at the inquiry before him. The applicants
+say that in these paragraphs the Commissioner exceeded his powers or
+acted in breach of natural justice; and further that some of his
+conclusions were not supported by any evidence whatever of probative
+value. Their counsel submit that a finding made wholly without evidence
+capable of supporting it is contrary to natural justice.
+
+The arguments on the other side were presented chiefly by Mr Baragwanath
+and Mr Harrison, who had been counsel assisting the Commission and
+appeared in this Court for the Attorney-General, not to advance any view
+on behalf of the Government but to ensure that nothing that could
+possibly be said in answer to the contentions of Mr Brown and Mr
+Williams for the applicants was left unsaid before the Court. This was
+done because it has not been usual for a person in the position of the
+Commissioner to take an active part in litigation concerning his report.
+Mr Barton, who appeared for the Commissioner, did not present any
+argument, adopting a watching role. He indicated that he would only have
+played an active role if the Commissioner had been required for
+cross-examination. As already mentioned, it was agreed otherwise. At
+that stage the Commissioner, by his counsel, very properly stated that
+he would abide the decision of the Court.
+
+Mr Baragwanath's submissions were to the general effect that the Court
+had no jurisdiction to interfere with the opinions expressed in the
+Commission's report, which were not 'findings' and bound no one; and
+that in any event they were conclusions within the Commissioner's
+powers, open to him on the evidence and arrived at without any breach of
+natural justice.
+
+We now set out the various paragraphs under attack, bearing in mind that
+they cannot properly be considered in isolation from the context in the
+report. The paragraphs vary in importance, but it is convenient to take
+them in the numerical order of the report. We will indicate as regards
+each paragraph or set of paragraphs the essence of the complaint. After
+doing this we will state how we propose to deal with the complaints.
+
+
+Destruction of Documents
+
+Paragraphs 45 and 54, which affect particularly the chief executive at
+the time of the crash, Morrison Ritchie Davis, are as follows:
+
+     45. The reaction of the chief executive was immediate. He
+     determined that no word of this incredible blunder was to become
+     publicly known. He directed that all documents relating to
+     antarctic flights, and to this flight in particular, were to be
+     collected and impounded. They were all to be put on one single file
+     which would remain in strict custody. Of these documents all those
+     which were not directly relevant were to be destroyed. They were to
+     be put forthwith through the company's shredder.
+
+     54. This was at the time the fourth worst disaster in aviation
+     history, and it follows that this direction on the part of the
+     chief executive for the destruction of 'irrelevant documents' was
+     one of the most remarkable executive decisions ever to have been
+     made in the corporate affairs of a large New Zealand company. There
+     were personnel in the Flight Operations Division and in the
+     Navigation Section who anxiously desired to be acquitted of any
+     responsibility for the disaster. And yet, in consequence of the
+     chief executive's instructions, it seems to have been left to these
+     very same officials to determine what documents they would hand
+     over to the Investigating Committee.
+
+These paragraphs occur in the context of a discussion of the change in
+the computer waypoint shortly before the flight and the failure to draw
+it to the attention of the flight crew. The reference to the chief
+executive having 'determined that no word of this incredible blunder was
+to become publicly known' is, taken by itself, at least an
+overstatement, because in paragraph 48 the Commissioner in effect
+qualifies it. He says there that it was inevitable that the facts would
+become known and 'perhaps' the chief executive had only decided to
+prevent adverse publicity in the meantime. Clearly the airline disclosed
+to the Chief Inspector that the change of more than two degrees of
+longitude had been made in the computer early on the day of the flight
+and not mentioned to the crew; these matters are referred to in
+paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were
+matters which the Chief Inspector did not highlight; evidently he did
+not regard them as of major importance. For his part the Commissioner
+(in para. 48 of his report) states that the Chief Inspector did not make
+it clear that the computer flight path had been altered before the
+flight and the alteration not notified to the crew.
+
+We are not concerned with whether or not the Commissioner's implied
+criticism of the Chief Inspector's report is correct. The complaint made
+by the applicants is that the criticisms of Mr Davis in the two
+paragraphs that we have set out are based on mistake of fact, not on
+evidence of probative value. It is also said that he was not given a
+fair opportunity to put his case in relation to such findings, but what
+the applicants most stress is the way in which the Commissioner dealt
+with the evidence.
+
+In particular they point out that the evidence of Mr Davis, not
+contradicted by any other evidence and correctly summarised in paragraph
+45 of the Commissioner's report, was that only copies of existing
+documents were to be destroyed; that he did not want any surplus
+document to remain at large in case its contents were released to the
+news media by some employee of the airline; and that his instructions
+were that all documents of relevance were to be retained on the single
+file. Their counsel submit in effect that in converting this direction
+for the preservation of all relevant documents into a direction for the
+destruction of 'irrelevant' documents--a word used by the Commissioner
+as if it were a quotation from Mr Davis--the Commissioner distorted the
+evidence. And it is said that the description 'one of the most
+remarkable executive decisions every to have been made in the corporate
+affairs of a large New Zealand company' is, to say the least,
+far-fetched.
+
+Counsel for the applicants point also to the fact that there is no
+evidence that any document of importance to the inquiry was destroyed in
+consequence of the instructions given by Mr Davis. The gist of the
+contrary argument presented by Mr Baragwanath was that Mr Davis was
+fully cross-examined about his instructions; and that 'it was open to
+the Royal Commissioner to find that there were in existence documents
+which never found their way to that file and that the procedures were
+tailor made for destruction of compromising documents'.
+
+
+Alteration of Flight Plan
+
+Paragraph 255 (e) and (f), in numerical order the next passages
+complained of, refer to the fact that when the co-ordinates in the
+Auckland computer were altered a symbol was used which had the effect
+of including in the information to be sent to the United States air
+traffic controller at McMurdo Station the word 'McMurdo' instead of the
+actual co-ordinates (latitude and longitude) of the southernmost
+waypoint. The Commissioner said:
+
+     (e) When the TACAN position [a navigational aid at McMurdo Station
+     enabling aircraft to ascertain their distance from it] was typed
+     into the airline's ground computer in the early morning of 28
+     November 1979, there was also made the additional entry to which I
+     have referred, which would result in the new co-ordinates not being
+     transmitted to McMurdo with the Air Traffic Control flight plan for
+     that day. It was urged upon me, on behalf of the airline, that
+     McMurdo Air Traffic Control would consider the word 'McMurdo' as
+     indicating a different position from that appearing on Air Traffic
+     Control flight plans dispatched from Auckland during 1978 and 1979.
+     I cannot for a moment accept that suggestion. First Officer Rhodes
+     made a specific inquiry at McMurdo within a few days of the
+     disaster and ascertained that the destination waypoint of the first
+     Air Traffic Control flight plan for 1979 had been plotted by the
+     United States Air Traffic Control personnel, and there was evidence
+     from the United States witnesses that this would be normal
+     practice. In my view the word 'McMurdo' would merely be regarded,
+     and was indeed regarded, by McMurdo Air Traffic Control as
+     referring to the same McMurdo waypoint which had always existed. In
+     my opinion, the introduction of the word 'McMurdo' into the Air
+     Traffic Control flight plan for the fatal flight was deliberately
+     designed to conceal from the United States authorities that the
+     flight path had been changed, and probably because it was known
+     that the United States Air Traffic Control would lodge an objection
+     to the new flight path.
+
+     (f) I have reviewed the evidence in support of the allegation that
+     the Navigation Section believed, by reason of a mistaken verbal
+     communication, that the altered McMurdo waypoint only involved a
+     change of 2.1 nautical miles. I am obliged to say that I do not
+     accept that explanation. There were certainly grave deficiencies in
+     communication within the Navigation Section, but the high
+     professional skills of the Navigation Section's staff entirely
+     preclude the possibility of such an error. In my opinion this
+     explanation that the change in the waypoint was thought to be
+     minimal in terms of distance is a concocted story designed to
+     explain away the fundamental mistake, made by someone, in failing
+     to ensure that Captain Collins was notified that his aircraft was
+     now programmed to fly on a collision course with Mt. Erebus.
+
+These paragraphs are attacked on the grounds, in short, that the members
+of the navigation section said to be adversely affected by
+them--according to the applicants, Mr R. Brown as regards (e) and Messrs
+Amies, Brown, Hewitt and Lawton as regards (f)--were not given a fair
+opportunity of answering the findings or allegations.
+
+To understand this complaint one needs a clear picture of what it was
+that the Commission found or alleged against the navigation section.
+When studying the report as a whole we have encountered difficulties in
+this regard, difficulties not altogether removed when we explored them
+during the argument with Mr Baragwanath. But our understanding is that
+in essence the Commissioner suggests that the original change of the
+southernmost point to one in the Sound, 25 miles west of McMurdo
+Station, was probably deliberate on the part of the navigation section
+(although he refrained from a definite finding) and that in November
+1979 they deliberately made a major change back to the vicinity of
+McMurdo Station but deliberately set out to conceal the change from the
+American personnel there. The motive for the 1979 change ascribed by the
+Commissioner to the navigation section appears to be that they
+considered that the New Zealand Civil Aviation Division had only
+approved a route over Mount Erebus, yet at the same time that the
+American 'authorities' would object to that route, regarding the route
+down the Sound as safer. In short the theory (if we understand it
+correctly) is that the navigation section were in a dilemma as there was
+no route approved by all concerned.
+
+Beyond argument, it would seem, there was slipshod work within the
+airline in the making of the change and the failure to expressly notify
+flight crews. But the allegations of deliberate concealment and a
+concocted story are another matter. The complaint is that they were
+never put squarely to the members of the navigation section. The
+Commissioner himself did put to the chief navigator, Mr Hewitt, that
+'Someone may suggest before the inquiry is over' that the word 'McMurdo'
+was relayed to McMurdo to conceal a long-standing error in the
+co-ordinates. Mr Hewitt replied 'Certainly not, sir' and there, the
+applicants point out, the matter was left, without further questions to
+witnesses by anyone or any reference in counsel's final submissions.
+
+On the other hand Mr Baragwanath urged in substance that the witnesses
+from the navigation section must have understood that their evidence was
+under suspicion; that they had ample opportunities to explain how and
+why any mistakes occurred; and that it was for the Commissioner to
+assess their explanations, taking into account any impressions they made
+on him individually as witnesses.
+
+
+Captain Eden
+
+First Officer Rhodes, an accident inspector, had been one of the party
+who went to the Antarctica very shortly after the crash. He was
+representing the Air Line Pilots Association as well as working with
+others in the party. When he first gave evidence at the inquiry he was
+called by counsel for the association. Apparently concern was felt by
+the airline that some of his evidence might be taken to reflect on
+Captain Gemmell (the Flight Manager, Technical, and former Chief Pilot)
+so First Officer Rhodes was recalled as a witness by counsel for the
+airline. He said that he had 'no reason to doubt Captain Gemmell in any
+way shape or form'. There was some cross-examination by counsel for the
+association but no reference was made to Captain Eden in any of the
+questions. The Commissioner said in paragraph 348 of his report:
+
+     348. Captain Eden is at present the director of flight operations
+     for the airline. He appeared in the witness box to be a
+     strong-minded and aggressive official. It seemed clear from this
+     further production of First Officer Rhodes as a witness that it had
+     been suggested to him by Captain Eden that he should either make a
+     direct allegation against Captain Gemmell or else make no
+     allegation at all, and that since First Officer Rhodes seemed to
+     have no direct evidence in his possession, he was therefore obliged
+     to give the answer which Captain Eden had either suggested or
+     directed. However, First Officer Rhodes was not entirely
+     intimidated because as will be observed from the evidence just
+     quoted, he insisted on saying that Captain Gemmell had brought an
+     envelope containing documents back to Auckland.
+
+Exception is taken to that paragraph as making findings of intimidation
+against Captain Eden without any such allegation ever having been put to
+him. Captain Eden gave evidence later in the inquiry than First Officer
+Rhodes and the transcript shows that he was asked nothing by anyone
+about their discussion.
+
+
+Captain Gemmell
+
+The following paragraphs of the report are attacked for their references
+to this senior officer:
+
+     352. As to the ring-binder notebook, it had been returned to Mrs
+     Collins by an employee of the airline, but all the pages of the
+     notebook were missing. Captain Gemmell was asked about this in
+     evidence. He suggested that, the pages might have been removed
+     because they had been damaged by kerosene. However, the ring-binder
+     notebook itself, which was produced at the hearing, was entirely
+     undamaged.
+
+     353. After the evidence given before the Commission had concluded,
+     I gave some thought to the matters just mentioned. I knew that the
+     responsibility for recovering all property on the crash site lay
+     exclusively with the New Zealand Police Force, and that they had
+     grid-searched the entire site. All property recovered had been
+     placed in a large store at McMurdo Base, which was padlocked, and
+     access to the shed was only possible through a senior sergeant of
+     Police. I asked counsel assisting the Commission to make inquiries
+     about the flight bags which had been located on the site but which
+     had not been returned to Mrs Collins or Mrs Cassin.
+
+     354. The Royal New Zealand Air Force helicopter pilot who flew the
+     property from the crash site to McMurdo remembered either one or
+     two crew flight bags being placed aboard his helicopter, and he
+     said that they were then flown by him to McMurdo. This was
+     independently confirmed by the loadmaster of the helicopter, who
+     recollected seeing the flight bags. The senior sergeant of Police
+     in charge of the McMurdo store was spoken to, and he recollected
+     either one or two flight bags among other property awaiting packing
+     for return to New Zealand. He said that personnel from Air New
+     Zealand had access to the store, as well as the chief inspector,
+     and the senior sergeant said that he thought that he had given the
+     flight bags to the chief inspector and that the chief inspector was
+     the sole person to whom he had released any property. The chief
+     inspector was then interviewed on 11 December 1980 by telephone,
+     being at that time in Australia, but he said that no flight bags
+     were ever handed to him.
+     ...
+
+     359. The following facts seemed to emerge:
+
+     (1) The two flight bags were lodged in the Police store at McMurdo
+     and would have been returned in due course to Mrs Collins and Mrs
+     Cassin by the Police. But they were taken away from the store by
+     someone and have not since been seen.
+     ...
+
+These paragraphs followed a discussion by the Commissioner of a
+submission by counsel for the Pilots Association that a number of
+documents which would have tended to support the proposition that
+Captain Collins had relied upon the incorrect co-ordinates had not been
+located; and in that context the Commissioner recorded Captain Gemmell's
+denial that he had recovered any documents relevant to the flight which
+had not been handed over to the chief inspector. There was also a
+reference shortly afterwards in the report to Captain Gemmell having
+brought back some quantity of documents with him from Antarctica. On its
+own this would be innocuous, but it is part of a context which could
+lead to inferences adverse to Captain Gemmell being drawn from the
+paragraphs complained of.
+
+The applicants say that there was a mistake of fact, no evidence of
+probative value and no fair opportunity to answer the criticisms or
+findings which they claim to be implicit in these paragraphs. The last
+point, the natural justice one, has a special feature in the case of
+Captain Gemmell. The applicants say that the findings, apart from one
+made under mistake (paragraph 352), were based on information or
+evidence gathered by the Commissioner after the public hearings; and
+that, while an opportunity of meeting the new matter was given to the
+Chief Inspector of Air Accidents, none was given to Air New Zealand or
+Captain Gemmell.
+
+Another special feature is that the Commissioner himself ultimately
+concluded (paragraph 360) 'However, there is not sufficient evidence to
+justify any finding on my part that Captain Gemmell recovered documents
+from Antarctica which were relevant to the fatal flight, and which he
+did not account for to the proper authorities'.
+
+
+Alleged 'Orchestration'
+
+We now come to the most serious complaint. It concerns paragraph 377 of
+the report, a paragraph building up to a quotable phrase that has become
+well known in New Zealand and abroad:
+
+     377. No judicial officer ever wishes to be compelled to say that he
+     has listened to evidence which is false. He always prefers to say,
+     as I hope the hundreds of judgments which I have written will
+     illustrate, that he cannot accept the relevant explanation, or that
+     he prefers a contrary version set out in the evidence.
+
+     But in this case, the palpably false sections of evidence which I
+     heard could not have been the result of mistake, or faulty
+     recollection. They originated, I am compelled to say, in a
+     pre-determined plan of deception. They were very clearly part of an
+     attempt to conceal a series of disastrous administrative blunders
+     and so, in regard to the particular items of evidence to which I
+     have referred, I am forced reluctantly to say that I had to listen
+     to an orchestrated litany of lies.
+
+The applicants claim that these findings were not based on evidence of
+probative value and that the affected employees were not given a fair
+opportunity of answering such charges. The general allegation in the
+statement of claim that the findings attacked were made in excess of
+jurisdiction has in our view a special bearing on this paragraph. The
+applicants say that the paragraph affects a considerable number of
+employees--namely Mr Amies, Mr R. Brown, Mr Davis, Captain Eden, Captain
+Gemmell, Captain Grundy, Captain Hawkins, Mr Hewitt, Captain Johnson and
+Mr Lawton. These include all the employees affected by the other
+paragraphs under challenge.
+
+We accept that reasonable readers of the report would take from it that
+the conspiracy which the Commissioner appears to postulate in his
+references to 'a pre-determined plan of deception' and 'an orchestrated
+litany of lies' was seen by him as so wide as to cover all those
+persons. Paragraph 377 is the culmination of a series of paragraphs
+beginning with paragraph 373 and separately headed by the Commissioner
+'The Stance adopted by the Airline before the Commission of Inquiry'.
+They include specific references to the chief executive, described as
+'very able but evidently autocratic' in the context of an allusion to
+what 'controlled the ultimate course adopted by the witnesses called on
+behalf of the airline'. There are also specific references to the
+executive pilots and members of the navigation section.
+
+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. But the complaint goes much further than
+that. It is that there is simply no evidence on which he could find a
+wholesale conspiracy to commit perjury, organised by the chief
+executive, which is what this part of the report appears to suggest. Our
+conclusion that here the Commissioner went beyond his jurisdiction and
+did not comply with natural justice--a conclusion to be explained more
+fully later in this judgment--makes it unnecessary for us to decide
+whether there was any evidence that could conceivably warrant such an
+extreme finding. It is only right to say, however, that if forced to
+decide the question we would find it at least difficult to see in the
+transcript any evidence of that kind.
+
+The language of paragraph 377 has evidently been carefully selected for
+maximum colour and bite, and the Commissioner has sought to reinforce
+its impact by bringing in his status and experience as a judicial
+officer. While unfortunate, it is no doubt that result of a search for
+sharp and striking expression in a report that would be widely read. He
+cannot have overstated the evidence deliberately. Similarly at senior
+management level in Air New Zealand there would have been a natural
+tendency to try to have the company's case put in as favourable a light
+as possible before the Commission; but it was adding a further and
+sinister dimension to their conduct to assert that they went as far as
+organised perjury.
+
+
+Costs
+
+The applicants ask for an order quashing one of the Commissioner's
+decisions as to costs. The decision in question and the reasons for it
+are stated in an appendix to the report:
+
+     ... I asked the airline for its submissions on the question of
+     costs. The general tenor of the submissions is that the
+     establishment of this Royal Commission was directed by the New
+     Zealand Government and that the airline should not be ordered to
+     meet any part of the public expenditure so incurred. As a statement
+     of general principle, this is correct. But there is specific
+     statutory power to order that a party to the inquiry either pay or
+     contribute towards the cost of the inquiry, and that the power
+     should be exercised, in my opinion, whenever the conduct of that
+     party at the hearing has materially and unnecessarily extended the
+     duration of the hearing. This clearly occurred at the hearings
+     which took place before me.
+
+     In an inquiry of this kind, an airline can either place all its
+     cards on the table at the outset, or it can adopt an adversary
+     stance. In the present case, the latter course was decided upon.
+     The management of the airline instructed its counsel to deny every
+     allegation of fault, and to counter-attack by ascribing total
+     culpability to the air crew, against whom there were alleged no
+     less than 13 separate varieties of pilot error. All those
+     allegations, in my opinion, were without foundation. Apart from
+     that, there were material elements of information in the possession
+     of the airline which were originally not disclosed, omissions for
+     which counsel for the airline were in no way responsible, and which
+     successively came to light at different stages of the Inquiry when
+     the hearings had been going on for weeks, in some cases for months.
+     I am not going to burden this recital with detailed particulars,
+     but I should have been told at the outset that the flight path from
+     Hallett to McMurdo was not binding on pilots, that Captain Wilson
+     briefed pilots to maintain whatever altitudes were authorised by
+     McMurdo Air Traffic Control, that documents were ordered by the
+     chief executive to be destroyed, that an investigation committee
+     had been set up by the airline in respect of which a file was held,
+     and that one million copies of the Brizindine article had been
+     printed, a fact never revealed by the airline at all. So it was not
+     a question of the airline putting all its cards on the table. The
+     cards were produced reluctantly, and at long intervals, and I have
+     little doubt that there are one or two which still lie hidden in
+     the pack. In such circumstances the airline must make a
+     contribution towards the public cost of the Inquiry.
+
+     ...
+
+     6. The costs incurred by the Government in respect of this Inquiry
+     have been calculated by the Tribunals Division of the Department of
+     Justice at $275,000. A substantial liability for the burden of such
+     costs must lie upon the State but in my opinion the State ought to
+     be in part reimbursed in respect of the cost to the public of the
+     Inquiry, and I accordingly direct that Air New Zealand Limited pay
+     to the Department of Justice the sum of $150,000 by way of
+     contribution to the public cost of the Inquiry.
+
+The order is in any event invalid because the amount is far greater than
+the maximum allowed by the long out-of-date but apparently still extant
+scale prescribed in 1903 (1904 Gazette 491). It is only fair to the
+Commissioner to say that the scale seems never to have been drawn to his
+attention by any counsel, although he gave an opportunity to make
+submissions on costs. But there is a deeper objection to the validity of
+the order, to which we will come shortly.
+
+
+Conclusions
+
+Having set out the various complaints we now state our conclusions more
+specifically than in the earlier part of this judgment.
+
+As to the jurisdiction of the Court in the present proceedings, the
+application is made solely under the Judicature Amendment Act 1972.
+Under that Act a decision cannot be set aside unless it was made in
+exercise of a statutory power and _either_ it could have been quashed in
+certiorari proceedings at common law--that is the effect of s. 4
+(1)--_or_ the applicant is entitled to a declaration that it was
+unauthorised or invalid, in which case s. 4 (2) empowers the Court to
+set aside the decision instead.
+
+The Erebus Commission, like others in the past in New Zealand when a
+Supreme Court Judge has been the Chairman or the sole Commissioner, was
+expressed to be appointed both under the Letters Patent delegating the
+relevant Royal Prerogative to the Governor-General and under the
+authority of and subject to the provisions of the Commissions of Inquiry
+Act 1908. Some of us have reservations on various legal
+questions--whether the Commission had statutory authority for its
+inquiry as well as Prerogative authority; whether the findings in the
+body of the report amounted to 'decisions', whether complete absence of
+evidence is relevant in considering natural justice or can be redressed
+in proceedings of this kind. These questions may be of more importance
+in cases concerning the Thomas Commission which are to come before this
+Court next year. Moreover, though most important in principle, they are
+highly technical. It seems to us preferable that the Court should not
+determine them now unless it is essential to do so. And we do not think
+it is essential, because we are agreed on what now follows and it
+enables substantial justice to be done in the present case.
+
+It is established in New Zealand that in appropriate proceedings the
+Courts may prevent a Commission of Inquiry--whether a Royal Commission,
+a statutory Commission or perhaps a combination of the two--from
+exceeding its powers by going outside the proper scope of its inquiry.
+That basic principle was clearly accepted by this Court in _Re Royal
+Commission on Licensing_ 1945 N.Z.L.R. 665. See especially the judgment
+of Myers C.J. at pp. 678 to 680. As he indicated, the principle is
+implicit in the judgment of the Privy Council in _Attorney-General for
+Commonwealth of Australia v. Colonial Sugar Company_ 1914 A.C. 237. It
+is also clear that in a broad sense the principles of natural justice
+apply to Commissions of Inquiry, although what those principles require
+varies with the subject-matter of the inquiry. The leading authority is
+the decision of this Court in _Re Royal Commission on State Services_
+1962 N.Z.L.R. 96.
+
+In recent times Parliament has shown an increasing concern that natural
+justice should be observed by Commissions. In 1958 s. 4A was inserted in
+the Commissions of Inquiry Act 1908, expressly giving any person
+interested in the inquiry, if he satisfied the Commission that he had an
+interest apart from any interest in common with the public, a right to
+appear and be heard as if he had been cited as a party. Then in 1980,
+just as the Erebus Commission was about to start, the section was
+replaced and strengthened. The main changes made are that any person who
+satisfies the Commission that any evidence given before it may adversely
+affect his interests must be given an opportunity to be heard in respect
+of the matter to which the evidence relates; and every person entitled
+to be heard may appear in person or by his counsel or agent. In giving
+this right to representation by counsel the Legislature has gone further
+than observations made in this Court in the _State Services_ case at pp.
+105, 111 and 117.
+
+Some statements in the judgments in that case are very relevant to the
+present case. They are also entirely consistent with the spirit of the
+changes made by Parliament in 1980. Gresson P. at p. 105 and North J. at
+p. 111 both gave an inquiry into a disaster as an example of the kind of
+inquiry where the requirements of natural justice would be more
+extensive than in inquiries into a general field. Cleary J. stressed at
+p. 117 that, while Commissions have wide powers of regulating their own
+procedure, there is the one limitation that persons interested (i.e.
+apart from any interest in common with the public) must be afforded a
+fair opportunity of presenting their representations, adducing evidence,
+_and meeting prejudicial matter_.
+
+In both the _Licensing_ and the _State Services_ cases the Commissions
+were presided over by Supreme Court Judges. It is implicit in the
+judgments that this status on the part of the Chairman does not
+emancipate a Commission from judicial review on jurisdictional or
+natural justice grounds. We hold that the position can be no different
+when a High Court Judge is sole Commissioner. He will, however, have
+the powers, privileges and immunities mentioned in s. 13 (1) of the
+Commissions of Inquiry Act. For instance he will have immunity from
+defamation actions.
+
+A further important point, clear beyond argument, is that an order for
+costs made by a Commission under s. 11 of the Commissions of Inquiry Act
+is the exercise of a statutory power of decision within the meaning of
+the Judicature Amendment Act 1972. Accordingly it is subject to judicial
+review. The judgments in this Court in _Pilkington_ v. _Platts_ 1925
+N.Z.L.R. 864 confirm that if an order for costs has been made by a
+Commission acting without jurisdiction or failing to comply with
+procedural requirements the Court will by writ or prohibition or other
+appropriate remedy prevent its enforcement. We add that, notwithstanding
+an argument by Mr Harrison to the contrary, we are satisfied that s. 11
+was the only possible source of the Commissioner's power to award costs
+and s. 13 was not and could not have been invoked.
+
+The order for costs under challenge in the present case is the
+Commissioner's order that Air New Zealand pay $150,000 by way of
+contribution to the public cost of the inquiry. In our view there can be
+no doubt that this order is and was intended to be, in the words of
+Williams J. delivering the judgment of this Court in _Cock_ v.
+_Attorney-General_ (1909) 28 N.Z.L.R. 405. 421, '... in fact, though not
+in name, a punishment'. What is more important, although Mr Baragwanath
+argued otherwise we have no doubt that reasonable readers of the report
+would understand that this order is linked with and consequential upon
+the adverse conclusions stated by the Commissioner in the section of the
+report headed by him 'The Stance adopted by the Airline before the
+Commission of Inquiry'. It is true that the reasons for the costs order
+open with a proposition about unnecessarily extending the hearing. But
+the passage develops and the later reasons go further. The words chosen
+convey that the punishment was not simply for prolonging the hearing. In
+particular the statements about cards in the pack are a reversion to the
+theme of the 'Stance' section, with its exceedingly strong allegations
+in paragraph 377 of 'a pre-determined plan of deception' and 'an
+orchestrated litany of lies'.
+
+Applying the well-settled principles already mentioned, we think that if
+in making those statements the Commissioner exceeded his terms of
+reference or acted in violation of natural justice, the costs order is
+not realistically severable from that part of the report and should be
+quashed. For the purposes of the present case that is sufficient to
+dispose of the argument based on _Reynolds_ v. _Attorney-General_ (1909)
+29 N.Z.L.R. 24 that after a Commission has reported it is functus
+officio and beyond the reach of certiorari or prohibition.
+
+Naturally the stance of the airline at the inquiry directed by the terms
+of reference was not included expressly in those terms. The argument
+presented in effect for the Commissioner on the question of jurisdiction
+is that comments, however severe, on the veracity and motives of
+witnesses were incidental to the carrying out of the express terms. We
+accept unhesitatingly that what is reasonably incidental is authorised
+(as was recognised in _Cock's_ case at p. 425) and also that to some
+degree any Commission of Inquiry has the right to express its opinion of
+the witnesses, much as a Court or statutory tribunal has that right.
+
+But we think that it is a matter of degree. For present purposes it is
+not necessary to decide whether the law of New Zealand is still, as held
+in _Cock's_ case, that a Commission of Inquiry cannot lawfully be
+constituted to inquire into allegations of crime. That issue may be
+raised more directly by the litigation regarding the Thomas Commission.
+The issue now to be decided is whether the Commissioner had powers,
+implied as being reasonably incidental to his legitimate functions of
+inquiry into the causes and circumstances of the crash, to make
+assertions amounting to charges of conspiracy to perjure at the inquiry
+itself.
+
+In considering that issue the importance of not unreasonably shackling a
+Commission of Inquiry has to be weighed. It is also material, however,
+that such a charge is calculated to attract the widest publicity, both
+national and international. It is scarcely distinguishable in the public
+mind from condemnation by a Court of law. Yet it is completely without
+the safeguards of rights to trial by jury and appeal. In other words, by
+mere implication any Commission of Inquiry, whatever its membership,
+would have authority publicly to condemn a group of citizens of a major
+crime without the safeguards that invariably go with express powers of
+condemnation.
+
+We are not prepared to hold that the Commissioner's implied powers went
+so far. We hold that he exceeded his jurisdiction in paragraph 377.
+
+If, contrary to the view just expressed, the Commissioner did have
+jurisdiction to consider allegations of organised perjury, natural
+justice would certainly have required that the allegations be stated
+plainly and put plainly to those accused. That was not done. If it had
+been done, what we have said earlier is enough to show that they could
+well have made effective answers.
+
+So we conclude that in making the findings or allegations stated in
+paragraph 377 of the report the Commission acted in excess of
+jurisdiction and contrary to natural justice. As previously mentioned,
+the conspiracy postulated in paragraph 377 is evidently intended to
+include as participants the chief executive of the airline, the
+executive pilots and members of the navigation section. If the order for
+$150,000 costs is quashed on the ground that the statements about a
+pre-determined plan of deception and an orchestrated litany of lies were
+made without jurisdiction and contrary to natural justice, we think that
+substantial justice will be done to the company and those individuals.
+In our opinion that costs order must be quashed on those grounds as well
+as on the ground that it was invalid as to amount.
+
+Further, during the proceedings in this Court there occurred
+developments which in themselves threw a different light on matters
+dealt with in the paragraphs under attack affecting Captain Gemmell
+particularly. These should be publicly recorded.
+
+It was acknowledged by all parties, including the Commissioner, that the
+reference to Captain Gemmell in paragraph 352, concerning a notebook
+belonging to Captain Collins, was a mistake. The Commissioner evidently
+had in mind some evidence given by Captain Crosbie, the welfare officer
+of the Air Line Pilots Association. This disposes of any inference
+against Captain Gemmell that might be taken from that paragraph.
+
+Much the same applies to the other paragraphs affecting him which are
+complained of. We have set them out in full and it will be seen that
+they all relate to two flight bags. It had seemed that paragraph 359
+(1), in its context, might have conveyed the impression that Captain
+Gemmell had removed these bags from the McMurdo store and brought them
+or their contents back from Antarctica. At our hearing, however, Mr
+Davison, who was one of the counsel for the Pilots Association both
+before the Commission and in this court, made it clear responsibly and
+fairly that this is not suggested.
+
+As to Captain Eden, it has already been stated that the transcript
+shows that the allegation expressed or implied in paragraph 348 was
+never put to him. Having said so plainly, we need only add as regards
+this particular complaint that the allegation, although it would
+naturally have caused concern to Captain Eden and Air New Zealand, was
+not as serious as the others that are complained of.
+
+Whether the Court has jurisdiction to quash particular passages in the
+report in addition to the costs order is a difficult and technical
+question. We prefer not to lengthen this judgment with an unnecessary
+discussion of it.
+
+In modern administrative law, as a result of developments in both case
+and statute law, the power of the Courts to grant declarations and quash
+decisions is wider than was thought in the _Reynolds_ case in 1909 (29
+N.Z.L.R. at 40). It may be that in a sufficiently clear-cut case the
+jurisdiction, either under the Act or at common law, will be found to
+extend to parts of Commission reports even when they are not linked with
+costs orders.
+
+But in the end that jurisdictional question does not have to be decided
+in this case, and we reserve our opinion on it. If the jurisdiction does
+go so far, it must be discretionary, as the grant of declarations always
+is. The Court would have to be satisfied that grounds so strong as to
+require it to act in that unusual way had been made out. In our opinion
+they would be made out clearly enough as regards paragraph 377, which
+stands out from the general body of the report. But the quashing of the
+costs order because of its association with that paragraph is enough to
+do justice there.
+
+The position is less clear as regards the other paragraphs complained
+of. For various reasons they are all in a marginal category. What has
+been said in this judgment may help to enable them to be seen in
+perspective. On balance we would not be prepared to hold that as to
+these other paragraphs the applicants have made out a sufficiently
+strong case to justify this Court in interfering, assuming that there is
+jurisdiction to do so.
+
+In the result, the application for review having succeeded on the main
+issue, we see no need to and are not prepared to go further in granting
+relief. Our decision is simply that the $150,000 costs order be quashed
+on the grounds already stated.
+
+As to the costs of the present proceedings, they should be reserved, as
+there has been no argument on the matter.
+
+
+_Solicitors_
+
+Russell McVeagh McKenzie Bartleet & Co., Auckland, for First and Second
+Applicants.
+
+Sheffield Young & Ellis, Auckland, for Third Applicant.
+
+Crown Law Office, Wellington, for First, Fourth and Sixth Respondents.
+
+Keegan Alexander Tedcastle & Friedlander, Auckland, for Fifth
+Respondent.
+
+
+
+
+
+C.A. 95/81
+
+In the Court of Appeal of New Zealand--Between Air New Zealand Limited.
+First Appellant, and Morrison Ritchie Davis, Second Appellant, and Ian
+Harding Gemmell, Third Appellant, and Peter Thomas Mahon, First
+Respondent, and the Attorney-General, Fourth Respondent, and New Zealand
+Airline Pilots Association, Fifth Respondent, and the Attorney-General,
+Sixth Respondent.
+
+
+_Coram_
+
+Woodhouse P.
+Cooke J.
+Richardson J.
+McMullin J.
+Somers J.
+
+
+_Hearing_
+
+5th-12th October 1981.
+
+
+_Counsel_
+
+L.W. Brown, Q.C., for first and second appellants, with R.J. McGrane.
+
+D.A.R. Williams for third appellant, with L.L. Stevens.
+
+G.P. Barton for first respondent, with R.S. Chambers.
+
+C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
+withdraw.
+
+A.F. MacAlister for fifth respondent, with P.J. Davison.
+
+W.D. Baragwanath for sixth respondent, with G.M. Harrison.
+
+
+_Judgment_
+
+22 December 1981
+
+
+
+
+JUDGMENT OF WOODHOUSE P. AND McMULLIN J.--DELIVERED BY WOODHOUSE P.
+
+
+On 28th November 1979 a DC10-30 aircraft owned and operated by Air New
+Zealand Limited crashed during daylight hours at a point 1465 feet above
+mean sea level on the ice-covered lower slopes of Mount Erebus in the
+Antarctic. It was a tragedy in which 257 lives were lost. The magnitude
+of the disaster resulted in two separate investigations into the causes
+of and circumstances surrounding the accident. The second inquiry took
+the form of a Royal Commission appointed by Letters Patent and also
+pursuant to the provisions of the Commissions of Inquiry Act 1908. Mr
+Justice Mahon, a Judge of the High Court at Auckland, was appointed sole
+Commissioner on 11th June 1980. He prepared the Commission's Report and
+presented it on 16th April 1981.
+
+The case now before this Court is entirely concerned with that Report.
+But lest there be any misunderstanding it is necessary to emphasize at
+the outset that no attack can be or indeed has been made upon the
+conclusions it reaches as to the cause of the crash. Instead the
+proceedings are brought by way of judicial review under the Judicature
+Amendment Act 1972 in order to challenge statements in the Report about
+the conduct of certain officers of Air New Zealand.
+
+Senior officers of the airline are severely criticized in the Report and
+in one paragraph on the basis of "a pre-determined plan of deception ...
+to conceal a series of disastrous administrative blunders ... an
+orchestrated litany of lies". These findings are challenged on grounds
+that they were made unfairly, in disregard of basic principles of
+natural justice and without jurisdiction. We are satisfied that those
+complaints of the applicants are justified and that the statements
+should never have been made. It was done without authority of the terms
+of reference of the Commission and without any warning to the officers
+affected. Thus they were given no opportunity at all to answer and deny
+as they claim in affidavits now before this Court they were in a
+position to do.
+
+Because of the view we take of some aspects of the facts and of the law
+we would be prepared to go further than the other members of the Court
+in regard to the formal order to be made in this case. We also find it
+necessary to go further in our conclusions in regard to a number of
+matters of fact. We feel sure, however, that reputation can be
+vindicated and the interests of justice met by the formal decision of
+this Court which will have the effect of quashing a penal order of the
+Commissioner requiring Air New Zealand to pay the large sum of $150,000
+as costs in the Royal Commission Inquiry.
+
+
+The Two Inquiries
+
+Before the Royal Commission was appointed and began its work a statutory
+investigation had already been carried out in terms of the Civil
+Aviation (Accident Investigation) Regulations 1978. Immediately it was
+known that the aircraft had crashed on Mount Erebus the standard
+procedures for aircraft accident investigation were invoked by the Chief
+Inspector of Air Accidents, Mr R. Chippindale. And he arrived in the
+Antarctic with a small team of experts on the day following the
+disaster. They included mountaineers, police, surveyors, the chief pilot
+of Air New Zealand (Captain Gemmell), and a representative of the
+Airline Pilots Association, named in the present proceedings as the
+fifth respondent (First Officer Rhodes).
+
+Mr Chippindale conducted intensive inquiries at the site of the crash
+and instructed that all reasonable steps were to be taken to recover
+equipment that would bear upon the cause of the accident and any
+documents which were still accessible before they were blown away into
+crevasses or covered with snow. Two important items were soon
+discovered: the cockpit voice recorder was found at once and after a
+period of systematic digging into the snow the digital flight data
+recorder was recovered as well. The first piece of equipment provided a
+tape recording of much that was said on the flight deck during a period
+of 30 minutes preceding the time of the collision with the ice slope.
+The second, often described as the "black box", provided conclusive
+information concerning course, altitude, and other data relating to the
+flight and functioning of the aircraft at the relevant period of time.
+
+Mr Chippindale continued his investigation in New Zealand where he
+inspected records gathered from the airline. He also interviewed pilots
+and other officers with relevant information. In addition he travelled
+overseas. At that point he prepared an interim report so that he could
+give notice of his tentative findings to all those whom he felt might
+have some degree of responsibility for the accident. Thus the airline
+and representatives of the deceased pilots and others were given an
+opportunity to provide any appropriate answer to the chief inspector
+before he completed his final report. All this was attended to and his
+report, which is dated 31st May 1980, was made available to the Minister
+of Transport on 3rd June 1980. The Minister then approved the report for
+release as a public document on 12th June 1980. As mentioned, the Royal
+Commission was appointed for the purpose of conducting a public inquiry
+at that same time.
+
+There is a difference in the two reports upon the cause of the accident.
+Mr Chippindale considered the probable cause to have been pilot error.
+On the other hand the Royal Commission exonerated the pilots completely
+and spoke instead of "incompetent administrative airline procedures".
+Since this case is concerned with allegations by the Commissioner that
+the affected officers of Air New Zealand had engaged "in a
+pre-determined plan of deception ... to conceal a series of disastrous
+administrative blunders" (administrative mistakes which he himself had
+found to be the real cause of the disaster) it is not unimportant to ask
+what relevant information the airline had actually been able to provide
+which was not supplied to Mr Chippindale. For that last reason the
+material made available for consideration by Mr Chippindale deserves
+some examination. An example concerns the change made to the final stage
+of the computer flight track to the Antarctic which the Commissioner
+regarded as a central reason for the accident. During a period of
+fourteen months prior to the fatal flight Air New Zealand's ground
+computer had contained an incorrect geographical reference to the
+southern waypoint of the journey at McMurdo. Accordingly, in that period
+it was shown incorrectly on any computer print-outs of the flight plan.
+But a few hours before departure of the DC10 an amendment was made and
+the flight crew was not informed that amended co-ordinates (since their
+briefing 19 days earlier) had thus been fed into the aircraft's
+computer.
+
+In paragraph 44 the Report explains that the chief executive of the
+airline was told of this matter on 30th November. Then in paragraph 45
+it is said that the chief executive "determined that no word of this
+incredible blunder was to become publicly known". There follows a
+statement that a direction was thereupon given "that all documents
+relating to Antarctic flights, and to this flight in particular, were
+to be collected and impounded. They were all to be put on one single
+file which would remain in strict custody. Of these documents all those
+which were not directly relevant were to be destroyed". The reference in
+this context to the amendment to the co-ordinates invites the question
+as to whether Mr Chippindale had been given that particular information
+by the airline during his own investigation. It is made plain in his own
+report that this had been done immediately.
+
+He himself was not uncritical of the administrative work of the airline
+as it touched upon the fatal flight and concerning this matter he said:
+
+     "3.5 The flight planned route entered in the company's base
+     computer was varied after the crew's briefing in that the position
+     for McMurdo on the computer printout used at the briefing, was
+     incorrect by over 2 degrees of longitude and was subsequently
+     corrected prior to this flight."
+
+The variation in the computer _after the crew of the DC10 had been
+briefed_ (as Mr Chippindale realized) is the matter which is mentioned
+by the Commissioner in paragraph 44 and which in paragraph 45 is offered
+as the motive for what is there described as an immediate decision by
+the chief executive that no word of the matter was to become publicly
+known, with documents to be impounded and others destroyed. This
+information was given into Mr Chippindale's hands by Air New Zealand in
+a written statement on the day following his return from the crash site
+in Antarctica.
+
+The Chippindale report then states in paragraph 3.6 that the computer
+error had remained in the flight plans for some fourteen months. Then it
+is said:
+
+     "3.7 Some diagrams and maps issued at the route qualification
+     briefing could have been misleading in that they depicted a track
+     which passed to the true west of Ross Island over a sea level ice
+     shelf, whereas the flight planned track passed to the east over
+     high ground reaching to 12450 feet AMSL.
+
+     3.8 The briefing conducted by Air New Zealand Limited contained
+     omissions and inaccuracies which had not been detected by either
+     earlier participating aircrews or the supervising Airline
+     Inspectors."
+
+So these various matters (also mentioned by the Commissioner) were well
+within Mr Chippindale's knowledge. However he came to a final conclusion
+that pilot error had been involved as a probable cause of the accident
+while the Commissioner (who decided this was an incorrect finding) was
+satisfied instead that the cause of the accident was not pilot error at
+all. He said:
+
+     "393. In my opinion therefore, the single dominant and effective
+     cause of the disaster was the mistake made by those airline
+     officials who programmed the aircraft to fly directly at Mt. Erebus
+     and omitted to tell the aircrew. That mistake is directly
+     attributable, not so much to the persons who made it, but to the
+     incompetent administrative airline procedures which made the
+     mistake possible.
+
+     394. In my opinion, neither Captain Collins nor First Officer
+     Cassin nor the flight engineers made any error which contributed to
+     the disaster, and were not responsible for its occurrence."
+
+
+Jurisdiction to Review
+
+Several important questions arise in this case. Is there jurisdiction in
+the Courts to review in such a context as this taking into account the
+ambit of ss. 3 and 4 of the Judicature Amendment Act 1972? And if there
+is such power is it by reason of the award of costs in this case? Or on
+grounds relating to excess of jurisdiction on the part of the
+Commissioner? Or considerations of natural justice? Or by reference to
+all three of those matters? For the reasons that follow we are satisfied
+that the findings are reviewable and that each one of those three
+matters is properly within the scope of the Court's jurisdiction.
+
+As already mentioned, the proceedings are by way of application for
+review under the Judicature Amendment Act 1972 and are directed against
+certain findings in the Report, to which we have referred. The
+applicants claim that those findings are invalid, in excess of
+jurisdiction or made in circumstances involving unfairness or breach of
+natural justice. They seek declarations to that effect and orders
+setting aside the findings and quashing the order that Air New Zealand
+pay $150,000 as a contribution to the public cost of the inquiry. It is
+necessary to consider whether under the Act the Court has jurisdiction
+to grant such relief in this case.
+
+By ss. 3 and 4 of the Act relief may be granted only where a "statutory
+power" is involved. That term includes a "statutory power of decision".
+Since liberalizing amendments made in 1977, "statutory power" includes
+power conferred by or under any Act "to make any investigation or
+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
+in the discretion of the Court whether or not certiorari would have
+lain. That a declaration may be an appropriate remedy for both
+jurisdictional errors and closely analogous defects such as unfairness
+or breaches of natural justice is shown by such Privy Council and House
+of Lords decisions as _De Verteuil_ v. _Knaggs_ (1918) A.C. 557, _Pyx
+Granite Co. Ltd._ v. _Ministry of Housing_ (1960) A.C. 260, and _Ridge_
+v. _Baldwin_ (1964) A.C. 40. The statement apparently to the contrary at
+the end of the _Reynolds_ judgment at p. 40 is obsolete. And if a
+declaration could have been granted that a decision made under a
+statutory power is invalid the Court has power under the 1972 Act to set
+the decision aside.
+
+
+The Order for Costs
+
+In argument in the present case it was common ground that if the order
+for $150,000 costs is invalid the Court can set it aside. That is
+clearly so. The order was made in reliance on s. 11 of the Commissions
+of Inquiry Act 1908 which (notwithstanding an argument to the contrary
+by Mr Harrison) is in our opinion undoubtedly the only source of any
+authority for a Royal Commission or a Commission of Inquiry to award
+costs. If valid it is enforceable by virtue of s. 12 of that Act as a
+final judgment of the High Court in its civil jurisdiction. Plainly it
+is the exercise of a statutory power of decision. The jurisdiction of
+the New Zealand Courts to determine the validity of orders for costs by
+Commissions is well established: _Hughes_ v. _Hanna_ (1909) 29 N.Z.L.R.
+16; _Whangarei Co-operative Bacon-Curing Co._ v. _Whangarei
+Meat-Supply Co._ (1912) 31 N.Z.L.R. 1223; _Pilkington_ v. _Plaits_
+(1925) N.Z.L.R. 864.
+
+What was in dispute in the argument in this connection was principally
+whether the order is so linked with the challenged findings in the
+Report that if those findings are invalid for excess of jurisdiction or
+breach of natural justice the order will fall with them. There was a
+subsidiary argument about whether the order was in any event invalid
+because the amount may greatly exceed the maximum allowed by the long
+out-of-date but still apparently extant scale prescribed in 1903 (1904
+Gazette 491). We propose to consider the main argument, however, and in
+doing so to confine attention to whether there is a sufficient link
+between the order and the main findings complained of in the Report,
+those in paragraph 377.
+
+At the beginning of his reasons for ordering costs the Commissioner
+expressed the opinion that the power should be exercised whenever the
+conduct of a party at the hearing has materially and unnecessarily
+extended the duration of the hearing. His following reasons include
+criticisms of the management of the airline for prolonging the hearing,
+and it was contended before us by Mr Baragwanath that they go no
+further. We are unable to accept that contention. In reciting the
+circumstances leading to the orders for costs the Commissioner expressly
+includes the chief executive's order for documents to be destroyed and
+says, "The cards were produced reluctantly, and at long intervals, and I
+have little doubt that there are one or two which still lie hidden in
+the pack". We think that such language would naturally be understood by
+a reasonable reader to refer back to the matters more fully developed in
+the section of the Report headed "The stance adopted by the airline
+before the Commission of Inquiry", a section culminating in paragraph
+377 with its references to "a pre-determined plan of deception ... an
+attempt to conceal a series of disastrous administrative blunders ... an
+orchestrated litany of lies". The impression almost inevitably created
+is that, to adapt words used by Williams J. delivering the judgment of
+this Court in _Cock_ v. _Attorney-General_ (1909) 28 N.Z.L.R. 405, 421,
+the judgment for costs was in fact, though not in name, a punishment.
+The reasons given for the costs orders have definite echoes of
+paragraph 377 and the immediately preceding paragraphs. The airline was
+being required to pay costs, and not for delaying tactics simply. A
+significant part of the reasons was that in the view of the Commissioner
+its chief witnesses had been organized to conceal the truth.
+
+It is true that, on purely verbal grounds, refined distinctions can be
+drawn between the sections of the Report dealing with the airline's
+stance at the inquiry and with costs; but we have no doubt that their
+overall effect is that most readers would understand them as closely
+associated. It follows, we think, that if the findings in paragraph 377
+are invalid for excess of jurisdiction or breach of natural justice they
+should be seen as playing a material part in the order for $150,000
+costs and as requiring the Court to set aside that order. Irrespective
+of the order for costs, we think that there are strong arguments to
+support the view that there is jurisdiction to review the findings in
+challenged paragraphs on grounds relating to jurisdiction and natural
+justice. There is a good deal of support in the authorities for
+excluding or strictly limiting judicial review of Commission findings
+and Mr Baragwanath carefully put the arguments forward. But, as we say,
+there are reasons why the Court ought not to adopt the facile approach
+of saying that the function of the Commission was merely to inquire and
+report and that as the Commission's findings bind no-one they can be
+disregarded entirely as having no legal effect.
+
+
+Scope of Royal Commission
+
+As has been the practice in New Zealand when a Commission of Inquiry
+consists only of or is chaired by a High Court Judge, the Erebus
+Commission was a Royal Commission in that the warrant was expressed to
+be issued under the authority of the Letters Patent of 1917 constituting
+the office of Governor-General. One of the powers delegated by the
+Letters Patent to the Governor-General is to "constitute and appoint, in
+Our name and on Our behalf, all such ... Commissioners ... as may be
+lawfully constituted or appointed by Us". The warrant was also expressed
+to be issued under the authority of and subject to the provisions of the
+Commissions of Inquiry Act 1908, and s. 15 of that Act extends and
+applies not only to inquiries under statutory Commissions appointed by
+the Governor-General or Governor-General in Council but also to
+inquiries under the Letters Patent. This means inter alia that
+statutory-powers of summoning witnesses and requiring the production of
+documents apply, that a Judge of the High Court acting as Commissioner
+has the ordinary judicial immunity, and that interested persons have
+statutory rights to be heard under s. 4A, inserted by an amendment made
+in 1980 shortly before the inquiry now in question began. Section 2 of
+the 1908 Act empowers the Governor-General by Order-in-Council to
+appoint any person to be a Commission to inquire into and report upon
+any question arising out of or concerning a range of matters. The
+relevant one is "(e) Any disaster or accident (whether due to natural
+causes or otherwise) in which members of the public were killed or
+injured ..." In giving statutory power to appoint Commissions and
+listing permissible subjects the Act differs from the Evidence Acts
+considered in Australian cases. The Australian Acts presuppose the
+existence of Commissions appointed under prerogative or inherent
+executive powers and merely confer ancillary powers of compelling
+evidence and the like. Under Acts of that type the validity of the
+Commission depends on the common law and the division of powers in the
+Australian Constitution. Under the New Zealand Act a Commission can be
+given a statutory source for its basic authority even if it is a Royal
+Commission and has a prerogative source as well.
+
+The Erebus Commission was appointed to inquire into the causes and
+circumstances of the crash. Among the particular questions referred to
+it was:
+
+     (g) Whether the crash of the aircraft or the death of the
+     passengers and crew was caused or contributed to by any person
+     (whether or not that person was on board the aircraft) by an act or
+     omission in respect of any function in relation to the operation,
+     maintenance, servicing, flying, navigation, manoeuvring, or air
+     traffic control of the aircraft, being a function which that person
+     had a duty to perform or which good aviation practice required that
+     person to perform?
+
+All the terms of reference fall well within s. 2 (e). The Commission was
+not appointed to inquire into allegations of crime so we are not now
+called upon to go into the question whether a Royal Commission can be
+appointed for such a purpose, on which New Zealand and Australian
+authorities diverge (see _In re The Royal Commission on Licensing_
+(1945) N.Z.L.R. 665, 679; and D.R. Mummery "Due Process and
+Inquisitions", 97 L.Q.R. 287). Nevertheless paragraph 377 of the Royal
+Commission Report contains findings of organized perjury. The judgment
+in the leading New Zealand case, _Cock_ v. _Attorney-General_, while
+denying that the prerogative can authorize a Commission with the main
+object of inquiring into alleged crimes, recognizes at p. 425 that a
+Commissioner may investigate an alleged crime if to do so would be
+"merely incidental to a legitimate inquiry and necessary for the purpose
+of that inquiry". We think that the test must be what is reasonably
+incidental to valid terms of reference. In relation to paragraph 377 the
+allegation of excess of jurisdiction turns accordingly on whether the
+findings are reasonably incidental to an inquiry into the causes and
+circumstances of the crash.
+
+It is difficult to find reasons why the Court should refuse to entertain
+that question. While Commissions of mere inquiry and report are largely
+free from judicial control, there is strong authority indicating that
+the Courts have at least a duty to see that they keep within their terms
+of reference. We agree with the opinion of Myers C.J. in the _Royal
+Commission on Licensing_ case at p. 680 that it is implicit in all the
+judgments in the Privy Council and the High Court in _Attorney-General
+for the Commonwealth of Australia_ v. _Colonial Sugar Refining Co. Ltd_
+(1914) A.C. 237, 15 C.L.R. 182, that if it can be said in advance that
+proposed questions are clearly outside the scope of the inquiry they are
+irrelevant and cannot be permitted. In the _Royal Commission on
+Licensing_ case that very principle was applied in this Court, it being
+held that certain matters were not within the ambit of the Commission's
+inquiry. That decision was given on a case stated by the Royal
+Commission under ss. 10 and 13 of the 1908 Act, but the _Sugar Company_
+case was an action for declaration and injunctions and the procedure was
+expressly approved in the judgment of their Lordships delivered by
+Viscount Haldane L.C. ((1914) A.C. at 249-50). Similarly in _McGuinness_
+v. _Attorney-General_ (1940) 63 C.L.R. 73 the High Court, on an appeal
+from a conviction for refusing to answer a question touching the subject
+matter of an inquiry by a Commissioner, accepted without any apparent
+difficulty that the Court had authority to determine whether the
+question was relevant.
+
+We do not overlook that the cases just cited were concerned with the
+scope of questions that might be put to witnesses under compulsory
+powers given by statute. They were not directly concerned with the scope
+of findings in reports. But if the Court has jurisdiction to determine
+the true scope of a Commission's inquiry and require the Commission to
+keep within that scope there are obvious arguments that it should have a
+corresponding jurisdiction in the matter of findings. A vital part of
+the constitutional role of the Courts is to ensure that all public
+authorities, whether they derive their powers from statute or the
+prerogative, act within the limits of those powers.
+
+A different view was taken by Stephen J. sitting at first instance in
+chambers in _R._ v. _Collins_ (1976) 8 A.L.R. 691, but we note the
+opinion expressed in several Canadian cases that the Court will
+intervene where a Commissioner has inquired or seeks to inquire into
+matters outside his terms of reference: _Re Sedlmayr_ (1978) 82 D.L.R.
+(3d.) 161; _Re Anderson_ (1978) 82 D.L.R. (3d.) 706; _Landreville_ v.
+_The Queen_ (1973) 41 D.L.R. (3d.) 574; _Landreville_ v. _The Queen_
+(No. 2) (1977) 75 D.L.R. (3d.) 380, 400-402.
+
+In _Re Royal Commission on Thomas Case_ (1980) 1 N.Z.L.R. 602 a Full
+Court (Molier, Holland and Thorp JJ.) held inter alia that the Court may
+prohibit a Commission from acting in excess of its jurisdiction and that
+the creation of a Commission pursuant to the Letters Patent does not
+exempt it from the supervisory role of the Court. However part of the
+Full Court's decision in that case is the subject of a pending appeal to
+this Court and other proceedings relating to the Thomas Commission have
+been moved into this Court. So we refrain from expressing any final view
+upon it.
+
+For the foregoing reasons we think that if the applicants make out their
+claim that the findings of the Erebus Commission in paragraph 377 are
+outside the commissioner's terms of reference, they could be granted a
+declaration to that effect at common law. To obtain a setting aside of
+the findings under s. 4 (2) of the Judicature Amendment Act 1977 they
+have to show in addition that the findings were made in the exercise of
+a statutory power of decision. We think this requirement should not
+present final difficulty if regard is had to the evident intent and
+spirit of the 1972 Act and particularly the amendments made by
+Parliament in 1977.
+
+
+Judicature Amendment Act 1972
+
+Was the statutory power one of _decision_? The 1977 Amendment Act
+brought statutory investigations or inquiries into rights or liabilities
+within the definition of "statutory power". An inquiry into whether any
+person caused or contributed to the crash by an act or omission in
+respect of his duties is an inquiry into liabilities. But that is less
+important for present purposes than the fact that the Amendment Act also
+extended the concept of statutory powers of decision to those
+"affecting" the rights of any person. The purpose was manifestly to make
+the ambit of review under the Act at least as wide as at common law.
+This point is dealt with in _Daemar_ v. _Gilliand_ (1981) 1 N.Z.L.R. 61.
+
+We think it would be very difficult to justify an argument that findings
+likely to affect individuals in their personal civil rights or to expose
+them to prosecution under the criminal law are decision "affecting"
+their rights within the meaning of the Act. In the present case, for
+example, it was virtually certain that the findings of the Erebus
+Commission would be published by the Government. The effect on the
+reputation of persons found guilty of the misconduct described in the
+Report was likely to be devastating, at common law every citizen has a
+right not to be defamed without justification. Severe criticism by a
+public officer made after a public inquiry and inevitably accompanied by
+the widest publicity affects that right especially when the officer has
+judicial status and none the less because he has judicial immunity.
+
+The present case is in many ways unique and, if the findings in
+paragraph 377 were made without jurisdiction or contrary to natural
+justice, it affords a striking instance of how contrary to the public
+interest it would be if the Courts were not prepared to protect the
+right to reputation. The magnitude of the disaster, bringing tragedy to
+many homes in New Zealand and overseas, and the fact that the national
+airline was involved meant that the national attention was focused on
+the inquiry. There are imputations of collective bad faith which had
+started from a high place in the company and all this was likely to
+receive the widest publicity, further, the findings in paragraph 377
+amounted to public and official disclosures of alleged criminal conduct
+and led to investigation by the police to determine whether charges
+should be laid. In the event it was announced shortly before the hearing
+of the present case that there would be no such charges, but clearly the
+individuals concerned were in fact exposed to the hazard of prosecution
+as a natural consequence of the Report.
+
+In interpreting the 1977 legislation we think that a narrow conception
+of rights and of what affects rights would not be in accord with the
+general purposes of the Act. A broad, realistic and somewhat flexible
+approach would enable the Act to work most effectively as an aid to
+achieving justice in the modern community.
+
+
+Natural Justice
+
+This Court has had to examine and apply the principles concerning
+natural justice and fairness quite often in recent years. In translating
+the ideals of natural justice and fairness into current operation in New
+Zealand we have been influenced as to general principles mainly by
+decisions of the Privy Council and the House of Lords but, of course, we
+have had New Zealand conditions and practicalities very much in mind.
+The result has been a pragmatic approach.
+
+Some overseas Courts have held that if all that occurs is inquiry and
+report and the report is not in law a condition precedent to some
+further step the rules of natural justice are automatically excluded.
+That was the premise, for instance, of the High Court of Australia in
+_Testro Bros. Pty. Ltd._ v. _Tait_ (1963) 109 C.L.R. 353. A contrary
+approach is to be found in the judgement of Schroeder J.A. representing
+the view of the majority of the Ontario Court of Appeal in _Re Ontario
+Crime Commission_ (1962) 133 C.C.C. 116, although that case depends
+partly on Ontario statute law. There is little attraction in the idea of
+automatic exclusion. Commissions of Inquiry have compulsory statutory
+powers of insisting on evidence and their findings can affect rights in
+the ways already outlined. It seems to us highly unlikely that the New
+Zealand Parliament intended them to be wholly free of the elementary
+obligation to give persons whom they have in mind condemning a fair
+opportunity for correcting or contradicting any relevant allegation.
+
+Some reinforcement for the view that they are under that obligation is
+to be found in some added considerations. Section 4A of the Commissions
+of Inquiry Act, enacted in 1980 in place of briefer provisions and in
+time for the Erebus inquiry, provides:
+
+     "4A. Persons entitled to be heard--(1) Any person shall, if he is
+     party to the inquiry or satisfies the Commission that he has an
+     interest in the inquiry apart from any interest in common with the
+     public, be entitled to appear and be heard at the inquiry.
+
+     (2) Any person who satisfies the Commission that any evidence given
+     before it may adversely affect his interests shall be given an
+     opportunity during the inquiry to be heard in respect of the matter
+     to which the evidence relates.
+
+     (3) Every person entitled, or given an opportunity, to be heard
+     under this section may appear in person or by his counsel or
+     agent."
+
+The section may be seen as a recognition by Parliament that natural
+justice should apply. It does not purport to enact a complete code of
+procedure or to cover the whole field of natural justice, which would
+not be easy in a statute of this general kind. The statute specifically
+requires an opportunity to be heard to be given to any person who shows
+that evidence may adversely affect his interests. In the parallel
+situation of the statutory investigation which must be undertaken
+following any aircraft accident considerations of fairness are carefully
+spelled out in Regulation 15 (1) of the Civil Aviation (Accident
+Investigation) Regulations 1978. There it is provided that "where it
+appears to an Inspector that any degree of responsibility for an
+accident may be attributable to any person, that person or, if he is
+dead, his legal personal representatives, shall, if practicable, be
+given notice that blame may be attributed to him, and that he or they
+may make a statement or give evidence, and produce witnesses, and
+examine any witnesses from whose evidence it appears that he may be
+blameworthy". In the case of the earlier investigation by Mr.
+Chippindale into the Erebus disaster that very step was taken.
+
+In his judgment in the Court in _Re the Royal Commission on the State
+Services_ (1962) N.Z.L.R. 96, 117, Cleary J. while stressing the wide
+discretion of Commissions to regulate their own procedure said plainly
+that the one limitation is that parties cited and persons interested
+must be afforded a fair opportunity of presenting their representations,
+adducing their evidence, and meeting prejudicial matter. That judgment
+was given with reference to the old s. 4A, now replaced by the section
+already quoted. What Cleary J. said, particularly about the general
+absence of a right to be represented by counsel, must now be read
+subject to the new provisions. But his expression "prejudicial matter"
+was a general one. It ought not, we think, to be read down in some way
+so as to exclude suggestions of conspiracy which may have evolved in the
+mind of a Commission without being specifically raised in evidence or
+submissions.
+
+A suggestion of an organized conspiracy to perjure is different from the
+possibility commonly faced by individual witnesses that their evidence
+may be disbelieved. Grave findings of concerted misconduct in connection
+with the inquiry ought not to be made without being specifically raised
+at the inquiry. Once the thesis of such a conspiracy had emerged in the
+Commissioner's thinking as something upon which he might report, he
+would have had power, if that question were indeed reasonably incidental
+to his terms of reference, to reconvene the hearing if necessary so that
+the alleged conspirators could be fairly confronted with the allegation.
+See the speech of Lord Russell of Killowen in _Fairmount Investments
+Ltd._ v. _Secretary of State for the Environment_ (1976) 2 All E.R. 865,
+and the judgement of Lord Parker C.J. in _Sheldon_ v. _Bromfield
+Justices_ (1964) 2 Q.B. 573, 578. In fact in the present case but for a
+far less significant reason the Commissioner himself actually considered
+the possible need to reconvene the hearing after certain enquiries had
+been made on his instructions following the taking of evidence in
+public. The matter is mentioned in paragraph 358 of the Report.
+
+_Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380,
+402-405, was decided in the end on just such a ground. It was held that
+a Commissioner, who happened to be a distinguished Judge, had failed to
+put to the person whose conduct was expressly subjected to investigation
+by the terms of reference of the Commission a very serious allegation
+upon which a finding was made in the report; and that the Commission
+should have been reconvened for that purpose. There the relevant rule of
+natural justice was fully embodied in a statutory provision. We think
+that the position is the same under the New Zealand Commissions of
+Inquiry Act supplemented by the common law.
+
+All these considerations suggest that the Commission was bound by the
+broad requirements of natural justice. These included a reasonable
+opportunity of meeting the unformulated allegation of organized
+deception and concealment that was apparently passing through the
+Commission's mind. Some of the reasons why experience has shown the
+importance of this sort of opportunity were well put by Megarry J. in
+_John_ v. _Rees_ (1970) 1 Ch. 345, 402.:
+
+     "It may be that there are some who would decry the importance which
+     the courts attach to the observance of the rules of natural
+     justice. 'When something is obvious,' they may say, 'why force
+     everybody to go through the tiresome waste of time involved in
+     framing charges and giving an opportunity to be heard? The result
+     is obvious from the start.' Those who take this view do not, I
+     think, do themselves justice. As everybody who has anything to do
+     with the law well knows, the path of the law is strewn with
+     examples of open and shut cases which, somehow, were not; of
+     unanswerable charges which, in the event, were completely answered;
+     of inexplicable conduct which was fully explained; of fixed and
+     unalterable determinations that, by discussion, suffered a change.
+     Nor are those with any knowledge of human nature who pause to think
+     for a moment likely to underestimate the feelings of resentment of
+     those who find that a decision against them has been made without
+     their being afforded any opportunity to influence the course of
+     events."
+
+In this particular case something more should be said. The applicants
+contend that this is not simply a case where the conspiracy suggestion
+could not have been rebutted. They plead in their statement of claim
+that the Commissioner's findings to that effect are not based on
+evidence of probative value. Elsewhere in the present judgment we deal
+with aspects of these arguments. Here, dealing with principles, we add
+that fairness is not necessarily confined to procedural matters. It can
+have wider range. Remedies in this field are discretionary and the law
+not inflexible. If a party seeks to show not only that he did not have
+an adequate hearing but also that the evidence on which he was condemned
+was insubstantial, the Court is not compelled to shut its eyes to the
+state of the evidence in deciding whether, looking at the whole case in
+perspective, he has been treated fairly.
+
+
+Factual Background
+
+In a written synopsis of argument presented before this Court by counsel
+for Air New Zealand it was said that background matters had to be
+understood as they were entirely relevant to the complaints made by the
+applicants in the present proceedings. But that "the Applicants do not
+propose to canvass any factual matters which fall outside the range of
+their specified allegations". In regard to that last matter we emphasize
+again that this case (as counsel well realized) cannot be used to attack
+the Royal Commission findings as to the cause of the crash. On behalf of
+the applicants it was made clear nonetheless that their acceptance of
+the jurisdictional bar to such a challenge in the Courts did not mean
+and should not be used to draw any inference that they accepted the
+causation findings themselves (at least in the unqualified form in which
+they are set down in the Report). It is simply that they do all readily
+accept as they must that in no sense can these proceedings become an
+appeal against those findings. It is right to add that throughout the
+hearing in this Court that attitude has very properly been reflected in
+the submissions we heard. Thus the conclusions as to the cause of the
+crash must and do stand.
+
+Late in 1976 Air New Zealand decided to commence a series of
+non-scheduled sightseeing journeys from New Zealand to the Ross
+Dependency region and return to this country without a touch-down at any
+intermediate point. They began with two flights in February 1977. There
+were four further journeys in October and November 1977, four in
+November 1978, and three more in November 1979--on 7th, 14th and 21st.
+The accident flight was to be the fourteenth of the series. In 1977 the
+designated route was one which used Cape Hallett on the north-eastern
+point of Victoria Land as the first southern waypoint on the continent
+itself en route further south either to a point adjacent to the Williams
+ice landing field (near Scott and McMurdo bases) or alternatively the
+south magnetic pole. One or other became the southernmost waypoint, the
+magnetic pole destination being used at the discretion of the pilot if
+weather conditions made the McMurdo area unsuitable for sightseeing.
+
+Scott and McMurdo bases are located close together at the south-western
+tip of Ross Island which forms the eastern coast of McMurdo Sound. On
+the island there are four volcanic mountains including Mt. Erebus, the
+highest, at 12,450 feet. The Sound itself, which is about 40 miles long
+by 32 miles wide at the narrowest point, lies between mainland
+Antarctica and Ross Island and for most of the year it is covered with
+flat sea ice.
+
+The first two flights in February 1977 took place with the necessary
+approval of the Civil Aviation Division of the Ministry of Transport and
+after clearance with the United States naval authorities who control the
+air space in the vicinity of McMurdo Station. Those flights followed a
+computer-controlled flight track to Cape Hallett thence directly over
+Ross Island and Mt. Erebus at the stipulated minimum height of 16,000
+feet to the McMurdo waypoint. The co-ordinates of that waypoint had been
+written correctly into the flight plan as 77° 53' south latitude and
+166° 48' east longitude. Three of the pilots who flew to the Antarctic
+in November 1977 were available to give evidence and, like the two
+earlier pilots, they agreed that at that time the flight plan followed a
+track from Cape Hallett to the McMurdo area which passed virtually
+overhead Mt. Erebus. However then and on subsequent occasions the
+sightseeing aircraft to the McMurdo area arrived in the general vicinity
+of Cape Hallett to find clear air further on and took the opportunity of
+visual meteorological conditions to veer laterally from the direct
+computer flight track from Cape Hallett by tracking to the west along
+the coast of Victoria Land and eventually down McMurdo Sound over the
+flat sea ice. Ross Island was thus left to the east while near the head
+of the Sound the aircraft would turn left in order to fly over Scott
+and McMurdo bases and in the vicinity of Ross Island so that a view
+would be obtained of Mt. Erebus and the other three mountains there.
+
+When the decision was made to operate the series of flights to take
+place at the end of 1977 a change was made with the approval of the
+Civil Aviation Division to permit flights below 16,000 feet down to
+6,000 feet in a specified sector south of Ross Island and subject to
+such criteria as a cloud base no lower than 7,000 feet, clear visibility
+for at least 20 miles and descent under ground radar guidance. It has
+been mentioned that similar criteria applied, officially at least, until
+the time of the fatal crash. But the written directions were interpreted
+by some pilots as leaving them with a degree of discretion to go lower
+in ideal weather conditions.
+
+Then in September 1978 steps were taken to print a flight plan for each
+Antarctic journey from a record stored in the Air New Zealand ground
+based planning computer. And it is at this stage that the longitude
+co-ordinate for the southernmost waypoint was fed into the ground
+computer as 164° 48' E.
+
+
+The Flight Track
+
+The navigation system used by DC10 aircraft is a computerised device
+known as the area inertial navigation system (AINS). It enables the
+aircraft to be flown from one position to another with great accuracy.
+Prior to departure of a flight the AINS aboard the aircraft is
+programmed by inserting into its computers the co-ordinates of the
+departure and destination points (in degrees of latitude and longitude)
+together with those of specified waypoints en route. In the case of the
+Antarctic flights (which were engaged on what may be described as a
+return trip without touch-down) the southernmost waypoint, like each of
+the intermediate positions, was really a reference point to which the
+pilot knew the aircraft would be committed if it were left to follow the
+computer-directed flight track. And as mentioned the southern point for
+the preferred route to the McMurdo area was a ground installation at
+Williams Field.
+
+During 1977 the co-ordinates for each waypoint which comprised the
+Antarctic routes had not been stored on magnetic tape for automatic
+retrieval and insertion into the navigation computer units of the
+aircraft. Instead the flight plan was dealt with manually and upon issue
+to the aircrew at the time of departure was manually typed by the pilot
+concerned into the aircraft computer units. When the Air New Zealand
+ground based computer was used in 1978 to produce computerised Antarctic
+flight plans they followed the same format as those that had been
+produced earlier. But before the ground computer could be programmed it
+had been necessary for an officer of the navigation section to prepare a
+written worksheet containing all the waypoints and their respective
+latitude and longitude co-ordinates which then were transcribed from the
+worksheet. And by reference to the original flight plan used in February
+1977 this was done by Mr Hewitt, one of the four members of the
+navigation section at airline headquarters. He said in evidence before
+the Royal Commission that when he went on to take from his written
+worksheet the longitude co-ordinates of the McMurdo waypoint he
+mistakenly transcribed the correct figures of 166° 48' as 164° 48' by
+inadvertently typing the figure "4" twice. This had the effect of moving
+the McMurdo waypoint 25 nautical miles to the west and once in the
+aircraft's system the navigation track which then it would follow from
+Cape Hallett when under automatic control would be over the[1] Sound
+rather than directly to Williams Field.
+
+At this point it should be mentioned that the print-out of a flight plan
+shows not merely the co-ordinate waypoints but also a finely calculated
+statement of the direction and distance between them. This last
+information is obtained independently from what is called the NV90
+programme of the computer which is able automatically to calculate the
+rhumb line track and distance between each of the respective waypoints
+once the co-ordinates have been fed into it. This information forms the
+basis for the data required to produce the computerised flight plan. So
+that finally when a print-out of the plan is obtained it will disclose
+not merely the geographical co-ordinates for each waypoint but the true
+track direction and the distance in nautical miles from one to the next.
+That last information is needed prior to a flight departure in order to
+calculate tonnages of fuel during the prospective journey and
+accordingly as a flight proceeds it enables the quantity of fuel already
+consumed to be checked against the anticipated consumption in the flight
+plan print-out. Thus the precise track and distance is used for purposes
+of fuel calculations and has importance as a check in navigation.
+
+All this information is disclosed on page 96 of the Royal Commission
+Report where the print-out is shown for the flight plan with the
+co-ordinates for McMurdo showing the longitude as 164° 48' east. In the
+next column the track direction is given as 188.9° (grid) and the
+distance between Cape Hallett and McMurdo as 337 miles. On the facing
+page 97 there is a print-out of the flight plan actually used on the
+fatal flight which shows the correction made to the longitude, 166° 58'
+east. It will shortly be mentioned that when that correction was made
+the navigation section say it was thought to involve a minor movement of
+only 2.1 miles or 10 minutes of longitude. Despite the very small change
+that this could make to the track and distance between the two points a
+re-calculation was made and entered into the computer programme as
+188.5° (grid) and the distance 336 miles. Compared with the other
+figures the difference seems minimal but it was still thought necessary
+to assess it and it was done.
+
+
+The Western Waypoint
+
+The circumstances surrounding the use of the 164° 48' E figures were in
+issue before the Royal Commission. It was suggested against the airline
+they had not been introduced accidentally: that the movement of the
+position 25 miles to the west had been deliberate. If that were so it
+would seem that a re-calculation of track and distance would have been
+needed and made both for the fuel plan and also as a check for purposes
+of navigation. However, no re-calculation of track and distance was made
+and entered with the 164° 48' co-ordinate. The figures which actually
+appear for track and distance to that point remain precisely the track
+and distance figures which were shown in the flight plan to the 166° 48'
+point for the first flight in February 1977. For purposes of comparison
+a calculation to the "false" waypoint was prepared and put before the
+Royal Commission. It showed that a direct track from Cape Hallett to
+that point is actually 191° and the distance 343 miles. The point is
+referred to in paragraph 230 of the Report within a section headed "The
+creation of the false McMurdo waypoint and how it came to be changed
+without the knowledge of Captain Collins".
+
+In paragraph 229 it is said that submissions had been put to the
+Commissioner that "the shifting of the McMurdo waypoint was done
+deliberately so as to conform" with a track used by military aircraft
+proceeding to Williams Field. Then in paragraph 230 there is a summary
+of contrary arguments advanced by members of the navigation section to
+support their claim of accident. They include--
+
+     "(c) It was pointed out that if the McMurdo waypoint had been
+     intentionally moved 25 miles to the west, then the flight plan
+     would have a corresponding change to the track and distance
+     information which it previously contained. Instead of a true
+     heading from Cape Hallett to the NDB of 188.9° and a distance of
+     337 nautical miles, there would have been required, in respect of
+     the changed McMurdo waypoint, a true heading of 191° and 343
+     nautical miles. Similar alterations would have had to be made in
+     respect of a return journey to the true north."
+
+That is the matter already outlined. Concerning it the Commissioner said
+in paragraph 234 that there was "considerable validity in this point"
+although then he added:
+
+     "... the Navigation Section may have thought it not necessary to
+     alter the track and distance criteria from Cape Hallett to McMurdo
+     for the reason that the pilots were accustomed to flying on Heading
+     Select down this sector and not by reference to the fixed heading
+     programmed into the AINS."
+
+There is a further argument of the navigation section which is
+summarized in paragraph 230 (e)--
+
+     "It was submitted that an alteration to the McMurdo waypoint to
+     facilitate better sightseeing was not valid because flight captains
+     had a discretion to deviate horizontally from the flight plan
+     track."
+
+The Commissioner accepted that point as "a valid objection" in answer to
+the suggestion that the move had been deliberate (paragraph 236).
+
+However when he came in paragraph 255 (a) to express his final
+conclusion upon this general question he initially said this--
+
+     "The first question is whether the programming of the McMurdo
+     waypoint into the 'false' position before the commencement of the
+     1978 flights was the result of accident or design. On balance, it
+     seems likely that this transposition of the McMurdo waypoint was
+     deliberate."
+
+There is reference at that point to a track and distance diagram
+indicating a track down McMurdo Sound, and the sub-paragraph then
+continues--
+
+     "So as I say, I think it likely that the change of the McMurdo
+     destination point was intended and was designed by the Navigation
+     Section to give aircraft a nav track for the final leg of the
+     journey which would keep the aircraft well clear of high ground."
+
+Then the final portion of paragraph 255 (a) leaves the matter in the
+following half-way situation--
+
+     "However, I propose to make no positive finding on this point. I
+     must pay regard to the circumstance strongly urged upon me by
+     counsel for the airline in their closing submissions, namely, that
+     if the alteration was intentional then it was not accompanied by
+     the normal realignment of the aircraft's heading so as to join up
+     with the new waypoint. As I say, I think this latter omission is
+     capable of explanation but it is a material fact in favour of the
+     Navigation Section which I cannot disregard, and it is the single
+     reason why I refrain from making a positive finding that the
+     alteration of the waypoint was intentional."
+
+It may be that in speaking of a single reason in the last sentence of
+the extract the Commissioner put aside his earlier unqualified
+conclusion that the matter set out in paragraph 230 (e) was also "a
+valid objection" to the suggestion that the waypoint had been moved
+deliberately. In any event the eventual and significant finding
+concerning the matter is contained in the following sub-paragraph 255
+(b):
+
+     "I believe, however, that the error made by Mr Hewitt was
+     ascertained long before Captain Simpson reported the cross-track
+     distance of 27 miles between the TACAN and the McMurdo waypoint,
+     and I am satisfied that because of the operational utility and
+     logic of the altered waypoint it was thereafter maintained by the
+     Navigation Section as an approved position."
+
+At this point it is necessary to explain the reference in that
+sub-paragraph to Captain Simpson; and then, if it be assumed that "the
+altered waypoint ... was thereafter maintained ... as an approved
+position", it is necessary to understand the reasons given by the
+Commissioner for the change back to Williams Field. If the altered
+waypoint had been adopted as a better position why was it then thought
+that it had to be discarded?
+
+
+Correction of co-ordinates
+
+It was not until 14th November 1979 that any question arose about the
+McMurdo waypoint. On that day Captain Simpson had taken the second
+November 1979 sightseeing flight to the Antarctic and something
+persuaded him to raise the matter of the southern waypoint with Captain
+Johnson, the Flight Manager Line Operations. There is a difference of
+opinion as to precisely what was said by Captain Simpson to Captain
+Johnson but according to the evidence of those in the navigation section
+they thought that when they checked up-to-date records of the
+co-ordinates at McMurdo Station against the original NV90 flight plan
+what had been brought forward for notice was the small difference of 10
+minutes of longitude to which reference has been made. They said this
+represented the recent relocation of the tactical air navigation system
+(the TACAN) at Williams Field. Accordingly Mr Brown of the navigation
+section wrote into his worksheet a corrected position of 77° 52.7' S and
+166° 58' E and entered those figures into the system on 16th November.
+But the amendment was not made in the live flight planning system until
+the early hours of 28th November. According to the members of the
+navigation section all this was done without knowledge that the effect
+of introducing the amended figures would be to override "164° 48'" and
+so alter the co-ordinate by 2° 10' rather than 10'.
+
+The Commissioner rejected the explanations he had heard to the effect
+that Captain Simpson's information seemed to point to quite a minor
+movement to the up-dated position of the TACAN. He stated that there
+appeared to have been clear advice by Captain Simpson that the "false"
+waypoint was 27 miles west of it. In addition he rejected the possible
+explanation that the advice had been misinterpreted by Captain Johnson
+to whom it had been given, and he adopted instead what in paragraph 245
+he described as "the second explanation":
+
+     "(b) The second explanation is that both Captain Johnston and the
+     Navigation Section knew quite well that the McMurdo waypoint lay 27
+     miles to the west of the TACAN and that since his track had not
+     officially been approved by the Civil Aviation Division it should
+     therefore be realigned with the TACAN and then someone forgot to
+     ensure that Captain Collins was told of the change. Such an
+     interpretation means that the evidence as to the alleged belief of
+     a displacement of only 2.1 miles is untrue."
+
+     Then in paragraph 255 (d) he said this:
+
+     "If, as I have held, the Navigation Section knew the actual
+     position of the McMurdo waypoint as being 27 miles to the west of
+     the TACAN, then why did they not submit to Captain Johnson, or to
+     flight Operations Division, that the waypoint should remain where
+     it was? One view is that the Flight Operations Division expected,
+     in terms of Captain Johnson's letter to the Director of Civil
+     Aviation dated 17 October 1979, that the next edition of the Ross
+     Sea chart NZ-RNC4 would contain the official Air New Zealand flight
+     path to McMurdo, and that the safest course would be to put the
+     destination point back to the approximate location at which Civil
+     Aviation Division had thought it had always been."
+
+That last suggestion was not put to any of the navigation witnesses at
+the Inquiry. It implies that although those in the navigation section
+believed the airline had been using a computer track to the west of Ross
+Island for the past year because it was the better route they
+nevertheless suddenly became uneasy lest knowledge of the matter would
+now reach the Civil Aviation Division which had not given its official
+blessing to the change. The idea apparently is that because the airline
+might receive an official rebuke the officers in the section made their
+own independent decision that the route must once again be directed back
+over Mt. Erebus.
+
+There was no evidence at all before the Royal Commission that the
+approval of the Civil Aviation Division was needed for a change from the
+direct Cape Hallett/McMurdo route. An affidavit in support of the
+present application for review indicates that if the matter had been
+raised at the Inquiry members of the navigation section would have
+wished to present evidence from the Civil Aviation Division that "a
+change of route from the direct route to the McMurdo Sound route would
+not have required CAD approval and therefore could have been lawfully
+accomplished by the airline without reference to CAD". That situation
+may have been anticipated by the Commissioner himself for by reference
+to the false waypoint and the earlier consequential movement of the
+computer flight track down McMurdo Sound to the west he said that
+although approval of the route by the Civil Aviation Division should
+have been obtained it "would have been automatic" (paragraph 150).
+
+In paragraph 255 (f) of the Report the explanation from all four members
+of the navigation section is described in the following way:
+
+     "In my opinion this explanation that the change in the waypoint was
+     thought to be minimal in terms of distance is a concocted story
+     designed to explain away the fundamental mistake, made by someone,
+     in failing to ensure that Captain Collins was notified that his
+     aircraft was now programmed to fly on a collision course with Mt.
+     Erebus."
+
+That finding is one of those directly challenged in the present
+proceedings.
+
+
+Advice of the Change
+
+A different matter was considered by the Commissioner in relation to the
+change made in November 1979 to move the waypoint back to the TACAN at
+Williams Field. As usual a signal was sent to the United States base at
+McMurdo with advice that the aircraft was to fly to the Antarctic on
+28th November and the flight plan for the journey. And in the list of
+waypoints appears the word "McMurdo" in lieu of the geographical
+co-ordinates which had appeared in the equivalent signal for the flight
+three weeks earlier. The message had been prepared by Mr Brown, one of
+the four officers in the navigation section.
+
+The use of the word "McMurdo" was the subject of an idea put by the
+Commissioner to Mr Hewitt, who was the second of the witnesses from the
+navigation section. The Commissioner asked:
+
+     "I know you have explained to me how that happened but someone may
+     suggest to me before the enquiry is over that the object was to
+     thats (sic) not to reveal there had been this long standing error
+     in the co-ordinates and that is why the word McMurdo was relayed to
+     them. I take you would not agree with that"
+
+     Mr Hewitt said:
+
+     "Certainly not sir."
+
+The suggestion had not been raised earlier at the Inquiry and it was not
+mentioned by anybody subsequently. In particular it was not put to Mr
+Brown himself when the latter was called to give evidence three months
+later. However the Commissioner expressed his view upon the matter in
+the following way. In paragraph 255 (e) he said this--
+
+     "In my opinion, the introduction of the word 'McMurdo' into the Air
+     Traffic Control flight plan for the fatal flight was deliberately
+     designed to conceal from the United States authorities that the
+     flight path had been changed, and probably because it was known
+     that the United States Air Traffic Control would lodge an objection
+     to the new flight path."
+
+It will be observed that the last few words are qualified by "probably".
+It appears that the Commissioner was told during a visit to Antarctica
+that the United States authorities would not have approved a flight path
+over Ross Island. But there was no evidence that Air New Zealand had
+ever received an intimation from the United States authorities to that
+effect or that the navigation section had reason to think they would so
+object. The qualification seems to reflect that position. In the result,
+when the findings in the two sub-paragraphs 255 (e) and (f) are put
+together they reveal the theory that at one at the same time the
+navigation section felt obliged to conceal from officials in Wellington
+the use of a flight track down McMurdo Sound that was regarded
+favourably by officials at McMurdo Station and from officials at McMurdo
+Station a flight track over Ross Island that was regarded favourably by
+officials in Wellington.
+
+
+Whiteout
+
+In relation to the cover-up allegations that have been made against the
+executive officers some reference should be made to their knowledge or
+otherwise of the freak meteorological condition known as "the whiteout
+phenomenon". Did they know or suspect that such a condition must have
+been an explanation for what happened and yet still be determined as the
+Commissioner found, to promote pilot error as the cause of the crash?
+
+It is something that can be mentioned quite briefly. The Royal
+Commission Report has made it clear the phenomenon can result in a loss
+of horizon definition and depth perception and is a great hazard for
+those who fly in arctic or antarctic conditions. The Commissioner found
+that at the critical time "air crew had been deceived into believing
+that the rising white terrain ahead was in fact quite flat and that it
+extended on for many miles under the solid overcast". This danger is
+something well known to those who fly regularly in those areas.
+Unfortunately it is not so well known by others, and as the Commissioner
+stated in paragraph 165 it was not understood by any of those involved
+in this case. He said:
+
+     "So far as I understand the evidence, I do not believe that either
+     the airline or Civil Aviation Division ever understood the term
+     'whiteout' to mean anything else than a snowstorm. I do not believe
+     that they were ever aware, until they read the chief inspector's
+     report, of the type of 'whiteout' which occurs in clear air, in
+     calm conditions, and which creates this visual illusion which I
+     have previously described and which is, without doubt, the most
+     dangerous of all polar weather phenomena."
+
+It would seem that if those at airline headquarters were unaware of the
+deceptive dangers of the whiteout phenomenon they could not have
+deliberately ignored it as a factor that should be taken into account in
+favour of the aircrew.
+
+
+Instructions of the Chief Executive
+
+In paragraph 41 and following paragraphs there is reference to "what
+happened at the airline headquarters at Auckland when the occurrence of
+the disaster became first suspected and then known". It is explained
+that the navigation section became aware of the fact that when the
+McMurdo waypoint co-ordinates were corrected in November 1979 the
+movement was not one of 2.1 miles within the vicinity of Williams Field
+but a distance of 27 miles from longitude 164° 48' E; and that "by 30
+November the occurrence of this mistake over the co-ordinates was known
+not only to the Flight Operations Division but also to the management of
+the airline. In particular it had been reported to the Chief Executive
+of Air New Zealand, Mr. M.R. Davis". At that point there follows the
+serious allegation in paragraph 45 already cited--
+
+     "The reaction of the chief executive was immediate. He determined
+     that no word of this incredible blunder was to become publicly
+     known."
+
+On the face of it the unqualified idea expressed in that sentence is
+that Mr. Davis had decided to suppress from everybody outside the
+airline all information about the changed flight track. But if that
+meaning were intended it has been greatly modified in paragraph 48.
+There it is said--
+
+     "It was inevitable that these facts would become known. Perhaps the
+     chief executive had only decided to prevent adverse publicity in
+     the meantime, knowing that the mistake over the co-ordinates must
+     in the end be discovered."
+
+Of course if the decision were merely "to prevent adverse publicity in
+the meantime" then such an attitude could not in any way be consistent
+with an attempt "orchestrated" by Mr. Davis to hid from official
+scrutiny what finally was held by the Commissioner in paragraph 393 to
+be "the single dominant and effective cause of the disaster". Despite
+that, paragraph 48 goes on to say this:
+
+     "This silence over the changing of the co-ordinates and the failure
+     to tell the air crew was a strategy which succeeded to a very
+     considerable degree. The chief inspector discovered these facts
+     after he had returned from Antarctica on or about 11 December
+     1979. In his report, which was published in June 1980, the chief
+     inspector referred to what he termed the 'error' in the McMurdo
+     destination point, and the fact that it had been corrected a matter
+     of hours before the flight left Auckland."
+
+It is difficult to understand why the Commissioner considered "this
+silence over the changing of the co-ordinates and the failure to tell
+the air crew" had been "a strategy which succeeded to a very
+considerable degree". The information had been given to the chief
+inspector immediately on his return from Antarctica. That much is
+acknowledged in the two sentences that follow. It becomes apparent,
+however, that this was criticized not because the information had been
+kept away from those to whom it most certainly had to be given, those
+charged with the important responsibility of inquiring into the causes
+of the disaster. Mr. Davis was criticized for nothing more than his
+failure to release the material to the outside world. That is made plain
+by a subsequent statement towards the end of the Report which leads on
+to the very severe pronouncement in paragraph 377 that the Commissioner
+had been obliged to listen to "a predetermined plan of deception ... an
+orchestrated litany of lies". The relevant passage is in paragraph 374:
+
+     "The fact that the navigation course of the aircraft had been
+     altered in the computer had been disclosed by the chief inspector
+     in his report dated 31 May 1980, 6 months after the disaster. But
+     it was not until the Commission of Inquiry began sitting that the
+     airline publicly admitted that this had occurred."
+
+The effect of the absence of general publicity that the information was
+given rather than its ready provision by the airline to Mr. Chippindale
+on the day after his return from the crash site is described in the
+remaining portion of paragraph 48 which continues in the following way:
+
+     "Then the chief inspector went on to say in his report (paragraph
+     2.5):
+
+     'The error had been discovered two flights earlier but neither crew
+     of the previous flight or that of the accident flight were advised
+     of the error by the flight despatcher prior to their departure.'
+
+     The chief inspector did not make it clear, however, that the
+     computer flight path of TE 901 had been altered before the flight,
+     and that the alteration had not been notified to the air crew. Had
+     that fact been disclosed in the chief inspector's report then the
+     publicity attending the report would undoubtedly have been
+     differently aligned ... the news blackout imposed by the chief
+     executive was very successful. It was not until the hearings of
+     this Commission that the real magnitude of the mistake by Flight
+     Operations was publicly revealed."
+
+Concerning that last part of paragraph 48 it seems that the
+Commissioner's remark immediately following the extract from paragraph
+2.5 is inaccurate. It appears to suggest either that the chief inspector
+was unaware of the fact that the alteration to the co-ordinates "had not
+been notified to the air crew"; or that if he had been made aware of
+that fact then he had failed to bring it to public attention in his
+report as the next sentence suggests. But Mr. Chippindale was both aware
+of all this and he said so. In paragraph 1.17.1 he explicitly stated:
+
+     "This error was not corrected in the computer until the day before
+     the flight. Although it was intended that it be drawn to the
+     attention of the previous crew, immediately prior to their
+     departure this was not done, _nor was it mentioned during the
+     pre-flight dispatch planning for the crew of the accident flight_".
+     (Emphasis added.)
+
+The "pre-flight dispatch planning" mentioned in those last words was the
+occasion of final briefing of the aircrew immediately before the
+aircraft left Auckland on the morning of 28th November 1981.
+
+A different comment upon paragraph 48 is central in this part of the
+case. It is very hard to understand why the chief executive officer of
+this airline should have had any duty to pass on for debate and public
+prejudgment the same material that in accord with his responsibility had
+been properly and immediately placed before the appointed official
+required and well equipped to assess it.
+
+
+"Irrelevant" Documents
+
+At the beginning of this judgment a different aspect of paragraph 45 is
+explained by contrast with the following paragraph 46 which correctly
+summarizes instructions given by Mr Davis for the disposal of surplus
+copies of documents lest they be leaked to the news media. In paragraph
+46 it is explained by the Commissioner that "his instructions were that
+_only copies of existing documents were to be destroyed_. He said that
+he did not want any surplus document to remain at large in case its
+contents were released to the news media by some employee of the
+airline. The chief executive insisted that his instructions were that
+all documents of relevance were to be retained on the single file"
+(emphasis added). There was no evidence before the Royal Commission to
+any contrary effect. But in the preceding paragraph a different
+impression is given. The relevant part of paragraph 45 reads--
+
+     "He directed that all documents relating to Antarctic flights, and
+     to this flight in particular, were to be collected and impounded.
+     They were all to be put on one single file which would remain in
+     strict custody. Of these documents"--
+
+that is, _all_ documents relating to the Antarctic flights--the sentence
+continues:
+
+     "all those which were not directly relevant were to be destroyed.
+     They were to be put forthwith through the company's shredder."
+
+Then in paragraph 54 the actual instruction is taken into a further
+dimension where it is described as "this direction on the part of the
+chief executive for the destruction of 'irrelevant documents'". And one
+serious complaint made by the applicants about the Royal Commission
+Report is that what could be an understandable direction for the
+_retention_ of one copy on a master file _of all relevant documents_ has
+become an unacceptable instruction that _irrelevant documents_ (related
+to the Antarctic flights nonetheless) _should be destroyed_. We think
+the complaint is justified.
+
+At the same early stage of the Report the Commissioner gave his
+attention to the question as to what if anything was done about the
+suppression of documentary evidence. He said in paragraph 52:
+
+     "As will be explained later, there was at least one group of
+     documents which certainly were in the possession of the airline as
+     from the day following the disaster, and which have never been seen
+     since. I am referring here to the flight briefing documents of
+     First Officer Cassin.... (He) had left his briefing documents at
+     home. They were recovered from his home on the day after the
+     disaster by an employee of the airline. As I say, they have never
+     been seen since."
+
+In the following paragraph 53 he observed--"If the explanation of the
+chief executive is to be accepted, then in the opinion of someone the
+briefing documents of First Officer Cassin, the co-pilot, were thought
+to be irrelevant to the disaster"; and in paragraph 54--"it follows that
+this direction on the part of the chief executive for the destruction of
+'irrelevant documents' was one of the most remarkable executive
+decisions ever to have been made in the corporation affairs of a large
+New Zealand company".
+
+Those remarks require some brief comment. It must be explained that the
+"employee of the airline" mentioned at the end of paragraph 52 was
+Captain Crosbie. It is true that he was "an employee of the airline" but
+he did not go to the home of First Officer Cassin in that capacity. He
+had been asked by the Airline Pilots Association, the group which
+throughout the inquiry had very properly been concerned to protect the
+interests of the two deceased pilots, to act on their behalf for the
+purpose of bringing immediate aid and comfort to the two widows. His
+evidence was to the effect that he had gone to each of the homes for
+that purpose; that sometime later a member of Mrs Cassin's family had
+invited him to take away a box containing such items as flight manuals;
+and he said he had done no more than that. He flatly denied taking any
+flight documents. But even if he had, the alleged conspiracy has always
+been limited in the Royal Commission Report to the executive pilots and
+other officers in the management area. It has never been suggested that
+it had extended as well to the airline pilots. As may be expected,
+throughout both investigations they have done their conscientious best
+to protect the valued reputations of their deceased colleagues.
+
+There was documentary evidence before the Inquiry to the effect that on
+30th November 1979 an in-house committee of Air New Zealand met on the
+instruction of Mr Davis for the purpose of deciding how to collect
+together all available information relevant to the accident. It seems
+that it began its practical work on Monday 3rd December. In that regard
+and as an example of the way in which the applicants say the cover-up
+allegation could have been answered by those affected they placed
+material before this Court which would suggest that the formation of
+such a committee is a conventional step taken by an airline when
+confronted with any serious disaster, that it was required by this
+company's Accident Investigation Procedures Manual, and that this
+committee was appointed accordingly. If it had been before the Inquiry
+it would have supported the view that Mr Davis had decided the chairman
+should not be associated with the flight operations side of Air New
+Zealand and for that reason he appointed Mr Watson who had charge of
+certain related companies. There is also an affidavit sworn by Captain
+Priest who was appointed by the Airline Pilots Association to sit as its
+representative on the committee. Taken at its face value it is to the
+effect that he took part in the committee's work from the meeting on 3rd
+December. In the affidavit he has explained: "My position on that
+Committee was an ALPA watchdog--there were two other independent
+members"; that as the inquiry progressed "it became apparent that the
+committee was amassing a large amount of papers"; and that Mr Watson
+then announced that he had been directed by the chief executive to get
+all the information onto one file and any surplus disposed of to avoid
+information getting into the wrong hands. The affidavit indicates that
+it was then agreed by the committee itself that this should be done on
+the basis that the master file was to be available to the committee
+members at any time and it appears that Captain Priest joined in that
+decision. It is not for us to decide what would have been the effect or
+significance of all this material if it had been placed before the Royal
+Commission but since the conspiracy to deceive theory that is developed
+in the Royal Commission Report apparently stems from the instruction
+given by Mr Davis clearly the officers so gravely affected were entitled
+to be warned in advance and so be given the opportunity to have such
+information fairly and properly considered.
+
+
+Search at Mt. Erebus
+
+The issue of documentary evidence is given extended attention in a
+section of the Report headed, "Post-accident conduct of Air New Zealand"
+which is exclusively concerned with suggestions of possible items that
+might have been withheld from the Inquiry. The discussion is introduced
+at paragraph 342 by a statement that "This instruction by the chief
+executive for the collection of all Antarctica documents had some
+unfortunate repercussions". The observation is then developed by
+reference in particular to the work of Captain Gemmell, the technical
+flight manager for Air New Zealand, while assisting Mr Chippindale at
+the crash site.
+
+Captain Gemmell had received instructions in the early hours of the
+morning of 29th November 1979 to travel to McMurdo in order to assist Mr
+Chippindale's investigation into the cause of the accident at the scene.
+However, by reason of weather conditions it was not possible for him to
+be taken by helicopter to the ice slope until 3 p.m. on 2nd December.
+Then, clad in protective clothing and roped to mountaineers, he assisted
+in a search for the in-flight recording equipment (consisting of the
+cockpit voice recorder and the "black box") and the recovery of any
+other equipment or documents which might indicate how the accident had
+happened.
+
+Three days earlier, at about 8.30 a.m. on the very morning after the
+accident, three mountaineer staff members at Scott Base had managed to
+get there in order to search for survivors. And Mr Woodford, who was one
+of them, has described the scene in a letter received by the Royal
+Commissioner during the public hearings. The letter, which is amplified
+in a affidavit put before this Court, is set out later in this judgment.
+Mr Woodford explained that when he got to the scene he found a black
+flight bag with Captain Collins' name printed on it. It was lying open
+on the snow and it was empty. Already material in the form of books and
+papers that had not been destroyed when the aircraft disintegrated on
+impact had been blown by winds over the ice-slope or into crevasses or
+covered by drifting snow. He pointed out that although the cockpit voice
+recorder had been located quite quickly when he was back at the crash
+site with the party from New Zealand on 2nd December the "black box"
+could not be found until later that evening after it had been decided to
+begin digging systematically for it. It was found buried under snow at a
+depth, he said, of 20 to 30 cms.
+
+But although the bag was empty it was suggested at the hearing that
+while at McMurdo Captain Gemmell might have "collected a quantity of
+documents from the crash site and brought them back to Auckland"; that
+only three of the flight documents carried on the aircraft had been
+produced to the Royal Commission; that it was "curious" to find that
+each favoured the case "which the airline was now attempting to
+advance"; and all this against counsel's theory that before Captain
+Gemmell had left Auckland on 29th November he was aware of possible
+problems associated with the amendment to the destination point
+co-ordinates. Captain Gemmell flatly denied having that knowledge while
+in the Antarctic; and he rejected totally any suggestion that he had
+recovered anything from the site which had not been passed across in
+terms of Mr Chippindale's instructions. In that regard he answered two
+propositions put to him by the Commissioner (at page 1834) in the
+following way:
+
+     "Well the suggestion may be made to me in due course that because
+     of the discovery that Capt Collins did not know of the alteration
+     in the nav track consequently someone in the co. would have been
+     instructed to locate whatever documents there were on the crash
+     site and elsewhere that might throw light on that question. You say
+     that no such instruction was given to you.... Certainly not.
+
+     But it would have been a reasonable instruction would it not.... No
+     it would not have."
+
+
+Intimidation of a Witness
+
+At this point it is necessary to mention a different suggestion which
+was also rejected by Captain Gemmell. It was put to him during
+cross-examination that he had carried back from McMurdo a blue plastic
+envelope containing personal property recovered from the accident site.
+In evidence given later by First Officer Rhodes the envelope was
+supposed to have been entrusted to Captain Gemmell by Mr Chippindale for
+delivery in New Zealand since Captain Gemmell was about to depart from
+the base several days before the others. First Officer Rhodes had
+himself been in Antarctica as a member of Mr Chippindale's investigation
+team, representing there the Airline Pilots Association. He appeared as
+a witness before the Royal Commission on two occasions. During his first
+appearance he was called by the Association. He did not refer then to a
+blue envelope; but because it was thought that the material may have
+been mentioned by him to the Association's counsel he was recalled to
+give evidence, this time by counsel for the airline.
+
+Before turning to the evidence given by First Officer Rhodes during his
+second appearance it is worthwhile making a preliminary comment. No
+complaint has ever been made by Mr Chippindale about a missing blue
+envelope or papers within it. If Captain Gemmell had been entrusted with
+such a mission which he had failed to discharge Mr Chippindale would
+seem to be the first person who would want to know why. He himself gave
+evidence before the Royal Commission for a period of ten days and during
+all that time he was never asked about this matter. Nor was he recalled
+to deal with it after it had been raised with Captain Gemmell or after
+First Officer Rhodes gave his further evidence. That fact alone might be
+thought sufficient to dispose of the matter. And in the end the
+Commissioner himself decided that neither this nor other evidence could
+justify a finding against Captain Gemmell that he "recovered documents
+from Antarctica which were relevant to the fatal flight, and which he
+did not account for to the proper authorities".
+
+It is necessary to describe all this because the second appearance of
+First Officer Rhodes resulted in a finding in paragraph 348 of the Royal
+Commission Report which reflects seriously upon the conduct of another
+executive officer of the airline, Captain Eden. The paragraph is another
+of those challenged in the present proceedings.
+
+It seems that First Officer Rhodes agreed to give evidence on the second
+occasion in order to remove any false impression that he himself doubted
+the integrity of Captain Gemmell. The following extract from the
+transcript explains the position (a condensed version appears in
+paragraph 347 of the Report):
+
+     "You've already given evidence and stated your qualification. I
+     think you have offered to give some supplementary evidence relating
+     to activity at the Erebus crash site ... Our discussion with Capt.
+     Eden last Friday indicated this would be appreciated.
+
+     I think just as Capt. Gemmell was there representing the co. you
+     were there as a rep. of ALPA.... Thats correct.
+
+     May we take it that you worked in conjunction with Capt. Gemmell
+     and other members of the team involved.... Correct.
+
+     And in so doing you were present at the crash site with Capt.
+     Gemmell.... No we had different tasks as I was in the area with
+     Capt. Gemmell at some stages.
+
+     So far as your observations are concerned what would you have to
+     say regarding Capt. Gemmell's conduct and behaviour in the course
+     of his duties there.... I have no reason to doubt Capt. Gemmell in
+     any way shape or form.
+
+     Have you ever suggested otherwise to anybody.... I have not."
+
+Then he was cross-examined by counsel for the Association whose witness
+he had been earlier. He was asked about Captain Gemmell's work at the
+actual scene of the disaster and his explanation about that matter is
+reflected in the following question and answer:
+
+     "Did you see Capt. Gemmell at any time in the cockpit area or
+     thereabouts working on his own.... I qualified that before. Working
+     on your own is a relative term. At all stages there would be
+     somebody adjacent for your own safety and well-being. I did not at
+     any stage see Ian Gemmell Capt. Gemmell or Ian Wood or David Graham
+     in total isolation in any part of the wreckage."
+
+Then there is mention of material that may have been returned by Captain
+Gemmell to New Zealand--
+
+     "You heard question the other day concerning Capt. Gemmell
+     returning from McMurdo with an envelope containing property can you
+     tell us about that.... At the stage that Capt. Gemmell was
+     returning to N.Z. he was asked by the Chief Inspector of Accidents
+     if he would return to N.Z. with one or more envelopes I cannot
+     recall how many containing photos and perhaps other information to
+     be used in the conduct of the inquiry at a later date but
+     specifically at that early date the intention was for Capt. Gemmell
+     to brief the Minister and the Dir. of CAD and senior execs, of Air
+     N.Z. as to what had transpired at that early date in the
+     investigation. As Mr Chippindale would be staying in the Ant. and
+     the remainder of his team would be with him or else in the US.
+
+     What about private property.... The envelopes which Capt. Gemmell
+     return to N.Z. with may have contained some documentation from the
+     crash site which was beginning to return in significant quantities
+     from the various people on the crash site including the police."
+
+The following portion of the cross-examination then refers to documents
+described as "the technical crews flying records, the collection of log
+books, licences and other relevant documentation". He said that at first
+there was reluctance on the part of Air New Zealand to release this
+material "as it was not clear at that stage in many peoples minds what
+my duties were". It was not immediately appreciated that he was acting
+on Mr Chippindale's behalf. He was then asked--
+
+     "And Air N.Z. and Capt. Gemmell released to you the material which
+     you'd previously sought.... Correct".
+
+Concerning all this evidence the Commissioner expressed the following
+conclusions in paragraph 348:
+
+     "Captain Eden is at present the director of flight operations for
+     the airline. He appeared in the witness box to be a strong-minded
+     and aggressive official. It seemed clear from this further
+     production of First Officer Rhodes as a witness that it had been
+     suggested to him by Captain Eden that he should either make a
+     direct allegation against Captain Gemmell or else make no
+     allegation at all, and that since First Officer Rhodes seemed to
+     have no direct evidence in his possession, he was therefore obliged
+     to give the answer which Captain Eden had either suggested or
+     directed. However, First Officer Rhodes was not entirely
+     intimidated because as will be observed from the evidence just
+     quoted, he insisted on saying that Captain Gemmell had brought an
+     envelope containing documents back to Auckland."
+
+Those statements are in no way related to the assessment of Captain
+Eden's evidence or as Captain Eden as a witness. They are observations
+that Captain Eden had attempted to influence or direct the evidence to
+be given by First Officer Rhodes by a process of intimidation. Counsel
+for First Officer Rhodes' own association had made no suggestion to that
+effect. Nor is there any hint by First Officer Rhodes himself that he
+was present as anything but a voluntary witness. The answer he gave to
+the opening question would not seem to support suspicions of
+intimidation. And that answer is itself followed by quite a generous
+tribute to Captain Gemmell. But the reputation of Captain Eden and the
+support given Captain Gemmell is dismissed by a finding of intimidation.
+It should be said as well that although Captain Eden himself appeared to
+give evidence three days later not a word was said to him by anybody to
+suggest that earlier he had been guilty of attempting to intimidate a
+witness.
+
+
+Specific documents
+
+To the extent that the Royal Commission Report has pointed to any
+particular classes of documentary material that did not reach the
+Inquiry the list is not a long one. It comprises--
+
+     1. Unidentified papers within the blue envelope--No complaint about
+     this was ever made by Mr Chippindale as we have mentioned.
+
+     2. Papers given to First Officer Cassin as briefing material--It
+     has been explained that if any complaint could be made about this
+     matter it would affect Captain Crosbie, the unnamed "employee of
+     the airline" referred to in paragraph 52. It was he who went to the
+     Cassin home for compassionate reasons as the spokesman for the
+     Airline Pilots Association. He denies ever receiving the material.
+     Even if he had, the Report has not challenged the conduct of any of
+     the line pilots. This matter would seem to be irrelevant.
+
+     3. Documents or papers that may have been shredded by Mr Oldfield
+     following the decision of the in-house committee which met during
+     the week beginning 3rd December 1979--This matter requires no
+     further discussion.
+
+     4. Pages within the cover of a ring-binder notebook of Captain
+     Collins--This matter too was handled by Captain Crosbie. However,
+     it requires some specific mention because in paragraph 352 it has
+     been associated with Captain Gemmell and as all counsel now
+     acknowledge this has been done in error. The paragraph is one of
+     the specific paragraphs challenged by these proceedings.
+
+     5. Briefing or other flight documents (including a New Zealand
+     Atlas) taken onto the aircraft within Captain Collins' flight bag;
+     and similar papers within a flight bag owned by First Officer
+     Cassin--This matter also requires discussion.
+
+
+The Ring-binder Notebook
+
+The Commissioner found that Captain Collins carried with him on the
+fatal flight a small pocket diary usually kept in his breast pocket; and
+a ring-binder losse-leaf notebook carried in his flight bag. It is said
+in paragraph 351 "that the chief inspector had obtained possession of
+the small pocket diary, but it did not contain any particulars relating
+to Antarctica flights". At the hearing Mrs Collins described the diary
+and said that on 12th December 1979 Captain Crosbie had returned it to
+her together with certain other items of personal property belonging to
+her husband. She explained that there were no pages in the ring-binder
+when she received it "other than some loose papers which are still
+folded inside the front cover". The question arose as to what had
+happened, to the balance of the contents of the notebook. Captain
+Crosbie himself was called by counsel for the Airline Pilots Association
+to give evidence before the Commission. He explained that his
+involvement in all post-accident matters was as a welfare officer for
+the association; and in that capacity he had been given by the police
+personal property for distribution to next-of-kin. When asked about
+pages which normally would have been within the ring-binder covers he
+said that most of the recovered items had been damaged considerably by
+water and kerosene, and in answer to the Commissioner, who had asked
+"How could the ring-binder cover itself be intact and yet the pad of
+writing paper disappear?", he said, "I suggest the cover survived the
+water and kerosene but the paper contents didn't". He added in answer to
+questions by counsel--
+
+     "If papers were removed from the ring binder who would have done
+     that.... I would have myself I presume.
+
+     Do you recall doing that.... No not specifically. I was involved in
+     destroying a lot of papers that were damaged and would have caused
+     distress some because of that and some because it was the obvious
+     thing to do."
+
+As a further sample of the kind of material that might have been
+provided by the criticized officers had they been given the opportunity
+we were referred to a signed statement by Captain Crosbie forwarded to
+the police (who by then were investigating the allegations of
+conspiracy) on 5th May 1981. In the statement he has said after he had
+given evidence before the Inquiry he recalled that because of the poor
+condition of the notebook and severely damaged paper inside it and
+"rather than present this to Mrs Collins" he had disposed of the pages
+himself. Then having cleaned the cover he dried it in the sun and
+returned it to Mrs Collins. It would seem to be an understandable
+reaction although once again the effect this kind of material might have
+had if it had been put forward is not for us to assess. In any event,
+concerning this matter the Commissioner said in paragraph 352--
+
+     "As to the ring-binder notebook, it had been returned to Mrs
+     Collins by an employee of the airline, but all the pages of the
+     notebook were missing. _Captain Gemmell_ was asked about this in
+     evidence. He suggested that the pages might have been removed
+     because they had been damaged by kerosene. However, the ring-binder
+     notebook itself, which was produced at the hearing, was entirely
+     undamaged." (Emphasis added.)
+
+It is clear that the Commissioner has wrongly attributed the explanation
+given by Captain Crosbie concerning the removal of missing pages to
+Captain Gemmell. The latter was never questioned at all about possible
+reasons for the missing pages. The fifth and sixth respondents have
+formally acknowledged that the reference to Captain Gemmell in that
+paragraph is wrong.
+
+
+Contents of Flight Bags
+
+It has been explained that the Commissioner was satisfied that Captain
+Collins had used the New Zealand Atlas to plot the last leg of the
+flight path from Cape Hallett to McMurdo and may have used a chart of
+his own for the same purpose. In addition there were his briefing
+documents and those received by First Officer Cassin. Those received by
+the latter have been discussed. The Commissioner held that they had not
+been taken aboard the aircraft. But he was concerned with whatever else
+may have been carried onto the DC10 by First Officer Cassin in his
+flight bag; and about the contents of Captain Collin's flight bag which
+he believed would include the atlas and briefing documents. In fact the
+only evidence concerning the possible survival of the first officer's
+flight bag, let alone its contents, was a name-tag which finally reached
+Mrs Cassin through Captain Crosbie, the welfare representative. Since
+there is no description of the contents and it has been held that the
+briefing material was left behind anyway, the fate of the bag itself
+would seem to be immaterial.
+
+On the other hand it is known that after the accident Captain Collins'
+bag was seen on Mt. Erebus. The matter has been mentioned. The bag did
+not reach his widow as it would normally have done if it had been
+received and returned to New Zealand and this fact is the focus of
+attention in the Royal Commission report.
+
+In order to examine the matter it will be remembered that the
+mountaineer, Mr Woodford, arrived by helicopter searching for survivors
+on the morning of 29th November. In the letter he sent to the Royal
+Commission he said he found the bag then and: "My recollection is that
+it was empty when I first inspected it. It certainly contained no
+diaries or briefing material." Apparently the bag had been thrown from
+the disintegrating aircraft at the time of impact and its contents lost
+in the snow or scattered by winds before the arrival of the
+mountaineers. But whatever the reason for their absence from the bag it
+is the contents that matter in this case--not the flight bag itself. And
+according to the letter they had already disappeared from the bag three
+days before the New Zealand party arrived there. So like the bag of
+First Officer Cassin it might be thought that this item too was
+immaterial. However, it is discussed by the Commissioner in the
+following way.
+
+First there is listed a series of documents "which clearly had been
+carried in the flight bag of Captain Collins" and which had not been
+recovered. The items comprise the New Zealand Atlas and a chart; the
+briefing documents; and the ring-binder notebook. Those three items
+have been mentioned. And finally a topographical map issued on the
+morning of the flight. The suggested significance of these various
+documents is explained by reference to the view of counsel for the
+Airline Pilots Association that they "would have tended to support the
+proposition that Captain Collins had relied upon the incorrect
+co-ordinates" (paragraph 344).
+
+There follows reference to the blue envelope and the matter of Captain
+Eden after which paragraph 349 speaks of the flight bag:
+
+     "Then, as the Inquiry proceeded, there were other queries raised.
+     It seemed that Captain Collins' flight bag had been discovered on
+     the crash site. It was a bag in which he was known to have carried
+     all his flight documents. It was said to have been empty when
+     found, a fact which was incidentally confirmed by a mountaineer who
+     had seen the flight bag before Captain Gemmell arrived at the crash
+     site. The flight bag was rectangular, and constructed of either
+     hard plastic or leather, and had the name of Captain Collins
+     stamped on it in gold letters. It was evidently undamaged."
+
+There is mention as well of First Officer Cassin's flight bag and the
+ring-binder notebook (both of which matters have now been discussed) and
+then it is said in paragraph 353 that after the taking of evidence the
+Commissioner asked counsel assisting the Commission to make inquiries
+about the two flight bags "which had been located on the site but which
+had not been returned to Mrs Collins or Mrs Cassin".
+
+It appears from the following paragraph 354 that among others
+interviewed by counsel or asked for comment upon this matter were Mr
+Chippindale (the chief inspector of air accidents), and the senior
+sergeant of police who had been in charge of the property collected from
+the crash site when it was brought to McMurdo. It is said in that
+paragraph that the police officer--
+
+     "... recollected either one or two flight bags among other property
+     awaiting packing for return to New Zealand. He said that personnel
+     from Air New Zealand had access to the store, as well as the chief
+     inspector, and the senior sergeant said that he thought that he had
+     given the flight bags to the chief inspector and that the chief
+     inspector was the sole person to whom he had released any property.
+     The chief inspector was then interviewed on 11 December 1980 by
+     telephone, being at that time in Australia, but he said that no
+     flight bags were ever handed to him."
+
+Thus the inquiries that were made in this fashion were inconclusive.
+However, the Commissioner was satisfied that--
+
+     "The two flight bags were lodged in the Police store at McMurdo and
+     would have been returned in due course to Mrs Collins and Mrs
+     Cassin by the Police. But they were taken away from the store by
+     someone and have not since been seen." (Paragraph 359 (1))
+
+Then in the same context he said in sub-paragraph 359 (4):
+
+     "Captain Gemmell had brought back some quantity of documents with
+     him from Antarctica, and certain documents had been recovered from
+     him by First Officer Rhodes on behalf of the chief inspector."
+
+And then--
+
+     "It therefore appears that there were sundry articles and perhaps
+     documents which had been in possession of the aircrew which came
+     back to New Zealand otherwise than in the custody of the Police or
+     the chief inspector" (paragraph 360).
+
+In evidence Captain Gemmell had denied knowledge of the change that had
+been made to the McMurdo waypoint but the Commissioner did not accept
+that answer; and he is linked with the matters mentioned in paragraph
+360 on the basis that he had known "about the changed co-ordinates
+before he went to Antarctica" and that because he--
+
+     "... plainly kept this significant fact to himself, (he) was to be
+     the arbiter of which documents were relevant. The opportunity was
+     plainly open for Captain Gemmell to comply with the chief
+     executive's instructions to collect all documents relevant to this
+     flight, wherever they might be found, and to hand them over to the
+     airline management."
+
+The next sentence of that paragraph contains the finding already
+mentioned:
+
+     "However, there is not sufficient evidence to justify any finding
+     on my part that Captain Gemmell recovered documents from Antarctica
+     which were relevant to the fatal flight, and which he did not
+     account for to the proper authorities."
+
+At the conclusion of this section of the Report the Commissioner said
+that he could "quite understand the difficulty in recovering loose
+documents from this desolate mountain side, although the heavy atlas",
+he said, "was not in this category". But he stated that an opportunity
+had been "created for people in the airline to get rid of documents
+which might seem to implicate airline officials as being responsible for
+the disaster". And he spoke of all these matters in terms of
+"justifiable suspicion".
+
+The condition of Captain Collins' flight bag when it was first seen by
+Mr Woodford had already been mentioned. His letter dated 5th December
+1980 was written immediately after some cross-examination of Captain
+Gemmell had been given widespread publicity and on Monday 8th December
+1980 Captain Gemmell was still giving evidence. By then he was under
+cross-examination by counsel assisting the Commission and the latter
+proceeded to read into the record the text of the letter (Exhibit 266)
+which reads:
+
+     "Dear Sir,
+
+     At the time of the DC10 crash I was employed in Antarctica by
+     D.S.I.R. as a survival instructor/mountaineer assistant. I was one
+     of the three mountaineers who made the initial inspection of the
+     site for survivors. I was also one of the three mountaineers who
+     accompanied Messrs David Graham (Investigator) Ian Gemmell & Ian
+     Wood (Air NZ) during their initial inspection of the aircraft.
+     During the first six days after the accident I was at the crash
+     site at all times when the site was occupied.
+
+     In regard to evidence reported in the Christchurch Press today, 5
+     Dec 1980, I can state unequivocally that:
+
+     (1) Captain Gemmell did not spend any time inspecting the aircraft
+     without other people being present.
+
+     (2) Captain Collins flight bag was found by me the day after the
+     crash, this being three days before any Air N.Z. personnel or crash
+     investigators reached the site. My recollection is that it was
+     empty when I first inspected it. It certainly contained no diaries
+     or briefing material.
+
+     (3) Captain Gemmell did not remove any items from the persons of
+     deceased lying in the area...."
+
+Counsel proceeded to read from the letter which goes on to refer to
+instructions concerning the crevassed area of the ice-slope.
+
+No challenge was made to the views expressed by Mr Woodford nor was he
+called to give evidence. And no evidence to any contrary effect was
+given by anybody. Yet apart from the passing reference to the matter in
+paragraph 349 of the Report the point of view Mr Woodford expressed
+seems to have been given no attention. The extent of the evidence which
+could have been given by Mr Woodford if he had been called as a witness
+is indicated by his affidavit now put before this Court. The importance
+of the letter seems obvious. The bag being empty when it was seen only
+18 hours after the aircraft had crashed it is difficult to understand
+how it could have any significance when found in that same condition
+three days later. Yet in this part of the Report it is left as a central
+issue. Mr Woodford's own concern about all this is indicated in the
+lengthy affidavit which he prepared for the purpose of exonerating
+Captain Gemmell. It was sworn by him on 21st May 1981 not very long
+after the Report of the Royal Commission had been made public.
+
+A final comment should be made about Captain Gemmell's position. It
+concerns a submission made on his behalf to this Court that "In view of
+the 'not proven' verdict against Captain Gemmell and the various
+critical statements made about him it is a remarkable thing that he was
+given no opportunity for further comment when the Commissioner decided
+to make further enquiries of the police sergeant and Mr Chippindale at
+the conclusion of the hearing of evidence". If Captain Gemmell was to be
+left enveloped in "justifiable suspicion" this is something that
+certainly should have been done. Indeed if the post-hearing
+investigation had been sufficiently developed the Commissioner might
+have been satisfied (as now appears from the affidavit of Mr Stanton)
+that the police officer who gave information to counsel assisting the
+Commission about one or two flight bags was not even in Antarctica while
+Captain Gemmell was there. The affidavit indicates that the police
+officer arrived to take charge of the police store only on the evening
+of 6th December and by then Captain Gemmell had been back in New Zealand
+for two days.
+
+
+Airline's Attitude at Inquiry
+
+This matter requires brief comment. It involves the issue as to whether
+Air New Zealand adopted an uncompromising approach to the matters under
+consideration by the Royal Commission so that the proceedings were
+unnecessarily prolonged. Concerning the matter the Commissioner said
+this in the Appendix to the Report dealing with the awards of costs,
+which must be mentioned later:
+
+     "In an inquiry of this kind, an airline can either place all its
+     cards on the table at the outset, or it can adopt an adversary
+     stance. In the present case, the latter course was decided upon.
+     The management of the airline instructed its counsel to deny every
+     allegation of fault, and to counter-attack by ascribing total
+     culpability to the air crew, against whom there were alleged no
+     less than 13 separate varieties of pilot error. All those
+     allegations, in my opinion, were without foundation".
+
+The general complaint that Air New Zealand had adopted an adversary
+approach and withheld evidence until a late stage needs to be assessed
+against the control exercised by counsel assisting the Commission
+concerning the order in which witnesses were to be called and the way in
+which the Inquiry progressed. Before the initial hearing to settle
+questions of procedure he supplied the airline with a "Memorandum as to
+areas to be covered by Air New Zealand evidence". It is dated 13th June
+1980 and specifies 21 topics. Then on 19th June he circulated a
+"Memorandum to counsel engaged in the DC10 Inquiry" advising that the
+parties were to prepare initial briefs which he would then put in
+sequence. And at the preliminary hearing on 23rd June it was arranged
+that a basically chronological order should be followed after Mr
+Chippindale had been called as the first witness. On the following day
+counsel for the Civil Aviation Division took issue with the requirement
+that its brief of evidence should be handed in before Mr Chippindale had
+appeared and the Commissioner ruled that briefs of evidence would be
+withheld until shortly before the witness was to be called. Mr
+Chippindale's evidence occupied the first fortnight of the inquiry and
+thereafter the actual order in which the witnesses were to be called was
+arranged by counsel assisting the Commission who stated in advance the
+days and times at which those concerned should come forward. Thus the
+first Air New Zealand witness to give evidence was the chief engineer
+who appeared before the Inquiry on 22nd July.
+
+It was said that the airline had not been invited through its counsel to
+make its position known by means of an opening address at the
+commencement of the public hearing. No doubt the Commissioner would have
+permitted such an address but the occasion for it did not seem to arise
+and he himself did not require the matter to be dealt with on this basis
+by any of the parties. And in the result witnesses were called from
+among the personnel of the airline in order to deal with various
+questions in an ordered fashion. Thus it was not until all evidence had
+been called that counsel for the various parties made submissions to the
+Commissioner.
+
+At the conclusion of the evidence counsel for the airline invited
+counsel assisting the Commission to inform him what were the main issues
+upon which closing submissions were requested. However the extended
+written answer to that enquiry includes no suggestion whatever that the
+conduct of airline witnesses or the post-accident conduct of the
+employees was in issue. And the Commissioner himself said this in
+paragraph 375 about the airline's submissions:
+
+     "... counsel for the airline adopted, in the course of their
+     detailed and exemplary final submissions, the very proper course of
+     not attributing blame to any specific quarter but leaving it to me
+     to assemble such contributing causes as I thought the evidence had
+     revealed."
+
+In that regard some of the statements which were made on behalf of the
+airline are not unimportant. At one point counsel said--
+
+     "By now it should be apparent to the smallest mind that the Company
+     has not espoused, and does not espouse, a proposition that the
+     accident can be contributed to a sole cause, let alone a sole cause
+     of pilot error. If from the evidence adduced, there emerges or is
+     implicit a criticism of the Company's flight crew, that criticism
+     has been moderate, informed and responsible."
+
+And in the same context--
+
+     "I would, with respect, also remind Your Honour that in the very
+     nature of these proceedings there has not been an opportunity for a
+     formal opening where one might have expected just that. But I would
+     further suggest, Sir, that the evidence advanced by the Company,
+     which has been in an attempt to bring every witness who can
+     contribute something towards the causal factors and everything else
+     has been done, not selectively, and there have been witnesses who
+     have plainly, unequivocally, acknowledged their fault, their error.
+     There has not in any way been a parade of witnesses all seeking to
+     criticize the flight crew and thus, as it were, exonerate
+     themselves. There has been an endeavour, without selection, to
+     reveal all the evidence to reveal all the documents ...".
+
+This statement by senior counsel for the airline as to the manner in
+which he had attempted to handle his responsibilities should be enough
+to answer the complaint in the Appendix that "The management of the
+airline _instructed its counsel_ to deny every allegation of fault, and
+to counter-attack by ascribing total culpability to the air crew". The
+tribute the Commissioner paid counsel in paragraph 375 (the same counsel
+appeared in this Court for the applicants) is not altogether consistent
+with those last remarks. In any event the appendix continues--
+
+     "Apart from that, there were material elements of information in
+     the possession of the airline which were originally not disclosed,
+     omissions for which counsel for the airline were in no way
+     responsible, and which successively came to light at different
+     stages of the Inquiry when the hearings had been going on for
+     weeks, in some cases for months."
+
+A final comment should be made about the criticisms of the airline
+concerning the position it adopted concerning pilot error as a cause of
+the accident.
+
+In the course of his evidence (at p. 272) Mr. Chippindale was asked by
+the Commissioner: "Was not the position Capt. Collins must have clearly
+have thought he was flying toward McMurdo over McMurdo Sound?" He said,
+"It is my belief that this could be the only possible reason for him to
+continue". That is an important answer. It means that in this respect
+Mr. Chippindale had reached the same conclusion as the Commissioner but
+for general reasons of logic whereas the latter was influenced by his
+finding that Captain Collins had made use of the New Zealand Atlas or a
+chart in order to plot the position of the waypoint and the route to be
+taken by the aircraft.
+
+But although this general conclusion about McMurdo Sound was shared it
+is at this point that the two investigations diverged in terms of pilot
+responsibility for the accident. The Commissioner was of the opinion
+that until the last moment the pilots believed they were flying in clear
+air; that they were deceived by a whiteout situation; and that it was
+understandable that they flew on at 2000 and then 1500 feet. Mr.
+Chippindale was aware of and spoke in his report about the whiteout
+phenomenon, but after giving evidence before the Royal Commission for
+eight days he still adhered to his conclusion of pilot error for reasons
+he expressed (at p. 274) in the following way:
+
+     "I believe that the cause as it stands (in the Chief Inspector's
+     report) is reasonable. As I attempted to clarify last time the
+     pilot has descended to 2000 ft and evidently is unable to see
+     anything ahead. I say 'evidently' because there is a snow slope
+     leading to a mountain rising to 12 450 feet and that was directly
+     in front of him. He 'popped down', to use his own words, another
+     500 feet and continued to progress towards an ice cliff which is
+     300 feet high, the lower 50 per cent of which is solid and bare
+     rock. And still he didn't perceive anything to persuade him to
+     divert from his track. To me this indicates it was an area of poor
+     definition and as such he would not be able to discern what he
+     could expect to see had he been, as various people suppose,
+     believing that he was proceeding down the McMurdo Sound. The sea
+     ice is by no means uniform in texture and during his descent he
+     would have seen the nature of the sea ice--in fact the photos from
+     the passengers indicate that it had large breaks in its surface and
+     was quite easily discerned so therefore I believe at the end of his
+     descent to 2000 ft he was confronted with a very vague area in
+     front of him which he may or may not have believed was cloud, and
+     when descending a further 500 feet the view ahead of him would have
+     been of equally poor definition. Despite this, he continued to the
+     point of 26 miles from destination as indicated presumably on the
+     AINS."
+
+Mr. Chippindale's opinion has some background relevance in the present
+case. It is in no way relevant because it differs from that of the
+Commissioner upon the issue of causation. Already we have emphasized and
+we do so once again that what was said in the Royal Commission Report
+about the cause or causes of the accident must stand entirely unaffected
+by these proceedings. But the opinion has some relevance because
+although it was wrong, as the Royal Commission Report decided, the
+Commissioner certainly did not consider it to be anything other than a
+completely conscientious and honest attempt by Mr. Chippindale to
+analyse and draw a rational conclusion from all the available facts. He
+described Mr. Chippindale as a model witness. In the circumstances it is
+difficult to understand why the same point of view Mr. Chippindale
+expressed in his evidence could not be genuinely shared by other
+educated observers.
+
+We turn now to the relief sought by these various officers and the
+airline itself.
+
+
+The Claim for Relief
+
+The applicants seek relief in the form of an order that the findings be
+set aside or for a declaration that the various findings are invalid or
+made in excess of jurisdiction; or were made in circumstances involving
+unfairness and breaches of the rules of natural justice. In addition we
+are asked to make an order quashing the decision of the Commissioner
+that the airline should pay to the Department of Justice the sum of
+$150,000 by way of costs.
+
+Earlier in this judgment we have said that if the challenged findings
+were made without jurisdiction or contrary to natural justice then it
+would be possible for the Court to take steps by way of declaration to
+offer at least some form of redress. And we went on to explain why we
+think the Royal Commission was bound by the broad requirements of
+natural justice. As an example of what would be required to meet
+obligations of fairness we then referred to the need for a reasonable
+opportunity of meeting unformulated suspicions of deception and
+concealment that had been in the Commissioner's mind. However, before we
+turn to the natural justice part of the case it is convenient to
+consider the claim of excess jurisdiction, and that by confining our
+attention to the terms of reference.
+
+The submission of counsel for the sixth respondent is that the
+statements contained in each of the two paragraphs 348 and 377 are
+relevant to and justified by the following items of the terms of
+reference:
+
+     (g) Whether the crash of the aircraft or the death of the
+     passengers and crew was caused or contributed to by any person
+     (whether or not that person was on board the aircraft) by an act
+     or omission in respect of any function in relation to the
+     operation, maintenance, servicing, flying, navigation, manoeuvring,
+     or air traffic control of the aircraft, being a function which that
+     person had a duty to perform or which good aviation practice
+     required that person to perform?
+
+     (j) And other facts or matters arising out of the crash that, in
+     the interests of public safety, should be known to the authorities
+     charged with the administration of civil aviation in order that
+     appropriate measures may be taken for the safety of persons engaged
+     in aviation or carried as passengers in aircraft.
+
+In its essentials the argument is that in order to answer the questions
+posed by paragraph (g) the Commissioner found it necessary or was
+entitled to explain the process by which he reached his final
+conclusions; that in doing so he was entitled to comment upon the
+quality of the evidence that was given in the course of the Royal
+Commission Inquiry; that the assessment of witnesses was a necessary
+part of the findings he reached as to the cause of the accident; that
+the assessment was not a part of the substantive findings of the
+Commission; and "whether having reached his conclusion he expresses
+himself vehemently or refrains from pungent comment is entirely a matter
+for him". Similar submissions were made in relation to the second cause
+of action and natural justice.
+
+In certain circumstances it is obvious enough that reasons for rejecting
+evidence would not merely be relevant but often a necessary part of a
+decision. But considerations of that kind are far removed from the
+conclusions expressed in paragraph 377. There it is said that the ten
+senior members of this airline had been involved in organized deception.
+"Palpably false sections of evidence ... a pre-determined plan of
+deception ... an attempt to conceal a series of disastrous
+administrative blunders ... an orchestrated litany of lies". These are
+unlikely phrases to associate with a mere assessment of the credibility
+of witnesses.
+
+In the Courts it is constantly necessary to indicate a preference for
+the evidence of one witness or to make a decision to put evidence
+completely to one side; sometimes it even seems necessary to describe
+evidence in terms of perjury. But in the Courts Judges always attempt to
+be most circumspect in handling issues of this kind, particularly if
+misconduct seems apparent which is not immediately associated with the
+central issues in the case. There can be no less reason for
+circumspection in the case of a Royal Commission at least where the
+terms of reference do not directly give rise to inquiries into criminal
+dealing. In _Re The Royal Commission on Licensing_ (1945) N.Z.L.R. 665
+Sir Michael Myers C.J. dealt with the point in the following way (at p.
+680):
+
+     "A Commission of Inquiry under the statute and a Royal Commission
+     under the Letters Patent are alike in this respect--each of them is
+     an inquiry, not an inquisition. By that I mean that the Commission
+     is not a roving Commission of a general character authorizing
+     investigation into any matter that the members of the Commission
+     may think fit to inquire into and that the ambit of the inquiry is
+     limited by the terms of the instrument of appointment of the
+     Commission."
+
+It must always be sensible for any Commission of Inquiry or other
+tribunal to keep those words in mind.
+
+We are satisfied that the findings contained in each of paragraphs 348
+and 377 are collateral assessments of conduct made outside of and were
+not needed to answer any part of the terms of reference. The
+Commissioner had no authority or jurisdiction to deal with the affected
+officers in such a fashion and the findings themselves are a regrettable
+addition to the Report.
+
+
+Fairness
+
+The concept of natural justice does not rest upon carefully defined
+rules or standards that must always be applied in the same fixed way.
+Nor is it possible to find answers to issues which really depend on
+fairness and commonsense by legalistic or theoretical approaches. What
+is needed is a broad and balanced assessment of what has happened and
+been done in the general environment of the case under consideration.
+
+In the present case the expressed complaints turn upon the absence of
+warning that the affected officers were at risk and that the critical
+decisions taken against them were unsupported by any evidence of
+probative value. But in estimating the significance of these complaints
+it would be unreal to ignore the fact that the findings are not only
+very serious in themselves: they are made more potent by the way they
+have been so closely associated with one another. Furthermore, each of
+them is advanced in this Report as an overt manifestation of one general
+conspiracy. That last matter has special importance because for the
+reasons just explained we have held the conspiracy findings to be
+unjustified. They should never have been made. In saying that we do not
+overlook the fact that this Court is making an assessment in isolation
+from the viva voce evidence given at open hearings of the Inquiry. But
+the present issue is simply whether the affected officers were or were
+not deprived of the advantage of answering unformulated charges. In such
+a situation the advantage of actually hearing and seeing a witness is
+hardly a relevant consideration.
+
+In the course of the survey that has been made up to this point we have
+commented upon the nature and significance of the various challenged
+paragraphs in the Report. It is unnecessary to traverse the same subject
+matter once again and we simply remark that the applicants have
+justified their complaints concerning the way in which the findings have
+been reached.
+
+
+Award of Costs
+
+We have explained earlier in this judgment that an order for costs was
+made against Air New Zealand in favour of parties other than the Civil
+Aviation Division. As a matter of company policy the airline decided
+that it would comply with that order although in doing so it has made no
+admission that the order was validly made. In addition, however, the
+airline was ordered to pay the Department of Justice the large sum of
+$150,000 by way of contribution to the public cost of the inquiry. It is
+that last order which is challenged in the present proceedings on two
+grounds. The first is that the award involved a wrong exercise of the
+discretion provided by s. 11 of the Commissions of Inquiry Act 1908. The
+second ground is that in any event no award greater than $600 could be
+made by reason of Rule III of rules made in terms of the statute and
+gazetted on 11th February 1904.
+
+The reasons given by the Commissioner for making the respective orders
+against Air New Zealand are set out in a passage from the appendix to
+the Report which is mentioned in this judgment under the heading
+"Airline's attitude at Inquiry". And on behalf of the Attorney-General
+it is said that the discretion was properly exercised for reasons
+expressed to be related to "conduct at the hearing (which materially and
+unnecessarily extended the duration of the hearing)[2]". However, the
+reasons given[3] by the Commissioner do not stop there. The appendix goes
+on--
+
+     "The management of the airline instructed its counsel to deny every
+     allegation of fault, and to counter-attack by ascribing total
+     culpability to the air crew ... Apart from that, there were
+     material elements of information in the possession of the airline
+     which were originally not disclosed ... it was not a question of
+     the airline putting all its cards on the table. The cards were
+     produced reluctantly, and at long intervals, and I have little
+     doubt that there are one or two which still lie hidden in the
+     pack."
+
+When discussing the legal implications of the order for costs under that
+particular heading earlier in the judgment we stated that on purely
+verbal grounds it might be possible to draw refined distinctions between
+parts of the Report which are highly critical of the position taken up
+by the airline at the inquiry on the one hand and the effect this had on
+the duration of the hearing on the other. But there can be no doubt that
+in the context of this Report and the conclusions reached by the
+Commissioner concerning conspiracy and otherwise any ordinary reader
+would feel satisfied that the imposition of an order for costs in the
+sum of $150,000 was nothing less than the exaction of a penalty. In
+those circumstances and by reason of the conclusions we have reached
+concerning the invalidity of the challenged paragraphs we are satisfied
+that the order must be set aside.
+
+Concerning the second ground advanced on behalf of the airline it is
+sufficient to say that even if it had been appropriate to make an award
+of costs in this case the amount was limited to the modest sum of $600.
+
+At the beginning of this judgment we said that we had felt it necessary
+to go at some length into the facts. This we have done both in order to
+analyse the important questions raised in the areas of natural justice
+and excess of jurisdiction and also because we have thought it to be in
+the public interest to attempt to explain the factual issues that are
+involved in the proceedings. We now express our conclusion that for the
+reasons already given we are satisfied that the complaints of the
+applicants are justified. Against that finding we return to the
+beginning of this judgment where we said that we felt sure that
+reputation can be vindicated and the interests of justice met by a
+formal decision of this Court that will have the effect of quashing the
+order of the Commissioner requiring Air New Zealand to pay costs in the
+large sum of $150,000. We would make an order accordingly.
+
+The Court being unanimous as to the result there will be an order
+quashing the order of the Royal Commissioner that Air New Zealand pay to
+the Department of Justice the sum of $150,000 by way of contribution to
+the public cost of the Inquiry. There have been no submissions
+concerning the costs of the present proceedings and that matter is
+reserved.
+
+
+_Solicitors_
+
+Messrs. Russell, McVeagh, McKenzie, Bartleet & Co. of Auckland for
+appellants.
+
+Crown Law Office, Wellington, for first, fourth and sixth respondents.
+
+Messrs. Keegan, Alexander, Tedcastle & Friedlander of Auckland for fifth
+respondent.
+
+P.D. HASSELBERG, GOVERNMENT PRINTER, WELLINGTON, NEW ZEALAND--1982
+
+76534J--82PT
+
+
+TRANSCRIBER'S NOTES
+
+There were no footnotes in this text. The following correction have
+been made.
+
+[Transcriber note 1: The original has here a double "the" which seems
+superfluous in the context.]
+
+[Transcriber note 2: In the original, the closing bracket is missing.]
+
+[Transcriber note 3: In the original, the word "give" instead of
+"given" is used.]
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK 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***
+
+
+******* This file should be named 16130-8.txt or 16130-8.zip *******
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