Chapter I: Part 1

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'.