Chapter II: Part 2

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.