COMMISSION OF INQUIRY INTO THE MOUNT EREBUS AIRCRAFT DISASTER***


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JUDGMENTS OF THE COURT OF APPEAL OF NEW ZEALAND ON PROCEEDINGS TO REVIEW
ASPECTS OF THE REPORT OF THE ROYAL COMMISSION OF INQUIRY INTO THE MOUNT
EREBUS AIRCRAFT DISASTER

C.A. 95/81

In the Court of Appeal of New Zealand--Between Air New Zealand Limited,
First Applicant, and Morrison Ritchie Davis, Second Applicant, and Ian
Harding Gemmell, Third Applicant, and Peter Thomas Mahon, First
Respondent, and the Attorney-General, Fourth Respondent, and New Zealand
Airline Pilots Association, Fifth Respondent, and the Attorney-General,
Sixth Respondent.


_Coram_

Woodhouse P.
Cooke J.
Richardson J.
McMullin J.
Somers J.


_Hearing_

5, 6, 7, 8, 9 and 12 October 1981.


_Counsel_

L.W. Brown Q.C. and R.J. McGrane for first and second applicants.

D.A.R. Williams and L.L. Stevens for third applicant.

G.P. Barton and R.S. Chambers for first respondent.

C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
withdraw.

A.F. MacAlister and P.J. Davison for fifth respondent.

W.D. Baragwanath and G.M. Harrison for sixth respondent.


_Judgment_

22nd December 1981.




JUDGMENT OF COOKE, RICHARDSON and SOMERS JJ.


On 5 August 1981, for reasons then given, this Court ordered that these
proceedings be removed as a whole from the High Court to this Court for
hearing and determination. They are proceedings, brought by way of
application for judicial review, in which certain parts of the report of
the Royal Commission on the Mount Erebus aircraft disaster are attacked.
In summary the applicants claim that these parts are contrary to law, in
excess of jurisdiction and in breach of natural justice.

One of the reasons for ordering the removal was that it was important
that the complaints be finally adjudicated on as soon as reasonably
practicable. We had in mind that the magnitude of the disaster--257
lives were lost--made it a national and indeed international tragedy, so
the early resolution of any doubts as to the validity of the report was
a matter of great public concern. Also the report contained very severe
criticism of certain senior officers of Air New Zealand. Naturally this
criticism must have been having damaging and continuing effects, as
evidenced for instance by the resignation of the chief executive, so it
was right that the airline and the individuals should have at a
reasonably early date a definite decision, one way or the other, on
whether their complaints were justified.

In the event the hearing in this Court was completed in less than six
days. We had envisaged that some further days might be required for
cross-examination, as there were applications for leave to cross-examine
the airline personnel and the Royal Commissioner himself on affidavits
that they had made in the proceedings. But ultimately the parties
elected to have no cross-examination--and it should be made clear that
this was by agreement reached between the parties, not by decision of
the Court. With the benefit of the very full written and oral arguments
submitted by counsel, the Court is now in a position to given judgment
before the end of the year.

We must begin by removing any possible misconception about the scope of
these proceedings. They are not proceedings in which this Court can
adjudicate on the causes of the disaster. The question of causation is
obviously a difficult one, as shown by the fact that the Commissioner
and the Chief Inspector of Air Accidents in his report came to different
conclusions on it. But it is not this Court's concern now. This is not
an appeal. Parties to hearings by Commissions of Inquiry have no rights
of appeal against the reports. The reason is partly that the reports
are, in a sense, inevitably inconclusive. Findings made by Commissioners
are in the end only expressions of opinion. They would not even be
admissible in evidence in legal proceedings as to the cause of a
disaster. In themselves they do not alter the legal rights of the
persons to whom they refer. Nevertheless they may greatly influence
public and Government opinion and have a devastating effect on personal
reputations; and in our judgment these are the major reasons why in
appropriate proceedings the Courts must be ready if necessary, in
relation to Commissions of Inquiry just as to other public bodies and
officials, to ensure that they keep within the limits of their lawful
powers and comply with any applicable rules of natural justice.

Although this is not an appeal on causation or on any other aspect of
the Commission's report, the issues with which this Court is properly
concerned--the extent of the Commissioner's powers in this inquiry, and
natural justice--cannot be considered without reference to the issues
and evidence at the inquiry. We are very conscious that we have not had
the advantage of seeing and hearing the witnesses. It can be very real,
as all lawyers know. It is true that the kind of analytical argument we
heard from counsel, with concentration focused on the passages of major
importance in the report and the transcript of evidence, can bring
matters into better perspective than long immersion in the details of a
case. Necessarily this Court is more detached from the whole matter than
was the Commissioner. And several different judicial minds may combine
to produce a more balanced view than one can. But as against those
advantages, which we have had, there is the advantage of months of
direct exposure to the oral evidence, which he had. So we have to be
very cautious in forming opinions on fact where there is any room for
different interpretations of the evidence.

Having stressed those limitations on the role of this Court, we think it
best to state immediately in general terms the conclusions that we have
reached in this case. Then we will go on to explain the background, the
issues and our reasoning in more detail. Our general conclusion is that
the paragraph in the report (377) in which the Commissioner purported to
find that there had been 'a pre-determined plan of deception' and 'an
orchestrated litany of lies' was outside his jurisdiction and contained
findings made contrary of natural justice. For these reasons we hold
that there is substance in the complaints made by the airline and the
individuals. Because of those two basic defects, an injustice has been
done, and to an extent that is obviously serious. It follows that the
Court must quash the penal order for costs made by the Commissioner
against Air New Zealand reflecting the same thinking as paragraph 377.


The Disaster

In 1977 Air New Zealand began a series of non-scheduled sightseeing
flights to the Antarctic with DC10 aircraft. The flights left and
returned to New Zealand within the day and without touching down en
route. The southernmost point of the route, at which the aircraft turned
round, was to be at about the latitude of the two scientific bases,
Scott Base (New Zealand) and McMurdo Station (United States), which lie
about two miles apart, south of Ross Island. On Ross Island there are
four volcanic mountains, the highest being Mount Erebus, about 12,450
feet. To the west of Ross Island is McMurdo Sound, about 40 miles long
by 32 miles wide at the widest point and covered by ice for most of the
year.

It was originally intended that the flight route south would be over
Ross Island at a minimum of 16,000 feet. From October 1977, with the
approval of the Civil Aviation Division, descent was permitted south of
the Island to not lower than 6000 feet, subject to certain conditions
concerning weather and other matters. However, the evidence is that the
pilots were in practice left with a discretion to diverge from these
route and height limitations in visual meteorological conditions; and
they commonly did so, flying down McMurdo Sound and at times at levels
lower than even 6000 feet. This had advantages both for sightseeing and
also for radio and radar contact with McMurdo Station. Moreover from
1978 the flight plan, recording the various waypoints, stored in the Air
New Zealand ground computer at Auckland actually showed the longitude of
the southernmost waypoint as 164° 48' east, a point in the Sound
approximately 25 miles to the west of McMurdo Station.

The evidence of the member of the airline's navigation section who typed
the figures into the computer was that he must have mistakenly typed
164° 48' instead of 166° 48' and failed to notice the error. Shortly
before the fatal flight the navigation section became aware that there
was some error, although their evidence was that they understood it to
be only a matter of 10 minutes of longitude. In the ground computer the
entry was altered to 166° 58' east, and this entry was among the many in
the flight plan handed over to the crew for that flight for typing into
the computerised device (AINS) on board the aircraft. The change was not
expressly drawn to the attention of the crew. The AINS enables the pilot
to fly automatically on the computer course ('nav' track) at such times
as he wishes.

The crash occurred at 12.50 pm on 28 November 1979. The aircraft struck
the northern slopes of Mount Erebus, only about 1500 feet above sea
level. There were no survivors. The evidence indicates that the weather
was fine but overcast and that the plane had descended below the cloud
base and was flying in clear air. The pilot, Captain Collins, had not
been to the Antarctic before, and of the other four members of the
flight crew only one, a flight engineer, had done so. The plane was on
nav track.

The Chief Inspector of Air Accidents, Mr R. Chippindale, carried out an
investigation and made a report to the Minister, dated 31 May 1980,
under reg. 16 of the Civil Aviation (Accident Investigation) Regulations
1978. It was approved by the Minister for release as a public document.
The Chief Inspector concluded that 'The probable cause of the accident
was the decision of the captain to continue the flight at low level
toward an area of poor surface and horizon definition when the crew was
not certain of their position and the subsequent inability to detect the
rising terrain which intercepted the aircraft's flight path'. He adhered
to this in evidence before the subsequent Royal Commission.

The Royal Commission was appointed on 11 June 1980 to inquire into 'the
causes and circumstances of the crash', an expression which was
elaborated in terms of reference consisting of paragraphs (a) to (j).
Mr. Justice Mahon was appointed sole Commissioner. In his report,
transmitted to the Governor-General by letter dated 16 April 1981 and
subsequently presented to the House of Representatives by Command of His
Excellency and later printed for public sale, the Commissioner found
that '... the single dominant and effective cause of the disaster was
the mistake made by those airline officials who programmed the aircraft
to fly directly at Mt. Erebus and omitted to tell the aircrew'. He
exonerated the crew from any error contributing to the disaster.

The Commissioner and the Chief Inspector were at one in concluding that
the crash has occurred in a whiteout. The Commissioner gave this vivid
reconstruction in the course of para. 40 of his report:

     I have already made it clear that the aircraft struck the lower
     slopes of Mt. Erebus whilst flying in clear air. The DC10 was at
     the time flying under a total cloud cover which extended forward
     until it met the mountain-side at an altitude of somewhere between
     2000 and 2500 feet. The position of the sun at the time of impact
     was directly behind the aircraft, being in a position approximately
     to the true north of the mountain and shining at an inclination of
     34°. The co-existence of these factors produced without doubt the
     classic 'whiteout' phenomenon which occurs from time to time in
     polar regions, or in any terrain totally covered by snow. Very
     extensive evidence was received by the Commission as to the
     occurrence and the consequences of this weather phenomenon. So long
     as the view ahead from the flight deck of an aircraft flying over
     snow under a solid overcast does not exhibit any rock, or tree, or
     other landmark which can offer a guide as to sloping or uneven
     ground, then the snow-covered terrain ahead of the aircraft will
     invariably appear to be flat. Slopes and ridges will disappear. The
     line of vision from the flight deck towards the horizon (if there
     is one) will actually portray a white even expanse which is
     uniformly level.

     What this air crew saw ahead of them as the aircraft levelled out
     at 3000 feet and then later at 1500 feet was a long vista of flat
     snow-covered terrain, extending ahead for miles. Similarly, the
     roof of the solid overcast extended forward for miles. In the far
     distance the flat white terrain would either have appeared to have
     reached the horizon many miles away or, more probably, merged
     imperceptibly with the overhead cloud thus producing no horizon at
     all. What the crew could see, therefore, was what appeared to be
     the distant stretch of flat white ground representing the flat long
     corridor of McMurdo Sound. In reality the flat ground ahead
     proceeded for only about 6 miles before it intercepted the low ice
     cliff which marked the commencement of the icy slope leading
     upwards to the mountain, and at that point the uniform white
     surface of the mountain slope proceeded upwards, first at an angle
     of 13°, and then with a gradually increasing upward angle as it
     merged with the ceiling of the cloud overhead. The only feature of
     the forward terrain which was not totally white consisted of two
     small and shallow strips of black rock at the very bottom of the
     ice cliff, and these could probably not be seen from the flight
     deck seats owing to the nose-up attitude of 5° at which the
     aircraft was travelling, or they were mistaken for thin strips of
     sea previously observed by the crew as separating blocks of pack
     ice.

     The aircraft had thus encountered, at a fateful coincidence in
     time, the insidious and unidentifiable terrain deception of a
     classic whiteout situation. They had encountered that type of
     visual illusion which makes rising white plateaux appear perfectly
     flat. This freak of polar weather is known and feared by every
     polar flier. In some Arctic regions in the Canadian and in the
     north European winter, it is responsible for numbers of light
     aircraft crashes every year. Aircraft fly, in clear air, directly
     into hills and mountains. But neither Captain Collins nor First
     Officer Cassin had ever flown at low altitude in polar regions
     before. Even Mr Mulgrew [the commentator for the passengers], with
     his antarctic experience, was completely deceived. The fact that
     not one of the five persons on the flight deck ever identified the
     rising terrain confirms the totality of this weird and dangerous
     ocular illusion as it existed on the approach to Mt. Erebus at
     12.50 p.m. on 28 November 1979.

Paragraph 165 of the Commissioner's report also merits quotation. We
have underlined some of it, indicating that in this particular part of
his report the Commissioner seems to accept that when they first heard
of the crash the management of the airline must have been unaware of the
true nature and danger of a whiteout. If so, they would have had no
reason to suppose that the pilot would have elected to fly at such a low
level without real visibility. That is an aspect which could well have
been strongly relied on if, when giving evidence before the
Commissioner, they had realised that they were being accused of trying
to cover up the cause of the crash from an early stage:

     The term 'whiteout' has more than one meaning as being descriptive
     of weather conditions in snow-covered terrain. For aviation
     purposes it is often described as the cause of the visual
     difficulty which occurs when a aircraft is attempting to land
     during a snowstorm. As already stated, the United States Navy
     maintains a special whiteout landing area situated to the south of
     its normal landing strips near McMurdo Station. This area is used
     when an aircraft, which is committed to a landing, is required to
     land when visibility is obscured by a snowstorm. The snow in
     Antarctica is perfectly dry, and a wind of only 20 kilometres can
     sweep loose snow off the surface and fill the air with these fine
     white particles. A landing on the special whiteout landing field
     can be accomplished only by an aircraft equipped with skis or, in
     the case of an aircraft without skis, then it must make a belly-up
     landing on this snow-covered emergency airfield. Flying in a
     'whiteout' of that description is no different from flying in thick
     cloud. The pilot cannot know where he is and must land in
     accordance with strict radio and radar directions. So far as I
     understand the evidence, I do not believe that either the airline
     or Civil Aviation Division ever understood the term 'whiteout' to
     mean anything else than a snowstorm. I do not believe that they
     were ever aware, until they read the chief inspector's report of
     the type of 'whiteout' which occurs in clear air, in calm
     conditions, and which creates this visual illusion which I have
     previously described and which is, without doubt, the most
     dangerous of all polar weather phenomena.

While largely agreed about the whiteout conditions, the Commissioner and
the Chief Inspector took quite different views as to whether the crew
had been uncertain of their position and visibility. This disagreement
is associated with a major difference as to the interpretation of the
tape recovered from the cockpit voice recorder covering the conversation
on the flight deck during the 30 minutes before the crash.

Both the Commissioner and the Chief Inspector found difficulty in
arriving at an opinion about what was said and by whom. Whereas the
Chief Inspector thought that the two flight engineers had voiced
mounting alarm at proceeding at a low level towards a cloud-covered
area, the Commissioner thought that Captain Collins and First Officer
Cassin had never expressed the slightest doubt as to where the aircraft
was and that 'not one word' was ever addressed by either of the flight
engineers to the pilots indicating any doubt. This is not a question on
which the present proceedings call for any opinion from this Court, nor
are we in any position to give one.

A major point in the Commissioner's reasoning, and one that helps to
explain the difference between the two reports, is that on the basis of
evidence from the wife and two daughters of Captain Collins he accepted
that, at home the night before the flight, the Captain had plotted on an
atlas and two maps a route of the flight; and he drew the inference that
Captain Collins must then have had with him a computer print-out. Any
such print-out would have been made before the alteration and
consequently would have shown the longitude of the southernmost waypoint
as 164° 48' E. The Commissioner accordingly concluded that Captain Collins
had plotted a route down the Sound. No doubt this tended to reinforce
his view that the Captain, flying on nav track, had never doubted that
he was in fact over the Sound.


The Challenged Paragraphs

The background already given is needed for an understanding of the case.
But we repeat that the case is not an appeal from the Commissioner's
findings on causation or other matters. The applicants acknowledge that
they have no rights of appeal. What they attack are certain paragraphs
in the Commission report which deal very largely, not with the causes
and circumstances of the crash, but with what the Commissioner calls
'the stance' of the airline at the inquiry before him. The applicants
say that in these paragraphs the Commissioner exceeded his powers or
acted in breach of natural justice; and further that some of his
conclusions were not supported by any evidence whatever of probative
value. Their counsel submit that a finding made wholly without evidence
capable of supporting it is contrary to natural justice.

The arguments on the other side were presented chiefly by Mr Baragwanath
and Mr Harrison, who had been counsel assisting the Commission and
appeared in this Court for the Attorney-General, not to advance any view
on behalf of the Government but to ensure that nothing that could
possibly be said in answer to the contentions of Mr Brown and Mr
Williams for the applicants was left unsaid before the Court. This was
done because it has not been usual for a person in the position of the
Commissioner to take an active part in litigation concerning his report.
Mr Barton, who appeared for the Commissioner, did not present any
argument, adopting a watching role. He indicated that he would only have
played an active role if the Commissioner had been required for
cross-examination. As already mentioned, it was agreed otherwise. At
that stage the Commissioner, by his counsel, very properly stated that
he would abide the decision of the Court.

Mr Baragwanath's submissions were to the general effect that the Court
had no jurisdiction to interfere with the opinions expressed in the
Commission's report, which were not 'findings' and bound no one; and
that in any event they were conclusions within the Commissioner's
powers, open to him on the evidence and arrived at without any breach of
natural justice.

We now set out the various paragraphs under attack, bearing in mind that
they cannot properly be considered in isolation from the context in the
report. The paragraphs vary in importance, but it is convenient to take
them in the numerical order of the report. We will indicate as regards
each paragraph or set of paragraphs the essence of the complaint. After
doing this we will state how we propose to deal with the complaints.


Destruction of Documents

Paragraphs 45 and 54, which affect particularly the chief executive at
the time of the crash, Morrison Ritchie Davis, are as follows:

     45. The reaction of the chief executive was immediate. He
     determined that no word of this incredible blunder was to become
     publicly known. He directed that all documents relating to
     antarctic flights, and to this flight in particular, were to be
     collected and impounded. They were all to be put on one single file
     which would remain in strict custody. Of these documents all those
     which were not directly relevant were to be destroyed. They were to
     be put forthwith through the company's shredder.

     54. This was at the time the fourth worst disaster in aviation
     history, and it follows that this direction on the part of the
     chief executive for the destruction of 'irrelevant documents' was
     one of the most remarkable executive decisions ever to have been
     made in the corporate affairs of a large New Zealand company. There
     were personnel in the Flight Operations Division and in the
     Navigation Section who anxiously desired to be acquitted of any
     responsibility for the disaster. And yet, in consequence of the
     chief executive's instructions, it seems to have been left to these
     very same officials to determine what documents they would hand
     over to the Investigating Committee.

These paragraphs occur in the context of a discussion of the change in
the computer waypoint shortly before the flight and the failure to draw
it to the attention of the flight crew. The reference to the chief
executive having 'determined that no word of this incredible blunder was
to become publicly known' is, taken by itself, at least an
overstatement, because in paragraph 48 the Commissioner in effect
qualifies it. He says there that it was inevitable that the facts would
become known and 'perhaps' the chief executive had only decided to
prevent adverse publicity in the meantime. Clearly the airline disclosed
to the Chief Inspector that the change of more than two degrees of
longitude had been made in the computer early on the day of the flight
and not mentioned to the crew; these matters are referred to in
paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were
matters which the Chief Inspector did not highlight; evidently he did
not regard them as of major importance. For his part the Commissioner
(in para. 48 of his report) states that the Chief Inspector did not make
it clear that the computer flight path had been altered before the
flight and the alteration not notified to the crew.

We are not concerned with whether or not the Commissioner's implied
criticism of the Chief Inspector's report is correct. The complaint made
by the applicants is that the criticisms of Mr Davis in the two
paragraphs that we have set out are based on mistake of fact, not on
evidence of probative value. It is also said that he was not given a
fair opportunity to put his case in relation to such findings, but what
the applicants most stress is the way in which the Commissioner dealt
with the evidence.

In particular they point out that the evidence of Mr Davis, not
contradicted by any other evidence and correctly summarised in paragraph
45 of the Commissioner's report, was that only copies of existing
documents were to be destroyed; that he did not want any surplus
document to remain at large in case its contents were released to the
news media by some employee of the airline; and that his instructions
were that all documents of relevance were to be retained on the single
file. Their counsel submit in effect that in converting this direction
for the preservation of all relevant documents into a direction for the
destruction of 'irrelevant' documents--a word used by the Commissioner
as if it were a quotation from Mr Davis--the Commissioner distorted the
evidence. And it is said that the description 'one of the most
remarkable executive decisions every to have been made in the corporate
affairs of a large New Zealand company' is, to say the least,
far-fetched.

Counsel for the applicants point also to the fact that there is no
evidence that any document of importance to the inquiry was destroyed in
consequence of the instructions given by Mr Davis. The gist of the
contrary argument presented by Mr Baragwanath was that Mr Davis was
fully cross-examined about his instructions; and that 'it was open to
the Royal Commissioner to find that there were in existence documents
which never found their way to that file and that the procedures were
tailor made for destruction of compromising documents'.


Alteration of Flight Plan

Paragraph 255 (e) and (f), in numerical order the next passages
complained of, refer to the fact that when the co-ordinates in the
Auckland computer were altered a symbol was used which had the effect
of including in the information to be sent to the United States air
traffic controller at McMurdo Station the word 'McMurdo' instead of the
actual co-ordinates (latitude and longitude) of the southernmost
waypoint. The Commissioner said:

     (e) When the TACAN position [a navigational aid at McMurdo Station
     enabling aircraft to ascertain their distance from it] was typed
     into the airline's ground computer in the early morning of 28
     November 1979, there was also made the additional entry to which I
     have referred, which would result in the new co-ordinates not being
     transmitted to McMurdo with the Air Traffic Control flight plan for
     that day. It was urged upon me, on behalf of the airline, that
     McMurdo Air Traffic Control would consider the word 'McMurdo' as
     indicating a different position from that appearing on Air Traffic
     Control flight plans dispatched from Auckland during 1978 and 1979.
     I cannot for a moment accept that suggestion. First Officer Rhodes
     made a specific inquiry at McMurdo within a few days of the
     disaster and ascertained that the destination waypoint of the first
     Air Traffic Control flight plan for 1979 had been plotted by the
     United States Air Traffic Control personnel, and there was evidence
     from the United States witnesses that this would be normal
     practice. In my view the word 'McMurdo' would merely be regarded,
     and was indeed regarded, by McMurdo Air Traffic Control as
     referring to the same McMurdo waypoint which had always existed. In
     my opinion, the introduction of the word 'McMurdo' into the Air
     Traffic Control flight plan for the fatal flight was deliberately
     designed to conceal from the United States authorities that the
     flight path had been changed, and probably because it was known
     that the United States Air Traffic Control would lodge an objection
     to the new flight path.

     (f) I have reviewed the evidence in support of the allegation that
     the Navigation Section believed, by reason of a mistaken verbal
     communication, that the altered McMurdo waypoint only involved a
     change of 2.1 nautical miles. I am obliged to say that I do not
     accept that explanation. There were certainly grave deficiencies in
     communication within the Navigation Section, but the high
     professional skills of the Navigation Section's staff entirely
     preclude the possibility of such an error. In my opinion this
     explanation that the change in the waypoint was thought to be
     minimal in terms of distance is a concocted story designed to
     explain away the fundamental mistake, made by someone, in failing
     to ensure that Captain Collins was notified that his aircraft was
     now programmed to fly on a collision course with Mt. Erebus.

These paragraphs are attacked on the grounds, in short, that the members
of the navigation section said to be adversely affected by
them--according to the applicants, Mr R. Brown as regards (e) and Messrs
Amies, Brown, Hewitt and Lawton as regards (f)--were not given a fair
opportunity of answering the findings or allegations.

To understand this complaint one needs a clear picture of what it was
that the Commission found or alleged against the navigation section.
When studying the report as a whole we have encountered difficulties in
this regard, difficulties not altogether removed when we explored them
during the argument with Mr Baragwanath. But our understanding is that
in essence the Commissioner suggests that the original change of the
southernmost point to one in the Sound, 25 miles west of McMurdo
Station, was probably deliberate on the part of the navigation section
(although he refrained from a definite finding) and that in November
1979 they deliberately made a major change back to the vicinity of
McMurdo Station but deliberately set out to conceal the change from the
American personnel there. The motive for the 1979 change ascribed by the
Commissioner to the navigation section appears to be that they
considered that the New Zealand Civil Aviation Division had only
approved a route over Mount Erebus, yet at the same time that the
American 'authorities' would object to that route, regarding the route
down the Sound as safer. In short the theory (if we understand it
correctly) is that the navigation section were in a dilemma as there was
no route approved by all concerned.

Beyond argument, it would seem, there was slipshod work within the
airline in the making of the change and the failure to expressly notify
flight crews. But the allegations of deliberate concealment and a
concocted story are another matter. The complaint is that they were
never put squarely to the members of the navigation section. The
Commissioner himself did put to the chief navigator, Mr Hewitt, that
'Someone may suggest before the inquiry is over' that the word 'McMurdo'
was relayed to McMurdo to conceal a long-standing error in the
co-ordinates. Mr Hewitt replied 'Certainly not, sir' and there, the
applicants point out, the matter was left, without further questions to
witnesses by anyone or any reference in counsel's final submissions.

On the other hand Mr Baragwanath urged in substance that the witnesses
from the navigation section must have understood that their evidence was
under suspicion; that they had ample opportunities to explain how and
why any mistakes occurred; and that it was for the Commissioner to
assess their explanations, taking into account any impressions they made
on him individually as witnesses.


Captain Eden

First Officer Rhodes, an accident inspector, had been one of the party
who went to the Antarctica very shortly after the crash. He was
representing the Air Line Pilots Association as well as working with
others in the party. When he first gave evidence at the inquiry he was
called by counsel for the association. Apparently concern was felt by
the airline that some of his evidence might be taken to reflect on
Captain Gemmell (the Flight Manager, Technical, and former Chief Pilot)
so First Officer Rhodes was recalled as a witness by counsel for the
airline. He said that he had 'no reason to doubt Captain Gemmell in any
way shape or form'. There was some cross-examination by counsel for the
association but no reference was made to Captain Eden in any of the
questions. The Commissioner said in paragraph 348 of his report:

     348. Captain Eden is at present the director of flight operations
     for the airline. He appeared in the witness box to be a
     strong-minded and aggressive official. It seemed clear from this
     further production of First Officer Rhodes as a witness that it had
     been suggested to him by Captain Eden that he should either make a
     direct allegation against Captain Gemmell or else make no
     allegation at all, and that since First Officer Rhodes seemed to
     have no direct evidence in his possession, he was therefore obliged
     to give the answer which Captain Eden had either suggested or
     directed. However, First Officer Rhodes was not entirely
     intimidated because as will be observed from the evidence just
     quoted, he insisted on saying that Captain Gemmell had brought an
     envelope containing documents back to Auckland.

Exception is taken to that paragraph as making findings of intimidation
against Captain Eden without any such allegation ever having been put to
him. Captain Eden gave evidence later in the inquiry than First Officer
Rhodes and the transcript shows that he was asked nothing by anyone
about their discussion.


Captain Gemmell

The following paragraphs of the report are attacked for their references
to this senior officer:

     352. As to the ring-binder notebook, it had been returned to Mrs
     Collins by an employee of the airline, but all the pages of the
     notebook were missing. Captain Gemmell was asked about this in
     evidence. He suggested that, the pages might have been removed
     because they had been damaged by kerosene. However, the ring-binder
     notebook itself, which was produced at the hearing, was entirely
     undamaged.

     353. After the evidence given before the Commission had concluded,
     I gave some thought to the matters just mentioned. I knew that the
     responsibility for recovering all property on the crash site lay
     exclusively with the New Zealand Police Force, and that they had
     grid-searched the entire site. All property recovered had been
     placed in a large store at McMurdo Base, which was padlocked, and
     access to the shed was only possible through a senior sergeant of
     Police. I asked counsel assisting the Commission to make inquiries
     about the flight bags which had been located on the site but which
     had not been returned to Mrs Collins or Mrs Cassin.

     354. The Royal New Zealand Air Force helicopter pilot who flew the
     property from the crash site to McMurdo remembered either one or
     two crew flight bags being placed aboard his helicopter, and he
     said that they were then flown by him to McMurdo. This was
     independently confirmed by the loadmaster of the helicopter, who
     recollected seeing the flight bags. The senior sergeant of Police
     in charge of the McMurdo store was spoken to, and he recollected
     either one or two flight bags among other property awaiting packing
     for return to New Zealand. He said that personnel from Air New
     Zealand had access to the store, as well as the chief inspector,
     and the senior sergeant said that he thought that he had given the
     flight bags to the chief inspector and that the chief inspector was
     the sole person to whom he had released any property. The chief
     inspector was then interviewed on 11 December 1980 by telephone,
     being at that time in Australia, but he said that no flight bags
     were ever handed to him.
     ...

     359. The following facts seemed to emerge:

     (1) The two flight bags were lodged in the Police store at McMurdo
     and would have been returned in due course to Mrs Collins and Mrs
     Cassin by the Police. But they were taken away from the store by
     someone and have not since been seen.
     ...

These paragraphs followed a discussion by the Commissioner of a
submission by counsel for the Pilots Association that a number of
documents which would have tended to support the proposition that
Captain Collins had relied upon the incorrect co-ordinates had not been
located; and in that context the Commissioner recorded Captain Gemmell's
denial that he had recovered any documents relevant to the flight which
had not been handed over to the chief inspector. There was also a
reference shortly afterwards in the report to Captain Gemmell having
brought back some quantity of documents with him from Antarctica. On its
own this would be innocuous, but it is part of a context which could
lead to inferences adverse to Captain Gemmell being drawn from the
paragraphs complained of.

The applicants say that there was a mistake of fact, no evidence of
probative value and no fair opportunity to answer the criticisms or
findings which they claim to be implicit in these paragraphs. The last
point, the natural justice one, has a special feature in the case of
Captain Gemmell. The applicants say that the findings, apart from one
made under mistake (paragraph 352), were based on information or
evidence gathered by the Commissioner after the public hearings; and
that, while an opportunity of meeting the new matter was given to the
Chief Inspector of Air Accidents, none was given to Air New Zealand or
Captain Gemmell.

Another special feature is that the Commissioner himself ultimately
concluded (paragraph 360) 'However, there is not sufficient evidence to
justify any finding on my part that Captain Gemmell recovered documents
from Antarctica which were relevant to the fatal flight, and which he
did not account for to the proper authorities'.


Alleged 'Orchestration'

We now come to the most serious complaint. It concerns paragraph 377 of
the report, a paragraph building up to a quotable phrase that has become
well known in New Zealand and abroad:

     377. No judicial officer ever wishes to be compelled to say that he
     has listened to evidence which is false. He always prefers to say,
     as I hope the hundreds of judgments which I have written will
     illustrate, that he cannot accept the relevant explanation, or that
     he prefers a contrary version set out in the evidence.

     But in this case, the palpably false sections of evidence which I
     heard could not have been the result of mistake, or faulty
     recollection. They originated, I am compelled to say, in a
     pre-determined plan of deception. They were very clearly part of an
     attempt to conceal a series of disastrous administrative blunders
     and so, in regard to the particular items of evidence to which I
     have referred, I am forced reluctantly to say that I had to listen
     to an orchestrated litany of lies.

The applicants claim that these findings were not based on evidence of
probative value and that the affected employees were not given a fair
opportunity of answering such charges. The general allegation in the
statement of claim that the findings attacked were made in excess of
jurisdiction has in our view a special bearing on this paragraph. The
applicants say that the paragraph affects a considerable number of
employees--namely Mr Amies, Mr R. Brown, Mr Davis, Captain Eden, Captain
Gemmell, Captain Grundy, Captain Hawkins, Mr Hewitt, Captain Johnson and
Mr Lawton. These include all the employees affected by the other
paragraphs under challenge.

We accept that reasonable readers of the report would take from it that
the conspiracy which the Commissioner appears to postulate in his
references to 'a pre-determined plan of deception' and 'an orchestrated
litany of lies' was seen by him as so wide as to cover all those
persons. Paragraph 377 is the culmination of a series of paragraphs
beginning with paragraph 373 and separately headed by the Commissioner
'The Stance adopted by the Airline before the Commission of Inquiry'.
They include specific references to the chief executive, described as
'very able but evidently autocratic' in the context of an allusion to
what 'controlled the ultimate course adopted by the witnesses called on
behalf of the airline'. There are also specific references to the
executive pilots and members of the navigation section.

It is possible that some individual witnesses did give some false
evidence during this inquiry. The applicants accept that this was for
the Commissioner to consider and that it is not for us to interfere with
his assessment of witnesses. But the complaint goes much further than
that. It is that there is simply no evidence on which he could find a
wholesale conspiracy to commit perjury, organised by the chief
executive, which is what this part of the report appears to suggest. Our
conclusion that here the Commissioner went beyond his jurisdiction and
did not comply with natural justice--a conclusion to be explained more
fully later in this judgment--makes it unnecessary for us to decide
whether there was any evidence that could conceivably warrant such an
extreme finding. It is only right to say, however, that if forced to
decide the question we would find it at least difficult to see in the
transcript any evidence of that kind.

The language of paragraph 377 has evidently been carefully selected for
maximum colour and bite, and the Commissioner has sought to reinforce
its impact by bringing in his status and experience as a judicial
officer. While unfortunate, it is no doubt that result of a search for
sharp and striking expression in a report that would be widely read. He
cannot have overstated the evidence deliberately. Similarly at senior
management level in Air New Zealand there would have been a natural
tendency to try to have the company's case put in as favourable a light
as possible before the Commission; but it was adding a further and
sinister dimension to their conduct to assert that they went as far as
organised perjury.


Costs

The applicants ask for an order quashing one of the Commissioner's
decisions as to costs. The decision in question and the reasons for it
are stated in an appendix to the report:

     ... I asked the airline for its submissions on the question of
     costs. The general tenor of the submissions is that the
     establishment of this Royal Commission was directed by the New
     Zealand Government and that the airline should not be ordered to
     meet any part of the public expenditure so incurred. As a statement
     of general principle, this is correct. But there is specific
     statutory power to order that a party to the inquiry either pay or
     contribute towards the cost of the inquiry, and that the power
     should be exercised, in my opinion, whenever the conduct of that
     party at the hearing has materially and unnecessarily extended the
     duration of the hearing. This clearly occurred at the hearings
     which took place before me.

     In an inquiry of this kind, an airline can either place all its
     cards on the table at the outset, or it can adopt an adversary
     stance. In the present case, the latter course was decided upon.
     The management of the airline instructed its counsel to deny every
     allegation of fault, and to counter-attack by ascribing total
     culpability to the air crew, against whom there were alleged no
     less than 13 separate varieties of pilot error. All those
     allegations, in my opinion, were without foundation. Apart from
     that, there were material elements of information in the possession
     of the airline which were originally not disclosed, omissions for
     which counsel for the airline were in no way responsible, and which
     successively came to light at different stages of the Inquiry when
     the hearings had been going on for weeks, in some cases for months.
     I am not going to burden this recital with detailed particulars,
     but I should have been told at the outset that the flight path from
     Hallett to McMurdo was not binding on pilots, that Captain Wilson
     briefed pilots to maintain whatever altitudes were authorised by
     McMurdo Air Traffic Control, that documents were ordered by the
     chief executive to be destroyed, that an investigation committee
     had been set up by the airline in respect of which a file was held,
     and that one million copies of the Brizindine article had been
     printed, a fact never revealed by the airline at all. So it was not
     a question of the airline putting all its cards on the table. The
     cards were produced reluctantly, and at long intervals, and I have
     little doubt that there are one or two which still lie hidden in
     the pack. In such circumstances the airline must make a
     contribution towards the public cost of the Inquiry.

     ...

     6. The costs incurred by the Government in respect of this Inquiry
     have been calculated by the Tribunals Division of the Department of
     Justice at $275,000. A substantial liability for the burden of such
     costs must lie upon the State but in my opinion the State ought to
     be in part reimbursed in respect of the cost to the public of the
     Inquiry, and I accordingly direct that Air New Zealand Limited pay
     to the Department of Justice the sum of $150,000 by way of
     contribution to the public cost of the Inquiry.

The order is in any event invalid because the amount is far greater than
the maximum allowed by the long out-of-date but apparently still extant
scale prescribed in 1903 (1904 Gazette 491). It is only fair to the
Commissioner to say that the scale seems never to have been drawn to his
attention by any counsel, although he gave an opportunity to make
submissions on costs. But there is a deeper objection to the validity of
the order, to which we will come shortly.


Conclusions

Having set out the various complaints we now state our conclusions more
specifically than in the earlier part of this judgment.

As to the jurisdiction of the Court in the present proceedings, the
application is made solely under the Judicature Amendment Act 1972.
Under that Act a decision cannot be set aside unless it was made in
exercise of a statutory power and _either_ it could have been quashed in
certiorari proceedings at common law--that is the effect of s. 4
(1)--_or_ the applicant is entitled to a declaration that it was
unauthorised or invalid, in which case s. 4 (2) empowers the Court to
set aside the decision instead.

The Erebus Commission, like others in the past in New Zealand when a
Supreme Court Judge has been the Chairman or the sole Commissioner, was
expressed to be appointed both under the Letters Patent delegating the
relevant Royal Prerogative to the Governor-General and under the
authority of and subject to the provisions of the Commissions of Inquiry
Act 1908. Some of us have reservations on various legal
questions--whether the Commission had statutory authority for its
inquiry as well as Prerogative authority; whether the findings in the
body of the report amounted to 'decisions', whether complete absence of
evidence is relevant in considering natural justice or can be redressed
in proceedings of this kind. These questions may be of more importance
in cases concerning the Thomas Commission which are to come before this
Court next year. Moreover, though most important in principle, they are
highly technical. It seems to us preferable that the Court should not
determine them now unless it is essential to do so. And we do not think
it is essential, because we are agreed on what now follows and it
enables substantial justice to be done in the present case.

It is established in New Zealand that in appropriate proceedings the
Courts may prevent a Commission of Inquiry--whether a Royal Commission,
a statutory Commission or perhaps a combination of the two--from
exceeding its powers by going outside the proper scope of its inquiry.
That basic principle was clearly accepted by this Court in _Re Royal
Commission on Licensing_ 1945 N.Z.L.R. 665. See especially the judgment
of Myers C.J. at pp. 678 to 680. As he indicated, the principle is
implicit in the judgment of the Privy Council in _Attorney-General for
Commonwealth of Australia v. Colonial Sugar Company_ 1914 A.C. 237. It
is also clear that in a broad sense the principles of natural justice
apply to Commissions of Inquiry, although what those principles require
varies with the subject-matter of the inquiry. The leading authority is
the decision of this Court in _Re Royal Commission on State Services_
1962 N.Z.L.R. 96.

In recent times Parliament has shown an increasing concern that natural
justice should be observed by Commissions. In 1958 s. 4A was inserted in
the Commissions of Inquiry Act 1908, expressly giving any person
interested in the inquiry, if he satisfied the Commission that he had an
interest apart from any interest in common with the public, a right to
appear and be heard as if he had been cited as a party. Then in 1980,
just as the Erebus Commission was about to start, the section was
replaced and strengthened. The main changes made are that any person who
satisfies the Commission that any evidence given before it may adversely
affect his interests must be given an opportunity to be heard in respect
of the matter to which the evidence relates; and every person entitled
to be heard may appear in person or by his counsel or agent. In giving
this right to representation by counsel the Legislature has gone further
than observations made in this Court in the _State Services_ case at pp.
105, 111 and 117.

Some statements in the judgments in that case are very relevant to the
present case. They are also entirely consistent with the spirit of the
changes made by Parliament in 1980. Gresson P. at p. 105 and North J. at
p. 111 both gave an inquiry into a disaster as an example of the kind of
inquiry where the requirements of natural justice would be more
extensive than in inquiries into a general field. Cleary J. stressed at
p. 117 that, while Commissions have wide powers of regulating their own
procedure, there is the one limitation that persons interested (i.e.
apart from any interest in common with the public) must be afforded a
fair opportunity of presenting their representations, adducing evidence,
_and meeting prejudicial matter_.

In both the _Licensing_ and the _State Services_ cases the Commissions
were presided over by Supreme Court Judges. It is implicit in the
judgments that this status on the part of the Chairman does not
emancipate a Commission from judicial review on jurisdictional or
natural justice grounds. We hold that the position can be no different
when a High Court Judge is sole Commissioner. He will, however, have
the powers, privileges and immunities mentioned in s. 13 (1) of the
Commissions of Inquiry Act. For instance he will have immunity from
defamation actions.

A further important point, clear beyond argument, is that an order for
costs made by a Commission under s. 11 of the Commissions of Inquiry Act
is the exercise of a statutory power of decision within the meaning of
the Judicature Amendment Act 1972. Accordingly it is subject to judicial
review. The judgments in this Court in _Pilkington_ v. _Platts_ 1925
N.Z.L.R. 864 confirm that if an order for costs has been made by a
Commission acting without jurisdiction or failing to comply with
procedural requirements the Court will by writ or prohibition or other
appropriate remedy prevent its enforcement. We add that, notwithstanding
an argument by Mr Harrison to the contrary, we are satisfied that s. 11
was the only possible source of the Commissioner's power to award costs
and s. 13 was not and could not have been invoked.

The order for costs under challenge in the present case is the
Commissioner's order that Air New Zealand pay $150,000 by way of
contribution to the public cost of the inquiry. In our view there can be
no doubt that this order is and was intended to be, in the words of
Williams J. delivering the judgment of this Court in _Cock_ v.
_Attorney-General_ (1909) 28 N.Z.L.R. 405. 421, '... in fact, though not
in name, a punishment'. What is more important, although Mr Baragwanath
argued otherwise we have no doubt that reasonable readers of the report
would understand that this order is linked with and consequential upon
the adverse conclusions stated by the Commissioner in the section of the
report headed by him 'The Stance adopted by the Airline before the
Commission of Inquiry'. It is true that the reasons for the costs order
open with a proposition about unnecessarily extending the hearing. But
the passage develops and the later reasons go further. The words chosen
convey that the punishment was not simply for prolonging the hearing. In
particular the statements about cards in the pack are a reversion to the
theme of the 'Stance' section, with its exceedingly strong allegations
in paragraph 377 of 'a pre-determined plan of deception' and 'an
orchestrated litany of lies'.

Applying the well-settled principles already mentioned, we think that if
in making those statements the Commissioner exceeded his terms of
reference or acted in violation of natural justice, the costs order is
not realistically severable from that part of the report and should be
quashed. For the purposes of the present case that is sufficient to
dispose of the argument based on _Reynolds_ v. _Attorney-General_ (1909)
29 N.Z.L.R. 24 that after a Commission has reported it is functus
officio and beyond the reach of certiorari or prohibition.

Naturally the stance of the airline at the inquiry directed by the terms
of reference was not included expressly in those terms. The argument
presented in effect for the Commissioner on the question of jurisdiction
is that comments, however severe, on the veracity and motives of
witnesses were incidental to the carrying out of the express terms. We
accept unhesitatingly that what is reasonably incidental is authorised
(as was recognised in _Cock's_ case at p. 425) and also that to some
degree any Commission of Inquiry has the right to express its opinion of
the witnesses, much as a Court or statutory tribunal has that right.

But we think that it is a matter of degree. For present purposes it is
not necessary to decide whether the law of New Zealand is still, as held
in _Cock's_ case, that a Commission of Inquiry cannot lawfully be
constituted to inquire into allegations of crime. That issue may be
raised more directly by the litigation regarding the Thomas Commission.
The issue now to be decided is whether the Commissioner had powers,
implied as being reasonably incidental to his legitimate functions of
inquiry into the causes and circumstances of the crash, to make
assertions amounting to charges of conspiracy to perjure at the inquiry
itself.

In considering that issue the importance of not unreasonably shackling a
Commission of Inquiry has to be weighed. It is also material, however,
that such a charge is calculated to attract the widest publicity, both
national and international. It is scarcely distinguishable in the public
mind from condemnation by a Court of law. Yet it is completely without
the safeguards of rights to trial by jury and appeal. In other words, by
mere implication any Commission of Inquiry, whatever its membership,
would have authority publicly to condemn a group of citizens of a major
crime without the safeguards that invariably go with express powers of
condemnation.

We are not prepared to hold that the Commissioner's implied powers went
so far. We hold that he exceeded his jurisdiction in paragraph 377.

If, contrary to the view just expressed, the Commissioner did have
jurisdiction to consider allegations of organised perjury, natural
justice would certainly have required that the allegations be stated
plainly and put plainly to those accused. That was not done. If it had
been done, what we have said earlier is enough to show that they could
well have made effective answers.

So we conclude that in making the findings or allegations stated in
paragraph 377 of the report the Commission acted in excess of
jurisdiction and contrary to natural justice. As previously mentioned,
the conspiracy postulated in paragraph 377 is evidently intended to
include as participants the chief executive of the airline, the
executive pilots and members of the navigation section. If the order for
$150,000 costs is quashed on the ground that the statements about a
pre-determined plan of deception and an orchestrated litany of lies were
made without jurisdiction and contrary to natural justice, we think that
substantial justice will be done to the company and those individuals.
In our opinion that costs order must be quashed on those grounds as well
as on the ground that it was invalid as to amount.

Further, during the proceedings in this Court there occurred
developments which in themselves threw a different light on matters
dealt with in the paragraphs under attack affecting Captain Gemmell
particularly. These should be publicly recorded.

It was acknowledged by all parties, including the Commissioner, that the
reference to Captain Gemmell in paragraph 352, concerning a notebook
belonging to Captain Collins, was a mistake. The Commissioner evidently
had in mind some evidence given by Captain Crosbie, the welfare officer
of the Air Line Pilots Association. This disposes of any inference
against Captain Gemmell that might be taken from that paragraph.

Much the same applies to the other paragraphs affecting him which are
complained of. We have set them out in full and it will be seen that
they all relate to two flight bags. It had seemed that paragraph 359
(1), in its context, might have conveyed the impression that Captain
Gemmell had removed these bags from the McMurdo store and brought them
or their contents back from Antarctica. At our hearing, however, Mr
Davison, who was one of the counsel for the Pilots Association both
before the Commission and in this court, made it clear responsibly and
fairly that this is not suggested.

As to Captain Eden, it has already been stated that the transcript
shows that the allegation expressed or implied in paragraph 348 was
never put to him. Having said so plainly, we need only add as regards
this particular complaint that the allegation, although it would
naturally have caused concern to Captain Eden and Air New Zealand, was
not as serious as the others that are complained of.

Whether the Court has jurisdiction to quash particular passages in the
report in addition to the costs order is a difficult and technical
question. We prefer not to lengthen this judgment with an unnecessary
discussion of it.

In modern administrative law, as a result of developments in both case
and statute law, the power of the Courts to grant declarations and quash
decisions is wider than was thought in the _Reynolds_ case in 1909 (29
N.Z.L.R. at 40). It may be that in a sufficiently clear-cut case the
jurisdiction, either under the Act or at common law, will be found to
extend to parts of Commission reports even when they are not linked with
costs orders.

But in the end that jurisdictional question does not have to be decided
in this case, and we reserve our opinion on it. If the jurisdiction does
go so far, it must be discretionary, as the grant of declarations always
is. The Court would have to be satisfied that grounds so strong as to
require it to act in that unusual way had been made out. In our opinion
they would be made out clearly enough as regards paragraph 377, which
stands out from the general body of the report. But the quashing of the
costs order because of its association with that paragraph is enough to
do justice there.

The position is less clear as regards the other paragraphs complained
of. For various reasons they are all in a marginal category. What has
been said in this judgment may help to enable them to be seen in
perspective. On balance we would not be prepared to hold that as to
these other paragraphs the applicants have made out a sufficiently
strong case to justify this Court in interfering, assuming that there is
jurisdiction to do so.

In the result, the application for review having succeeded on the main
issue, we see no need to and are not prepared to go further in granting
relief. Our decision is simply that the $150,000 costs order be quashed
on the grounds already stated.

As to the costs of the present proceedings, they should be reserved, as
there has been no argument on the matter.


_Solicitors_

Russell McVeagh McKenzie Bartleet & Co., Auckland, for First and Second
Applicants.

Sheffield Young & Ellis, Auckland, for Third Applicant.

Crown Law Office, Wellington, for First, Fourth and Sixth Respondents.

Keegan Alexander Tedcastle & Friedlander, Auckland, for Fifth
Respondent.





C.A. 95/81

In the Court of Appeal of New Zealand--Between Air New Zealand Limited.
First Appellant, and Morrison Ritchie Davis, Second Appellant, and Ian
Harding Gemmell, Third Appellant, and Peter Thomas Mahon, First
Respondent, and the Attorney-General, Fourth Respondent, and New Zealand
Airline Pilots Association, Fifth Respondent, and the Attorney-General,
Sixth Respondent.


_Coram_

Woodhouse P.
Cooke J.
Richardson J.
McMullin J.
Somers J.


_Hearing_

5th-12th October 1981.


_Counsel_

L.W. Brown, Q.C., for first and second appellants, with R.J. McGrane.

D.A.R. Williams for third appellant, with L.L. Stevens.

G.P. Barton for first respondent, with R.S. Chambers.

C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
withdraw.

A.F. MacAlister for fifth respondent, with P.J. Davison.

W.D. Baragwanath for sixth respondent, with G.M. Harrison.


_Judgment_

22 December 1981




JUDGMENT OF WOODHOUSE P. AND McMULLIN J.--DELIVERED BY WOODHOUSE P.


On 28th November 1979 a DC10-30 aircraft owned and operated by Air New
Zealand Limited crashed during daylight hours at a point 1465 feet above
mean sea level on the ice-covered lower slopes of Mount Erebus in the
Antarctic. It was a tragedy in which 257 lives were lost. The magnitude
of the disaster resulted in two separate investigations into the causes
of and circumstances surrounding the accident. The second inquiry took
the form of a Royal Commission appointed by Letters Patent and also
pursuant to the provisions of the Commissions of Inquiry Act 1908. Mr
Justice Mahon, a Judge of the High Court at Auckland, was appointed sole
Commissioner on 11th June 1980. He prepared the Commission's Report and
presented it on 16th April 1981.

The case now before this Court is entirely concerned with that Report.
But lest there be any misunderstanding it is necessary to emphasize at
the outset that no attack can be or indeed has been made upon the
conclusions it reaches as to the cause of the crash. Instead the
proceedings are brought by way of judicial review under the Judicature
Amendment Act 1972 in order to challenge statements in the Report about
the conduct of certain officers of Air New Zealand.

Senior officers of the airline are severely criticized in the Report and
in one paragraph on the basis of "a pre-determined plan of deception ...
to conceal a series of disastrous administrative blunders ... an
orchestrated litany of lies". These findings are challenged on grounds
that they were made unfairly, in disregard of basic principles of
natural justice and without jurisdiction. We are satisfied that those
complaints of the applicants are justified and that the statements
should never have been made. It was done without authority of the terms
of reference of the Commission and without any warning to the officers
affected. Thus they were given no opportunity at all to answer and deny
as they claim in affidavits now before this Court they were in a
position to do.

Because of the view we take of some aspects of the facts and of the law
we would be prepared to go further than the other members of the Court
in regard to the formal order to be made in this case. We also find it
necessary to go further in our conclusions in regard to a number of
matters of fact. We feel sure, however, that reputation can be
vindicated and the interests of justice met by the formal decision of
this Court which will have the effect of quashing a penal order of the
Commissioner requiring Air New Zealand to pay the large sum of $150,000
as costs in the Royal Commission Inquiry.


The Two Inquiries

Before the Royal Commission was appointed and began its work a statutory
investigation had already been carried out in terms of the Civil
Aviation (Accident Investigation) Regulations 1978. Immediately it was
known that the aircraft had crashed on Mount Erebus the standard
procedures for aircraft accident investigation were invoked by the Chief
Inspector of Air Accidents, Mr R. Chippindale. And he arrived in the
Antarctic with a small team of experts on the day following the
disaster. They included mountaineers, police, surveyors, the chief pilot
of Air New Zealand (Captain Gemmell), and a representative of the
Airline Pilots Association, named in the present proceedings as the
fifth respondent (First Officer Rhodes).

Mr Chippindale conducted intensive inquiries at the site of the crash
and instructed that all reasonable steps were to be taken to recover
equipment that would bear upon the cause of the accident and any
documents which were still accessible before they were blown away into
crevasses or covered with snow. Two important items were soon
discovered: the cockpit voice recorder was found at once and after a
period of systematic digging into the snow the digital flight data
recorder was recovered as well. The first piece of equipment provided a
tape recording of much that was said on the flight deck during a period
of 30 minutes preceding the time of the collision with the ice slope.
The second, often described as the "black box", provided conclusive
information concerning course, altitude, and other data relating to the
flight and functioning of the aircraft at the relevant period of time.

Mr Chippindale continued his investigation in New Zealand where he
inspected records gathered from the airline. He also interviewed pilots
and other officers with relevant information. In addition he travelled
overseas. At that point he prepared an interim report so that he could
give notice of his tentative findings to all those whom he felt might
have some degree of responsibility for the accident. Thus the airline
and representatives of the deceased pilots and others were given an
opportunity to provide any appropriate answer to the chief inspector
before he completed his final report. All this was attended to and his
report, which is dated 31st May 1980, was made available to the Minister
of Transport on 3rd June 1980. The Minister then approved the report for
release as a public document on 12th June 1980. As mentioned, the Royal
Commission was appointed for the purpose of conducting a public inquiry
at that same time.

There is a difference in the two reports upon the cause of the accident.
Mr Chippindale considered the probable cause to have been pilot error.
On the other hand the Royal Commission exonerated the pilots completely
and spoke instead of "incompetent administrative airline procedures".
Since this case is concerned with allegations by the Commissioner that
the affected officers of Air New Zealand had engaged "in a
pre-determined plan of deception ... to conceal a series of disastrous
administrative blunders" (administrative mistakes which he himself had
found to be the real cause of the disaster) it is not unimportant to ask
what relevant information the airline had actually been able to provide
which was not supplied to Mr Chippindale. For that last reason the
material made available for consideration by Mr Chippindale deserves
some examination. An example concerns the change made to the final stage
of the computer flight track to the Antarctic which the Commissioner
regarded as a central reason for the accident. During a period of
fourteen months prior to the fatal flight Air New Zealand's ground
computer had contained an incorrect geographical reference to the
southern waypoint of the journey at McMurdo. Accordingly, in that period
it was shown incorrectly on any computer print-outs of the flight plan.
But a few hours before departure of the DC10 an amendment was made and
the flight crew was not informed that amended co-ordinates (since their
briefing 19 days earlier) had thus been fed into the aircraft's
computer.

In paragraph 44 the Report explains that the chief executive of the
airline was told of this matter on 30th November. Then in paragraph 45
it is said that the chief executive "determined that no word of this
incredible blunder was to become publicly known". There follows a
statement that a direction was thereupon given "that all documents
relating to Antarctic flights, and to this flight in particular, were
to be collected and impounded. They were all to be put on one single
file which would remain in strict custody. Of these documents all those
which were not directly relevant were to be destroyed". The reference in
this context to the amendment to the co-ordinates invites the question
as to whether Mr Chippindale had been given that particular information
by the airline during his own investigation. It is made plain in his own
report that this had been done immediately.

He himself was not uncritical of the administrative work of the airline
as it touched upon the fatal flight and concerning this matter he said:

     "3.5 The flight planned route entered in the company's base
     computer was varied after the crew's briefing in that the position
     for McMurdo on the computer printout used at the briefing, was
     incorrect by over 2 degrees of longitude and was subsequently
     corrected prior to this flight."

The variation in the computer _after the crew of the DC10 had been
briefed_ (as Mr Chippindale realized) is the matter which is mentioned
by the Commissioner in paragraph 44 and which in paragraph 45 is offered
as the motive for what is there described as an immediate decision by
the chief executive that no word of the matter was to become publicly
known, with documents to be impounded and others destroyed. This
information was given into Mr Chippindale's hands by Air New Zealand in
a written statement on the day following his return from the crash site
in Antarctica.

The Chippindale report then states in paragraph 3.6 that the computer
error had remained in the flight plans for some fourteen months. Then it
is said:

     "3.7 Some diagrams and maps issued at the route qualification
     briefing could have been misleading in that they depicted a track
     which passed to the true west of Ross Island over a sea level ice
     shelf, whereas the flight planned track passed to the east over
     high ground reaching to 12450 feet AMSL.

     3.8 The briefing conducted by Air New Zealand Limited contained
     omissions and inaccuracies which had not been detected by either
     earlier participating aircrews or the supervising Airline
     Inspectors."

So these various matters (also mentioned by the Commissioner) were well
within Mr Chippindale's knowledge. However he came to a final conclusion
that pilot error had been involved as a probable cause of the accident
while the Commissioner (who decided this was an incorrect finding) was
satisfied instead that the cause of the accident was not pilot error at
all. He said:

     "393. In my opinion therefore, the single dominant and effective
     cause of the disaster was the mistake made by those airline
     officials who programmed the aircraft to fly directly at Mt. Erebus
     and omitted to tell the aircrew. That mistake is directly
     attributable, not so much to the persons who made it, but to the
     incompetent administrative airline procedures which made the
     mistake possible.

     394. In my opinion, neither Captain Collins nor First Officer
     Cassin nor the flight engineers made any error which contributed to
     the disaster, and were not responsible for its occurrence."


Jurisdiction to Review

Several important questions arise in this case. Is there jurisdiction in
the Courts to review in such a context as this taking into account the
ambit of ss. 3 and 4 of the Judicature Amendment Act 1972? And if there
is such power is it by reason of the award of costs in this case? Or on
grounds relating to excess of jurisdiction on the part of the
Commissioner? Or considerations of natural justice? Or by reference to
all three of those matters? For the reasons that follow we are satisfied
that the findings are reviewable and that each one of those three
matters is properly within the scope of the Court's jurisdiction.

As already mentioned, the proceedings are by way of application for
review under the Judicature Amendment Act 1972 and are directed against
certain findings in the Report, to which we have referred. The
applicants claim that those findings are invalid, in excess of
jurisdiction or made in circumstances involving unfairness or breach of
natural justice. They seek declarations to that effect and orders
setting aside the findings and quashing the order that Air New Zealand
pay $150,000 as a contribution to the public cost of the inquiry. It is
necessary to consider whether under the Act the Court has jurisdiction
to grant such relief in this case.

By ss. 3 and 4 of the Act relief may be granted only where a "statutory
power" is involved. That term includes a "statutory power of decision".
Since liberalizing amendments made in 1977, "statutory power" includes
power conferred by or under any Act "to make any investigation or
inquiry into the rights, powers, privileges, immunities, duties, or
liabilities of any person" and "statutory power of decision" includes
power conferred by or under any Act "to make a decision ... affecting"
any such rights, powers, privileges, duties or liabilities. Generally
the relief available is confined by s. 4 to that which the applicant
would have been entitled to in any one or more of the proceedings for
mandamus, prohibition, certiorari, declaration or injunction; but there
is a relevant exception in s. 4 (2) whereby if the applicant is entitled
to an order declaring that a decision made in the exercise of a
statutory power of decision is unauthorized or otherwise invalid the
Court may set aside the decision instead.

The first question as to jurisdiction is therefore whether, apart from
the 1972 Act, the applicants could have obtained relief by any of the
proceedings mentioned. The Commission having ceased to exist, it would
be too late to apply for prohibition or an injunction against the first
respondent and mandamus would also be inappropriate. The decision of
this Court in _Reynolds_ v. _Attorney-General_ (1909) 29 N.Z.L.R. 24,
37-38, suggests that once the report has been forwarded to the
Governor-General it may be permanently beyond the reach of certiorari;
this is perhaps a corollary of the view, to which we referred in the
judgment concerning discovery in _Environmental Defence Society Inc._
v. _South Pacific Aluminium Limited_ (C.A. 59/81, judgment 15th June
1981), that a prerogative remedy may not lie against the Sovereign's
representative.

But we need not go further into the rather technical question of the
scope of certiorari in this kind of case. As has been said in the
_Environmental Defence Society_ case and _Ng_ v. _Minister of Immigration_
(C.A. 100/81, judgment 10th August 1981), a declaration may be granted
in the discretion of the Court whether or not certiorari would have
lain. That a declaration may be an appropriate remedy for both
jurisdictional errors and closely analogous defects such as unfairness
or breaches of natural justice is shown by such Privy Council and House
of Lords decisions as _De Verteuil_ v. _Knaggs_ (1918) A.C. 557, _Pyx
Granite Co. Ltd._ v. _Ministry of Housing_ (1960) A.C. 260, and _Ridge_
v. _Baldwin_ (1964) A.C. 40. The statement apparently to the contrary at
the end of the _Reynolds_ judgment at p. 40 is obsolete. And if a
declaration could have been granted that a decision made under a
statutory power is invalid the Court has power under the 1972 Act to set
the decision aside.


The Order for Costs

In argument in the present case it was common ground that if the order
for $150,000 costs is invalid the Court can set it aside. That is
clearly so. The order was made in reliance on s. 11 of the Commissions
of Inquiry Act 1908 which (notwithstanding an argument to the contrary
by Mr Harrison) is in our opinion undoubtedly the only source of any
authority for a Royal Commission or a Commission of Inquiry to award
costs. If valid it is enforceable by virtue of s. 12 of that Act as a
final judgment of the High Court in its civil jurisdiction. Plainly it
is the exercise of a statutory power of decision. The jurisdiction of
the New Zealand Courts to determine the validity of orders for costs by
Commissions is well established: _Hughes_ v. _Hanna_ (1909) 29 N.Z.L.R.
16; _Whangarei Co-operative Bacon-Curing Co._ v. _Whangarei
Meat-Supply Co._ (1912) 31 N.Z.L.R. 1223; _Pilkington_ v. _Plaits_
(1925) N.Z.L.R. 864.

What was in dispute in the argument in this connection was principally
whether the order is so linked with the challenged findings in the
Report that if those findings are invalid for excess of jurisdiction or
breach of natural justice the order will fall with them. There was a
subsidiary argument about whether the order was in any event invalid
because the amount may greatly exceed the maximum allowed by the long
out-of-date but still apparently extant scale prescribed in 1903 (1904
Gazette 491). We propose to consider the main argument, however, and in
doing so to confine attention to whether there is a sufficient link
between the order and the main findings complained of in the Report,
those in paragraph 377.

At the beginning of his reasons for ordering costs the Commissioner
expressed the opinion that the power should be exercised whenever the
conduct of a party at the hearing has materially and unnecessarily
extended the duration of the hearing. His following reasons include
criticisms of the management of the airline for prolonging the hearing,
and it was contended before us by Mr Baragwanath that they go no
further. We are unable to accept that contention. In reciting the
circumstances leading to the orders for costs the Commissioner expressly
includes the chief executive's order for documents to be destroyed and
says, "The cards were produced reluctantly, and at long intervals, and I
have little doubt that there are one or two which still lie hidden in
the pack". We think that such language would naturally be understood by
a reasonable reader to refer back to the matters more fully developed in
the section of the Report headed "The stance adopted by the airline
before the Commission of Inquiry", a section culminating in paragraph
377 with its references to "a pre-determined plan of deception ... an
attempt to conceal a series of disastrous administrative blunders ... an
orchestrated litany of lies". The impression almost inevitably created
is that, to adapt words used by Williams J. delivering the judgment of
this Court in _Cock_ v. _Attorney-General_ (1909) 28 N.Z.L.R. 405, 421,
the judgment for costs was in fact, though not in name, a punishment.
The reasons given for the costs orders have definite echoes of
paragraph 377 and the immediately preceding paragraphs. The airline was
being required to pay costs, and not for delaying tactics simply. A
significant part of the reasons was that in the view of the Commissioner
its chief witnesses had been organized to conceal the truth.

It is true that, on purely verbal grounds, refined distinctions can be
drawn between the sections of the Report dealing with the airline's
stance at the inquiry and with costs; but we have no doubt that their
overall effect is that most readers would understand them as closely
associated. It follows, we think, that if the findings in paragraph 377
are invalid for excess of jurisdiction or breach of natural justice they
should be seen as playing a material part in the order for $150,000
costs and as requiring the Court to set aside that order. Irrespective
of the order for costs, we think that there are strong arguments to
support the view that there is jurisdiction to review the findings in
challenged paragraphs on grounds relating to jurisdiction and natural
justice. There is a good deal of support in the authorities for
excluding or strictly limiting judicial review of Commission findings
and Mr Baragwanath carefully put the arguments forward. But, as we say,
there are reasons why the Court ought not to adopt the facile approach
of saying that the function of the Commission was merely to inquire and
report and that as the Commission's findings bind no-one they can be
disregarded entirely as having no legal effect.


Scope of Royal Commission

As has been the practice in New Zealand when a Commission of Inquiry
consists only of or is chaired by a High Court Judge, the Erebus
Commission was a Royal Commission in that the warrant was expressed to
be issued under the authority of the Letters Patent of 1917 constituting
the office of Governor-General. One of the powers delegated by the
Letters Patent to the Governor-General is to "constitute and appoint, in
Our name and on Our behalf, all such ... Commissioners ... as may be
lawfully constituted or appointed by Us". The warrant was also expressed
to be issued under the authority of and subject to the provisions of the
Commissions of Inquiry Act 1908, and s. 15 of that Act extends and
applies not only to inquiries under statutory Commissions appointed by
the Governor-General or Governor-General in Council but also to
inquiries under the Letters Patent. This means inter alia that
statutory-powers of summoning witnesses and requiring the production of
documents apply, that a Judge of the High Court acting as Commissioner
has the ordinary judicial immunity, and that interested persons have
statutory rights to be heard under s. 4A, inserted by an amendment made
in 1980 shortly before the inquiry now in question began. Section 2 of
the 1908 Act empowers the Governor-General by Order-in-Council to
appoint any person to be a Commission to inquire into and report upon
any question arising out of or concerning a range of matters. The
relevant one is "(e) Any disaster or accident (whether due to natural
causes or otherwise) in which members of the public were killed or
injured ..." In giving statutory power to appoint Commissions and
listing permissible subjects the Act differs from the Evidence Acts
considered in Australian cases. The Australian Acts presuppose the
existence of Commissions appointed under prerogative or inherent
executive powers and merely confer ancillary powers of compelling
evidence and the like. Under Acts of that type the validity of the
Commission depends on the common law and the division of powers in the
Australian Constitution. Under the New Zealand Act a Commission can be
given a statutory source for its basic authority even if it is a Royal
Commission and has a prerogative source as well.

The Erebus Commission was appointed to inquire into the causes and
circumstances of the crash. Among the particular questions referred to
it was:

     (g) Whether the crash of the aircraft or the death of the
     passengers and crew was caused or contributed to by any person
     (whether or not that person was on board the aircraft) by an act or
     omission in respect of any function in relation to the operation,
     maintenance, servicing, flying, navigation, manoeuvring, or air
     traffic control of the aircraft, being a function which that person
     had a duty to perform or which good aviation practice required that
     person to perform?

All the terms of reference fall well within s. 2 (e). The Commission was
not appointed to inquire into allegations of crime so we are not now
called upon to go into the question whether a Royal Commission can be
appointed for such a purpose, on which New Zealand and Australian
authorities diverge (see _In re The Royal Commission on Licensing_
(1945) N.Z.L.R. 665, 679; and D.R. Mummery "Due Process and
Inquisitions", 97 L.Q.R. 287). Nevertheless paragraph 377 of the Royal
Commission Report contains findings of organized perjury. The judgment
in the leading New Zealand case, _Cock_ v. _Attorney-General_, while
denying that the prerogative can authorize a Commission with the main
object of inquiring into alleged crimes, recognizes at p. 425 that a
Commissioner may investigate an alleged crime if to do so would be
"merely incidental to a legitimate inquiry and necessary for the purpose
of that inquiry". We think that the test must be what is reasonably
incidental to valid terms of reference. In relation to paragraph 377 the
allegation of excess of jurisdiction turns accordingly on whether the
findings are reasonably incidental to an inquiry into the causes and
circumstances of the crash.

It is difficult to find reasons why the Court should refuse to entertain
that question. While Commissions of mere inquiry and report are largely
free from judicial control, there is strong authority indicating that
the Courts have at least a duty to see that they keep within their terms
of reference. We agree with the opinion of Myers C.J. in the _Royal
Commission on Licensing_ case at p. 680 that it is implicit in all the
judgments in the Privy Council and the High Court in _Attorney-General
for the Commonwealth of Australia_ v. _Colonial Sugar Refining Co. Ltd_
(1914) A.C. 237, 15 C.L.R. 182, that if it can be said in advance that
proposed questions are clearly outside the scope of the inquiry they are
irrelevant and cannot be permitted. In the _Royal Commission on
Licensing_ case that very principle was applied in this Court, it being
held that certain matters were not within the ambit of the Commission's
inquiry. That decision was given on a case stated by the Royal
Commission under ss. 10 and 13 of the 1908 Act, but the _Sugar Company_
case was an action for declaration and injunctions and the procedure was
expressly approved in the judgment of their Lordships delivered by
Viscount Haldane L.C. ((1914) A.C. at 249-50). Similarly in _McGuinness_
v. _Attorney-General_ (1940) 63 C.L.R. 73 the High Court, on an appeal
from a conviction for refusing to answer a question touching the subject
matter of an inquiry by a Commissioner, accepted without any apparent
difficulty that the Court had authority to determine whether the
question was relevant.

We do not overlook that the cases just cited were concerned with the
scope of questions that might be put to witnesses under compulsory
powers given by statute. They were not directly concerned with the scope
of findings in reports. But if the Court has jurisdiction to determine
the true scope of a Commission's inquiry and require the Commission to
keep within that scope there are obvious arguments that it should have a
corresponding jurisdiction in the matter of findings. A vital part of
the constitutional role of the Courts is to ensure that all public
authorities, whether they derive their powers from statute or the
prerogative, act within the limits of those powers.

A different view was taken by Stephen J. sitting at first instance in
chambers in _R._ v. _Collins_ (1976) 8 A.L.R. 691, but we note the
opinion expressed in several Canadian cases that the Court will
intervene where a Commissioner has inquired or seeks to inquire into
matters outside his terms of reference: _Re Sedlmayr_ (1978) 82 D.L.R.
(3d.) 161; _Re Anderson_ (1978) 82 D.L.R. (3d.) 706; _Landreville_ v.
_The Queen_ (1973) 41 D.L.R. (3d.) 574; _Landreville_ v. _The Queen_
(No. 2) (1977) 75 D.L.R. (3d.) 380, 400-402.

In _Re Royal Commission on Thomas Case_ (1980) 1 N.Z.L.R. 602 a Full
Court (Molier, Holland and Thorp JJ.) held inter alia that the Court may
prohibit a Commission from acting in excess of its jurisdiction and that
the creation of a Commission pursuant to the Letters Patent does not
exempt it from the supervisory role of the Court. However part of the
Full Court's decision in that case is the subject of a pending appeal to
this Court and other proceedings relating to the Thomas Commission have
been moved into this Court. So we refrain from expressing any final view
upon it.

For the foregoing reasons we think that if the applicants make out their
claim that the findings of the Erebus Commission in paragraph 377 are
outside the commissioner's terms of reference, they could be granted a
declaration to that effect at common law. To obtain a setting aside of
the findings under s. 4 (2) of the Judicature Amendment Act 1977 they
have to show in addition that the findings were made in the exercise of
a statutory power of decision. We think this requirement should not
present final difficulty if regard is had to the evident intent and
spirit of the 1972 Act and particularly the amendments made by
Parliament in 1977.


Judicature Amendment Act 1972

Was the statutory power one of _decision_? The 1977 Amendment Act
brought statutory investigations or inquiries into rights or liabilities
within the definition of "statutory power". An inquiry into whether any
person caused or contributed to the crash by an act or omission in
respect of his duties is an inquiry into liabilities. But that is less
important for present purposes than the fact that the Amendment Act also
extended the concept of statutory powers of decision to those
"affecting" the rights of any person. The purpose was manifestly to make
the ambit of review under the Act at least as wide as at common law.
This point is dealt with in _Daemar_ v. _Gilliand_ (1981) 1 N.Z.L.R. 61.

We think it would be very difficult to justify an argument that findings
likely to affect individuals in their personal civil rights or to expose
them to prosecution under the criminal law are decision "affecting"
their rights within the meaning of the Act. In the present case, for
example, it was virtually certain that the findings of the Erebus
Commission would be published by the Government. The effect on the
reputation of persons found guilty of the misconduct described in the
Report was likely to be devastating, at common law every citizen has a
right not to be defamed without justification. Severe criticism by a
public officer made after a public inquiry and inevitably accompanied by
the widest publicity affects that right especially when the officer has
judicial status and none the less because he has judicial immunity.

The present case is in many ways unique and, if the findings in
paragraph 377 were made without jurisdiction or contrary to natural
justice, it affords a striking instance of how contrary to the public
interest it would be if the Courts were not prepared to protect the
right to reputation. The magnitude of the disaster, bringing tragedy to
many homes in New Zealand and overseas, and the fact that the national
airline was involved meant that the national attention was focused on
the inquiry. There are imputations of collective bad faith which had
started from a high place in the company and all this was likely to
receive the widest publicity, further, the findings in paragraph 377
amounted to public and official disclosures of alleged criminal conduct
and led to investigation by the police to determine whether charges
should be laid. In the event it was announced shortly before the hearing
of the present case that there would be no such charges, but clearly the
individuals concerned were in fact exposed to the hazard of prosecution
as a natural consequence of the Report.

In interpreting the 1977 legislation we think that a narrow conception
of rights and of what affects rights would not be in accord with the
general purposes of the Act. A broad, realistic and somewhat flexible
approach would enable the Act to work most effectively as an aid to
achieving justice in the modern community.


Natural Justice

This Court has had to examine and apply the principles concerning
natural justice and fairness quite often in recent years. In translating
the ideals of natural justice and fairness into current operation in New
Zealand we have been influenced as to general principles mainly by
decisions of the Privy Council and the House of Lords but, of course, we
have had New Zealand conditions and practicalities very much in mind.
The result has been a pragmatic approach.

Some overseas Courts have held that if all that occurs is inquiry and
report and the report is not in law a condition precedent to some
further step the rules of natural justice are automatically excluded.
That was the premise, for instance, of the High Court of Australia in
_Testro Bros. Pty. Ltd._ v. _Tait_ (1963) 109 C.L.R. 353. A contrary
approach is to be found in the judgement of Schroeder J.A. representing
the view of the majority of the Ontario Court of Appeal in _Re Ontario
Crime Commission_ (1962) 133 C.C.C. 116, although that case depends
partly on Ontario statute law. There is little attraction in the idea of
automatic exclusion. Commissions of Inquiry have compulsory statutory
powers of insisting on evidence and their findings can affect rights in
the ways already outlined. It seems to us highly unlikely that the New
Zealand Parliament intended them to be wholly free of the elementary
obligation to give persons whom they have in mind condemning a fair
opportunity for correcting or contradicting any relevant allegation.

Some reinforcement for the view that they are under that obligation is
to be found in some added considerations. Section 4A of the Commissions
of Inquiry Act, enacted in 1980 in place of briefer provisions and in
time for the Erebus inquiry, provides:

     "4A. Persons entitled to be heard--(1) Any person shall, if he is
     party to the inquiry or satisfies the Commission that he has an
     interest in the inquiry apart from any interest in common with the
     public, be entitled to appear and be heard at the inquiry.

     (2) Any person who satisfies the Commission that any evidence given
     before it may adversely affect his interests shall be given an
     opportunity during the inquiry to be heard in respect of the matter
     to which the evidence relates.

     (3) Every person entitled, or given an opportunity, to be heard
     under this section may appear in person or by his counsel or
     agent."

The section may be seen as a recognition by Parliament that natural
justice should apply. It does not purport to enact a complete code of
procedure or to cover the whole field of natural justice, which would
not be easy in a statute of this general kind. The statute specifically
requires an opportunity to be heard to be given to any person who shows
that evidence may adversely affect his interests. In the parallel
situation of the statutory investigation which must be undertaken
following any aircraft accident considerations of fairness are carefully
spelled out in Regulation 15 (1) of the Civil Aviation (Accident
Investigation) Regulations 1978. There it is provided that "where it
appears to an Inspector that any degree of responsibility for an
accident may be attributable to any person, that person or, if he is
dead, his legal personal representatives, shall, if practicable, be
given notice that blame may be attributed to him, and that he or they
may make a statement or give evidence, and produce witnesses, and
examine any witnesses from whose evidence it appears that he may be
blameworthy". In the case of the earlier investigation by Mr.
Chippindale into the Erebus disaster that very step was taken.

In his judgment in the Court in _Re the Royal Commission on the State
Services_ (1962) N.Z.L.R. 96, 117, Cleary J. while stressing the wide
discretion of Commissions to regulate their own procedure said plainly
that the one limitation is that parties cited and persons interested
must be afforded a fair opportunity of presenting their representations,
adducing their evidence, and meeting prejudicial matter. That judgment
was given with reference to the old s. 4A, now replaced by the section
already quoted. What Cleary J. said, particularly about the general
absence of a right to be represented by counsel, must now be read
subject to the new provisions. But his expression "prejudicial matter"
was a general one. It ought not, we think, to be read down in some way
so as to exclude suggestions of conspiracy which may have evolved in the
mind of a Commission without being specifically raised in evidence or
submissions.

A suggestion of an organized conspiracy to perjure is different from the
possibility commonly faced by individual witnesses that their evidence
may be disbelieved. Grave findings of concerted misconduct in connection
with the inquiry ought not to be made without being specifically raised
at the inquiry. Once the thesis of such a conspiracy had emerged in the
Commissioner's thinking as something upon which he might report, he
would have had power, if that question were indeed reasonably incidental
to his terms of reference, to reconvene the hearing if necessary so that
the alleged conspirators could be fairly confronted with the allegation.
See the speech of Lord Russell of Killowen in _Fairmount Investments
Ltd._ v. _Secretary of State for the Environment_ (1976) 2 All E.R. 865,
and the judgement of Lord Parker C.J. in _Sheldon_ v. _Bromfield
Justices_ (1964) 2 Q.B. 573, 578. In fact in the present case but for a
far less significant reason the Commissioner himself actually considered
the possible need to reconvene the hearing after certain enquiries had
been made on his instructions following the taking of evidence in
public. The matter is mentioned in paragraph 358 of the Report.

_Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380,
402-405, was decided in the end on just such a ground. It was held that
a Commissioner, who happened to be a distinguished Judge, had failed to
put to the person whose conduct was expressly subjected to investigation
by the terms of reference of the Commission a very serious allegation
upon which a finding was made in the report; and that the Commission
should have been reconvened for that purpose. There the relevant rule of
natural justice was fully embodied in a statutory provision. We think
that the position is the same under the New Zealand Commissions of
Inquiry Act supplemented by the common law.

All these considerations suggest that the Commission was bound by the
broad requirements of natural justice. These included a reasonable
opportunity of meeting the unformulated allegation of organized
deception and concealment that was apparently passing through the
Commission's mind. Some of the reasons why experience has shown the
importance of this sort of opportunity were well put by Megarry J. in
_John_ v. _Rees_ (1970) 1 Ch. 345, 402.:

     "It may be that there are some who would decry the importance which
     the courts attach to the observance of the rules of natural
     justice. 'When something is obvious,' they may say, 'why force
     everybody to go through the tiresome waste of time involved in
     framing charges and giving an opportunity to be heard? The result
     is obvious from the start.' Those who take this view do not, I
     think, do themselves justice. As everybody who has anything to do
     with the law well knows, the path of the law is strewn with
     examples of open and shut cases which, somehow, were not; of
     unanswerable charges which, in the event, were completely answered;
     of inexplicable conduct which was fully explained; of fixed and
     unalterable determinations that, by discussion, suffered a change.
     Nor are those with any knowledge of human nature who pause to think
     for a moment likely to underestimate the feelings of resentment of
     those who find that a decision against them has been made without
     their being afforded any opportunity to influence the course of
     events."

In this particular case something more should be said. The applicants
contend that this is not simply a case where the conspiracy suggestion
could not have been rebutted. They plead in their statement of claim
that the Commissioner's findings to that effect are not based on
evidence of probative value. Elsewhere in the present judgment we deal
with aspects of these arguments. Here, dealing with principles, we add
that fairness is not necessarily confined to procedural matters. It can
have wider range. Remedies in this field are discretionary and the law
not inflexible. If a party seeks to show not only that he did not have
an adequate hearing but also that the evidence on which he was condemned
was insubstantial, the Court is not compelled to shut its eyes to the
state of the evidence in deciding whether, looking at the whole case in
perspective, he has been treated fairly.


Factual Background

In a written synopsis of argument presented before this Court by counsel
for Air New Zealand it was said that background matters had to be
understood as they were entirely relevant to the complaints made by the
applicants in the present proceedings. But that "the Applicants do not
propose to canvass any factual matters which fall outside the range of
their specified allegations". In regard to that last matter we emphasize
again that this case (as counsel well realized) cannot be used to attack
the Royal Commission findings as to the cause of the crash. On behalf of
the applicants it was made clear nonetheless that their acceptance of
the jurisdictional bar to such a challenge in the Courts did not mean
and should not be used to draw any inference that they accepted the
causation findings themselves (at least in the unqualified form in which
they are set down in the Report). It is simply that they do all readily
accept as they must that in no sense can these proceedings become an
appeal against those findings. It is right to add that throughout the
hearing in this Court that attitude has very properly been reflected in
the submissions we heard. Thus the conclusions as to the cause of the
crash must and do stand.

Late in 1976 Air New Zealand decided to commence a series of
non-scheduled sightseeing journeys from New Zealand to the Ross
Dependency region and return to this country without a touch-down at any
intermediate point. They began with two flights in February 1977. There
were four further journeys in October and November 1977, four in
November 1978, and three more in November 1979--on 7th, 14th and 21st.
The accident flight was to be the fourteenth of the series. In 1977 the
designated route was one which used Cape Hallett on the north-eastern
point of Victoria Land as the first southern waypoint on the continent
itself en route further south either to a point adjacent to the Williams
ice landing field (near Scott and McMurdo bases) or alternatively the
south magnetic pole. One or other became the southernmost waypoint, the
magnetic pole destination being used at the discretion of the pilot if
weather conditions made the McMurdo area unsuitable for sightseeing.

Scott and McMurdo bases are located close together at the south-western
tip of Ross Island which forms the eastern coast of McMurdo Sound. On
the island there are four volcanic mountains including Mt. Erebus, the
highest, at 12,450 feet. The Sound itself, which is about 40 miles long
by 32 miles wide at the narrowest point, lies between mainland
Antarctica and Ross Island and for most of the year it is covered with
flat sea ice.

The first two flights in February 1977 took place with the necessary
approval of the Civil Aviation Division of the Ministry of Transport and
after clearance with the United States naval authorities who control the
air space in the vicinity of McMurdo Station. Those flights followed a
computer-controlled flight track to Cape Hallett thence directly over
Ross Island and Mt. Erebus at the stipulated minimum height of 16,000
feet to the McMurdo waypoint. The co-ordinates of that waypoint had been
written correctly into the flight plan as 77° 53' south latitude and
166° 48' east longitude. Three of the pilots who flew to the Antarctic
in November 1977 were available to give evidence and, like the two
earlier pilots, they agreed that at that time the flight plan followed a
track from Cape Hallett to the McMurdo area which passed virtually
overhead Mt. Erebus. However then and on subsequent occasions the
sightseeing aircraft to the McMurdo area arrived in the general vicinity
of Cape Hallett to find clear air further on and took the opportunity of
visual meteorological conditions to veer laterally from the direct
computer flight track from Cape Hallett by tracking to the west along
the coast of Victoria Land and eventually down McMurdo Sound over the
flat sea ice. Ross Island was thus left to the east while near the head
of the Sound the aircraft would turn left in order to fly over Scott
and McMurdo bases and in the vicinity of Ross Island so that a view
would be obtained of Mt. Erebus and the other three mountains there.

When the decision was made to operate the series of flights to take
place at the end of 1977 a change was made with the approval of the
Civil Aviation Division to permit flights below 16,000 feet down to
6,000 feet in a specified sector south of Ross Island and subject to
such criteria as a cloud base no lower than 7,000 feet, clear visibility
for at least 20 miles and descent under ground radar guidance. It has
been mentioned that similar criteria applied, officially at least, until
the time of the fatal crash. But the written directions were interpreted
by some pilots as leaving them with a degree of discretion to go lower
in ideal weather conditions.

Then in September 1978 steps were taken to print a flight plan for each
Antarctic journey from a record stored in the Air New Zealand ground
based planning computer. And it is at this stage that the longitude
co-ordinate for the southernmost waypoint was fed into the ground
computer as 164° 48' E.


The Flight Track

The navigation system used by DC10 aircraft is a computerised device
known as the area inertial navigation system (AINS). It enables the
aircraft to be flown from one position to another with great accuracy.
Prior to departure of a flight the AINS aboard the aircraft is
programmed by inserting into its computers the co-ordinates of the
departure and destination points (in degrees of latitude and longitude)
together with those of specified waypoints en route. In the case of the
Antarctic flights (which were engaged on what may be described as a
return trip without touch-down) the southernmost waypoint, like each of
the intermediate positions, was really a reference point to which the
pilot knew the aircraft would be committed if it were left to follow the
computer-directed flight track. And as mentioned the southern point for
the preferred route to the McMurdo area was a ground installation at
Williams Field.

During 1977 the co-ordinates for each waypoint which comprised the
Antarctic routes had not been stored on magnetic tape for automatic
retrieval and insertion into the navigation computer units of the
aircraft. Instead the flight plan was dealt with manually and upon issue
to the aircrew at the time of departure was manually typed by the pilot
concerned into the aircraft computer units. When the Air New Zealand
ground based computer was used in 1978 to produce computerised Antarctic
flight plans they followed the same format as those that had been
produced earlier. But before the ground computer could be programmed it
had been necessary for an officer of the navigation section to prepare a
written worksheet containing all the waypoints and their respective
latitude and longitude co-ordinates which then were transcribed from the
worksheet. And by reference to the original flight plan used in February
1977 this was done by Mr Hewitt, one of the four members of the
navigation section at airline headquarters. He said in evidence before
the Royal Commission that when he went on to take from his written
worksheet the longitude co-ordinates of the McMurdo waypoint he
mistakenly transcribed the correct figures of 166° 48' as 164° 48' by
inadvertently typing the figure "4" twice. This had the effect of moving
the McMurdo waypoint 25 nautical miles to the west and once in the
aircraft's system the navigation track which then it would follow from
Cape Hallett when under automatic control would be over the[1] Sound
rather than directly to Williams Field.

At this point it should be mentioned that the print-out of a flight plan
shows not merely the co-ordinate waypoints but also a finely calculated
statement of the direction and distance between them. This last
information is obtained independently from what is called the NV90
programme of the computer which is able automatically to calculate the
rhumb line track and distance between each of the respective waypoints
once the co-ordinates have been fed into it. This information forms the
basis for the data required to produce the computerised flight plan. So
that finally when a print-out of the plan is obtained it will disclose
not merely the geographical co-ordinates for each waypoint but the true
track direction and the distance in nautical miles from one to the next.
That last information is needed prior to a flight departure in order to
calculate tonnages of fuel during the prospective journey and
accordingly as a flight proceeds it enables the quantity of fuel already
consumed to be checked against the anticipated consumption in the flight
plan print-out. Thus the precise track and distance is used for purposes
of fuel calculations and has importance as a check in navigation.

All this information is disclosed on page 96 of the Royal Commission
Report where the print-out is shown for the flight plan with the
co-ordinates for McMurdo showing the longitude as 164° 48' east. In the
next column the track direction is given as 188.9° (grid) and the
distance between Cape Hallett and McMurdo as 337 miles. On the facing
page 97 there is a print-out of the flight plan actually used on the
fatal flight which shows the correction made to the longitude, 166° 58'
east. It will shortly be mentioned that when that correction was made
the navigation section say it was thought to involve a minor movement of
only 2.1 miles or 10 minutes of longitude. Despite the very small change
that this could make to the track and distance between the two points a
re-calculation was made and entered into the computer programme as
188.5° (grid) and the distance 336 miles. Compared with the other
figures the difference seems minimal but it was still thought necessary
to assess it and it was done.


The Western Waypoint

The circumstances surrounding the use of the 164° 48' E figures were in
issue before the Royal Commission. It was suggested against the airline
they had not been introduced accidentally: that the movement of the
position 25 miles to the west had been deliberate. If that were so it
would seem that a re-calculation of track and distance would have been
needed and made both for the fuel plan and also as a check for purposes
of navigation. However, no re-calculation of track and distance was made
and entered with the 164° 48' co-ordinate. The figures which actually
appear for track and distance to that point remain precisely the track
and distance figures which were shown in the flight plan to the 166° 48'
point for the first flight in February 1977. For purposes of comparison
a calculation to the "false" waypoint was prepared and put before the
Royal Commission. It showed that a direct track from Cape Hallett to
that point is actually 191° and the distance 343 miles. The point is
referred to in paragraph 230 of the Report within a section headed "The
creation of the false McMurdo waypoint and how it came to be changed
without the knowledge of Captain Collins".

In paragraph 229 it is said that submissions had been put to the
Commissioner that "the shifting of the McMurdo waypoint was done
deliberately so as to conform" with a track used by military aircraft
proceeding to Williams Field. Then in paragraph 230 there is a summary
of contrary arguments advanced by members of the navigation section to
support their claim of accident. They include--

     "(c) It was pointed out that if the McMurdo waypoint had been
     intentionally moved 25 miles to the west, then the flight plan
     would have a corresponding change to the track and distance
     information which it previously contained. Instead of a true
     heading from Cape Hallett to the NDB of 188.9° and a distance of
     337 nautical miles, there would have been required, in respect of
     the changed McMurdo waypoint, a true heading of 191° and 343
     nautical miles. Similar alterations would have had to be made in
     respect of a return journey to the true north."

That is the matter already outlined. Concerning it the Commissioner said
in paragraph 234 that there was "considerable validity in this point"
although then he added:

     "... the Navigation Section may have thought it not necessary to
     alter the track and distance criteria from Cape Hallett to McMurdo
     for the reason that the pilots were accustomed to flying on Heading
     Select down this sector and not by reference to the fixed heading
     programmed into the AINS."

There is a further argument of the navigation section which is
summarized in paragraph 230 (e)--

     "It was submitted that an alteration to the McMurdo waypoint to
     facilitate better sightseeing was not valid because flight captains
     had a discretion to deviate horizontally from the flight plan
     track."

The Commissioner accepted that point as "a valid objection" in answer to
the suggestion that the move had been deliberate (paragraph 236).

However when he came in paragraph 255 (a) to express his final
conclusion upon this general question he initially said this--

     "The first question is whether the programming of the McMurdo
     waypoint into the 'false' position before the commencement of the
     1978 flights was the result of accident or design. On balance, it
     seems likely that this transposition of the McMurdo waypoint was
     deliberate."

There is reference at that point to a track and distance diagram
indicating a track down McMurdo Sound, and the sub-paragraph then
continues--

     "So as I say, I think it likely that the change of the McMurdo
     destination point was intended and was designed by the Navigation
     Section to give aircraft a nav track for the final leg of the
     journey which would keep the aircraft well clear of high ground."

Then the final portion of paragraph 255 (a) leaves the matter in the
following half-way situation--

     "However, I propose to make no positive finding on this point. I
     must pay regard to the circumstance strongly urged upon me by
     counsel for the airline in their closing submissions, namely, that
     if the alteration was intentional then it was not accompanied by
     the normal realignment of the aircraft's heading so as to join up
     with the new waypoint. As I say, I think this latter omission is
     capable of explanation but it is a material fact in favour of the
     Navigation Section which I cannot disregard, and it is the single
     reason why I refrain from making a positive finding that the
     alteration of the waypoint was intentional."

It may be that in speaking of a single reason in the last sentence of
the extract the Commissioner put aside his earlier unqualified
conclusion that the matter set out in paragraph 230 (e) was also "a
valid objection" to the suggestion that the waypoint had been moved
deliberately. In any event the eventual and significant finding
concerning the matter is contained in the following sub-paragraph 255
(b):

     "I believe, however, that the error made by Mr Hewitt was
     ascertained long before Captain Simpson reported the cross-track
     distance of 27 miles between the TACAN and the McMurdo waypoint,
     and I am satisfied that because of the operational utility and
     logic of the altered waypoint it was thereafter maintained by the
     Navigation Section as an approved position."

At this point it is necessary to explain the reference in that
sub-paragraph to Captain Simpson; and then, if it be assumed that "the
altered waypoint ... was thereafter maintained ... as an approved
position", it is necessary to understand the reasons given by the
Commissioner for the change back to Williams Field. If the altered
waypoint had been adopted as a better position why was it then thought
that it had to be discarded?


Correction of co-ordinates

It was not until 14th November 1979 that any question arose about the
McMurdo waypoint. On that day Captain Simpson had taken the second
November 1979 sightseeing flight to the Antarctic and something
persuaded him to raise the matter of the southern waypoint with Captain
Johnson, the Flight Manager Line Operations. There is a difference of
opinion as to precisely what was said by Captain Simpson to Captain
Johnson but according to the evidence of those in the navigation section
they thought that when they checked up-to-date records of the
co-ordinates at McMurdo Station against the original NV90 flight plan
what had been brought forward for notice was the small difference of 10
minutes of longitude to which reference has been made. They said this
represented the recent relocation of the tactical air navigation system
(the TACAN) at Williams Field. Accordingly Mr Brown of the navigation
section wrote into his worksheet a corrected position of 77° 52.7' S and
166° 58' E and entered those figures into the system on 16th November.
But the amendment was not made in the live flight planning system until
the early hours of 28th November. According to the members of the
navigation section all this was done without knowledge that the effect
of introducing the amended figures would be to override "164° 48'" and
so alter the co-ordinate by 2° 10' rather than 10'.

The Commissioner rejected the explanations he had heard to the effect
that Captain Simpson's information seemed to point to quite a minor
movement to the up-dated position of the TACAN. He stated that there
appeared to have been clear advice by Captain Simpson that the "false"
waypoint was 27 miles west of it. In addition he rejected the possible
explanation that the advice had been misinterpreted by Captain Johnson
to whom it had been given, and he adopted instead what in paragraph 245
he described as "the second explanation":

     "(b) The second explanation is that both Captain Johnston and the
     Navigation Section knew quite well that the McMurdo waypoint lay 27
     miles to the west of the TACAN and that since his track had not
     officially been approved by the Civil Aviation Division it should
     therefore be realigned with the TACAN and then someone forgot to
     ensure that Captain Collins was told of the change. Such an
     interpretation means that the evidence as to the alleged belief of
     a displacement of only 2.1 miles is untrue."

     Then in paragraph 255 (d) he said this:

     "If, as I have held, the Navigation Section knew the actual
     position of the McMurdo waypoint as being 27 miles to the west of
     the TACAN, then why did they not submit to Captain Johnson, or to
     flight Operations Division, that the waypoint should remain where
     it was? One view is that the Flight Operations Division expected,
     in terms of Captain Johnson's letter to the Director of Civil
     Aviation dated 17 October 1979, that the next edition of the Ross
     Sea chart NZ-RNC4 would contain the official Air New Zealand flight
     path to McMurdo, and that the safest course would be to put the
     destination point back to the approximate location at which Civil
     Aviation Division had thought it had always been."

That last suggestion was not put to any of the navigation witnesses at
the Inquiry. It implies that although those in the navigation section
believed the airline had been using a computer track to the west of Ross
Island for the past year because it was the better route they
nevertheless suddenly became uneasy lest knowledge of the matter would
now reach the Civil Aviation Division which had not given its official
blessing to the change. The idea apparently is that because the airline
might receive an official rebuke the officers in the section made their
own independent decision that the route must once again be directed back
over Mt. Erebus.

There was no evidence at all before the Royal Commission that the
approval of the Civil Aviation Division was needed for a change from the
direct Cape Hallett/McMurdo route. An affidavit in support of the
present application for review indicates that if the matter had been
raised at the Inquiry members of the navigation section would have
wished to present evidence from the Civil Aviation Division that "a
change of route from the direct route to the McMurdo Sound route would
not have required CAD approval and therefore could have been lawfully
accomplished by the airline without reference to CAD". That situation
may have been anticipated by the Commissioner himself for by reference
to the false waypoint and the earlier consequential movement of the
computer flight track down McMurdo Sound to the west he said that
although approval of the route by the Civil Aviation Division should
have been obtained it "would have been automatic" (paragraph 150).

In paragraph 255 (f) of the Report the explanation from all four members
of the navigation section is described in the following way:

     "In my opinion this explanation that the change in the waypoint was
     thought to be minimal in terms of distance is a concocted story
     designed to explain away the fundamental mistake, made by someone,
     in failing to ensure that Captain Collins was notified that his
     aircraft was now programmed to fly on a collision course with Mt.
     Erebus."

That finding is one of those directly challenged in the present
proceedings.


Advice of the Change

A different matter was considered by the Commissioner in relation to the
change made in November 1979 to move the waypoint back to the TACAN at
Williams Field. As usual a signal was sent to the United States base at
McMurdo with advice that the aircraft was to fly to the Antarctic on
28th November and the flight plan for the journey. And in the list of
waypoints appears the word "McMurdo" in lieu of the geographical
co-ordinates which had appeared in the equivalent signal for the flight
three weeks earlier. The message had been prepared by Mr Brown, one of
the four officers in the navigation section.

The use of the word "McMurdo" was the subject of an idea put by the
Commissioner to Mr Hewitt, who was the second of the witnesses from the
navigation section. The Commissioner asked:

     "I know you have explained to me how that happened but someone may
     suggest to me before the enquiry is over that the object was to
     thats (sic) not to reveal there had been this long standing error
     in the co-ordinates and that is why the word McMurdo was relayed to
     them. I take you would not agree with that"

     Mr Hewitt said:

     "Certainly not sir."

The suggestion had not been raised earlier at the Inquiry and it was not
mentioned by anybody subsequently. In particular it was not put to Mr
Brown himself when the latter was called to give evidence three months
later. However the Commissioner expressed his view upon the matter in
the following way. In paragraph 255 (e) he said this--

     "In my opinion, the introduction of the word 'McMurdo' into the Air
     Traffic Control flight plan for the fatal flight was deliberately
     designed to conceal from the United States authorities that the
     flight path had been changed, and probably because it was known
     that the United States Air Traffic Control would lodge an objection
     to the new flight path."

It will be observed that the last few words are qualified by "probably".
It appears that the Commissioner was told during a visit to Antarctica
that the United States authorities would not have approved a flight path
over Ross Island. But there was no evidence that Air New Zealand had
ever received an intimation from the United States authorities to that
effect or that the navigation section had reason to think they would so
object. The qualification seems to reflect that position. In the result,
when the findings in the two sub-paragraphs 255 (e) and (f) are put
together they reveal the theory that at one at the same time the
navigation section felt obliged to conceal from officials in Wellington
the use of a flight track down McMurdo Sound that was regarded
favourably by officials at McMurdo Station and from officials at McMurdo
Station a flight track over Ross Island that was regarded favourably by
officials in Wellington.


Whiteout

In relation to the cover-up allegations that have been made against the
executive officers some reference should be made to their knowledge or
otherwise of the freak meteorological condition known as "the whiteout
phenomenon". Did they know or suspect that such a condition must have
been an explanation for what happened and yet still be determined as the
Commissioner found, to promote pilot error as the cause of the crash?

It is something that can be mentioned quite briefly. The Royal
Commission Report has made it clear the phenomenon can result in a loss
of horizon definition and depth perception and is a great hazard for
those who fly in arctic or antarctic conditions. The Commissioner found
that at the critical time "air crew had been deceived into believing
that the rising white terrain ahead was in fact quite flat and that it
extended on for many miles under the solid overcast". This danger is
something well known to those who fly regularly in those areas.
Unfortunately it is not so well known by others, and as the Commissioner
stated in paragraph 165 it was not understood by any of those involved
in this case. He said:

     "So far as I understand the evidence, I do not believe that either
     the airline or Civil Aviation Division ever understood the term
     'whiteout' to mean anything else than a snowstorm. I do not believe
     that they were ever aware, until they read the chief inspector's
     report, of the type of 'whiteout' which occurs in clear air, in
     calm conditions, and which creates this visual illusion which I
     have previously described and which is, without doubt, the most
     dangerous of all polar weather phenomena."

It would seem that if those at airline headquarters were unaware of the
deceptive dangers of the whiteout phenomenon they could not have
deliberately ignored it as a factor that should be taken into account in
favour of the aircrew.


Instructions of the Chief Executive

In paragraph 41 and following paragraphs there is reference to "what
happened at the airline headquarters at Auckland when the occurrence of
the disaster became first suspected and then known". It is explained
that the navigation section became aware of the fact that when the
McMurdo waypoint co-ordinates were corrected in November 1979 the
movement was not one of 2.1 miles within the vicinity of Williams Field
but a distance of 27 miles from longitude 164° 48' E; and that "by 30
November the occurrence of this mistake over the co-ordinates was known
not only to the Flight Operations Division but also to the management of
the airline. In particular it had been reported to the Chief Executive
of Air New Zealand, Mr. M.R. Davis". At that point there follows the
serious allegation in paragraph 45 already cited--

     "The reaction of the chief executive was immediate. He determined
     that no word of this incredible blunder was to become publicly
     known."

On the face of it the unqualified idea expressed in that sentence is
that Mr. Davis had decided to suppress from everybody outside the
airline all information about the changed flight track. But if that
meaning were intended it has been greatly modified in paragraph 48.
There it is said--

     "It was inevitable that these facts would become known. Perhaps the
     chief executive had only decided to prevent adverse publicity in
     the meantime, knowing that the mistake over the co-ordinates must
     in the end be discovered."

Of course if the decision were merely "to prevent adverse publicity in
the meantime" then such an attitude could not in any way be consistent
with an attempt "orchestrated" by Mr. Davis to hid from official
scrutiny what finally was held by the Commissioner in paragraph 393 to
be "the single dominant and effective cause of the disaster". Despite
that, paragraph 48 goes on to say this:

     "This silence over the changing of the co-ordinates and the failure
     to tell the air crew was a strategy which succeeded to a very
     considerable degree. The chief inspector discovered these facts
     after he had returned from Antarctica on or about 11 December
     1979. In his report, which was published in June 1980, the chief
     inspector referred to what he termed the 'error' in the McMurdo
     destination point, and the fact that it had been corrected a matter
     of hours before the flight left Auckland."

It is difficult to understand why the Commissioner considered "this
silence over the changing of the co-ordinates and the failure to tell
the air crew" had been "a strategy which succeeded to a very
considerable degree". The information had been given to the chief
inspector immediately on his return from Antarctica. That much is
acknowledged in the two sentences that follow. It becomes apparent,
however, that this was criticized not because the information had been
kept away from those to whom it most certainly had to be given, those
charged with the important responsibility of inquiring into the causes
of the disaster. Mr. Davis was criticized for nothing more than his
failure to release the material to the outside world. That is made plain
by a subsequent statement towards the end of the Report which leads on
to the very severe pronouncement in paragraph 377 that the Commissioner
had been obliged to listen to "a predetermined plan of deception ... an
orchestrated litany of lies". The relevant passage is in paragraph 374:

     "The fact that the navigation course of the aircraft had been
     altered in the computer had been disclosed by the chief inspector
     in his report dated 31 May 1980, 6 months after the disaster. But
     it was not until the Commission of Inquiry began sitting that the
     airline publicly admitted that this had occurred."

The effect of the absence of general publicity that the information was
given rather than its ready provision by the airline to Mr. Chippindale
on the day after his return from the crash site is described in the
remaining portion of paragraph 48 which continues in the following way:

     "Then the chief inspector went on to say in his report (paragraph
     2.5):

     'The error had been discovered two flights earlier but neither crew
     of the previous flight or that of the accident flight were advised
     of the error by the flight despatcher prior to their departure.'

     The chief inspector did not make it clear, however, that the
     computer flight path of TE 901 had been altered before the flight,
     and that the alteration had not been notified to the air crew. Had
     that fact been disclosed in the chief inspector's report then the
     publicity attending the report would undoubtedly have been
     differently aligned ... the news blackout imposed by the chief
     executive was very successful. It was not until the hearings of
     this Commission that the real magnitude of the mistake by Flight
     Operations was publicly revealed."

Concerning that last part of paragraph 48 it seems that the
Commissioner's remark immediately following the extract from paragraph
2.5 is inaccurate. It appears to suggest either that the chief inspector
was unaware of the fact that the alteration to the co-ordinates "had not
been notified to the air crew"; or that if he had been made aware of
that fact then he had failed to bring it to public attention in his
report as the next sentence suggests. But Mr. Chippindale was both aware
of all this and he said so. In paragraph 1.17.1 he explicitly stated:

     "This error was not corrected in the computer until the day before
     the flight. Although it was intended that it be drawn to the
     attention of the previous crew, immediately prior to their
     departure this was not done, _nor was it mentioned during the
     pre-flight dispatch planning for the crew of the accident flight_".
     (Emphasis added.)

The "pre-flight dispatch planning" mentioned in those last words was the
occasion of final briefing of the aircrew immediately before the
aircraft left Auckland on the morning of 28th November 1981.

A different comment upon paragraph 48 is central in this part of the
case. It is very hard to understand why the chief executive officer of
this airline should have had any duty to pass on for debate and public
prejudgment the same material that in accord with his responsibility had
been properly and immediately placed before the appointed official
required and well equipped to assess it.


"Irrelevant" Documents

At the beginning of this judgment a different aspect of paragraph 45 is
explained by contrast with the following paragraph 46 which correctly
summarizes instructions given by Mr Davis for the disposal of surplus
copies of documents lest they be leaked to the news media. In paragraph
46 it is explained by the Commissioner that "his instructions were that
_only copies of existing documents were to be destroyed_. He said that
he did not want any surplus document to remain at large in case its
contents were released to the news media by some employee of the
airline. The chief executive insisted that his instructions were that
all documents of relevance were to be retained on the single file"
(emphasis added). There was no evidence before the Royal Commission to
any contrary effect. But in the preceding paragraph a different
impression is given. The relevant part of paragraph 45 reads--

     "He directed that all documents relating to Antarctic flights, and
     to this flight in particular, were to be collected and impounded.
     They were all to be put on one single file which would remain in
     strict custody. Of these documents"--

that is, _all_ documents relating to the Antarctic flights--the sentence
continues:

     "all those which were not directly relevant were to be destroyed.
     They were to be put forthwith through the company's shredder."

Then in paragraph 54 the actual instruction is taken into a further
dimension where it is described as "this direction on the part of the
chief executive for the destruction of 'irrelevant documents'". And one
serious complaint made by the applicants about the Royal Commission
Report is that what could be an understandable direction for the
_retention_ of one copy on a master file _of all relevant documents_ has
become an unacceptable instruction that _irrelevant documents_ (related
to the Antarctic flights nonetheless) _should be destroyed_. We think
the complaint is justified.

At the same early stage of the Report the Commissioner gave his
attention to the question as to what if anything was done about the
suppression of documentary evidence. He said in paragraph 52:

     "As will be explained later, there was at least one group of
     documents which certainly were in the possession of the airline as
     from the day following the disaster, and which have never been seen
     since. I am referring here to the flight briefing documents of
     First Officer Cassin.... (He) had left his briefing documents at
     home. They were recovered from his home on the day after the
     disaster by an employee of the airline. As I say, they have never
     been seen since."

In the following paragraph 53 he observed--"If the explanation of the
chief executive is to be accepted, then in the opinion of someone the
briefing documents of First Officer Cassin, the co-pilot, were thought
to be irrelevant to the disaster"; and in paragraph 54--"it follows that
this direction on the part of the chief executive for the destruction of
'irrelevant documents' was one of the most remarkable executive
decisions ever to have been made in the corporation affairs of a large
New Zealand company".

Those remarks require some brief comment. It must be explained that the
"employee of the airline" mentioned at the end of paragraph 52 was
Captain Crosbie. It is true that he was "an employee of the airline" but
he did not go to the home of First Officer Cassin in that capacity. He
had been asked by the Airline Pilots Association, the group which
throughout the inquiry had very properly been concerned to protect the
interests of the two deceased pilots, to act on their behalf for the
purpose of bringing immediate aid and comfort to the two widows. His
evidence was to the effect that he had gone to each of the homes for
that purpose; that sometime later a member of Mrs Cassin's family had
invited him to take away a box containing such items as flight manuals;
and he said he had done no more than that. He flatly denied taking any
flight documents. But even if he had, the alleged conspiracy has always
been limited in the Royal Commission Report to the executive pilots and
other officers in the management area. It has never been suggested that
it had extended as well to the airline pilots. As may be expected,
throughout both investigations they have done their conscientious best
to protect the valued reputations of their deceased colleagues.

There was documentary evidence before the Inquiry to the effect that on
30th November 1979 an in-house committee of Air New Zealand met on the
instruction of Mr Davis for the purpose of deciding how to collect
together all available information relevant to the accident. It seems
that it began its practical work on Monday 3rd December. In that regard
and as an example of the way in which the applicants say the cover-up
allegation could have been answered by those affected they placed
material before this Court which would suggest that the formation of
such a committee is a conventional step taken by an airline when
confronted with any serious disaster, that it was required by this
company's Accident Investigation Procedures Manual, and that this
committee was appointed accordingly. If it had been before the Inquiry
it would have supported the view that Mr Davis had decided the chairman
should not be associated with the flight operations side of Air New
Zealand and for that reason he appointed Mr Watson who had charge of
certain related companies. There is also an affidavit sworn by Captain
Priest who was appointed by the Airline Pilots Association to sit as its
representative on the committee. Taken at its face value it is to the
effect that he took part in the committee's work from the meeting on 3rd
December. In the affidavit he has explained: "My position on that
Committee was an ALPA watchdog--there were two other independent
members"; that as the inquiry progressed "it became apparent that the
committee was amassing a large amount of papers"; and that Mr Watson
then announced that he had been directed by the chief executive to get
all the information onto one file and any surplus disposed of to avoid
information getting into the wrong hands. The affidavit indicates that
it was then agreed by the committee itself that this should be done on
the basis that the master file was to be available to the committee
members at any time and it appears that Captain Priest joined in that
decision. It is not for us to decide what would have been the effect or
significance of all this material if it had been placed before the Royal
Commission but since the conspiracy to deceive theory that is developed
in the Royal Commission Report apparently stems from the instruction
given by Mr Davis clearly the officers so gravely affected were entitled
to be warned in advance and so be given the opportunity to have such
information fairly and properly considered.


Search at Mt. Erebus

The issue of documentary evidence is given extended attention in a
section of the Report headed, "Post-accident conduct of Air New Zealand"
which is exclusively concerned with suggestions of possible items that
might have been withheld from the Inquiry. The discussion is introduced
at paragraph 342 by a statement that "This instruction by the chief
executive for the collection of all Antarctica documents had some
unfortunate repercussions". The observation is then developed by
reference in particular to the work of Captain Gemmell, the technical
flight manager for Air New Zealand, while assisting Mr Chippindale at
the crash site.

Captain Gemmell had received instructions in the early hours of the
morning of 29th November 1979 to travel to McMurdo in order to assist Mr
Chippindale's investigation into the cause of the accident at the scene.
However, by reason of weather conditions it was not possible for him to
be taken by helicopter to the ice slope until 3 p.m. on 2nd December.
Then, clad in protective clothing and roped to mountaineers, he assisted
in a search for the in-flight recording equipment (consisting of the
cockpit voice recorder and the "black box") and the recovery of any
other equipment or documents which might indicate how the accident had
happened.

Three days earlier, at about 8.30 a.m. on the very morning after the
accident, three mountaineer staff members at Scott Base had managed to
get there in order to search for survivors. And Mr Woodford, who was one
of them, has described the scene in a letter received by the Royal
Commissioner during the public hearings. The letter, which is amplified
in a affidavit put before this Court, is set out later in this judgment.
Mr Woodford explained that when he got to the scene he found a black
flight bag with Captain Collins' name printed on it. It was lying open
on the snow and it was empty. Already material in the form of books and
papers that had not been destroyed when the aircraft disintegrated on
impact had been blown by winds over the ice-slope or into crevasses or
covered by drifting snow. He pointed out that although the cockpit voice
recorder had been located quite quickly when he was back at the crash
site with the party from New Zealand on 2nd December the "black box"
could not be found until later that evening after it had been decided to
begin digging systematically for it. It was found buried under snow at a
depth, he said, of 20 to 30 cms.

But although the bag was empty it was suggested at the hearing that
while at McMurdo Captain Gemmell might have "collected a quantity of
documents from the crash site and brought them back to Auckland"; that
only three of the flight documents carried on the aircraft had been
produced to the Royal Commission; that it was "curious" to find that
each favoured the case "which the airline was now attempting to
advance"; and all this against counsel's theory that before Captain
Gemmell had left Auckland on 29th November he was aware of possible
problems associated with the amendment to the destination point
co-ordinates. Captain Gemmell flatly denied having that knowledge while
in the Antarctic; and he rejected totally any suggestion that he had
recovered anything from the site which had not been passed across in
terms of Mr Chippindale's instructions. In that regard he answered two
propositions put to him by the Commissioner (at page 1834) in the
following way:

     "Well the suggestion may be made to me in due course that because
     of the discovery that Capt Collins did not know of the alteration
     in the nav track consequently someone in the co. would have been
     instructed to locate whatever documents there were on the crash
     site and elsewhere that might throw light on that question. You say
     that no such instruction was given to you.... Certainly not.

     But it would have been a reasonable instruction would it not.... No
     it would not have."


Intimidation of a Witness

At this point it is necessary to mention a different suggestion which
was also rejected by Captain Gemmell. It was put to him during
cross-examination that he had carried back from McMurdo a blue plastic
envelope containing personal property recovered from the accident site.
In evidence given later by First Officer Rhodes the envelope was
supposed to have been entrusted to Captain Gemmell by Mr Chippindale for
delivery in New Zealand since Captain Gemmell was about to depart from
the base several days before the others. First Officer Rhodes had
himself been in Antarctica as a member of Mr Chippindale's investigation
team, representing there the Airline Pilots Association. He appeared as
a witness before the Royal Commission on two occasions. During his first
appearance he was called by the Association. He did not refer then to a
blue envelope; but because it was thought that the material may have
been mentioned by him to the Association's counsel he was recalled to
give evidence, this time by counsel for the airline.

Before turning to the evidence given by First Officer Rhodes during his
second appearance it is worthwhile making a preliminary comment. No
complaint has ever been made by Mr Chippindale about a missing blue
envelope or papers within it. If Captain Gemmell had been entrusted with
such a mission which he had failed to discharge Mr Chippindale would
seem to be the first person who would want to know why. He himself gave
evidence before the Royal Commission for a period of ten days and during
all that time he was never asked about this matter. Nor was he recalled
to deal with it after it had been raised with Captain Gemmell or after
First Officer Rhodes gave his further evidence. That fact alone might be
thought sufficient to dispose of the matter. And in the end the
Commissioner himself decided that neither this nor other evidence could
justify a finding against Captain Gemmell that he "recovered documents
from Antarctica which were relevant to the fatal flight, and which he
did not account for to the proper authorities".

It is necessary to describe all this because the second appearance of
First Officer Rhodes resulted in a finding in paragraph 348 of the Royal
Commission Report which reflects seriously upon the conduct of another
executive officer of the airline, Captain Eden. The paragraph is another
of those challenged in the present proceedings.

It seems that First Officer Rhodes agreed to give evidence on the second
occasion in order to remove any false impression that he himself doubted
the integrity of Captain Gemmell. The following extract from the
transcript explains the position (a condensed version appears in
paragraph 347 of the Report):

     "You've already given evidence and stated your qualification. I
     think you have offered to give some supplementary evidence relating
     to activity at the Erebus crash site ... Our discussion with Capt.
     Eden last Friday indicated this would be appreciated.

     I think just as Capt. Gemmell was there representing the co. you
     were there as a rep. of ALPA.... Thats correct.

     May we take it that you worked in conjunction with Capt. Gemmell
     and other members of the team involved.... Correct.

     And in so doing you were present at the crash site with Capt.
     Gemmell.... No we had different tasks as I was in the area with
     Capt. Gemmell at some stages.

     So far as your observations are concerned what would you have to
     say regarding Capt. Gemmell's conduct and behaviour in the course
     of his duties there.... I have no reason to doubt Capt. Gemmell in
     any way shape or form.

     Have you ever suggested otherwise to anybody.... I have not."

Then he was cross-examined by counsel for the Association whose witness
he had been earlier. He was asked about Captain Gemmell's work at the
actual scene of the disaster and his explanation about that matter is
reflected in the following question and answer:

     "Did you see Capt. Gemmell at any time in the cockpit area or
     thereabouts working on his own.... I qualified that before. Working
     on your own is a relative term. At all stages there would be
     somebody adjacent for your own safety and well-being. I did not at
     any stage see Ian Gemmell Capt. Gemmell or Ian Wood or David Graham
     in total isolation in any part of the wreckage."

Then there is mention of material that may have been returned by Captain
Gemmell to New Zealand--

     "You heard question the other day concerning Capt. Gemmell
     returning from McMurdo with an envelope containing property can you
     tell us about that.... At the stage that Capt. Gemmell was
     returning to N.Z. he was asked by the Chief Inspector of Accidents
     if he would return to N.Z. with one or more envelopes I cannot
     recall how many containing photos and perhaps other information to
     be used in the conduct of the inquiry at a later date but
     specifically at that early date the intention was for Capt. Gemmell
     to brief the Minister and the Dir. of CAD and senior execs, of Air
     N.Z. as to what had transpired at that early date in the
     investigation. As Mr Chippindale would be staying in the Ant. and
     the remainder of his team would be with him or else in the US.

     What about private property.... The envelopes which Capt. Gemmell
     return to N.Z. with may have contained some documentation from the
     crash site which was beginning to return in significant quantities
     from the various people on the crash site including the police."

The following portion of the cross-examination then refers to documents
described as "the technical crews flying records, the collection of log
books, licences and other relevant documentation". He said that at first
there was reluctance on the part of Air New Zealand to release this
material "as it was not clear at that stage in many peoples minds what
my duties were". It was not immediately appreciated that he was acting
on Mr Chippindale's behalf. He was then asked--

     "And Air N.Z. and Capt. Gemmell released to you the material which
     you'd previously sought.... Correct".

Concerning all this evidence the Commissioner expressed the following
conclusions in paragraph 348:

     "Captain Eden is at present the director of flight operations for
     the airline. He appeared in the witness box to be a strong-minded
     and aggressive official. It seemed clear from this further
     production of First Officer Rhodes as a witness that it had been
     suggested to him by Captain Eden that he should either make a
     direct allegation against Captain Gemmell or else make no
     allegation at all, and that since First Officer Rhodes seemed to
     have no direct evidence in his possession, he was therefore obliged
     to give the answer which Captain Eden had either suggested or
     directed. However, First Officer Rhodes was not entirely
     intimidated because as will be observed from the evidence just
     quoted, he insisted on saying that Captain Gemmell had brought an
     envelope containing documents back to Auckland."

Those statements are in no way related to the assessment of Captain
Eden's evidence or as Captain Eden as a witness. They are observations
that Captain Eden had attempted to influence or direct the evidence to
be given by First Officer Rhodes by a process of intimidation. Counsel
for First Officer Rhodes' own association had made no suggestion to that
effect. Nor is there any hint by First Officer Rhodes himself that he
was present as anything but a voluntary witness. The answer he gave to
the opening question would not seem to support suspicions of
intimidation. And that answer is itself followed by quite a generous
tribute to Captain Gemmell. But the reputation of Captain Eden and the
support given Captain Gemmell is dismissed by a finding of intimidation.
It should be said as well that although Captain Eden himself appeared to
give evidence three days later not a word was said to him by anybody to
suggest that earlier he had been guilty of attempting to intimidate a
witness.


Specific documents

To the extent that the Royal Commission Report has pointed to any
particular classes of documentary material that did not reach the
Inquiry the list is not a long one. It comprises--

     1. Unidentified papers within the blue envelope--No complaint about
     this was ever made by Mr Chippindale as we have mentioned.

     2. Papers given to First Officer Cassin as briefing material--It
     has been explained that if any complaint could be made about this
     matter it would affect Captain Crosbie, the unnamed "employee of
     the airline" referred to in paragraph 52. It was he who went to the
     Cassin home for compassionate reasons as the spokesman for the
     Airline Pilots Association. He denies ever receiving the material.
     Even if he had, the Report has not challenged the conduct of any of
     the line pilots. This matter would seem to be irrelevant.

     3. Documents or papers that may have been shredded by Mr Oldfield
     following the decision of the in-house committee which met during
     the week beginning 3rd December 1979--This matter requires no
     further discussion.

     4. Pages within the cover of a ring-binder notebook of Captain
     Collins--This matter too was handled by Captain Crosbie. However,
     it requires some specific mention because in paragraph 352 it has
     been associated with Captain Gemmell and as all counsel now
     acknowledge this has been done in error. The paragraph is one of
     the specific paragraphs challenged by these proceedings.

     5. Briefing or other flight documents (including a New Zealand
     Atlas) taken onto the aircraft within Captain Collins' flight bag;
     and similar papers within a flight bag owned by First Officer
     Cassin--This matter also requires discussion.


The Ring-binder Notebook

The Commissioner found that Captain Collins carried with him on the
fatal flight a small pocket diary usually kept in his breast pocket; and
a ring-binder losse-leaf notebook carried in his flight bag. It is said
in paragraph 351 "that the chief inspector had obtained possession of
the small pocket diary, but it did not contain any particulars relating
to Antarctica flights". At the hearing Mrs Collins described the diary
and said that on 12th December 1979 Captain Crosbie had returned it to
her together with certain other items of personal property belonging to
her husband. She explained that there were no pages in the ring-binder
when she received it "other than some loose papers which are still
folded inside the front cover". The question arose as to what had
happened, to the balance of the contents of the notebook. Captain
Crosbie himself was called by counsel for the Airline Pilots Association
to give evidence before the Commission. He explained that his
involvement in all post-accident matters was as a welfare officer for
the association; and in that capacity he had been given by the police
personal property for distribution to next-of-kin. When asked about
pages which normally would have been within the ring-binder covers he
said that most of the recovered items had been damaged considerably by
water and kerosene, and in answer to the Commissioner, who had asked
"How could the ring-binder cover itself be intact and yet the pad of
writing paper disappear?", he said, "I suggest the cover survived the
water and kerosene but the paper contents didn't". He added in answer to
questions by counsel--

     "If papers were removed from the ring binder who would have done
     that.... I would have myself I presume.

     Do you recall doing that.... No not specifically. I was involved in
     destroying a lot of papers that were damaged and would have caused
     distress some because of that and some because it was the obvious
     thing to do."

As a further sample of the kind of material that might have been
provided by the criticized officers had they been given the opportunity
we were referred to a signed statement by Captain Crosbie forwarded to
the police (who by then were investigating the allegations of
conspiracy) on 5th May 1981. In the statement he has said after he had
given evidence before the Inquiry he recalled that because of the poor
condition of the notebook and severely damaged paper inside it and
"rather than present this to Mrs Collins" he had disposed of the pages
himself. Then having cleaned the cover he dried it in the sun and
returned it to Mrs Collins. It would seem to be an understandable
reaction although once again the effect this kind of material might have
had if it had been put forward is not for us to assess. In any event,
concerning this matter the Commissioner said in paragraph 352--

     "As to the ring-binder notebook, it had been returned to Mrs
     Collins by an employee of the airline, but all the pages of the
     notebook were missing. _Captain Gemmell_ was asked about this in
     evidence. He suggested that the pages might have been removed
     because they had been damaged by kerosene. However, the ring-binder
     notebook itself, which was produced at the hearing, was entirely
     undamaged." (Emphasis added.)

It is clear that the Commissioner has wrongly attributed the explanation
given by Captain Crosbie concerning the removal of missing pages to
Captain Gemmell. The latter was never questioned at all about possible
reasons for the missing pages. The fifth and sixth respondents have
formally acknowledged that the reference to Captain Gemmell in that
paragraph is wrong.


Contents of Flight Bags

It has been explained that the Commissioner was satisfied that Captain
Collins had used the New Zealand Atlas to plot the last leg of the
flight path from Cape Hallett to McMurdo and may have used a chart of
his own for the same purpose. In addition there were his briefing
documents and those received by First Officer Cassin. Those received by
the latter have been discussed. The Commissioner held that they had not
been taken aboard the aircraft. But he was concerned with whatever else
may have been carried onto the DC10 by First Officer Cassin in his
flight bag; and about the contents of Captain Collin's flight bag which
he believed would include the atlas and briefing documents. In fact the
only evidence concerning the possible survival of the first officer's
flight bag, let alone its contents, was a name-tag which finally reached
Mrs Cassin through Captain Crosbie, the welfare representative. Since
there is no description of the contents and it has been held that the
briefing material was left behind anyway, the fate of the bag itself
would seem to be immaterial.

On the other hand it is known that after the accident Captain Collins'
bag was seen on Mt. Erebus. The matter has been mentioned. The bag did
not reach his widow as it would normally have done if it had been
received and returned to New Zealand and this fact is the focus of
attention in the Royal Commission report.

In order to examine the matter it will be remembered that the
mountaineer, Mr Woodford, arrived by helicopter searching for survivors
on the morning of 29th November. In the letter he sent to the Royal
Commission he said he found the bag then and: "My recollection is that
it was empty when I first inspected it. It certainly contained no
diaries or briefing material." Apparently the bag had been thrown from
the disintegrating aircraft at the time of impact and its contents lost
in the snow or scattered by winds before the arrival of the
mountaineers. But whatever the reason for their absence from the bag it
is the contents that matter in this case--not the flight bag itself. And
according to the letter they had already disappeared from the bag three
days before the New Zealand party arrived there. So like the bag of
First Officer Cassin it might be thought that this item too was
immaterial. However, it is discussed by the Commissioner in the
following way.

First there is listed a series of documents "which clearly had been
carried in the flight bag of Captain Collins" and which had not been
recovered. The items comprise the New Zealand Atlas and a chart; the
briefing documents; and the ring-binder notebook. Those three items
have been mentioned. And finally a topographical map issued on the
morning of the flight. The suggested significance of these various
documents is explained by reference to the view of counsel for the
Airline Pilots Association that they "would have tended to support the
proposition that Captain Collins had relied upon the incorrect
co-ordinates" (paragraph 344).

There follows reference to the blue envelope and the matter of Captain
Eden after which paragraph 349 speaks of the flight bag:

     "Then, as the Inquiry proceeded, there were other queries raised.
     It seemed that Captain Collins' flight bag had been discovered on
     the crash site. It was a bag in which he was known to have carried
     all his flight documents. It was said to have been empty when
     found, a fact which was incidentally confirmed by a mountaineer who
     had seen the flight bag before Captain Gemmell arrived at the crash
     site. The flight bag was rectangular, and constructed of either
     hard plastic or leather, and had the name of Captain Collins
     stamped on it in gold letters. It was evidently undamaged."

There is mention as well of First Officer Cassin's flight bag and the
ring-binder notebook (both of which matters have now been discussed) and
then it is said in paragraph 353 that after the taking of evidence the
Commissioner asked counsel assisting the Commission to make inquiries
about the two flight bags "which had been located on the site but which
had not been returned to Mrs Collins or Mrs Cassin".

It appears from the following paragraph 354 that among others
interviewed by counsel or asked for comment upon this matter were Mr
Chippindale (the chief inspector of air accidents), and the senior
sergeant of police who had been in charge of the property collected from
the crash site when it was brought to McMurdo. It is said in that
paragraph that the police officer--

     "... recollected either one or two flight bags among other property
     awaiting packing for return to New Zealand. He said that personnel
     from Air New Zealand had access to the store, as well as the chief
     inspector, and the senior sergeant said that he thought that he had
     given the flight bags to the chief inspector and that the chief
     inspector was the sole person to whom he had released any property.
     The chief inspector was then interviewed on 11 December 1980 by
     telephone, being at that time in Australia, but he said that no
     flight bags were ever handed to him."

Thus the inquiries that were made in this fashion were inconclusive.
However, the Commissioner was satisfied that--

     "The two flight bags were lodged in the Police store at McMurdo and
     would have been returned in due course to Mrs Collins and Mrs
     Cassin by the Police. But they were taken away from the store by
     someone and have not since been seen." (Paragraph 359 (1))

Then in the same context he said in sub-paragraph 359 (4):

     "Captain Gemmell had brought back some quantity of documents with
     him from Antarctica, and certain documents had been recovered from
     him by First Officer Rhodes on behalf of the chief inspector."

And then--

     "It therefore appears that there were sundry articles and perhaps
     documents which had been in possession of the aircrew which came
     back to New Zealand otherwise than in the custody of the Police or
     the chief inspector" (paragraph 360).

In evidence Captain Gemmell had denied knowledge of the change that had
been made to the McMurdo waypoint but the Commissioner did not accept
that answer; and he is linked with the matters mentioned in paragraph
360 on the basis that he had known "about the changed co-ordinates
before he went to Antarctica" and that because he--

     "... plainly kept this significant fact to himself, (he) was to be
     the arbiter of which documents were relevant. The opportunity was
     plainly open for Captain Gemmell to comply with the chief
     executive's instructions to collect all documents relevant to this
     flight, wherever they might be found, and to hand them over to the
     airline management."

The next sentence of that paragraph contains the finding already
mentioned:

     "However, there is not sufficient evidence to justify any finding
     on my part that Captain Gemmell recovered documents from Antarctica
     which were relevant to the fatal flight, and which he did not
     account for to the proper authorities."

At the conclusion of this section of the Report the Commissioner said
that he could "quite understand the difficulty in recovering loose
documents from this desolate mountain side, although the heavy atlas",
he said, "was not in this category". But he stated that an opportunity
had been "created for people in the airline to get rid of documents
which might seem to implicate airline officials as being responsible for
the disaster". And he spoke of all these matters in terms of
"justifiable suspicion".

The condition of Captain Collins' flight bag when it was first seen by
Mr Woodford had already been mentioned. His letter dated 5th December
1980 was written immediately after some cross-examination of Captain
Gemmell had been given widespread publicity and on Monday 8th December
1980 Captain Gemmell was still giving evidence. By then he was under
cross-examination by counsel assisting the Commission and the latter
proceeded to read into the record the text of the letter (Exhibit 266)
which reads:

     "Dear Sir,

     At the time of the DC10 crash I was employed in Antarctica by
     D.S.I.R. as a survival instructor/mountaineer assistant. I was one
     of the three mountaineers who made the initial inspection of the
     site for survivors. I was also one of the three mountaineers who
     accompanied Messrs David Graham (Investigator) Ian Gemmell & Ian
     Wood (Air NZ) during their initial inspection of the aircraft.
     During the first six days after the accident I was at the crash
     site at all times when the site was occupied.

     In regard to evidence reported in the Christchurch Press today, 5
     Dec 1980, I can state unequivocally that:

     (1) Captain Gemmell did not spend any time inspecting the aircraft
     without other people being present.

     (2) Captain Collins flight bag was found by me the day after the
     crash, this being three days before any Air N.Z. personnel or crash
     investigators reached the site. My recollection is that it was
     empty when I first inspected it. It certainly contained no diaries
     or briefing material.

     (3) Captain Gemmell did not remove any items from the persons of
     deceased lying in the area...."

Counsel proceeded to read from the letter which goes on to refer to
instructions concerning the crevassed area of the ice-slope.

No challenge was made to the views expressed by Mr Woodford nor was he
called to give evidence. And no evidence to any contrary effect was
given by anybody. Yet apart from the passing reference to the matter in
paragraph 349 of the Report the point of view Mr Woodford expressed
seems to have been given no attention. The extent of the evidence which
could have been given by Mr Woodford if he had been called as a witness
is indicated by his affidavit now put before this Court. The importance
of the letter seems obvious. The bag being empty when it was seen only
18 hours after the aircraft had crashed it is difficult to understand
how it could have any significance when found in that same condition
three days later. Yet in this part of the Report it is left as a central
issue. Mr Woodford's own concern about all this is indicated in the
lengthy affidavit which he prepared for the purpose of exonerating
Captain Gemmell. It was sworn by him on 21st May 1981 not very long
after the Report of the Royal Commission had been made public.

A final comment should be made about Captain Gemmell's position. It
concerns a submission made on his behalf to this Court that "In view of
the 'not proven' verdict against Captain Gemmell and the various
critical statements made about him it is a remarkable thing that he was
given no opportunity for further comment when the Commissioner decided
to make further enquiries of the police sergeant and Mr Chippindale at
the conclusion of the hearing of evidence". If Captain Gemmell was to be
left enveloped in "justifiable suspicion" this is something that
certainly should have been done. Indeed if the post-hearing
investigation had been sufficiently developed the Commissioner might
have been satisfied (as now appears from the affidavit of Mr Stanton)
that the police officer who gave information to counsel assisting the
Commission about one or two flight bags was not even in Antarctica while
Captain Gemmell was there. The affidavit indicates that the police
officer arrived to take charge of the police store only on the evening
of 6th December and by then Captain Gemmell had been back in New Zealand
for two days.


Airline's Attitude at Inquiry

This matter requires brief comment. It involves the issue as to whether
Air New Zealand adopted an uncompromising approach to the matters under
consideration by the Royal Commission so that the proceedings were
unnecessarily prolonged. Concerning the matter the Commissioner said
this in the Appendix to the Report dealing with the awards of costs,
which must be mentioned later:

     "In an inquiry of this kind, an airline can either place all its
     cards on the table at the outset, or it can adopt an adversary
     stance. In the present case, the latter course was decided upon.
     The management of the airline instructed its counsel to deny every
     allegation of fault, and to counter-attack by ascribing total
     culpability to the air crew, against whom there were alleged no
     less than 13 separate varieties of pilot error. All those
     allegations, in my opinion, were without foundation".

The general complaint that Air New Zealand had adopted an adversary
approach and withheld evidence until a late stage needs to be assessed
against the control exercised by counsel assisting the Commission
concerning the order in which witnesses were to be called and the way in
which the Inquiry progressed. Before the initial hearing to settle
questions of procedure he supplied the airline with a "Memorandum as to
areas to be covered by Air New Zealand evidence". It is dated 13th June
1980 and specifies 21 topics. Then on 19th June he circulated a
"Memorandum to counsel engaged in the DC10 Inquiry" advising that the
parties were to prepare initial briefs which he would then put in
sequence. And at the preliminary hearing on 23rd June it was arranged
that a basically chronological order should be followed after Mr
Chippindale had been called as the first witness. On the following day
counsel for the Civil Aviation Division took issue with the requirement
that its brief of evidence should be handed in before Mr Chippindale had
appeared and the Commissioner ruled that briefs of evidence would be
withheld until shortly before the witness was to be called. Mr
Chippindale's evidence occupied the first fortnight of the inquiry and
thereafter the actual order in which the witnesses were to be called was
arranged by counsel assisting the Commission who stated in advance the
days and times at which those concerned should come forward. Thus the
first Air New Zealand witness to give evidence was the chief engineer
who appeared before the Inquiry on 22nd July.

It was said that the airline had not been invited through its counsel to
make its position known by means of an opening address at the
commencement of the public hearing. No doubt the Commissioner would have
permitted such an address but the occasion for it did not seem to arise
and he himself did not require the matter to be dealt with on this basis
by any of the parties. And in the result witnesses were called from
among the personnel of the airline in order to deal with various
questions in an ordered fashion. Thus it was not until all evidence had
been called that counsel for the various parties made submissions to the
Commissioner.

At the conclusion of the evidence counsel for the airline invited
counsel assisting the Commission to inform him what were the main issues
upon which closing submissions were requested. However the extended
written answer to that enquiry includes no suggestion whatever that the
conduct of airline witnesses or the post-accident conduct of the
employees was in issue. And the Commissioner himself said this in
paragraph 375 about the airline's submissions:

     "... counsel for the airline adopted, in the course of their
     detailed and exemplary final submissions, the very proper course of
     not attributing blame to any specific quarter but leaving it to me
     to assemble such contributing causes as I thought the evidence had
     revealed."

In that regard some of the statements which were made on behalf of the
airline are not unimportant. At one point counsel said--

     "By now it should be apparent to the smallest mind that the Company
     has not espoused, and does not espouse, a proposition that the
     accident can be contributed to a sole cause, let alone a sole cause
     of pilot error. If from the evidence adduced, there emerges or is
     implicit a criticism of the Company's flight crew, that criticism
     has been moderate, informed and responsible."

And in the same context--

     "I would, with respect, also remind Your Honour that in the very
     nature of these proceedings there has not been an opportunity for a
     formal opening where one might have expected just that. But I would
     further suggest, Sir, that the evidence advanced by the Company,
     which has been in an attempt to bring every witness who can
     contribute something towards the causal factors and everything else
     has been done, not selectively, and there have been witnesses who
     have plainly, unequivocally, acknowledged their fault, their error.
     There has not in any way been a parade of witnesses all seeking to
     criticize the flight crew and thus, as it were, exonerate
     themselves. There has been an endeavour, without selection, to
     reveal all the evidence to reveal all the documents ...".

This statement by senior counsel for the airline as to the manner in
which he had attempted to handle his responsibilities should be enough
to answer the complaint in the Appendix that "The management of the
airline _instructed its counsel_ to deny every allegation of fault, and
to counter-attack by ascribing total culpability to the air crew". The
tribute the Commissioner paid counsel in paragraph 375 (the same counsel
appeared in this Court for the applicants) is not altogether consistent
with those last remarks. In any event the appendix continues--

     "Apart from that, there were material elements of information in
     the possession of the airline which were originally not disclosed,
     omissions for which counsel for the airline were in no way
     responsible, and which successively came to light at different
     stages of the Inquiry when the hearings had been going on for
     weeks, in some cases for months."

A final comment should be made about the criticisms of the airline
concerning the position it adopted concerning pilot error as a cause of
the accident.

In the course of his evidence (at p. 272) Mr. Chippindale was asked by
the Commissioner: "Was not the position Capt. Collins must have clearly
have thought he was flying toward McMurdo over McMurdo Sound?" He said,
"It is my belief that this could be the only possible reason for him to
continue". That is an important answer. It means that in this respect
Mr. Chippindale had reached the same conclusion as the Commissioner but
for general reasons of logic whereas the latter was influenced by his
finding that Captain Collins had made use of the New Zealand Atlas or a
chart in order to plot the position of the waypoint and the route to be
taken by the aircraft.

But although this general conclusion about McMurdo Sound was shared it
is at this point that the two investigations diverged in terms of pilot
responsibility for the accident. The Commissioner was of the opinion
that until the last moment the pilots believed they were flying in clear
air; that they were deceived by a whiteout situation; and that it was
understandable that they flew on at 2000 and then 1500 feet. Mr.
Chippindale was aware of and spoke in his report about the whiteout
phenomenon, but after giving evidence before the Royal Commission for
eight days he still adhered to his conclusion of pilot error for reasons
he expressed (at p. 274) in the following way:

     "I believe that the cause as it stands (in the Chief Inspector's
     report) is reasonable. As I attempted to clarify last time the
     pilot has descended to 2000 ft and evidently is unable to see
     anything ahead. I say 'evidently' because there is a snow slope
     leading to a mountain rising to 12 450 feet and that was directly
     in front of him. He 'popped down', to use his own words, another
     500 feet and continued to progress towards an ice cliff which is
     300 feet high, the lower 50 per cent of which is solid and bare
     rock. And still he didn't perceive anything to persuade him to
     divert from his track. To me this indicates it was an area of poor
     definition and as such he would not be able to discern what he
     could expect to see had he been, as various people suppose,
     believing that he was proceeding down the McMurdo Sound. The sea
     ice is by no means uniform in texture and during his descent he
     would have seen the nature of the sea ice--in fact the photos from
     the passengers indicate that it had large breaks in its surface and
     was quite easily discerned so therefore I believe at the end of his
     descent to 2000 ft he was confronted with a very vague area in
     front of him which he may or may not have believed was cloud, and
     when descending a further 500 feet the view ahead of him would have
     been of equally poor definition. Despite this, he continued to the
     point of 26 miles from destination as indicated presumably on the
     AINS."

Mr. Chippindale's opinion has some background relevance in the present
case. It is in no way relevant because it differs from that of the
Commissioner upon the issue of causation. Already we have emphasized and
we do so once again that what was said in the Royal Commission Report
about the cause or causes of the accident must stand entirely unaffected
by these proceedings. But the opinion has some relevance because
although it was wrong, as the Royal Commission Report decided, the
Commissioner certainly did not consider it to be anything other than a
completely conscientious and honest attempt by Mr. Chippindale to
analyse and draw a rational conclusion from all the available facts. He
described Mr. Chippindale as a model witness. In the circumstances it is
difficult to understand why the same point of view Mr. Chippindale
expressed in his evidence could not be genuinely shared by other
educated observers.

We turn now to the relief sought by these various officers and the
airline itself.


The Claim for Relief

The applicants seek relief in the form of an order that the findings be
set aside or for a declaration that the various findings are invalid or
made in excess of jurisdiction; or were made in circumstances involving
unfairness and breaches of the rules of natural justice. In addition we
are asked to make an order quashing the decision of the Commissioner
that the airline should pay to the Department of Justice the sum of
$150,000 by way of costs.

Earlier in this judgment we have said that if the challenged findings
were made without jurisdiction or contrary to natural justice then it
would be possible for the Court to take steps by way of declaration to
offer at least some form of redress. And we went on to explain why we
think the Royal Commission was bound by the broad requirements of
natural justice. As an example of what would be required to meet
obligations of fairness we then referred to the need for a reasonable
opportunity of meeting unformulated suspicions of deception and
concealment that had been in the Commissioner's mind. However, before we
turn to the natural justice part of the case it is convenient to
consider the claim of excess jurisdiction, and that by confining our
attention to the terms of reference.

The submission of counsel for the sixth respondent is that the
statements contained in each of the two paragraphs 348 and 377 are
relevant to and justified by the following items of the terms of
reference:

     (g) Whether the crash of the aircraft or the death of the
     passengers and crew was caused or contributed to by any person
     (whether or not that person was on board the aircraft) by an act
     or omission in respect of any function in relation to the
     operation, maintenance, servicing, flying, navigation, manoeuvring,
     or air traffic control of the aircraft, being a function which that
     person had a duty to perform or which good aviation practice
     required that person to perform?

     (j) And other facts or matters arising out of the crash that, in
     the interests of public safety, should be known to the authorities
     charged with the administration of civil aviation in order that
     appropriate measures may be taken for the safety of persons engaged
     in aviation or carried as passengers in aircraft.

In its essentials the argument is that in order to answer the questions
posed by paragraph (g) the Commissioner found it necessary or was
entitled to explain the process by which he reached his final
conclusions; that in doing so he was entitled to comment upon the
quality of the evidence that was given in the course of the Royal
Commission Inquiry; that the assessment of witnesses was a necessary
part of the findings he reached as to the cause of the accident; that
the assessment was not a part of the substantive findings of the
Commission; and "whether having reached his conclusion he expresses
himself vehemently or refrains from pungent comment is entirely a matter
for him". Similar submissions were made in relation to the second cause
of action and natural justice.

In certain circumstances it is obvious enough that reasons for rejecting
evidence would not merely be relevant but often a necessary part of a
decision. But considerations of that kind are far removed from the
conclusions expressed in paragraph 377. There it is said that the ten
senior members of this airline had been involved in organized deception.
"Palpably false sections of evidence ... a pre-determined plan of
deception ... an attempt to conceal a series of disastrous
administrative blunders ... an orchestrated litany of lies". These are
unlikely phrases to associate with a mere assessment of the credibility
of witnesses.

In the Courts it is constantly necessary to indicate a preference for
the evidence of one witness or to make a decision to put evidence
completely to one side; sometimes it even seems necessary to describe
evidence in terms of perjury. But in the Courts Judges always attempt to
be most circumspect in handling issues of this kind, particularly if
misconduct seems apparent which is not immediately associated with the
central issues in the case. There can be no less reason for
circumspection in the case of a Royal Commission at least where the
terms of reference do not directly give rise to inquiries into criminal
dealing. In _Re The Royal Commission on Licensing_ (1945) N.Z.L.R. 665
Sir Michael Myers C.J. dealt with the point in the following way (at p.
680):

     "A Commission of Inquiry under the statute and a Royal Commission
     under the Letters Patent are alike in this respect--each of them is
     an inquiry, not an inquisition. By that I mean that the Commission
     is not a roving Commission of a general character authorizing
     investigation into any matter that the members of the Commission
     may think fit to inquire into and that the ambit of the inquiry is
     limited by the terms of the instrument of appointment of the
     Commission."

It must always be sensible for any Commission of Inquiry or other
tribunal to keep those words in mind.

We are satisfied that the findings contained in each of paragraphs 348
and 377 are collateral assessments of conduct made outside of and were
not needed to answer any part of the terms of reference. The
Commissioner had no authority or jurisdiction to deal with the affected
officers in such a fashion and the findings themselves are a regrettable
addition to the Report.


Fairness

The concept of natural justice does not rest upon carefully defined
rules or standards that must always be applied in the same fixed way.
Nor is it possible to find answers to issues which really depend on
fairness and commonsense by legalistic or theoretical approaches. What
is needed is a broad and balanced assessment of what has happened and
been done in the general environment of the case under consideration.

In the present case the expressed complaints turn upon the absence of
warning that the affected officers were at risk and that the critical
decisions taken against them were unsupported by any evidence of
probative value. But in estimating the significance of these complaints
it would be unreal to ignore the fact that the findings are not only
very serious in themselves: they are made more potent by the way they
have been so closely associated with one another. Furthermore, each of
them is advanced in this Report as an overt manifestation of one general
conspiracy. That last matter has special importance because for the
reasons just explained we have held the conspiracy findings to be
unjustified. They should never have been made. In saying that we do not
overlook the fact that this Court is making an assessment in isolation
from the viva voce evidence given at open hearings of the Inquiry. But
the present issue is simply whether the affected officers were or were
not deprived of the advantage of answering unformulated charges. In such
a situation the advantage of actually hearing and seeing a witness is
hardly a relevant consideration.

In the course of the survey that has been made up to this point we have
commented upon the nature and significance of the various challenged
paragraphs in the Report. It is unnecessary to traverse the same subject
matter once again and we simply remark that the applicants have
justified their complaints concerning the way in which the findings have
been reached.


Award of Costs

We have explained earlier in this judgment that an order for costs was
made against Air New Zealand in favour of parties other than the Civil
Aviation Division. As a matter of company policy the airline decided
that it would comply with that order although in doing so it has made no
admission that the order was validly made. In addition, however, the
airline was ordered to pay the Department of Justice the large sum of
$150,000 by way of contribution to the public cost of the inquiry. It is
that last order which is challenged in the present proceedings on two
grounds. The first is that the award involved a wrong exercise of the
discretion provided by s. 11 of the Commissions of Inquiry Act 1908. The
second ground is that in any event no award greater than $600 could be
made by reason of Rule III of rules made in terms of the statute and
gazetted on 11th February 1904.

The reasons given by the Commissioner for making the respective orders
against Air New Zealand are set out in a passage from the appendix to
the Report which is mentioned in this judgment under the heading
"Airline's attitude at Inquiry". And on behalf of the Attorney-General
it is said that the discretion was properly exercised for reasons
expressed to be related to "conduct at the hearing (which materially and
unnecessarily extended the duration of the hearing)[2]". However, the
reasons given[3] by the Commissioner do not stop there. The appendix goes
on--

     "The management of the airline instructed its counsel to deny every
     allegation of fault, and to counter-attack by ascribing total
     culpability to the air crew ... Apart from that, there were
     material elements of information in the possession of the airline
     which were originally not disclosed ... it was not a question of
     the airline putting all its cards on the table. The cards were
     produced reluctantly, and at long intervals, and I have little
     doubt that there are one or two which still lie hidden in the
     pack."

When discussing the legal implications of the order for costs under that
particular heading earlier in the judgment we stated that on purely
verbal grounds it might be possible to draw refined distinctions between
parts of the Report which are highly critical of the position taken up
by the airline at the inquiry on the one hand and the effect this had on
the duration of the hearing on the other. But there can be no doubt that
in the context of this Report and the conclusions reached by the
Commissioner concerning conspiracy and otherwise any ordinary reader
would feel satisfied that the imposition of an order for costs in the
sum of $150,000 was nothing less than the exaction of a penalty. In
those circumstances and by reason of the conclusions we have reached
concerning the invalidity of the challenged paragraphs we are satisfied
that the order must be set aside.

Concerning the second ground advanced on behalf of the airline it is
sufficient to say that even if it had been appropriate to make an award
of costs in this case the amount was limited to the modest sum of $600.

At the beginning of this judgment we said that we had felt it necessary
to go at some length into the facts. This we have done both in order to
analyse the important questions raised in the areas of natural justice
and excess of jurisdiction and also because we have thought it to be in
the public interest to attempt to explain the factual issues that are
involved in the proceedings. We now express our conclusion that for the
reasons already given we are satisfied that the complaints of the
applicants are justified. Against that finding we return to the
beginning of this judgment where we said that we felt sure that
reputation can be vindicated and the interests of justice met by a
formal decision of this Court that will have the effect of quashing the
order of the Commissioner requiring Air New Zealand to pay costs in the
large sum of $150,000. We would make an order accordingly.

The Court being unanimous as to the result there will be an order
quashing the order of the Royal Commissioner that Air New Zealand pay to
the Department of Justice the sum of $150,000 by way of contribution to
the public cost of the Inquiry. There have been no submissions
concerning the costs of the present proceedings and that matter is
reserved.


_Solicitors_

Messrs. Russell, McVeagh, McKenzie, Bartleet & Co. of Auckland for
appellants.

Crown Law Office, Wellington, for first, fourth and sixth respondents.

Messrs. Keegan, Alexander, Tedcastle & Friedlander of Auckland for fifth
respondent.

P.D. HASSELBERG, GOVERNMENT PRINTER, WELLINGTON, NEW ZEALAND--1982

76534J--82PT


TRANSCRIBER'S NOTES

There were no footnotes in this text. The following correction have
been made.

[Transcriber note 1: The original has here a double "the" which seems
superfluous in the context.]

[Transcriber note 2: In the original, the closing bracket is missing.]

[Transcriber note 3: In the original, the word "give" instead of
"given" is used.]