JUDGMENT OF WOODHOUSE P. AND McMULLIN J.—DELIVERED BY WOODHOUSE P. (continued 2)

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.