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."

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.