Book: Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster

S >> Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan >> Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster




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

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


Alteration of Flight Plan

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

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

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

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

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

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

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


Captain Eden

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

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

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


Captain Gemmell

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

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

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

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

359. The following facts seemed to emerge:

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

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

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

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


Alleged 'Orchestration'

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

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

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

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

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

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

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


Costs

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

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

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

...

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

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


Conclusions

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

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

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

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

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

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