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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


_Solicitors_

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

Sheffield Young & Ellis, Auckland, for Third Applicant.

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

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





C.A. 95/81

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


_Coram_

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


_Hearing_

5th-12th October 1981.


_Counsel_

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

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

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

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

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

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


_Judgment_

22 December 1981




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


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

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

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

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


The Two Inquiries

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Jurisdiction to Review

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

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

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

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

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