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




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

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

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

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


The Claim for Relief

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

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

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

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

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

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

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

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

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

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

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


Fairness

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

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

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


Award of Costs

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

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

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

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

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

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

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


_Solicitors_

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

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

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

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

76534J--82PT


TRANSCRIBER'S NOTES

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

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

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

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

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