In the Court of Appeal of New Zealand--Between Air New Zealand Limited,
First Applicant, and Morrison Ritchie Davis, Second Applicant, and Ian
Harding Gemmell, Third Applicant, 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_
5, 6, 7, 8, 9 and 12 October 1981.
_Counsel_
L.W. Brown Q.C. and R.J. McGrane for first and second applicants.
D.A.R. Williams and L.L. Stevens for third applicant.
G.P. Barton and R.S. Chambers for first respondent.
C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
withdraw.
A.F. MacAlister and P.J. Davison for fifth respondent.
W.D. Baragwanath and G.M. Harrison for sixth respondent.
_Judgment_
22nd December 1981.
JUDGMENT OF COOKE, RICHARDSON and SOMERS JJ.
On 5 August 1981, for reasons then given, this Court ordered that these
proceedings be removed as a whole from the High Court to this Court for
hearing and determination. They are proceedings, brought by way of
application for judicial review, in which certain parts of the report of
the Royal Commission on the Mount Erebus aircraft disaster are attacked.
In summary the applicants claim that these parts are contrary to law, in
excess of jurisdiction and in breach of natural justice.
One of the reasons for ordering the removal was that it was important
that the complaints be finally adjudicated on as soon as reasonably
practicable. We had in mind that the magnitude of the disaster--257
lives were lost--made it a national and indeed international tragedy, so
the early resolution of any doubts as to the validity of the report was
a matter of great public concern. Also the report contained very severe
criticism of certain senior officers of Air New Zealand. Naturally this
criticism must have been having damaging and continuing effects, as
evidenced for instance by the resignation of the chief executive, so it
was right that the airline and the individuals should have at a
reasonably early date a definite decision, one way or the other, on
whether their complaints were justified.
In the event the hearing in this Court was completed in less than six
days. We had envisaged that some further days might be required for
cross-examination, as there were applications for leave to cross-examine
the airline personnel and the Royal Commissioner himself on affidavits
that they had made in the proceedings. But ultimately the parties
elected to have no cross-examination--and it should be made clear that
this was by agreement reached between the parties, not by decision of
the Court. With the benefit of the very full written and oral arguments
submitted by counsel, the Court is now in a position to given judgment
before the end of the year.
We must begin by removing any possible misconception about the scope of
these proceedings. They are not proceedings in which this Court can
adjudicate on the causes of the disaster. The question of causation is
obviously a difficult one, as shown by the fact that the Commissioner
and the Chief Inspector of Air Accidents in his report came to different
conclusions on it. But it is not this Court's concern now. This is not
an appeal. Parties to hearings by Commissions of Inquiry have no rights
of appeal against the reports. The reason is partly that the reports
are, in a sense, inevitably inconclusive. Findings made by Commissioners
are in the end only expressions of opinion. They would not even be
admissible in evidence in legal proceedings as to the cause of a
disaster. In themselves they do not alter the legal rights of the
persons to whom they refer. Nevertheless they may greatly influence
public and Government opinion and have a devastating effect on personal
reputations; and in our judgment these are the major reasons why in
appropriate proceedings the Courts must be ready if necessary, in
relation to Commissions of Inquiry just as to other public bodies and
officials, to ensure that they keep within the limits of their lawful
powers and comply with any applicable rules of natural justice.
Although this is not an appeal on causation or on any other aspect of
the Commission's report, the issues with which this Court is properly
concerned--the extent of the Commissioner's powers in this inquiry, and
natural justice--cannot be considered without reference to the issues
and evidence at the inquiry. We are very conscious that we have not had
the advantage of seeing and hearing the witnesses. It can be very real,
as all lawyers know. It is true that the kind of analytical argument we
heard from counsel, with concentration focused on the passages of major
importance in the report and the transcript of evidence, can bring
matters into better perspective than long immersion in the details of a
case. Necessarily this Court is more detached from the whole matter than
was the Commissioner. And several different judicial minds may combine
to produce a more balanced view than one can. But as against those
advantages, which we have had, there is the advantage of months of
direct exposure to the oral evidence, which he had. So we have to be
very cautious in forming opinions on fact where there is any room for
different interpretations of the evidence.
Having stressed those limitations on the role of this Court, we think it
best to state immediately in general terms the conclusions that we have
reached in this case. Then we will go on to explain the background, the
issues and our reasoning in more detail. Our general conclusion is that
the paragraph in the report (377) in which the Commissioner purported to
find that there had been 'a pre-determined plan of deception' and 'an
orchestrated litany of lies' was outside his jurisdiction and contained
findings made contrary of natural justice. For these reasons we hold
that there is substance in the complaints made by the airline and the
individuals. Because of those two basic defects, an injustice has been
done, and to an extent that is obviously serious. It follows that the
Court must quash the penal order for costs made by the Commissioner
against Air New Zealand reflecting the same thinking as paragraph 377.