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.