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.