This matter requires brief comment. It involves the issue as to whether
Air New Zealand adopted an uncompromising approach to the matters under
consideration by the Royal Commission so that the proceedings were
unnecessarily prolonged. Concerning the matter the Commissioner said
this in the Appendix to the Report dealing with the awards of costs,
which must be mentioned later:
"In an inquiry of this kind, an airline can either place all its
cards on the table at the outset, or it can adopt an adversary
stance. In the present case, the latter course was decided upon.
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, against whom there were alleged no
less than 13 separate varieties of pilot error. All those
allegations, in my opinion, were without foundation".
The general complaint that Air New Zealand had adopted an adversary
approach and withheld evidence until a late stage needs to be assessed
against the control exercised by counsel assisting the Commission
concerning the order in which witnesses were to be called and the way in
which the Inquiry progressed. Before the initial hearing to settle
questions of procedure he supplied the airline with a "Memorandum as to
areas to be covered by Air New Zealand evidence". It is dated 13th June
1980 and specifies 21 topics. Then on 19th June he circulated a
"Memorandum to counsel engaged in the DC10 Inquiry" advising that the
parties were to prepare initial briefs which he would then put in
sequence. And at the preliminary hearing on 23rd June it was arranged
that a basically chronological order should be followed after Mr
Chippindale had been called as the first witness. On the following day
counsel for the Civil Aviation Division took issue with the requirement
that its brief of evidence should be handed in before Mr Chippindale had
appeared and the Commissioner ruled that briefs of evidence would be
withheld until shortly before the witness was to be called. Mr
Chippindale's evidence occupied the first fortnight of the inquiry and
thereafter the actual order in which the witnesses were to be called was
arranged by counsel assisting the Commission who stated in advance the
days and times at which those concerned should come forward. Thus the
first Air New Zealand witness to give evidence was the chief engineer
who appeared before the Inquiry on 22nd July.
It was said that the airline had not been invited through its counsel to
make its position known by means of an opening address at the
commencement of the public hearing. No doubt the Commissioner would have
permitted such an address but the occasion for it did not seem to arise
and he himself did not require the matter to be dealt with on this basis
by any of the parties. And in the result witnesses were called from
among the personnel of the airline in order to deal with various
questions in an ordered fashion. Thus it was not until all evidence had
been called that counsel for the various parties made submissions to the
Commissioner.
At the conclusion of the evidence counsel for the airline invited
counsel assisting the Commission to inform him what were the main issues
upon which closing submissions were requested. However the extended
written answer to that enquiry includes no suggestion whatever that the
conduct of airline witnesses or the post-accident conduct of the
employees was in issue. And the Commissioner himself said this in
paragraph 375 about the airline's submissions:
"... counsel for the airline adopted, in the course of their
detailed and exemplary final submissions, the very proper course of
not attributing blame to any specific quarter but leaving it to me
to assemble such contributing causes as I thought the evidence had
revealed."
In that regard some of the statements which were made on behalf of the
airline are not unimportant. At one point counsel said--
"By now it should be apparent to the smallest mind that the Company
has not espoused, and does not espouse, a proposition that the
accident can be contributed to a sole cause, let alone a sole cause
of pilot error. If from the evidence adduced, there emerges or is
implicit a criticism of the Company's flight crew, that criticism
has been moderate, informed and responsible."