New Zealand. Court of Appeal

“ A landing on the special whiteout landing field can be accomplished only by an aircraft equipped with skis or, in the case of an aircraft without skis, then it must make a belly-up landing on this snow-covered emergency airfield. Flying in a 'whiteout' of that description is no different from flying in thick cloud. The pilot cannot know where he is and must land in accordance with strict radio and radar directions. So far as I understand the evidence, I do not believe that either the airline or Civil Aviation Division ever understood the term 'whiteout' to mean anything else than a snowstorm. ”

“ But if the Court has jurisdiction to determine the true scope of a Commission's inquiry and require the Commission to keep within that scope there are obvious arguments that it should have a corresponding jurisdiction in the matter of findings. A vital part of the constitutional role of the Courts is to ensure that all public authorities, whether they derive their powers from statute or the prerogative, act within the limits of those powers. ”

“ In the present case, for example, it was virtually certain that the findings of the Erebus Commission would be published by the Government. The effect on the reputation of persons found guilty of the misconduct described in the Report was likely to be devastating, at common law every citizen has a right not to be defamed without justification. Severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity affects that right especially when the officer has judicial status and none the less because he has judicial immunity. ”

“ 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. ”

“ I knew that the responsibility for recovering all property on the crash site lay exclusively with the New Zealand Police Force, and that they had grid-searched the entire site. All property recovered had been placed in a large store at McMurdo Base, which was padlocked, and access to the shed was only possible through a senior sergeant of Police. I asked counsel assisting the Commission to make inquiries about the flight bags which had been located on the site but which had not been returned to Mrs Collins or Mrs Cassin. ”

“ Captain Eden is at present the director of flight operations for the airline. He appeared in the witness box to be a strong-minded and aggressive official. It seemed clear from this further production of First Officer Rhodes as a witness that it had been suggested to him by Captain Eden that he should either make a direct allegation against Captain Gemmell or else make no allegation at all, and that since First Officer Rhodes seemed to have no direct evidence in his possession, he was therefore obliged to give the answer which Captain Eden had either suggested or directed. ”

“ It ought not, we think, to be read down in some way so as to exclude suggestions of conspiracy which may have evolved in the mind of a Commission without being specifically raised in evidence or submissions.
A suggestion of an organized conspiracy to perjure is different from the possibility commonly faced by individual witnesses that their evidence may be disbelieved. Grave findings of concerted misconduct in connection with the inquiry ought not to be made without being specifically raised at the inquiry. ”

“ 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. ”

“ Some of us have reservations on various legal questions—whether the Commission had statutory authority for its inquiry as well as Prerogative authority; whether the findings in the body of the report amounted to 'decisions', whether complete absence of evidence is relevant in considering natural justice or can be redressed in proceedings of this kind. These questions may be of more importance in cases concerning the Thomas Commission which are to come before this Court next year. Moreover, though most important in principle, they are highly technical. ”

“ It is established in New Zealand that in appropriate proceedings the Courts may prevent a Commission of Inquiry—whether a Royal Commission, a statutory Commission or perhaps a combination of the two—from exceeding its powers by going outside the proper scope of its inquiry. ”

“ It is true that, on purely verbal grounds, refined distinctions can be drawn between the sections of the Report dealing with the airline's stance at the inquiry and with costs; but we have no doubt that their overall effect is that most readers would understand them as closely associated. It follows, we think, that if the findings in paragraph 377 are invalid for excess of jurisdiction or breach of natural justice they should be seen as playing a material part in the order for $150,000 costs and as requiring the Court to set aside that order. ”

“ During 1977 the co-ordinates for each waypoint which comprised the Antarctic routes had not been stored on magnetic tape for automatic retrieval and insertion into the navigation computer units of the aircraft. Instead the flight plan was dealt with manually and upon issue to the aircrew at the time of departure was manually typed by the pilot concerned into the aircraft computer units. When the Air New Zealand ground based computer was used in 1978 to produce computerised Antarctic flight plans they followed the same format as those that had been produced earlier. ”

“ The term 'whiteout' has more than one meaning as being descriptive of weather conditions in snow-covered terrain. For aviation purposes it is often described as the cause of the visual difficulty which occurs when a aircraft is attempting to land during a snowstorm. As already stated, the United States Navy maintains a special whiteout landing area situated to the south of its normal landing strips near McMurdo Station. This area is used when an aircraft, which is committed to a landing, is required to land when visibility is obscured by a snowstorm. ”

“ 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. ”

“ The Disaster
In 1977 Air New Zealand began a series of non-scheduled sightseeing flights to the Antarctic with DC10 aircraft. The flights left and returned to New Zealand within the day and without touching down en route. The southernmost point of the route, at which the aircraft turned round, was to be at about the latitude of the two scientific bases, Scott Base (New Zealand) and McMurdo Station (United States) , which lie about two miles apart, south of Ross Island. On Ross Island there are four volcanic mountains, the highest being Mount Erebus, about 12,450 feet. ”

“ Shortly before the fatal flight the navigation section became aware that there was some error, although their evidence was that they understood it to be only a matter of 10 minutes of longitude. In the ground computer the entry was altered to 166° 58' east, and this entry was among the many in the flight plan handed over to the crew for that flight for typing into the computerised device (AINS) on board the aircraft. The change was not expressly drawn to the attention of the crew. The AINS enables the pilot to fly automatically on the computer course ('nav' track) at such times as he wishes. ”

“ 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. ”

“ Commissions of Inquiry have compulsory statutory powers of insisting on evidence and their findings can affect rights in the ways already outlined. It seems to us highly unlikely that the New Zealand Parliament intended them to be wholly free of the elementary obligation to give persons whom they have in mind condemning a fair opportunity for correcting or contradicting any relevant allegation. ”

“ There it is provided that "where it appears to an Inspector that any degree of responsibility for an accident may be attributable to any person, that person or, if he is dead, his legal personal representatives, shall, if practicable, be given notice that blame may be attributed to him, and that he or they may make a statement or give evidence, and produce witnesses, and examine any witnesses from whose evidence it appears that he may be blameworthy". In the case of the earlier investigation by Mr. Chippindale into the Erebus disaster that very step was taken. ”

“ The aircraft had thus encountered, at a fateful coincidence in time, the insidious and unidentifiable terrain deception of a classic whiteout situation. They had encountered that type of visual illusion which makes rising white plateaux appear perfectly flat. This freak of polar weather is known and feared by every polar flier. In some Arctic regions in the Canadian and in the north European winter, it is responsible for numbers of light aircraft crashes every year. Aircraft fly, in clear air, directly into hills and mountains. ”

“ 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. ”

“ 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. ”

“ Very extensive evidence was received by the Commission as to the occurrence and the consequences of this weather phenomenon. So long as the view ahead from the flight deck of an aircraft flying over snow under a solid overcast does not exhibit any rock, or tree, or other landmark which can offer a guide as to sloping or uneven ground, then the snow-covered terrain ahead of the aircraft will invariably appear to be flat. Slopes and ridges will disappear. ”

“ 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 regard to that last matter we emphasize again that this case (as counsel well realized) cannot be used to attack the Royal Commission findings as to the cause of the crash. On behalf of the applicants it was made clear nonetheless that their acceptance of the jurisdictional bar to such a challenge in the Courts did not mean and should not be used to draw any inference that they accepted the causation findings themselves (at least in the unqualified form in which they are set down in the Report) . ”

“ Any person shall, if he is party to the inquiry or satisfies the Commission that he has an interest in the inquiry apart from any interest in common with the public, be entitled to appear and be heard at the inquiry.
(2) Any person who satisfies the Commission that any evidence given before it may adversely affect his interests shall be given an opportunity during the inquiry to be heard in respect of the matter to which the evidence relates.
(3) Every person entitled, or given an opportunity, to be heard under this section may appear in person or by his counsel or agent. ”

“ The crash occurred at 12.50 pm on 28 November 1979. The aircraft struck the northern slopes of Mount Erebus, only about 1500 feet above sea level. There were no survivors. The evidence indicates that the weather was fine but overcast and that the plane had descended below the cloud base and was flying in clear air. The pilot, Captain Collins, had not been to the Antarctic before, and of the other four members of the flight crew only one, a flight engineer, had done so. The plane was on nav track. ”

“ 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. ”