Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster / C.A. 95/81

by New Zealand. Court of Appeal

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.

The Two Inquiries

Before the Royal Commission was appointed and began its work a statutory investigation had already been carried out in terms of the Civil Aviation (Accident Investigation) Regulations 1978. Immediately it was known that the aircraft had crashed on Mount Erebus the standard procedures for aircraft accident investigation were invoked by the Chief Inspector of Air Accidents, Mr R. Chippindale. And he arrived in the Antarctic with a small team of experts on the day following the disaster. They included mountaineers, police, surveyors, the chief pilot of Air New Zealand (Captain Gemmell), and a representative of the

Airline Pilots Association, named in the present proceedings as the fifth respondent (First Officer Rhodes).

Mr Chippindale conducted intensive inquiries at the site of the crash and instructed that all reasonable steps were to be taken to recover equipment that would bear upon the cause of the accident and any documents which were still accessible before they were blown away into crevasses or covered with snow. Two important items were soon discovered: the cockpit voice recorder was found at once and after a period of systematic digging into the snow the digital flight data recorder was recovered as well. The first piece of equipment provided a tape recording of much that was said on the flight deck during a period of 30 minutes preceding the time of the collision with the ice slope. The second, often described as the "black box", provided conclusive information concerning course, altitude, and other data relating to the flight and functioning of the aircraft at the relevant period of time.

Mr Chippindale continued his investigation in New Zealand where he inspected records gathered from the airline. He also interviewed pilots and other officers with relevant information. In addition he travelled overseas. At that point he prepared an interim report so that he could give notice of his tentative findings to all those whom he felt might have some degree of responsibility for the accident. Thus the airline and representatives of the deceased pilots and others were given an opportunity to provide any appropriate answer to the chief inspector before he completed his final report. All this was attended to and his report, which is dated 31st May 1980, was made available to the Minister of Transport on 3rd June 1980. The Minister then approved the report for release as a public document on 12th June 1980. As mentioned, the Royal Commission was appointed for the purpose of conducting a public inquiry at that same time.