Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission Part 4

The present case is in many ways unique and, if the findings in paragraph 377 were made without jurisdiction or contrary to natural justice, it affords a striking instance of how contrary to the public interest it would be if the Courts were not prepared to protect the right to reputation. The magnitude of the disaster, bringing tragedy to many homes in New Zealand and overseas, and the fact that the national airline was involved meant that the national attention was focused on the inquiry. There are imputations of collective bad faith which had started from a high place in the company and all this was likely to receive the widest publicity, further, the findings in paragraph 377 amounted to public and official disclosures of alleged criminal conduct and led to investigation by the police to determine whether charges should be laid. In the event it was announced shortly before the hearing of the present case that there would be no such charges, but clearly the individuals concerned were in fact exposed to the hazard of prosecution as a natural consequence of the Report.

In interpreting the 1977 legislation we think that a narrow conception of rights and of what affects rights would not be in accord with the general purposes of the Act. A broad, realistic and somewhat flexible approach would enable the Act to work most effectively as an aid to achieving justice in the modern community.

Natural Justice

This Court has had to examine and apply the principles concerning natural justice and fairness quite often in recent years. In translating the ideals of natural justice and fairness into current operation in New Zealand we have been influenced as to general principles mainly by decisions of the Privy Council and the House of Lords but, of course, we have had New Zealand conditions and practicalities very much in mind.

The result has been a pragmatic approach.

Some overseas Courts have held that if all that occurs is inquiry and report and the report is not in law a condition precedent to some further step the rules of natural justice are automatically excluded.

That was the premise, for instance, of the High Court of Australia in _Testro Bros. Pty. Ltd._ v. _Tait_ (1963) 109 C.L.R. 353. A contrary approach is to be found in the judgement of Schroeder J.A. representing the view of the majority of the Ontario Court of Appeal in _Re Ontario Crime Commission_ (1962) 133 C.C.C. 116, although that case depends partly on Ontario statute law. There is little attraction in the idea of automatic exclusion. 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.

Some reinforcement for the view that they are under that obligation is to be found in some added considerations. Section 4A of the Commissions of Inquiry Act, enacted in 1980 in place of briefer provisions and in time for the Erebus inquiry, provides:

"4A. Persons ent.i.tled to be heard--(1) 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 ent.i.tled 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 ent.i.tled, or given an opportunity, to be heard under this section may appear in person or by his counsel or agent."

The section may be seen as a recognition by Parliament that natural justice should apply. It does not purport to enact a complete code of procedure or to cover the whole field of natural justice, which would not be easy in a statute of this general kind. The statute specifically requires an opportunity to be heard to be given to any person who shows that evidence may adversely affect his interests. In the parallel situation of the statutory investigation which must be undertaken following any aircraft accident considerations of fairness are carefully spelled out in Regulation 15 (1) of the Civil Aviation (Accident Investigation) Regulations 1978. 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.

In his judgment in the Court in _Re the Royal Commission on the State Services_ (1962) N.Z.L.R. 96, 117, Cleary J. while stressing the wide discretion of Commissions to regulate their own procedure said plainly that the one limitation is that parties cited and persons interested must be afforded a fair opportunity of presenting their representations, adducing their evidence, and meeting prejudicial matter. That judgment was given with reference to the old s. 4A, now replaced by the section already quoted. What Cleary J. said, particularly about the general absence of a right to be represented by counsel, must now be read subject to the new provisions. But his expression "prejudicial matter"

was a general one. 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. Once the thesis of such a conspiracy had emerged in the Commissioner's thinking as something upon which he might report, he would have had power, if that question were indeed reasonably incidental to his terms of reference, to reconvene the hearing if necessary so that the alleged conspirators could be fairly confronted with the allegation.

See the speech of Lord Russell of Killowen in _Fairmount Investments Ltd._ v. _Secretary of State for the Environment_ (1976) 2 All E.R. 865, and the judgement of Lord Parker C.J. in _Sheldon_ v. _Bromfield Justices_ (1964) 2 Q.B. 573, 578. In fact in the present case but for a far less significant reason the Commissioner himself actually considered the possible need to reconvene the hearing after certain enquiries had been made on his instructions following the taking of evidence in public. The matter is mentioned in paragraph 358 of the Report.

_Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380, 402-405, was decided in the end on just such a ground. It was held that a Commissioner, who happened to be a distinguished Judge, had failed to put to the person whose conduct was expressly subjected to investigation by the terms of reference of the Commission a very serious allegation upon which a finding was made in the report; and that the Commission should have been reconvened for that purpose. There the relevant rule of natural justice was fully embodied in a statutory provision. We think that the position is the same under the New Zealand Commissions of Inquiry Act supplemented by the common law.

All these considerations suggest that the Commission was bound by the broad requirements of natural justice. These included a reasonable opportunity of meeting the unformulated allegation of organized deception and concealment that was apparently pa.s.sing through the Commission's mind. Some of the reasons why experience has shown the importance of this sort of opportunity were well put by Megarry J. in _John_ v. _Rees_ (1970) 1 Ch. 345, 402.:

"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

In this particular case something more should be said. The applicants contend that this is not simply a case where the conspiracy suggestion could not have been reb.u.t.ted. They plead in their statement of claim that the Commissioner's findings to that effect are not based on evidence of probative value. Elsewhere in the present judgment we deal with aspects of these arguments. Here, dealing with principles, we add that fairness is not necessarily confined to procedural matters. It can have wider range. Remedies in this field are discretionary and the law not inflexible. If a party seeks to show not only that he did not have an adequate hearing but also that the evidence on which he was condemned was insubstantial, the Court is not compelled to shut its eyes to the state of the evidence in deciding whether, looking at the whole case in perspective, he has been treated fairly.

Factual Background

In a written synopsis of argument presented before this Court by counsel for Air New Zealand it was said that background matters had to be understood as they were entirely relevant to the complaints made by the applicants in the present proceedings. But that "the Applicants do not propose to canva.s.s any factual matters which fall outside the range of their specified allegations". 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). It is simply that they do all readily accept as they must that in no sense can these proceedings become an appeal against those findings. It is right to add that throughout the hearing in this Court that att.i.tude has very properly been reflected in the submissions we heard. Thus the conclusions as to the cause of the crash must and do stand.

Late in 1976 Air New Zealand decided to commence a series of non-scheduled sightseeing journeys from New Zealand to the Ross Dependency region and return to this country without a touch-down at any intermediate point. They began with two flights in February 1977. There were four further journeys in October and November 1977, four in November 1978, and three more in November 1979--on 7th, 14th and 21st.

The accident flight was to be the fourteenth of the series. In 1977 the designated route was one which used Cape Hallett on the north-eastern point of Victoria Land as the first southern waypoint on the continent itself en route further south either to a point adjacent to the Williams ice landing field (near Scott and McMurdo bases) or alternatively the south magnetic pole. One or other became the southernmost waypoint, the magnetic pole destination being used at the discretion of the pilot if weather conditions made the McMurdo area unsuitable for sightseeing.

Scott and McMurdo bases are located close together at the south-western tip of Ross Island which forms the eastern coast of McMurdo Sound. On the island there are four volcanic mountains including Mt. Erebus, the highest, at 12,450 feet. The Sound itself, which is about 40 miles long by 32 miles wide at the narrowest point, lies between mainland Antarctica and Ross Island and for most of the year it is covered with flat sea ice.

The first two flights in February 1977 took place with the necessary approval of the Civil Aviation Division of the Ministry of Transport and after clearance with the United States naval authorities who control the air s.p.a.ce in the vicinity of McMurdo Station. Those flights followed a computer-controlled flight track to Cape Hallett thence directly over Ross Island and Mt. Erebus at the stipulated minimum height of 16,000 feet to the McMurdo waypoint. The co-ordinates of that waypoint had been written correctly into the flight plan as 77 53' south lat.i.tude and 166 48' east longitude. Three of the pilots who flew to the Antarctic in November 1977 were available to give evidence and, like the two earlier pilots, they agreed that at that time the flight plan followed a track from Cape Hallett to the McMurdo area which pa.s.sed virtually overhead Mt. Erebus. However then and on subsequent occasions the sightseeing aircraft to the McMurdo area arrived in the general vicinity of Cape Hallett to find clear air further on and took the opportunity of visual meteorological conditions to veer laterally from the direct computer flight track from Cape Hallett by tracking to the west along the coast of Victoria Land and eventually down McMurdo Sound over the flat sea ice. Ross Island was thus left to the east while near the head of the Sound the aircraft would turn left in order to fly over Scott and McMurdo bases and in the vicinity of Ross Island so that a view would be obtained of Mt. Erebus and the other three mountains there.

When the decision was made to operate the series of flights to take place at the end of 1977 a change was made with the approval of the Civil Aviation Division to permit flights below 16,000 feet down to 6,000 feet in a specified sector south of Ross Island and subject to such criteria as a cloud base no lower than 7,000 feet, clear visibility for at least 20 miles and descent under ground radar guidance. It has been mentioned that similar criteria applied, officially at least, until the time of the fatal crash. But the written directions were interpreted by some pilots as leaving them with a degree of discretion to go lower in ideal weather conditions.

Then in September 1978 steps were taken to print a flight plan for each Antarctic journey from a record stored in the Air New Zealand ground based planning computer. And it is at this stage that the longitude co-ordinate for the southernmost waypoint was fed into the ground computer as 164 48' E.

The Flight Track

The navigation system used by DC10 aircraft is a computerised device known as the area inertial navigation system (AINS). It enables the aircraft to be flown from one position to another with great accuracy.

Prior to departure of a flight the AINS aboard the aircraft is programmed by inserting into its computers the co-ordinates of the departure and destination points (in degrees of lat.i.tude and longitude) together with those of specified waypoints en route. In the case of the Antarctic flights (which were engaged on what may be described as a return trip without touch-down) the southernmost waypoint, like each of the intermediate positions, was really a reference point to which the pilot knew the aircraft would be committed if it were left to follow the computer-directed flight track. And as mentioned the southern point for the preferred route to the McMurdo area was a ground installation at Williams Field.

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. But before the ground computer could be programmed it had been necessary for an officer of the navigation section to prepare a written worksheet containing all the waypoints and their respective lat.i.tude and longitude co-ordinates which then were transcribed from the worksheet. And by reference to the original flight plan used in February 1977 this was done by Mr Hewitt, one of the four members of the navigation section at airline headquarters. He said in evidence before the Royal Commission that when he went on to take from his written worksheet the longitude co-ordinates of the McMurdo waypoint he mistakenly transcribed the correct figures of 166 48' as 164 48' by inadvertently typing the figure "4" twice. This had the effect of moving the McMurdo waypoint 25 nautical miles to the west and once in the aircraft's system the navigation track which then it would follow from Cape Hallett when under automatic control would be over the[1] Sound rather than directly to Williams Field.

At this point it should be mentioned that the print-out of a flight plan shows not merely the co-ordinate waypoints but also a finely calculated statement of the direction and distance between them. This last information is obtained independently from what is called the NV90 programme of the computer which is able automatically to calculate the rhumb line track and distance between each of the respective waypoints once the co-ordinates have been fed into it. This information forms the basis for the data required to produce the computerised flight plan. So that finally when a print-out of the plan is obtained it will disclose not merely the geographical co-ordinates for each waypoint but the true track direction and the distance in nautical miles from one to the next.

That last information is needed prior to a flight departure in order to calculate tonnages of fuel during the prospective journey and accordingly as a flight proceeds it enables the quant.i.ty of fuel already consumed to be checked against the antic.i.p.ated consumption in the flight plan print-out. Thus the precise track and distance is used for purposes of fuel calculations and has importance as a check in navigation.

All this information is disclosed on page 96 of the Royal Commission Report where the print-out is shown for the flight plan with the co-ordinates for McMurdo showing the longitude as 164 48' east. In the next column the track direction is given as 188.9 (grid) and the distance between Cape Hallett and McMurdo as 337 miles. On the facing page 97 there is a print-out of the flight plan actually used on the fatal flight which shows the correction made to the longitude, 166 58'

east. It will shortly be mentioned that when that correction was made the navigation section say it was thought to involve a minor movement of only 2.1 miles or 10 minutes of longitude. Despite the very small change that this could make to the track and distance between the two points a re-calculation was made and entered into the computer programme as 188.5 (grid) and the distance 336 miles. Compared with the other figures the difference seems minimal but it was still thought necessary to a.s.sess it and it was done.

The Western Waypoint

The circ.u.mstances surrounding the use of the 164 48' E figures were in issue before the Royal Commission. It was suggested against the airline they had not been introduced accidentally: that the movement of the position 25 miles to the west had been deliberate. If that were so it would seem that a re-calculation of track and distance would have been needed and made both for the fuel plan and also as a check for purposes of navigation. However, no re-calculation of track and distance was made and entered with the 164 48' co-ordinate. The figures which actually appear for track and distance to that point remain precisely the track and distance figures which were shown in the flight plan to the 166 48'

point for the first flight in February 1977. For purposes of comparison a calculation to the "false" waypoint was prepared and put before the Royal Commission. It showed that a direct track from Cape Hallett to that point is actually 191 and the distance 343 miles. The point is referred to in paragraph 230 of the Report within a section headed "The creation of the false McMurdo waypoint and how it came to be changed without the knowledge of Captain Collins".

In paragraph 229 it is said that submissions had been put to the Commissioner that "the s.h.i.+fting of the McMurdo waypoint was done deliberately so as to conform" with a track used by military aircraft proceeding to Williams Field. Then in paragraph 230 there is a summary of contrary arguments advanced by members of the navigation section to support their claim of accident. They include--

"(c) It was pointed out that if the McMurdo waypoint had been intentionally moved 25 miles to the west, then the flight plan would have a corresponding change to the track and distance information which it previously contained. Instead of a true heading from Cape Hallett to the NDB of 188.9 and a distance of 337 nautical miles, there would have been required, in respect of the changed McMurdo waypoint, a true heading of 191 and 343 nautical miles. Similar alterations would have had to be made in respect of a return journey to the true north."

That is the matter already outlined. Concerning it the Commissioner said in paragraph 234 that there was "considerable validity in this point"

although then he added:

"... the Navigation Section may have thought it not necessary to alter the track and distance criteria from Cape Hallett to McMurdo for the reason that the pilots were accustomed to flying on Heading Select down this sector and not by reference to the fixed heading programmed into the AINS."

There is a further argument of the navigation section which is summarized in paragraph 230 (e)--

"It was submitted that an alteration to the McMurdo waypoint to facilitate better sightseeing was not valid because flight captains had a discretion to deviate horizontally from the flight plan track."

The Commissioner accepted that point as "a valid objection" in answer to the suggestion that the move had been deliberate (paragraph 236).

However when he came in paragraph 255 (a) to express his final conclusion upon this general question he initially said this--

"The first question is whether the programming of the McMurdo waypoint into the 'false' position before the commencement of the 1978 flights was the result of accident or design. On balance, it seems likely that this transposition of the McMurdo waypoint was deliberate."

There is reference at that point to a track and distance diagram indicating a track down McMurdo Sound, and the sub-paragraph then continues--

"So as I say, I think it likely that the change of the McMurdo destination point was intended and was designed by the Navigation Section to give aircraft a nav track for the final leg of the journey which would keep the aircraft well clear of high ground."

Then the final portion of paragraph 255 (a) leaves the matter in the following half-way situation--