Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t

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, by Sir
Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan
Wallace McMullin, and Sir Edward Somers
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Title: 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
Author: Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson,
Duncan Wallace McMullin, and Sir Edward Somers

Release Date: June 25, 2005 [eBook #16130]
Language: English
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***START OF THE PROJECT GUTENBERG EBOOK
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***
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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
In the Court of Appeal of New Zealand--Between Air New Zealand
Limited, First Applicant, and Morrison Ritchie Davis, Second
Applicant, and Ian Harding Gemmell, Third Applicant, and Peter
Thomas Mahon, First Respondent, and the Attorney-General, Fourth
Respondent, and New Zealand Airline Pilots Association, Fifth
Respondent, and the Attorney-General, Sixth Respondent.
Coram Woodhouse P. Cooke J. Richardson J. McMullin J. Somers J.
Hearing 5, 6, 7, 8, 9 and 12 October 1981.
Counsel L.W. Brown Q.C. and R.J. McGrane for first and second
applicants.
D.A.R. Williams and L.L. Stevens for third applicant.
G.P. Barton and R.S. Chambers for first respondent.
C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
withdraw.
A.F. MacAlister and P.J. Davison for fifth respondent.
W.D. Baragwanath and G.M. Harrison for sixth respondent.
Judgment 22nd December 1981.

JUDGMENT OF COOKE, RICHARDSON and SOMERS JJ.
On 5 August 1981, for reasons then given, this Court ordered that these
proceedings be removed as a whole from the High Court to this Court
for hearing and determination. They are proceedings, brought by way
of application for judicial review, in which certain parts of the report of
the Royal Commission on the Mount Erebus aircraft disaster are
attacked. In summary the applicants claim that these parts are contrary

to law, in excess of jurisdiction and in breach of natural justice.
One of the reasons for ordering the removal was that it was important
that the complaints be finally adjudicated on as soon as reasonably
practicable. We had in mind that the magnitude of the disaster--257
lives were lost--made it a national and indeed international tragedy, so
the early resolution of any doubts as to the validity of the report was a
matter of great public concern. Also the report contained very severe
criticism of certain senior officers of Air New Zealand. Naturally this
criticism must have been having damaging and continuing effects, as
evidenced for instance by the resignation of the chief executive, so it
was right that the airline and the individuals should have at a
reasonably early date a definite decision, one way or the other, on
whether their complaints were justified.
In the event the hearing in this Court was completed in less than six
days. We had envisaged that some further days might be required for
cross-examination, as there were applications for leave to
cross-examine the airline personnel and the Royal Commissioner
himself on affidavits that they had made in the proceedings. But
ultimately the parties elected to have no cross-examination--and it
should be made clear that this was by agreement reached between the
parties, not by decision of the Court. With the benefit of the very full
written and oral arguments submitted by counsel, the Court is now in a
position to given judgment before the end of the year.
We must begin by removing any possible misconception about the
scope of these proceedings. They are not proceedings in which this
Court can adjudicate on the causes of the disaster. The question of
causation is obviously a difficult one, as shown by the fact that the
Commissioner and the Chief Inspector of Air Accidents in his report
came to different conclusions on it. But it is not this Court's concern
now. This is not an appeal. Parties to hearings by Commissions of
Inquiry have no rights of appeal against the reports. The reason is partly
that the