Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 2

reports are, in a sense, inevitably inconclusive. Findings made
by Commissioners are in the end only expressions of opinion. They
would not even be admissible in evidence in legal proceedings as to the
cause of a disaster. In themselves they do not alter the legal rights of
the persons to whom they refer. Nevertheless they may greatly
influence public and Government opinion and have a devastating effect

on personal reputations; and in our judgment these are the major
reasons why in appropriate proceedings the Courts must be ready if
necessary, in relation to Commissions of Inquiry just as to other public
bodies and officials, to ensure that they keep within the limits of their
lawful powers and comply with any applicable rules of natural justice.
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. 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. Necessarily this Court is more detached from
the whole matter than was the Commissioner. And several different
judicial minds may combine to produce a more balanced view than one
can. But as against those advantages, which we have had, there is the
advantage of months of direct exposure to the oral evidence, which he
had. So we have to be very cautious in forming opinions on fact where
there is any room for different interpretations of the evidence.
Having stressed those limitations on the role of this Court, we think it
best to state immediately in general terms the conclusions that we have
reached in this case. Then we will go on to explain the background, the
issues and our reasoning in more detail. 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. It follows that the
Court must quash the penal order for costs made by the Commissioner
against Air New Zealand reflecting the same thinking as paragraph 377.
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.
To the west of Ross Island is McMurdo Sound, about 40 miles long by
32 miles wide at the widest point and covered by ice for most of the
year.
It was originally intended that the flight route south would be over Ross
Island at a minimum of 16,000 feet. From October 1977, with the
approval of the Civil Aviation Division, descent was permitted south of
the Island to not lower than 6000 feet, subject to certain conditions
concerning weather and other matters. However, the evidence is that
the pilots were in practice left with a discretion to diverge from these
route and height limitations in visual meteorological conditions; and
they commonly did so, flying down McMurdo Sound and at times at
levels lower than even 6000 feet. This had advantages both for
sightseeing and also for radio and radar contact with McMurdo Station.
Moreover from 1978 the flight plan, recording the various waypoints,
stored in the Air New Zealand ground computer at Auckland actually
showed the longitude of the southernmost waypoint as 164° 48' east, a
point in the Sound approximately 25 miles to the west of McMurdo
Station.
The evidence of the member of the airline's navigation section who
typed the figures into the computer was that he must have mistakenly
typed 164° 48' instead of 166° 48' and failed to notice the error. Shortly