Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 5

low level towards a cloud-covered
area, the Commissioner thought that Captain Collins and First Officer
Cassin had never expressed the slightest doubt as to where the aircraft
was and that 'not one word' was ever addressed by either of the flight
engineers to the pilots indicating any doubt. This is not a question on
which the present proceedings call for any opinion from this Court, nor
are we in any position to give one.
A major point in the Commissioner's reasoning, and one that helps to
explain the difference between the two reports, is that on the basis of
evidence from the wife and two daughters of Captain Collins he
accepted that, at home the night before the flight, the Captain had
plotted on an atlas and two maps a route of the flight; and he drew the
inference that Captain Collins must then have had with him a computer
print-out. Any such print-out would have been made before the
alteration and consequently would have shown the longitude of the
southernmost waypoint as 164° 48' E. The Commissioner accordingly
concluded that Captain Collins had plotted a route down the Sound. No

doubt this tended to reinforce his view that the Captain, flying on nav
track, had never doubted that he was in fact over the Sound.
The Challenged Paragraphs
The background already given is needed for an understanding of the
case. But we repeat that the case is not an appeal from the
Commissioner's findings on causation or other matters. The applicants
acknowledge that they have no rights of appeal. What they attack are
certain paragraphs in the Commission report which deal very largely,
not with the causes and circumstances of the crash, but with what the
Commissioner calls 'the stance' of the airline at the inquiry before him.
The applicants say that in these paragraphs the Commissioner exceeded
his powers or acted in breach of natural justice; and further that some of
his conclusions were not supported by any evidence whatever of
probative value. Their counsel submit that a finding made wholly
without evidence capable of supporting it is contrary to natural justice.
The arguments on the other side were presented chiefly by Mr
Baragwanath and Mr Harrison, who had been counsel assisting the
Commission and appeared in this Court for the Attorney-General, not
to advance any view on behalf of the Government but to ensure that
nothing that could possibly be said in answer to the contentions of Mr
Brown and Mr Williams for the applicants was left unsaid before the
Court. This was done because it has not been usual for a person in the
position of the Commissioner to take an active part in litigation
concerning his report. Mr Barton, who appeared for the Commissioner,
did not present any argument, adopting a watching role. He indicated
that he would only have played an active role if the Commissioner had
been required for cross-examination. As already mentioned, it was
agreed otherwise. At that stage the Commissioner, by his counsel, very
properly stated that he would abide the decision of the Court.
Mr Baragwanath's submissions were to the general effect that the Court
had no jurisdiction to interfere with the opinions expressed in the
Commission's report, which were not 'findings' and bound no one; and
that in any event they were conclusions within the Commissioner's
powers, open to him on the evidence and arrived at without any breach
of natural justice.
We now set out the various paragraphs under attack, bearing in mind
that they cannot properly be considered in isolation from the context in

the report. The paragraphs vary in importance, but it is convenient to
take them in the numerical order of the report. We will indicate as
regards each paragraph or set of paragraphs the essence of the
complaint. After doing this we will state how we propose to deal with
the complaints.
Destruction of Documents
Paragraphs 45 and 54, which affect particularly the chief executive at
the time of the crash, Morrison Ritchie Davis, are as follows:
45. The reaction of the chief executive was immediate. He determined
that no word of this incredible blunder was to become publicly known.
He directed that all documents relating to antarctic flights, and to this
flight in particular, were to be collected and impounded. They were all
to be put on one single file which would remain in strict custody. Of
these documents all those which were not directly relevant were to be
destroyed. They were to be put forthwith through the company's
shredder.
54. This was at the time the fourth worst disaster in aviation history,
and it follows that this direction on the part of the chief executive for
the destruction of 'irrelevant documents' was one of the most
remarkable executive decisions ever to have been made