Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 6

in the corporate
affairs of a large New Zealand company. There were personnel in the
Flight Operations Division and in the Navigation Section who
anxiously desired to be acquitted of any responsibility for the disaster.
And yet, in consequence of the chief executive's instructions, it seems
to have been left to these very same officials to determine what
documents they would hand over to the Investigating Committee.
These paragraphs occur in the context of a discussion of the change in
the computer waypoint shortly before the flight and the failure to draw
it to the attention of the flight crew. The reference to the chief
executive having 'determined that no word of this incredible blunder
was to become publicly known' is, taken by itself, at least an
overstatement, because in paragraph 48 the Commissioner in effect
qualifies it. He says there that it was inevitable that the facts would
become known and 'perhaps' the chief executive had only decided to
prevent adverse publicity in the meantime. Clearly the airline disclosed
to the Chief Inspector that the change of more than two degrees of
longitude had been made in the computer early on the day of the flight

and not mentioned to the crew; these matters are referred to in
paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were
matters which the Chief Inspector did not highlight; evidently he did
not regard them as of major importance. For his part the Commissioner
(in para. 48 of his report) states that the Chief Inspector did not make it
clear that the computer flight path had been altered before the flight and
the alteration not notified to the crew.
We are not concerned with whether or not the Commissioner's implied
criticism of the Chief Inspector's report is correct. The complaint made
by the applicants is that the criticisms of Mr Davis in the two
paragraphs that we have set out are based on mistake of fact, not on
evidence of probative value. It is also said that he was not given a fair
opportunity to put his case in relation to such findings, but what the
applicants most stress is the way in which the Commissioner dealt with
the evidence.
In particular they point out that the evidence of Mr Davis, not
contradicted by any other evidence and correctly summarised in
paragraph 45 of the Commissioner's report, was that only copies of
existing documents were to be destroyed; that he did not want any
surplus document to remain at large in case its contents were released
to the news media by some employee of the airline; and that his
instructions were that all documents of relevance were to be retained on
the single file. Their counsel submit in effect that in converting this
direction for the preservation of all relevant documents into a direction
for the destruction of 'irrelevant' documents--a word used by the
Commissioner as if it were a quotation from Mr Davis--the
Commissioner distorted the evidence. And it is said that the description
'one of the most remarkable executive decisions every to have been
made in the corporate affairs of a large New Zealand company' is, to
say the least, far-fetched.
Counsel for the applicants point also to the fact that there is no
evidence that any document of importance to the inquiry was destroyed
in consequence of the instructions given by Mr Davis. The gist of the
contrary argument presented by Mr Baragwanath was that Mr Davis
was fully cross-examined about his instructions; and that 'it was open to
the Royal Commissioner to find that there were in existence documents
which never found their way to that file and that the procedures were

tailor made for destruction of compromising documents'.
Alteration of Flight Plan
Paragraph 255 (e) and (f), in numerical order the next passages
complained of, refer to the fact that when the co-ordinates in the
Auckland computer were altered a symbol was used which had the
effect of including in the information to be sent to the United States air
traffic controller at McMurdo Station the word 'McMurdo' instead of
the actual co-ordinates (latitude and longitude) of the southernmost
waypoint. The Commissioner said:
(e) When the TACAN position [a navigational aid at McMurdo Station
enabling aircraft to ascertain their distance from it] was typed into the
airline's ground computer in the early morning of 28 November 1979,
there was also made the additional entry to which I have referred,
which would result in the new co-ordinates not being transmitted to
McMurdo with the Air Traffic Control flight plan for that day. It was
urged upon me, on behalf of the airline, that McMurdo Air Traffic
Control would consider the word 'McMurdo' as indicating a different
position from that appearing on Air Traffic Control flight plans
dispatched from Auckland