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

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 before the fatal flight the navigation section became aware that there was some error, although their evidence was that they understood it to be only a matter of 10 minutes of longitude. In