Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 9

case of Captain Gemmell. The applicants say that the findings, apart from one made under mistake (paragraph 352), were based on information or evidence gathered by the Commissioner after the public hearings; and that, while an opportunity of meeting the new matter was given to the Chief Inspector of Air Accidents, none was given to Air New Zealand or Captain Gemmell.
Another special feature is that the Commissioner himself ultimately concluded (paragraph 360) 'However, there is not sufficient evidence to justify any finding on my part that Captain Gemmell recovered documents from Antarctica which were relevant to the fatal flight, and which he did not account for to the proper authorities'.
Alleged 'Orchestration'
We now come to the most serious complaint. It concerns paragraph 377 of the report, a paragraph building up to a quotable phrase that has become well known in New Zealand and abroad:
377. No judicial officer ever wishes to be compelled to say that he has listened to evidence which is false. He always prefers to say, as I hope the hundreds of judgments which I have written will illustrate, that he cannot accept the relevant explanation, or that he prefers a contrary version set out in the evidence.
But in this case, the palpably false sections of evidence which I heard could not have been the result of mistake, or faulty recollection. They originated, I am compelled to say, in a pre-determined plan of deception. They were very clearly part of an attempt to conceal a series of disastrous administrative blunders and so, in regard to the particular items of evidence to which I have referred, I am forced reluctantly to say that I had to listen to an orchestrated litany of lies.
The applicants claim that these findings were not based on evidence of probative value and that the affected employees were not given a fair opportunity of answering such charges. The general allegation in the statement of claim that the findings attacked were made in excess of jurisdiction has in our view a special bearing on this paragraph. The applicants say that the paragraph affects a considerable number of employees--namely Mr Amies, Mr R. Brown, Mr Davis, Captain Eden, Captain Gemmell, Captain Grundy, Captain Hawkins, Mr Hewitt, Captain Johnson and Mr Lawton. These include all the employees affected by the other paragraphs under challenge.
We accept that reasonable readers of the report would take from it that the conspiracy which the Commissioner appears to postulate in his references to 'a pre-determined plan of deception' and 'an orchestrated litany of lies' was seen by him as so wide as to cover all those persons. Paragraph 377 is the culmination of a series of paragraphs beginning with paragraph 373 and separately headed by the Commissioner 'The Stance adopted by the Airline before the Commission of Inquiry'. They include specific references to the chief executive, described as 'very able but evidently autocratic' in the context of an allusion to what 'controlled the ultimate course adopted by the witnesses called on behalf of the airline'. There are also specific references to the executive pilots and members of the navigation section.
It is possible that some individual witnesses did give some false evidence during this inquiry. The applicants accept that this was for the Commissioner to consider and that it is not for us to interfere with his assessment of witnesses. But the complaint goes much further than that. It is that there is simply no evidence on which he could find a wholesale conspiracy to commit perjury, organised by the chief executive, which is what this part of the report appears to suggest. Our conclusion that here the Commissioner went beyond his jurisdiction and did not comply with natural justice--a conclusion to be explained more fully later in this judgment--makes it unnecessary for us to decide whether there was any evidence that could conceivably warrant such an extreme finding. It is only right to say, however, that if forced to decide the question we would find it at least difficult to see in the transcript any evidence of that kind.
The language of paragraph 377 has evidently been carefully selected for maximum colour and bite, and the Commissioner has sought to reinforce its impact by bringing in his status and experience as a judicial officer. While unfortunate, it is no doubt that result of a search for sharp and striking expression in a report that would be widely read. He cannot have overstated the evidence deliberately. Similarly at senior management level in Air New Zealand there would have been a natural tendency to try to have the company's case put in as favourable a light as possible before the Commission; but it was adding a further and sinister dimension to their conduct to assert that they went as far as organised perjury.
Costs
The applicants ask for an