The case now before this Court is entirely concerned with that Report.  But lest there be any misunderstanding it is necessary to emphasize at the outset that no attack can be or indeed has been made upon the conclusions it reaches as to the cause of the crash.  Instead the proceedings are brought by way of judicial review under the Judicature Amendment Act 1972 in order to challenge statements in the Report about the conduct of certain officers of Air New Zealand.

Senior officers of the airline are severely criticized in the Report and in one paragraph on the basis of “a pre-determined plan of deception ... to conceal a series of disastrous administrative blunders ... an orchestrated litany of lies”.  These findings are challenged on grounds that they were made unfairly, in disregard of basic principles of natural justice and without jurisdiction.  We are satisfied that those complaints of the applicants are justified and that the statements should never have been made.  It was done without authority of the terms of reference of the Commission and without any warning to the officers affected.  Thus they were given no opportunity at all to answer and deny as they claim in affidavits now before this Court they were in a position to do.

Because of the view we take of some aspects of the facts and of the law we would be prepared to go further than the other members of the Court in regard to the formal order to be made in this case.  We also find it necessary to go further in our conclusions in regard to a number of matters of fact.  We feel sure, however, that reputation can be vindicated and the interests of justice met by the formal decision of this Court which will have the effect of quashing a penal order of the Commissioner requiring Air New Zealand to pay the large sum of $150,000 as costs in the Royal Commission Inquiry.

The Two Inquiries

Before the Royal Commission was appointed and began its work a statutory investigation had already been carried out in terms of the Civil Aviation (Accident Investigation) Regulations 1978.  Immediately it was known that the aircraft had crashed on Mount Erebus the standard procedures for aircraft accident investigation were invoked by the Chief Inspector of Air Accidents, Mr R. Chippindale.  And he arrived in the Antarctic with a small team of experts on the day following the disaster.  They included mountaineers, police, surveyors, the chief pilot of Air New Zealand (Captain Gemmell), and a representative of the Airline Pilots Association, named in the present proceedings as the fifth respondent (First Officer Rhodes).