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 deg. 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.