Naturally the stance of the airline at the inquiry directed by the terms of reference was not included expressly in those terms. The argument presented in effect for the Commissioner on the question of jurisdiction is that comments, however severe, on the veracity and motives of witnesses were incidental to the carrying out of the express terms. We accept unhesitatingly that what is reasonably incidental is authorised (as was recognised in _c.o.c.k's_ case at p. 425) and also that to some degree any Commission of Inquiry has the right to express its opinion of the witnesses, much as a Court or statutory tribunal has that right.

But we think that it is a matter of degree. For present purposes it is not necessary to decide whether the law of New Zealand is still, as held in _c.o.c.k's_ case, that a Commission of Inquiry cannot lawfully be const.i.tuted to inquire into allegations of crime. That issue may be raised more directly by the litigation regarding the Thomas Commission.

The issue now to be decided is whether the Commissioner had powers, implied as being reasonably incidental to his legitimate functions of inquiry into the causes and circ.u.mstances of the crash, to make a.s.sertions amounting to charges of conspiracy to perjure at the inquiry itself.

In considering that issue the importance of not unreasonably shackling a Commission of Inquiry has to be weighed. It is also material, however, that such a charge is calculated to attract the widest publicity, both national and international. It is scarcely distinguishable in the public mind from condemnation by a Court of law. Yet it is completely without the safeguards of rights to trial by jury and appeal. In other words, by mere implication any Commission of Inquiry, whatever its membership, would have authority publicly to condemn a group of citizens of a major crime without the safeguards that invariably go with express powers of condemnation.

We are not prepared to hold that the Commissioner's implied powers went so far. We hold that he exceeded his jurisdiction in paragraph 377.

If, contrary to the view just expressed, the Commissioner did have jurisdiction to consider allegations of organised perjury, natural justice would certainly have required that the allegations be stated plainly and put plainly to those accused. That was not done. If it had been done, what we have said earlier is enough to show that they could well have made effective answers.

So we conclude that in making the findings or allegations stated in paragraph 377 of the report the Commission acted in excess of jurisdiction and contrary to natural justice. As previously mentioned, the conspiracy postulated in paragraph 377 is evidently intended to include as partic.i.p.ants the chief executive of the airline, the executive pilots and members of the navigation section. If the order for $150,000 costs is quashed on the ground that the statements about a pre-determined plan of deception and an orchestrated litany of lies were made without jurisdiction and contrary to natural justice, we think that substantial justice will be done to the company and those individuals.

In our opinion that costs order must be quashed on those grounds as well as on the ground that it was invalid as to amount.

Further, during the proceedings in this Court there occurred developments which in themselves threw a different light on matters dealt with in the paragraphs under attack affecting Captain Gemmell particularly. These should be publicly recorded.

It was acknowledged by all parties, including the Commissioner, that the reference to Captain Gemmell in paragraph 352, concerning a notebook belonging to Captain Collins, was a mistake. The Commissioner evidently had in mind some evidence given by Captain Crosbie, the welfare officer of the Air Line Pilots a.s.sociation. This disposes of any inference against Captain Gemmell that might be taken from that paragraph.

Much the same applies to the other paragraphs affecting him which are complained of. We have set them out in full and it will be seen that they all relate to two flight bags. It had seemed that paragraph 359 (1), in its context, might have conveyed the impression that Captain Gemmell had removed these bags from the McMurdo store and brought them or their contents back from Antarctica. At our hearing, however, Mr Davison, who was one of the counsel for the Pilots a.s.sociation both before the Commission and in this court, made it clear responsibly and fairly that this is not suggested.

As to Captain Eden, it has already been stated that the transcript shows that the allegation expressed or implied in paragraph 348 was never put to him. Having said so plainly, we need only add as regards this particular complaint that the allegation, although it would naturally have caused concern to Captain Eden and Air New Zealand, was not as serious as the others that are complained of.

Whether the Court has jurisdiction to quash particular pa.s.sages in the report in addition to the costs order is a difficult and technical question. We prefer not to lengthen this judgment with an unnecessary discussion of it.

In modern administrative law, as a result of developments in both case and statute law, the power of the Courts to grant declarations and quash decisions is wider than was thought in the _Reynolds_ case in 1909 (29 N.Z.L.R. at 40). It may be that in a sufficiently clear-cut case the jurisdiction, either under the Act or at common law, will be found to extend to parts of Commission reports even when they are not linked with costs orders.

But in the end that jurisdictional question does not have to be decided in this case, and we reserve our opinion on it. If the jurisdiction does go so far, it must be discretionary, as the grant of declarations always is. The Court would have to be satisfied that grounds so strong as to require it to act in that unusual way had been made out. In our opinion they would be made out clearly enough as regards paragraph 377, which stands out from the general body of the report. But the quashing of the costs order because of its a.s.sociation with that paragraph is enough to do justice there.

The position is less clear as regards the other paragraphs complained of. For various reasons they are all in a marginal category. What has been said in this judgment may help to enable them to be seen in perspective. On balance we would not be prepared to hold that as to these other paragraphs the applicants have made out a sufficiently strong case to justify this Court in interfering, a.s.suming that there is jurisdiction to do so.

In the result, the application for review having succeeded on the main issue, we see no need to and are not prepared to go further in granting relief. Our decision is simply that the $150,000 costs order be quashed on the grounds already stated.

As to the costs of the present proceedings, they should be reserved, as there has been no argument on the matter.

_Solicitors_

Russell McVeagh McKenzie Bartleet & Co., Auckland, for First and Second Applicants.

Sheffield Young & Ellis, Auckland, for Third Applicant.

Crown Law Office, Wellington, for First, Fourth and Sixth Respondents.

Keegan Alexander Tedcastle & Friedlander, Auckland, for Fifth Respondent.

C.A. 95/81

In the Court of Appeal of New Zealand--Between Air New Zealand Limited.

First Appellant, and Morrison Ritchie Davis, Second Appellant, and Ian Harding Gemmell, Third Appellant, and Peter Thomas Mahon, First Respondent, and the Attorney-General, Fourth Respondent, and New Zealand Airline Pilots a.s.sociation, Fifth Respondent, and the Attorney-General, Sixth Respondent.

_Coram_

Woodhouse P.

Cooke J.

Richardson J.

McMullin J.

Somers J.

_Hearing_

5th-12th October 1981.

_Counsel_

L.W. Brown, Q.C., for first and second appellants, with R.J. McGrane.

D.A.R. Williams for third appellant, with L.L. Stevens.

G.P. Barton for first respondent, with R.S. Chambers.

C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to withdraw.

A.F. MacAlister for fifth respondent, with P.J. Davison.

W.D. Baragwanath for sixth respondent, with G.M. Harrison.

_Judgment_

22 December 1981

JUDGMENT OF WOODHOUSE P. AND McMULLIN J.--DELIVERED BY WOODHOUSE P.

On 28th November 1979 a DC10-30 aircraft owned and operated by Air New Zealand Limited crashed during daylight hours at a point 1465 feet above mean sea level on the ice-covered lower slopes of Mount Erebus in the Antarctic. It was a tragedy in which 257 lives were lost. The magnitude of the disaster resulted in two separate investigations into the causes of and circ.u.mstances surrounding the accident. The second inquiry took the form of a Royal Commission appointed by Letters Patent and also pursuant to the provisions of the Commissions of Inquiry Act 1908. Mr Justice Mahon, a Judge of the High Court at Auckland, was appointed sole Commissioner on 11th June 1980. He prepared the Commission's Report and presented it on 16th April 1981.

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.