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Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster C.A. 95/81   By:

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C.A. 95/81

In the Court of Appeal of New Zealand Between Air New Zealand Limited, First Applicant, and Morrison Ritchie Davis, Second Applicant, and Ian Harding Gemmell, Third Applicant, and Peter Thomas Mahon, First Respondent, and the Attorney General, Fourth Respondent, and New Zealand Airline Pilots Association, Fifth Respondent, and the Attorney General, Sixth Respondent.


Woodhouse P. Cooke J. Richardson J. McMullin J. Somers J.


5, 6, 7, 8, 9 and 12 October 1981.


L.W. Brown Q.C. and R.J. McGrane for first and second applicants.

D.A.R. Williams and L.L. Stevens for third applicant.

G.P. Barton and R.S. Chambers for first respondent.

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

A.F. MacAlister and P.J. Davison for fifth respondent.

W.D. Baragwanath and G.M. Harrison for sixth respondent.


22nd December 1981.


On 5 August 1981, for reasons then given, this Court ordered that these proceedings be removed as a whole from the High Court to this Court for hearing and determination. They are proceedings, brought by way of application for judicial review, in which certain parts of the report of the Royal Commission on the Mount Erebus aircraft disaster are attacked. In summary the applicants claim that these parts are contrary to law, in excess of jurisdiction and in breach of natural justice.

One of the reasons for ordering the removal was that it was important that the complaints be finally adjudicated on as soon as reasonably practicable. We had in mind that the magnitude of the disaster 257 lives were lost made it a national and indeed international tragedy, so the early resolution of any doubts as to the validity of the report was a matter of great public concern. Also the report contained very severe criticism of certain senior officers of Air New Zealand. Naturally this criticism must have been having damaging and continuing effects, as evidenced for instance by the resignation of the chief executive, so it was right that the airline and the individuals should have at a reasonably early date a definite decision, one way or the other, on whether their complaints were justified.

In the event the hearing in this Court was completed in less than six days. We had envisaged that some further days might be required for cross examination, as there were applications for leave to cross examine the airline personnel and the Royal Commissioner himself on affidavits that they had made in the proceedings. But ultimately the parties elected to have no cross examination and it should be made clear that this was by agreement reached between the parties, not by decision of the Court. With the benefit of the very full written and oral arguments submitted by counsel, the Court is now in a position to given judgment before the end of the year.

We must begin by removing any possible misconception about the scope of these proceedings. They are not proceedings in which this Court can adjudicate on the causes of the disaster. The question of causation is obviously a difficult one, as shown by the fact that the Commissioner and the Chief Inspector of Air Accidents in his report came to different conclusions on it. But it is not this Court's concern now. This is not an appeal. Parties to hearings by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal 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... Continue reading book >>

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