‘Massive cover-up’ accusation not put—Q.C.

Press, 16 July 1983, Page 4

‘Massive cover-up’ accusation not put —Q.C.

NZPA staff correspondent London The accusation of a “massive cover-up” by Air New Zealand had never been put to its chief executive, Mr Morrie Davis, or anyone else during the Mt Erebus Royal Commission, the airlines’ senior counsel, Mr Robert Alexander, Q.C., has told the Privy Council in London.

If it had been, they would have called further evidence which could have affected the result, he said.

Mr Alexander, who is appearing with Mr Lloyd Brown, Q.C., of Auckland, said he had read the arguments in the New Zealand Court of Appeal that it was open to the Royal Commissioner, Mr Peter Mahon, to find that Mr Davis was the architect of a conspiracy without suggesting to him or anyone else that there was a conspiracy and that he was the architect. “I ask your lordships to reject that,” he told members of the judicial committee.

To find a man guilty in that way must be almost as great an offence against natural justice as could be committed, he said.

Mr Alexander, who was opening the case for the airline, said Mr Davis had been “branded forever on the forehead” by Mr Mahon’s “orchestrated litany of lies” finding. It was a finding of serious crime which in the words of Mr Mahon’s counsel, Sir Patrick Neill, Q.C., had caused Mr Davis to be “hounded from office,” he said.

But he said there was “not a scintilla” of probative evidence to support this.

It had also affected the careers, health and reputation of other Air New Zealand employees.

Mr Alexander said Air New Zealand had accepted the severe criticism of its operations and competence in Mr Mahon’s report. But the report went further than that and made a severe attack not only on some of the airline’s employees but on the airline as a whole and its chief executive, he said.

The “litany of lies” paragraph had dominated all reaction to the report, had become headlines around the world, and had passed

into the currency of New Zealand language.

Mr Alexander said the question arose as to whether there should be a judicial review of what was in Mr Mahon’s report

If there was a total absence of probative evidence and if it was not subject to judicial review, the alternative was that “these men walk to the end of their days branded by an unfair allegation.” The majority of the New Zealand Court of Appeal expressed reservations about whether Mr Mahon was exercising a statutory power of decision and whether his findings amounted to “decisions” entitling it to set some of them aside by judicial review. The Court ruled that he had exceeded his jurisdiction in the “litany of lies” paragraph and quashed his order that Air New Zealand pay $150,000 towards the cost of the Royal Commission. Mr Mahon is appealing to the Privy Council against this decision. Mr Davis and other Air New Zealand witnesses had said they did not have

Privy Council Erebus hearing

notice of the charge of conspiracy and that, if they had, there was further evidence they would want to call, Mr Alexander said. No-one had challenged that, he said. Sir Patrick Neill had said that counsel knew what was “on the table” or ought to have known. “That is clearly an invidious position which adds to the burden of those who appear with me in this case,” Mr Alexander said. He said that Air New Zealand was, and always had been, seeking judicial review.

There was no question of an appeal as such. There was no suggestion that Mr Mahon had acted in bad faith. Mr Alexander said that the field of judicial review

had been expanded in the last 20 years by the Privy Council and the House of Lords.

New Zealand had also made a conspicuous contribution to this field of the law.

There was case after case in New Zealand which showed concern that natural justice should be done by Royal Commissions. The Court of Appeal had unanimously concluded that natural justice was not done in this case, Mr Alexander said.

It had applied to arguments advanced to it what members of the Court considered to be proper standards of fairness.

That was responsible and carried very great weight. If Mr Mahon’s appeal was allowed, his “weighty charges will hang over these men, particularly Mr Davis, and will follow them for the rest of their lives wherever they go,” Mr Alexander said.

It was not disputed that there had been a change in co-ordinates of 27 miles and that this was not disclosed to the crew of the DCIO which crashed on Mt Erebus, he said. But this basic error had been revealed to the chief

inspector of air accidents, Mr Ron Chippindale, by Air New Zealand.

Dealing with the destruction of documents ordered by Mr Davis, Mr Alexander said that the chief executive had not been used to thinking in a lawyer’s context, the airline had never had this sort of disaster before, and the Airline Pilots’ Association representative on the Air New Zealand inhouse committee thought this was the sensible thing to do.

Lord Diplock asked if newspapers in New Zealand tried to get information from “moles.” Mr Alexander said he did not exclude the possibility. Mr Davis was saying he did not want documents leaked to the press. “That was an understandable decision,” Mr Alexander said. The order of witnesses at the inquiry had always been controlled by counsel assisting Mr Mahon. There had been no general order for discovery of documents in the first instance and witnesses were only asked to produce documents relevant to their evidence. It was not until evidence emerged that the airline could begin to get a full picture, Mr Alexander said. Air New Zealand had been refused access to the Airline Pilots’ Association pilots and could not have known how many of them were going to say they had flown low. It could not know what they were going to say about briefings. Later Air New Zealand

was ordered to make a general discovery of documents and had complied. “There was no criticism made to the Royal Commissioner of the way they complied with that order,” Mr Alexander said. The airline had revealed its own blunders and mistakes. Its whole position was quite contrary to Mr Mahon’s view that.it would stop at nothing to conceal its blunders. Mr Alexander said the fact that the law lords had had to ask when the conspiracy started was eloquent testimony that no such inquiry had been carried out during Mr Mahon’s investigation. The time for inquiry as to whether there was a conspiracy was before his report was made. On the question of Mr Mahon’s order that the airline should pay $150,000 towards the cost of the inquiry, Mr Alexander said the enormity of the order and its punitive implications could be tested against the ordinary position of costs in New Zealand. The normal limit for costs was $2500 subject to a judicial certificate that it could be varied in certain cases. But it was comparatively rare, even with a judge’s certificate, to have costs in low five figures. Lord Diplock: “Do they have 75-day trials?” Mr Alexander: “No, that’s fair.” Earlier, Sir Patrick Neill, winding up his submissions for Mr Mahon, said that the New Zealand 1908 Commis-

sions of Inquiry Act provided that a party to an inquiry could be ordered to pay all or part of the costs. It was true that a 1903 judges’ rule said costs should not exceed £3OO but, in his submission, this had never survived and did not apply to the 1908 act. One of Air New Zealand’s arguments is that, even if Mr Mahon was entitled to order it to pay costs, they could not be more than $6OO. Sir Patrick said that Mr Mahon’s order had been described as punishment of Air New Zealand. But this was not a fair characterisation of what he had done. What he had in mind was the prolongation of the case caused by false testimony. “He was the best judge, I respectfully submit, of what the position would have been like if Air New Zealand had come clean from the beginning and witnesses had not come and told falsehoods,” Sir Patrick said. The hearing resumes on Monday.