Court action following Erebus disaster inquiry

Headline about the resignation of Judge Mahon, who presided over the Royal Commission of Inquiry into the Erebus disaster. Mahon resigned from the bench of the High Court in January 1982.

Resignations and court action

Justice Peter Mahon's accusation that Air New Zealand had presented 'an orchestrated litany of lies' at the Royal Commission of Inquiry into the Erebus disaster drew an almost immediate response from the airline. Hours after his report was released on 27 April 1981 Air New Zealand chief executive Morrie Davis made a brief media statement rejecting the allegations made against him. The following day the chair of Air New Zealand's board, C.M. Mace, advised that they had instructed counsel to begin High Court proceedings to set aside the Inquiry's findings 'in the area of staff integrity'. Their decision was quickly backed by Prime Minister Rob Muldoon.

Court of Appeal

Air New Zealand asked for their judicial review of the Inquiry's allegations and findings to be heard in the Court of Appeal rather than the High Court. Their request was initially rejected, but later accepted because of 'the magnitude of the disaster', 'the public importance of the issues' and 'the conduct of an inquiry held by a high court judge'.

On 3 May Mace advised that the Board was standing behind Davis, but on 4 May Davis announced he was retiring. He explained that this was not an admission of guilt, but 'an attempt to remove a focus point from the current controversy and by doing so hasten the recovery of the company'.

Further investigations

The State Services Commission also responded quickly to Mahon's criticisms of the Civil Aviation Division (CAD) of the Ministry of Transport. Amid calls for the Director of CAD, Captain E.T. Kippenberger, to be removed from office, they set up an internal inquiry to determine whether any employees of CAD should be charged under the State Services Act 1962. On 8 June 1981 their report was released. It found that there were ‘significant shortfalls in the overall performance of civil aviation in relation to the Antarctic flights' but there was no act that made them in any way 'culpable' for the Erebus disaster.

During the same period a police investigation was also underway. Immediately after Mahon's report was released Chief Superintendent Brian Wilkinson and a small team of police officers had been asked to investigate whether 'charges of conspiring to defeat the course of justice, and perjury' by employees of Air New Zealand could be sustained. Air New Zealand's Board had put 12 employees who were witnesses at the Inquiry on restricted duties on 3 May 'for potential safety factors' and because of the pressure they would be under during the police inquiry. After several months of investigation the police decided against charging anyone and the Air New Zealand staff members returned to normal duties.

Court action

In October 1981 the judicial review Air New Zealand had requested of the Inquiry's findings 'in the area of staff integrity' began in the Court of Appeal. These findings were challenged on the grounds that 'they were made unfairly, in disregard of natural justice and without jurisdiction'.

Gordon Vette

In June 1982 Captain Gordon Vette, who had given evidence that Air New Zealand was at fault at the Royal Commission of Inquiry, resigned from the company. He admitted that he regretted ending his time with the airline but that he was in an uncomfortable situation. He commented 'there were a lot more casualties out of Erebus than those who died on the mountain'.

The Court delivered its judgements in December. They noted that the proceedings were not related to the Inquiry's findings on the cause of the crash but 'the conduct of certain officers of Air New Zealand'. They concluded that in this regard Mahon had breached natural justice by not allowing those accused to respond to the allegations. They also concluded that he had acted outside his jurisdiction with the accusation regarding 'an orchestrated litany of lies'. His order of costs against the airline was quashed.

Mahon subsequently offered to resign from the High Court bench. His resignation was accepted by Cabinet in January 1982.

Following Mahon's resignation Ron Chippindale, the chief air accident investigator who headed the original investigation into the crash, spoke out, arguing that Mahon's report ‘abounds in errors’. A report Chippindale prepared for the Minister of Transport in response to Mahon's report in 1981 was subsequently released in February 1982. Chippindale argued:

My significant difference of opinion with the report of the Royal Commission is that the crew's assumption of where they were going was not sufficient excuse for descending without establishing their position as accurately as possible with the navigation aids available to them.

Principles of 'good airmanship' which obligated flight crews to fix their position before descending below minimum safe altitude was an issue that had been raised by Air New Zealand previously. It was also raised by Sir Rochford Hughes, a retired Air Marshal of the Royal Air Force, who provided technical assistance to the Inquiry. In February 1982 Rochford advised that he fundamentally supported Mahon's conclusions that organisational failure was to blame for the accident and that the briefing had given the wrong impression of the route. But he also argued that the pilot should not have implicitly trusted the aircraft's navigation system and should have made a permanent fix before descending below minimum safe altitude.

Despite his resignation Mahon decided to appeal to the Privy Council against the Court of Appeal's judgement and the government agreed to pay his costs. A four-week hearing was held in July 1983. In October the Privy Council 'very reluctantly' agreed with the Court of Appeal's judgements and dismissed Mahon's appeal. They also placed on record a tribute to the 'brilliant and painstaking investigative work done by the judge'.

In November 1987 a claim against the United States government on behalf of 16 of the crew members killed in the Erebus disaster was heard in the United States over several days. This argued that US Navy air traffic controllers at McMurdo Station should have warned the flight crew that the aircraft was heading for Mt Erebus. In July 1988 the judge dismissed the case. He ruled that the air traffic controllers were not to blame for the crash, concluding that it 'was the fault of Air New Zealand and of the flight crew'.

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