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Justice Mahon and the Erebus disaster

12 June 2020

This year Jacinda Ardern made a public apology upon behalf of the Government in respect of the crash and loss of life arising from the Air New Zealand flight over Mt Erebus 40 years ago. She said that she was apologising on behalf of Air New Zealand which was then a government-owned company. It is extremely sad that the company itself while expressing its sympathy to those who lost their lives, has never until now issued an apology – an admission of responsibility – as a result of its actions. In fact at the time it fought strongly in three courts against any suggestion that it had been at fault.

In doing so it attacked the competence and the alleged bias of the late Justice Peter Mahon. I must acknowledge a special interest here – I was a close friend of Mahon throughout his practice as a silk in Christchurch, and after he was appointed to the Court in Auckland he and I wrote to each other once a month for the following 12 years. And like many readers I remember the criticism piled upon him by the airline and its supporters. First, and notably, Robert Muldoon as Prime Minister and Morrie Davis the CEO of the airline. But also prominent public figures who together ran a campaign which caused Mahon much personal hurt, and brought about his early retirement.

Many will remember his finding of negligence and a deliberate cover-upon the part of Air New Zealand executives, and will also recall the failure of Mahon’s appeals to the Court of Appeal and the Privy Council. But most will have forgotten that his findings of fact were upheld in both those courts. Where he failed was their finding that he had a duty to the airline, before the end of the hearing, to indicate clearly to it that he had come to the point where he did not believe their evidence. Now this at the time was a fine point of law – coming from the Salmond rule in England whereby a judicial inquiry, if becoming aware of allegations against parties not before it in the inquiry, has a duty to have those parties informed and given a right to be heard. In this country, at that very time, there was an academic movement towards imposing that duty also in respect of parties already in the hearing. (Which was here indeed quite stupid – there were witnesses both for and against the airline, and a finding either for or against it was an essential ending to the inquiry.) Mahon told me that he was at the time aware of the treatment meted out to an Australian Supreme Court judge, whose emphatic treatment of evidence in a Royal Commission into the New Zealand Police, saw them take his hearing to the New Zealand court, and have it there set aside.

The majority of the Court of Appeal accepted that submission to set aside the costs order which Mahon had made against the airline by way of penalty. They did not challenge his findings. I must add that Justices Woodhouse and McMullin went much further and sought to challenge the basis for establishing any blame on the part of the airline – but they failed to acknowledge that each had a relative employed by the airline, one a son and one a daughter. These facts were only made public after the appeal judgment had been handed down, and reflect little credit on those judges or their findings. A friend of mine sat through the Privy Council hearing, and reports that for two days their Lordships were entirely supportive of Mahon’s findings and against the airline, but at the last moment gave way to the persuasion on the notice point of Robert Alexander QC, the acknowledged leader of the English Bar (and incidentally a member of my own chambers when I was at the Sydney Bar).

So their finding was to strike down the costs order. But that was seized upon by the airline, the Prime Minister and many others including the media as a huge win for the airline, and its supporters trumpeted it as proof of its innocence. It is however important to remember that Air New Zealand itself was firmly divided – the executives who answered to Davis sought to absolve it, whereas the flying pilots and aircrew were strongly critical of the mistakes as to the flight path, and did not blame the aircrew at all. I myself saw this clearly, because before the final appeal the International Association of Airline Pilots asked Mahon to speak at their annual conference in Sydney, but he being unwell, asked me, being then a barrister in Sydney, to present his paper. Which I did, to a hundred or so pilots in the Hilton, and indeed was drawn on to answer many questions on the crash – which to an aeronautical audience was hardly usual for a lawyer. However I know Mahon was pleased by the report given him afterwards from the President.

There are several books and a podcast about this tragedy, and Mahon’s correspondence with me has been widely used in the preparation of each. Sir Geoffrey Palmer has published his memoirs, an 800-page work, with an index of thousands of names at the end, but these do not include the name of Peter Mahon. I suppose such an omission cannot be seen as an apology, but it remains a telling admission, and I hope that the Prime Minister’s apology has ruffled no other feathers.

John Burn,
retired barrister, Christchurch.

Editing changes have been made to this letter.

Last updated on the 12th June 2020