McGeehan v Hazelton Air Services Pty Ltd

DECISION NO:118/97
CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - REINSTATEMENT - Alcohol and public safety - Role of Directors in application when Dispute at Board or Shareholder Level - No Opportunity to respond to allegations about conduct until official investigation complete
LEGAL REPRESENTATION - desirability to separate representation of two dismissed employees where possible conflict of interest.
IMPRACTICABLE - Not impracticable to reinstate if applicant agrees to attend Alcohol and Drug Counselling Program and to monitoring of alcohol intake by breath test or blood or urine sample.
COMPENSATION to be paid from date of completion of Investigations.

WORKPLACE RELATIONS ACT 1996 ss 170DE, 170DC and 170EE, ss 380 and 480.
TRAFFIC ACT 1909 (NSW) s 2
CIVIL AVIATION ORDER 48, Civil Aviation Act 1988, s 20A and CIVIL AVIATION REGULATION 256(2)
Pilots SUPPLEMENTARY AWARD 1988, ss 19(a), 36 and 55
JUSTICES ACT 1902 (NSW) ss 48A and 48H
TRAFFIC ACT 1909 (NSW) s 2, s EIB (e), (f) and (g), s 4E(ID)
DANGEROUS GOODS ACT 1975 (NSW)
RADIATION CONTROL ACT 1990 (NSW)
RAIL SAFETY ACT 1993 (NSW) s 61 and Sch 2
R v Bulejcik, 135 ALR 517
Dominican v R (1992) 173 CLR 555
Davies and Cody v R (1937) 57 CLR 170
Briginshaw v Briginshaw (1930) 60 CLR 335
Selvachandran v Peteron Plastics Pty Ltd (1995-6) 62 IR 371
Liddell v Lembke 1 IRCR 466
Victoria & Ors v The Commonwealth (1996) 66 IR 392
The Awu-Fime Amalgamated Union v Queensland Alumina Limited (Unreported IRCA Moore J, 14 July 1995, Brisbane)
Perrin v Des Taylor Pty Ltd (1994) 58 IR 254
BRETT MCGEEHAN -v- HAZELTON AIR SERVICES PTY LTD
NI 3851 of 1995
Before:  MCILWAINE JR
Place:  SYDNEY
Date/s of hearing:     7,9 FEB, 19-21 MAR, 10 MAY, 7 JUN, 20 JUN 1996
Date of judgment:     9 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3851 of 1995

BETWEEN:

Brett MCGEEHAN
Applicant
AND

HAZELTON AIR SERVICES PTY LTD
Respondent
BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997
DRAFT MINUTES OF ORDERS

THE COURT ORDERS THAT:
1.        The respondent did not have a valid reason for the termination of the     applicant.
2. The respondent contravened Section 170DC of the Act.
3.        Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised     educational and counselling program on Alcohol and Drug addiction     nominated by his Chief Pilot, it is not impractical to reinstate the applicant to the position in which he was employed before his            termination.
4.        The respondent to reinstate the applicant to the position in which he was         employed immediately before his termination on 15 September 1995.
5.        The respondent to reinstate the applicant on the same terms and            conditions as applied to the applicant at the date of termination and that          such period commence from the date of termination.
6.        The period between the date of termination and the date of this decision          be treated as continuous employment of the applicant by the respondent     for all purposes.
7.        The respondent to pay to the applicant the remuneration lost by the      applicant because of the termination from 13 October 1995 to 9 April      1997, within twenty one days of the date of receiving the signed            agreement from the applicant.
8.        In the event that the parties are unable to agree on the amount to be paid          or other proposed orders by 4 pm on 16 April 1997, they have liberty to     apply to the court to relist the matter.
9.        In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with       the indication which I have given in this judgment. Those orders should            be filed with the court by 4.00 pm 18 April 1997. It will be preferable if       they can be agreed            with counsel for the respondent, if they cannot be           agreed then I shall provide a time commencing in the week beginning 21      April 1997 to hear the matter and    finalise the orders in this matter.
10.      Upon completion of the orders I propose to refer this judgment to the relevant authorities for consideration of the recommendations which have          been made regarding the need for further legislation.
11.      The applicant is to provide the respondent with details of his income from      paid employment and expenditure on maintaining his licence to fly within        7 days to enable the calculation of “lost remuneration”.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3851 of 1995

BETWEEN:

Brett MCGEEHAN
Applicant
AND

HAZELTON AIR SERVICES PTY LTD
Respondent
BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997
REASONS FOR DECISION
This is an application by First Officer Brett McGeehan claiming unlawful termination of his employment under Division 3 Part VIA of the Industrial Relations Act 1988 ("the Act") against his former employer, Hazelton Air Services Pty Ltd. On 26 November 1996 the Act was renamed the Workplace Relations Act 1996.
The applicant, now 29 years of age, in his claim records the work performed for his employer as "First Officer (pilot) - based at Sydney”. The applicant started work with the respondent on 12 December 1994 and the last day he worked was 8 September 1995.   He was terminated from his employment by his employer on 15 September 1995. The application was filed on 28 September 1995, in the Registry of the Court and therefore no question arises as to the claim being out of time. The remedy sought by the applicant in his application is reinstatement in his employment. He describes himself as “Six foot three”, of medium build, with dark to black hair and at the time of the incident, and weighed between 85 and 90 kilos.
The respondent, Hazelton Air Services Pty Limited ("Hazelton") is a major regional airline company servicing New South Wales and other parts of Australia. I mention that members of the Court, including myself, frequently travel on the planes of the respondent in order to conduct hearings at country centres in New South Wales.
I have a certificate issued by Deputy President Drake of the Australian Industrial Relations Commission dated 23 November 1995, in the following form:
"In accordance with subsection 170ED(2) of the Industrial Relations Act 1988, the commission hereby certifies that it has been unable to settle this matter by conciliation."

There was no objection to the certificate made by either party, I therefore find the matter is properly before the Court pursuant to Section 170ED(2).
The application is accompanied by a letter dated 15 September 1995:
“HAZELTON
THE BIG COUNTRY AIRLINE
15 September 1995
PRIVATE & CONFIDENTIAL
First Officer Brett McGeehan
(HOME ADDRESS)
Dear Brett,
Re: Conduct in Albury on 4 / 5th August 1995
I confirm that the Company has determined that, as a result of your conduct during the morning of the 5th August, and your consequent operation of the Company's aircraft while being unfit to do so, that your services are to be summarily terminated.
In particular your contravention of Section 1.2, 2.16. 2.17, 3.2 and 3.7 of Part A of the Hazelton Airlines Operations Manual and probable contravention of CAO 48, Civil Aviation Act 1988 Section 20A and CAR 256(2), are causes for this termination.
Termination will be in accordance with or recognise the provisions of Sections 19(a), 36 and 55 of the pilots Supplementary Award 1988. All appropriate payments will be deposited to your account.
Yours Sincerely,
(signed)
ALAN TERRELL
Operations Manager"

It is immediately apparent from the letter that the company relied on two specific reasons for its decision. That is, the contravention of the Rules and Policy set out in the Hazelton Airlines Operations Manual and a probable contravention of a number of regulations under the Civil Aviation Act 1988. The applicant's attention was drawn to the provisions of the sections 19A, 36 and 55 of the Pilots Supplementary Award 1988 which sets out a dispute settling procedure.
HEARING
This matter which is registered number of NI 3851 of 1995 in registry of the court was heard in conjunction with the trial involving Donald Stuart Garside (NI 3852 of 1995) and the respondent. Both applicants were represented by Senior Counsel, Mr Michael Sweeney and the respondent by Mr Robert Goot of counsel.
The case first came before the Court on 14 December 1995 in a directions hearing conducted by telephone where an application was made for expedition of the hearing date. This was an oral application and it was granted by the Judicial Registrar. On 16 & 22 January 1996, there were interlocutory proceedings involving the Return of Subpoenas. The matter was set down for hearing on 7 & 8 February 1996.
On 2 February 1996 a Notice of Motion to vacate the hearing dates was heard before another Judicial Registrar. The application was made on behalf of First Officer McGeehan and was based on an affidavit sworn by him on 1 February 1996. He deposed that on 22 January 1996 he became aware that a general meeting of the respondent was to be held in Sydney on 9 February 1996, for which the agenda was to include a resolution to remove all current directors. The reason for the application was contained in the fourth paragraph of the affidavit:
"4. It is my understanding that if the present Board of Directors are removed and replaced with the proposed new Board of Directors then my employment with the Respondent will be immediately reinstated."

The Notice of Motion to vacate the hearing dates was dismissed. I respectfully agree with the decision which was taken not to vacate the hearing for the reason stated by the applicant. It would be possible for a dispute at the board or shareholder level of a corporation to extend over many months with no early conclusion.   Thus, there would be no certainty of the finality of the case if the Court were to vacate the hearing date for this reason only. The role of the Directors in the termination of employment or reinstatement of the applicant was not subsequently raised in the hearing by any party.
The matter came on for hearing before me on 7 February 1996 at 10.15 am, when it was stood down to 2:15 pm to allow the applicant access to documents which had been subpoenaed and were still to be produced by the respondent. Apparently there was some delay in arranging for those documents to be flown to Sydney. At 2:15 pm the applicant sought a further adjournment, which was not opposed by the respondent in order to properly inspect the documents which were then available and those which were still to arrive.
The actual hearing commenced on Thursday 8 February 1996 & continued on Friday 9 February 1996. Thereafter it was stood over to the first available dates which could accommodate the Court and existing commitments of counsel. A further three days of hearing occurred on 19, 20 and 21 March 1996. Again the matter was stood over on the same basis to 10 May 1996 and on to 7 June 1996. An earlier date which became available was not able to be utilised by counsel for one of the parties. On 7 June 1996, in accordance with a request by both counsel, I directed that there be written submissions and oral argument in support was heard on 20 June 1996. The hearing concluded on 20 June 1996 when the decision was reserved.
On 4 September 1996, the High Court in The State of Victoria -v- The Commonwealth of Australia 66 IR 392 declared Section 170 DE(2) and 170EDA(b) invalid. I offered the parties, through their counsel, an opportunity of further submissions. I was advised that the parties did not wish to make use of this offer.
At the outset, I wish to make it clear, nothing I say in this judgment should be taken to mean that I hold any view of the conduct of the applicant on the evening of Friday 4 August 1995 and Saturday 5 August 1995 which can in any way be seen as condoning, supporting, approving or encouraging the behaviour of the applicant as admitted by him in his evidence to the court.
BACKGROUND
There are some issues of fact in this matter which both parties do not dispute and I propose to outline those matters first.
The applicant is a pilot who was qualified to fly the planes of the respondent as a First officer. The applicant, Captain Garside, in matter numbered NI 3852 of 1995 was the commander of that plane and in addition to that duty, he also held the position of "Type Specialist Saab 340" and “Checking and Training Officer" for Hazelton. This latter position was one which is apparently recognised by regulations under the Civil Aviation acts and regulations.
The respondent operated regular passenger services between Sydney and Albury. On 4 August 1995, the applicant was a passenger in the plane which flew from Sydney to Albury. Captain Garside was on the same plane as a “Night Route Observer”. The plane was delayed and it landed at 8.15 pm. There was to be a later flight into Albury that evening. A prior arrangement had been made between the two flight crews to meet up that night for a social outing.
In accordance with the usual industry practice, all the flight crew were accommodated in the same motel premises, being the Greentree Motor Inn. All three members of the crew of the early flight checked into their rooms.
After a short delay, the three male members of the aircrew being the applicant, Captain Garside and Flight Attendant Kinnell, who also was a passenger on the first plane, left the motel about 8.30 pm and walked to two hotels in Albury where alcoholic beverages were consumed by all three men to varying degrees.
It is necessary for me to make a specific finding about the number of drinks consumed by the applicants and their flight attendant. I will return to this issue later. Flight Attendant Kinnell left the two applicants to go back to the motel. However, he got lost and by chance meet the crew from the later flight, which had landed at Albury at 11.30 pm. He then joined them to continue the social outing rather than going back to the motel and his bed as had been his original intention.   This meeting occurred at about 12.15 am on Saturday 5 August 1995 and Flight Attendant Kinnell stayed with them until at least 1.30 am.
Evidence was given that, with the exception of Flight Attendant Kinnell, the two crews completed their evenings entertainment at a night club where the usual social intercourse, including dancing and other behaviour consistent with being present in a disco, and being off duty, continued into the early hours of Saturday morning. Viewed in isolation, there is nothing wrong with this conduct. However, the respondent alleges that certain regulations and company policies were breached by the Captain and First Officer who were to pilot the plane which was scheduled to leave Albury at 7:20 am on Saturday 5 August 1995 for Sydney and Sale. In any event the plane was late leaving Albury in the morning, again an incident which will require a more detailed examination of the facts. It left Albury at 7.40 am.
REPORT OF INCIDENT
Apparently, this event went unreported to the respondent until some time shortly before 8 September 1995.   There is no evidence as to the time when and under what circumstances the respondent became aware of the incident such information may have been of assistance to the court.
The applicant first became aware that action was being taken about this matter, when he was summoned on 8 September 1995 together with Captain Garside to the head office of the air service in Cudal near Orange, New South Wales. There they were subjected to an interview about the events which happened on Friday evening 4 August 1995 and on the following morning, Saturday 5 August 1995. The applicant was suspended from duty on full pay while an investigation was conducted. Subsequently, he was terminated from his employment by letter on 15 September 1995.
Having broadly outlined the case, I now turn to give a more detailed analysis of the role played by each of the applicants. Although the arrival of the plane and its departure can be fixed in a number of external ways, this was not necessary as the time of arrival the previous evening and the time when the plane left is not in dispute between the parties. It is what happened between these two times that requires the detailed attention of the Court.
FIRST OFFICER MCGEEHAN
First Officer McGeehan testified that on that day he had cereal and toast for breakfast. He operated a flight on Friday 4 August 1995 for approximately five hours from Sydney to Albury to West Sale, La Trobe Valley, back to Albury and then back to Sydney as the First Officer. During that flight he consumed sandwiches and snacks, light snacks, coffee and soft drinks.
He also recalls having a sandwich on the flight to Albury in the evening. First Officer McGeehan was a passenger on the flight. There were up to 36 passengers on the flight. The plane landed at Albury shortly after 8.00 pm and the crew signed off duty at 8.30 pm at the Greentree Motor Inn. First Officer McGeehan admits that he was in room 215 on the second floor.
First Officer McGeehan changed into casual clothes, met Captain Garside and Flight Attendant Kinnell in the foyer of the motel and then all three left to go to Soden’s Hotel.
The Shout:
           "(shout v 1.a. to stand (the company) a round of drinks”.: Aussie Talk: - Macquarie Dictionary of Australian Colloquialisms)
Between 8.45 pm and 9.00 pm the three men arrived at Soden’s Hotel on the corner of David and Wilson Streets Albury. Flight Attendant Kinnell bought the first round of three (3) schooners of full strength beer (15ml per glass). Captain Garside bought the second round. First Officer McGeehan bought the third round. The time taken to consume these drinks was 45 minutes.
At 9.30 pm all three went to the Terminus Hotel on the corner of Dean Street and Young streets Albury, which took from 10-15 minutes to walk there. Although I have allowed for 15 minutes, I suspect that it was closer to 10 minutes.
Again, Flight Officer Kinnell started the shout and bought the first round of drinks, Captain Garside bought the next round. Three (3) schooners (15ml per glass) of full strength beer were consumed in each shout. The next shout was First Officer McGeehan and he bought "1 schooner of full strength beer for Captain Garside and an orange drink for Flight Attendant Kinnell." He broke the shout by not buying a drink for himself.
The following summarises the alcohol consumed in the shout:

Garside McGeehan Kinnell Shout               Time

Soden’s 1 Schooner 1 Schooner 1 Schooner Kinnell             8.45

1 Schooner 1 Schooner 1 Schooner Garside     commenced

1 Schooner 1 Schooner` 1 Schooner McGeehan

Terminus 1 Schooner 1 Schooner 1 Schooner Kinnell             9.45

1 Schooner 1 Schooner 1 Schooner Garside     commenced

1 Schooner no drink orange juice McGeehan

Between 8.45 pm and 9.45 pm, each of the officers had consumed, during the hour, the equivalent of 4.5 standard drinks. That is 1.5 standard drinks in excess of the "Rule of Thumb" limitation widely publicised as a guide to drivers of motor vehicles of the number of standard drinks which can be consumed in the first hour without exceeding the prescribed concentration of alcohol in the blood. Thereafter only one standard drink per hour may be consumed in order to stay under the legal limit of 0.05 grammes of alcohol per 100 ml . During the next hour, 9.45 pm to 10.45 pm, two of the three men topped up their "blood alcohol level" by the equivalent of 3 standard drinks. That is two more than are suggested in the "Rule of Thumb" if they were to be able to drive a motor vehicle without apparent risk of committing a Road Traffic Offence. While Captain Garside topped up his blood alcohol level by the equivalent of 4.5 standard drinks.

There is no evidence as to whether the rate of drinking slowed after the arrival at the Terminus. There is evidence that is favourable to First Officer McGeehan as he broke the shout and as well "sat" on his last drink at the Terminus hotel. In addition, I infer from the evidence that it was the first time he had been out drinking with Captain Garside. This was not the case with Flight Attendant Kinnell. The applicant and Captain Garside, after finishing their drinks and leaving the Terminus Hotel, met Flight Attendant Kinnell in the street on their way to Dimitri’s Night Club located in the hotel known as The New Albury Hotel. I mention that the applicant does not recall this meeting. He did not join them and they continued on to Dimitri’s. On First Officer McGeehan's evidence, they arrived there at 11.10 pm and he stayed with Captain Garside at Dimitri’s for up to an hour. They were talking and dancing with some females. There is no specific evidence that alcohol was consumed by them during this period. The applicant did not see any of the other crew members at that establishment and was the first of the crew to return   to the Motel at 1.30 pm. He went to bed and woke up after sleeping for approximately one hour and vomited once.
Subsequently under cross examination he suggests that he vomited because he had at the time been working long hours including studying at night school on a five night a week basis. The course which was conducted from July 24 to August 18, 1995 resulted in the award to him of a certificate in Aviation Physics on the basis of a seventy (70) per cent examination result . This was his explanation for being sick.
He had also suffered a viral infection which he described as Glandular fever. he had been certified as unfit to work from 31 May 1995 till 5 June 1995 . He was certified fit to resume his normal duties from 6 June 1995 ( Exhibit MB ) by his Doctor. First Officer McGeehan maintains that his doctor did not tell him to restrict his alcohol consumption as a result of suffering from glandular fever
After vomiting he went back to sleep and next recalls someone knocking on the door and saying “it is ten to seven.” When he came out of his room after dressing he saw the Night Manager knocking on “Don’s door” and heard Don’s voice and knew he was awake . He then had a cup of coffee in the foyer and five minutes later Captain Garside arrived as the taxi was pulling up. They arrived at the Airport at 7.10 am and he walked straight out to the aeroplane and commenced his pre-flight inspection on the aeroplane.
CAPTAIN MALCOLM NEWMAN
In support of their case the Applicants called Malcolm Sandys Campbell Newman who has been employed by Hazelton Airlines as an airline pilot since June 1988. On Friday night, 4 August 1995 Captain Newman flew a Hazelton plane from Sydney to Albury which landed at 11.20 pm. The other flight crew members on that plane were the First Officer Ian Waldron and Meredith Payne was the Flight Attendant.
After securing the aircraft, the crew took a taxi to the Greentree Motel. There seems to be no factual dispute that it takes between 5 and 10 minutes to travel from the airport to the motel. Captain Newman estimated they arrived at the motel: “round about 11.45 pm” According to Captain Newman the crew signed in the duty time book for the company.
The book,(or sheet), records when the crew actually signed off duty and the flight times and duty times completed for the day. It appears that the last crew to arrive is responsible for faxing the document to the head office of the Company. If such a document existed it was not tendered in evidence.
Captain Newman gave uncontested evidence that the plane flown by him arrived at Albury at 11.20 pm. It was fifty minutes behind its scheduled arrival time. This arrival time is significant because it coincides with the start of the eight hour rule for the first crew members ie "the bottle to throttle rule".
After changing into casual clothes the second crew left the motel "shortly after midnight”. This was clarified under cross examination to be about 12.15. am They walked down “Olive Street to Dean Street”. About two minutes later they met Flight Attendant John Kinnell walking in the opposite direction who tells them that he was going to the motel. Instead of going to the motel as was his original intention he was persuaded to join them. All four then “walked down Dean Street to the Terminus Hotel, which is on the corner of Dean Street and the Hume Highway."
The evidence which I accept from Captain Newman is : “ I think Ian and I both had one beer I think Meredith had a white wine, which is what she was drinking that night, and John had an Orange juice”. This testimony supports the evidence of Flight Attendant Kinnell that he had ceased to imbibe alcohol the previous night when he had his last "schooner" at the Terminus Hotel.
The beer they drank was of full strength and in the standard size known as a “Middy” glass. The Terminus hotel was closing so they left after 10 minutes. They did not meet the two applicants at this hotel as had been the expectation. Captain Newman asserts that Flight Attendant Kinnell stayed with them until shortly before 1.30 pm.
Captain Newman did not see First Officer McGeehan at all during the Friday evening or early Saturday morning.    I also regard this as confirmation that the applicant was the first member of the earlier crew to return to the motel. He testified that he next saw and spoke to First Officer McGeehan: "Very briefly at the bottom of the stairs on boarding the aircraft." This being the aircraft which left at 1.00 pm to return to Sydney on Saturday 5 August 1995. He further testified: "Did anything happen in the course of that flight?‑‑‑No, nothing - nothing unusual.”
Captain Newman made a statement to Mr. Gerard Comerford on or about 18 October 1995 at the Civil Aviation safety authority. That statement has not been tendered in evidence.
I was impressed with the evidence of Captain Newman and his positive contribution at two significant times with Captain Garside. Although he had no personal contact with First Officer McGeehan during the previous evening and early morning periods I can infer that he was well aware that all three members of the first crew were out socialising as it had been his intention to join them. I am of the view that had he believed First Officer McGeehan to be unfit to fly then he would have taken some action himself to rectify the situation at 1.00 pm on Saturday 5th August 1995. Captain Newman returned to the public gallery and remained seated there until the conclusion of the evidence given by Mr Thompson.
First Officer Waldron
Ian David Waldron is also an airline pilot employed with Hazelton Airlines since May 1994. His evidence supports the case for the Applicant. On Friday 4 August 1995 he also flew from Sydney to Albury with Captain Newman and Flight Attendant Meredith Payne as the First Officer on that flight.
First Officer Waldron testified that the plane was running a bit late that evening and 11.25 was the sign-off period. He states that they arrived at the Greentree Motel somewhere between a quarter to 12 and 12 o'clock.. He went upstairs and changed and then met Captain Newman and Flight Attendant Meredith Payne in the foyer of the motel at 12.10 am or 12.15 am.
He reports then leaving the motel and walking towards the town centre where they met with Flight Attendant Kinnell who was heading back towards the motel at that time. He confirms that they met near the Police Station. He cannot recall the actual conversation that took place. He confirms that they went to the Terminus Hotel and had one round of drinks in that hotel. Although he agrees it was standard beer he cannot recall whether it was a middy or a schooner. They left that hotel and went to another hotel, which was down the street some distance. After checking his notes First Officer Waldron still could not recall the name of this second hotel.   They had further drinks here although Flight Attendant John Kinnell drank orange drink.
He says they arrived at the Dimitri’s bar at around 1.45 am without Flight Attendant Kinnell who he suggested left at about 1.30 am. He did not see First Officer McGeehan that night.
He also confirmed that the afternoon flight back under the command of Captain Garside was uneventful. This evidence supports the case for the Applicant. Again, although excused by me from further attendance, he was asked to remain sitting in the public gallery of the court room.
Flight Attendant John Kinnell
The first of the witnesses for the respondent was Flight Attendant John Kinnell who has been employed by Hazelton for just over two years. He arrived in Albury on Friday 4 August 1995 at around 8 o'clock in the evening and went to the Greentree Motor Inn. He met Captain Garside and First officer McGeehan around 8.30 pm but no later than 9 o'clock and then went to Soden's Hotel, arriving there about 10 minutes later and conceding they remained there: "maybe it would have been an hour." They then left Soden's and went to the Terminus Hotel "about 15 minutes walking time." Again they drank and he then left with Captain Garside and First Officer McGeehan "standing at the bar finishing off their drinks"
The evidence in chief of Flight Attendant Kinnell was given in summary form in relation to the drinks "shouted" between Captain Garside, First Officer McGeehan and himself. However he confirmed under cross examination the account given by his fellow crew members of the "shout" together with the number and standard of drinks consumed by all of them while they were together.
The evidence of all three crew members reminds me of the former legendary “6 O’clock Swill” days when many rounds of beer were ordered and drunk just before the hotel was forced to close at 6.00 pm. Since then there has been a substantial change in the attitude of the community towards the consumption of alcohol.
He left with the intention of going back to the Greentree Motor Inn and started to walk up the street, when he got lost. Because he didn't know his way around, he walked up the end of the street, realised that he was going the wrong way and turned around and started to walk back again.
On his way back down he met Captain Garside and First Officer McGeehan. They were out on the street. Flight Attendant Kinnell alleges that this meeting took place "half an hour, 30 minutes after he had left them at the Terminus Hotel” and "It would have been after midnight". Using a map he stated that he met Captain Garside and First Officer McGeehan on the corner of Olive and Dean Street. They asked him to continue on with them, but he refused saying he was going back to the motel. He cannot remember the name of the pub or hotel they said they were going to attend. He crossed the road and started walking along Olive Street and then met up with the second crew outside the police station ten or fifteen minutes later.
I found his evidence at this stage to be very confused about the location of the various drinking establishments he attended on that night. I am also of the view that not much reliance can be placed on his time estimations. Captain Newman maintains that the second crew met Flight Attendant Kinnell two minutes after 12.15. The shortly after 12.15 pm. time is also confirmed by Flight Officer Waldron and Flight Attendant Meredith Payne in their evidence. On this basis, I am able to determine that the second crew met Flight Attendant Kinnell shortly after 12.15 pm and they went to the Terminus Hotel for a short period. They then went to a second hotel for about 20 minutes or half an hour. On this version he would have left to return to the Greentree Motor Inn around 1.00 am. I do not accept his timing as correct. It is more likely that he returned to the motel after 1.30 am and closer to 1.45 am. In addition, I have discounted his evidence on these issues, inter alia, because I have allowed for a component of self interest.
He then testified that he walked through the foyer and that the night manager was there although he was not too sure about this aspect. I find it significant that he does not mention the need to call the Night Manager to gain access to the Motel.
The alcohol consumed by all three of the first crew should be compared with the more moderate drinking of Captain Newman ie. middies instead of schooners. The evidence of Captain Newman is most important because it shows a healthy respect for “alcohol” and confirms that Flight Attendant Kinnell was “shortly after 12.15" drinking “Orange Juice”. This in my view tends to support the accounts of both Captain Garside and First Officer McGeehan that their last drinks were taken at the Terminus hotel. If this were not to be the case both of them would have been fully aware that they were flaunting the eight hour rule. I am of the opinion that none of the first crew were in breach of this rule.
Flight Attendant Kinnell confirms that he did not have an arrangement for a wake up call. He arose about 5.30 expecting to depart the hotel at 6.30. This was because the flight was due out at 7.20, and normally they have to be at the airport 45 minutes before the flight becomes airborne. He waited downstairs whilst the taxi turned up not long after he arrived in the foyer.
After a while he asked the Night Manager how to ring the rooms. He dialled and got no answer. He rang one of the rooms and the other phone did not give a tone or ring. Again he is unsure as to what he did in relation to the phone calls. However, he then went up to the level that the rooms were on to knock on the doors. He only knocked on one of the doors. Again he could not remember which door he knocked on. When counsel for the respondent sought to clarify this he answered "216" or "217" which is clearly not right, for the rooms occupied by either of the applicants. He knocked on a room on the left hand side but when no one answered he went back down to reception. He further testified "the night manager then telephoned and the taxi driver had come in and said that the meter was running, so I went with the taxi driver out to the airport and asked him to call another taxi or come back to the hotel". I find that at about 6.50 am Flight Attendant Kinnell decided to go in the taxi to the airport and, at the same time, also requested the Night Manager to go up to Don and Brett's rooms and wake them up.
He then "took the catering into the airport”, said to Kate that “Don and Brett will be over later” and went out to the aircraft and took off the prop ties, “and the - I can't remember what they call them - and the chocks around the wheels". The removal of the prop ties and the wheel chocks would not normally be part of his duties but he had done this because they were running late. He then asked "John who's the groundsperson down there to open up the aircraft so that he could get into it and went back into the terminal and started with the urns and getting the catering ready".
At about 7.15 am he was in the back room behind the check-in, and the applicant came in : "Brett came through first, I think and said, "Thank you for waking us up." and Don came through and he said the same thing and I said to Don that I did try but nobody answered and Don just said, "Okay" and left it at that".
His observation of their appearance that morning when they arrived at the airport was that they seemed normal and they were in their uniform. During the course of the trip, “Brett had remarked to him that he was tired and that he had to do Albury, Sale and Traralgon afterwards.” He does not remember further conversation. He gave no other evidence of anything else wrong with the flight.
He was asked about drinking with either Brett or Don previously to the events of Friday 4 August 1995 and Saturday 5 August 1995. He conceded he had been out with Captain Garside when he was based in Geelong in March 1995. They had gone to hotels and bars that were in Geelong itself and they both drank alcohol. On that occasion Captain Garside was to passenger out whilst Flight Attendant Kinnell was working as the flight attendant.
Captain Garside was late for the flight and in conversation with Flight Attendant Kinnell suggested he was not feeling well. Flight Attendant Kinnell gave a description of his appearing "tired". He did not recall the time they finished on that occasion in Geelong although he did not think it was very late.
There are a number of inconsistencies in his evidence: Under cross examination by Mr Sweeney counsel for the Applicant, he did not remember the room he was given. At the time of giving his evidence he did not recollect the room numbers but says he knew them at the time of the incident.
He told the Civil Aviation Safety Authority he was drinking light beer when this was clearly not the case. He admits that he was not keeping track of time too precisely, during the evening and they remained at Soden's Hotel between 45 and 60 minutes. They were at The Terminus Hotel for something like the same period. He agreed that he left between 11.00 pm and 11.30 pm.
He confirmed that at the time he left The Terminus Hotel: "Don and Brett were finishing their drinks at the bar and they appeared quite normal and they did not appear drunk.". On his own admission Flight Attendant Kinnell could only have slept between three and a half hours and three and three quarter hours on that morning.
His evidence that he had stayed at the motel previously and had never noticed any difficulty about getting in to the motel after midnight supports the case of the applicants. He maintained that he had never noticed the doors locked so that you could not get in. On the morning of Saturday 5 August 1995, he did not remember them being locked so as to prevent him entering the motel.
He confirmed that at all times Captain Garside and First Officer McGeehan appeared normal and were not drunk. He also agreed that the next morning when they got to the airport, they again appeared normal.
An interesting response from Flight Attendant Kinnell occurred under re-examination by counsel for the respondent:
"Are you able to say how it is that you recollect that it was after midnight when you met Don and Brett in Dean Street?‑‑‑Because I was annoyed that I was only going to get sort of four or five hours sleep if I had to get up again. That's why I wanted to get back to the hotel so I could get to sleep".

My view is that this response arises out of the evidence of Flight Attendant Meredith Payne who maintains it was she who was daring him to stay out to 1.30 am and not the applicants which in my mind fixes the response as being attributable to the later part of the outing and therefore cannot be relied upon to establish the time of the earlier meeting.
Abusive Telephone Calls
There was an allegation made by Flight Attendant Kinnell that the applicant had made abusive phone calls to him. No allegation of that nature was alleged against Captain Garside.
There was some relatively extensive evidence about telephone lists, phone numbers both listed and unlisted. He testified he had to change an unlisted number to another unlisted number in late 1995. His reason being because he was receiving phone calls throughout the night on a regular basis, or hang-up calls.
The first time that a call came through was on New Years Day there was a voice that said "Dobber". He maintains he was able to recognise the voice as "Brett McGeehan's". He received a further call about 1 or 2 in the morning which said: "Happy New Year, Dobber". He maintained the voice of the caller was the same.
He was cross examined about the telephone calls and admitted that he had not spoken to First Officer McGeehan before on the telephone.
On 2 February 1996 he received a telephone call from the applicant at his home. First Officer McGeehan asked him to come in and meet with his solicitors or barrister on the Monday morning. No doubt on this occasion the applicant identified himself to Flight Attendant Kinnell. Prior to this case commencing there have been no more phone calls of this nature since New Years Day. The second part of the allegation was that the applicant telephoned to a number that was unlisted telephone number for Flight Attendant Kinnell and that this supported the identification of the voice of the applicant by Flight Attendant Kinnell on the earlier occasions when the abusive calls were made. However the allegation of the applicant being in possession improperly of the telephone number was withdrawn when the Applicant was able to produce a telephone account which listed the 2 February 1996 call as having been made to the number listed on documents freely available to the applicant prior to his termination.

In the circumstances there is no other evidence other than the denial of the applicant that he made the call. I have had regard to the discussion on the issue of voice identification contained in the remarks of Chief Justice Brennan in R v Bulejcik 135 ALR 517 at pages 520 to 521. In the light of these observations and the state of the evidence against the applicant I am unable on the balance of probabilities to support any conclusion adverse to the Applicant on this issue.
The Night Manager
Mr Thompson, the Night Manager of the Motel gave evidence on behalf of the Respondent.
Until 23 August 1995, Mr Thompson was employed as the Night Manager of the Greentree Motel at Albury. He had held that position for 11 years and prior to then he was employed as general handyman. Before working at the motel he did aircraft maintenance at Albury Airport. He had prior service with the Royal Air Force as a aircraft fitter in the United Kingdom.
As the Night Manager of the Greentree Motel, his normal hours of duty were 10.45 pm till 7.00 am, 7.30 am over five days per week on a roster basis. He testified it was his normal practice to
"shut the side door - approximately mid-night, and check the back doors, once all the staff have left; check all ground doors are shut, barring the main doors."

When he leaves the reception area he shuts the main doors and locks them.
He drew a sketch of the entry lobby and associated areas of the motel. I am satisfied on the evidence that at all relevant times the applicant came and went through the main doors of the motel, all other doors being locked by about 11.45 pm.
Mr Thompson further testified that the front sliding doors open and close as people enter and leave. If it is a really hot night they are left open. If the doors have not been switched off he remains around the corner near the Manager's office behind the front desk. If the doors are locked off there is a night bell and it operates a beeper that was carried by Mr Thompson. If the night bell is pressed and the beeper operates Mr Thompson goes immediately to the front doors to open them.
Mr Thompson testified he came on duty on the evening of 4 August 1995 at his normal time - 10.45 pm. He recalled a Hazelton crew - two males and one female - arriving at the motel towards half past 11. No arrangements were made for wake up calls. They were the late crew and were not due to leave until the afternoon.
The arrangements for a wake-up call for the early crew are normally booked before Mr Thompson arrives and they are recorded on an early morning call sheet. The call sheet is destroyed. It was part of the duties of Mr Thompson to make sure the aircrew are woken.
He further testified that he spoke to the "early crew" at 1.30 when: "he came in through the front doors". Mr Thompson suggests that they had a conversation but cannot recall “what he said”. He described him as steadyish. Asked to explain he replied: "I'd say he would have had a couple of beers at least. He swayed a bit as he walked". Mr Thompson concedes that he did not see Flight Attendant Kinnell return "to the motel". This is consistent with the recollection of Flight Attendant Kinnell. He then identified the Applicant First Officer McGeehan as being the person who he had described. First Officer McGeehan was sitting in the court at the end of a row of his male colleagues.
I have some reservations about whether this was a clear recollection or a reconstruction based on his suggested normal practice of asking everyone if "they've had a good night and how they're feeling". I have not included his description of the return of Captain Garside in these reasons.
The next involvement of Mr Thompson was to wake the crew. Mr Thompson says he first rang Room 215 and got no answer and then tried 214 and it came out not connected. He then gave 215 a try again, got no answer so he went up and knocked on the doors at about ten past six. He knocked on 215 first and got an answer so he shouted: “this is a wake-up call”.
He then tried 214 which was the room occupied by Captain Garside and got no answer at all: "so as I say, I used my master key, went in and shook him".
At about 6.25 am - 6.30 am the Flight Attendant Kinnell came down to the foyer. Again Mr Thompson could not recall the detail of the conversation except that: "I just told him that the other two - I had only just woken them up".
Mr Thompson agrees with the evidence of Flight Attendant Kinnell that the pre-booked taxi arrived about that time and thereafter Flight Attendant Kinnell went out to the airport and the taxi was to come back or another one summoned. There is a significant difference between the testimony of Mr Thompson and Flight Attendant Kinnell who suggests he asked the Night Manager to go up to their room and wake them up.
Mr Thompson went back up and was just about to open the door of Room 215 (the room occupied by First Officer McGeehan) when: "I knocked and he opened it himself. He was three-quarters dressed". Mr Thompson says he told him that the taxi had gone and was on its way back. He recalled that: "Brett came down about 5, 10 minutes later" and he offered him a cup of coffee. He described First Officer McGeehan to me as: "White. He looked as though he'd got a hangover, slight hangover type thing".
At about the time when the taxi came back Mr Thompson told First Officer McGeehan "well, he'd better go and I'll go up and see what I can do with the other fellow". It was at this stage Captain Garside came down in a lift with "other people that were on a coach".
Mr Thompson further testified that the girl at the Hazelton desk: "rung me up twice getting very desperate and the second time she rung up I told them they'd just left, the taxi was just pulling out". Mr Thompson had to go up and get the keys to the doors. In Room 215 he noticed: "he'd vomited on the floor round the edge of the bed, towels were just flung on the floor on the carpet towards the bathroom, in the bathroom."
He concluded his evidence in chief with this observation about their capacity to fly an aircraft: "Well, if I'd have been a passenger, I wouldn't have flown with him".
Under cross examination Mr Thompson suggested: "First Officer McGeehan had a slight sway, that's all." Moreover when he walked from the desk to the lift he "wasn't quite in a straight line." He confirmed that he had "told the Civil Aviation Safety Authority that First Officer McGeehan appeared to have had a few drinks but was not what I would consider to have been drunk".
During his cross examination Mr Thompson disclosed to me for the first time that after 1.30 pm he was balancing the tills at the desk. This is not mentioned in his earlier statements.
Mr Thompson first made a statement about these issues to the company on 12th September 1995. That statement incorporates the following matters with respect to First Officer McGeehan.
1.He is able to ascertain levels of intoxication because; "in my previous role a lot of people come in at different levels of intoxication. Usually tell by speech and way walk to lifts".
2.There was no other involvement with the two prior to the early morning call.
3.Early morning calls were booked for Captain Garside and First Officer McGeehan. Flight Attendant Kinnell did not want an early morning call "but he was at the desk at the time of calls".
4.At 5.45 am Don's phone at 214 was off the hook. Brett's phone rang on 215 for three minutes without answering.
5.Went to Don’s room (#214) knocked loudly on door.
·   No Answer. (I was concerned about customer’s physicals state).
·   I used master key to open door.
·   Couldn’t stir him.
·   Shook his feet.
·   Stirred.
·   Knocked on #215 (Brett).
·   I also opened door just as he approached.
6.When he went back to Brett's room later to lock up I noticed that he had vomited in the room.
7.He maintained that First Officer Brett McGeehan "clearly wasn't well (looked like quite a bad hangover)".
8.There were a group of crew that came in after "Don" but they clearly were not in the same state as Don.
9.He made further observations: From your observation in the morning do you believe they were in a fit state to drive a motor vehicle - "no neither were". Would you have an opinion about flying with them in that state? Answer "I thought on the previous night they were the "late crew". I was in the English Airforce and if the crew reported in that state I would have reported them incapable of flying".
10.Went downstairs

Suggested to flight attendant that he should go and send back taxi for other two (it was close to 7 am). Said I will go and get them out!
Went up to 215, knocked on Brett's door, said he was coming.
........
........
........
Went downstairs.
Brett having coffee.
Taxi back.
Said Brett better go out, would get Don there later.
Just then, lift door opened with some "coach passengers and Don".
........

There is a further statement made some two days later to the Civil Aviation Safety Authority by Mr Thompson which is dated 14 September 1995. In his statement dated 12 September 1995 to the Respondent Mr Thompson makes the following claims about First Officer McGeehan:-
1.He recalled the incident some four weeks ago on 4 and 5 August; "because it was a time when I could not get the crew members out of bed in the morning".
2.He claimed to be located at the night desk: "with the door locked guests needed to ring the bell at the front desk and I would let them in".
3.The tall fellow (Brett) arrived approximately 1.30 am, there was no conversation and he just took the key.
4.His opinion on his level sobriety at the time was; "he clearly had been drinking but not plastered".

It is important to note that the statement dated 14 September 1995 varies in a number of significant ways from the document which was prepared by Mr Escott. It includes the following endorsements:-
"This statement made by me accurately sets out the evidence which I will be prepared, if necessary, to give in court as a witness. This statement is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true."

That endorsement is necessary in order for the statement to be admissible as evidence in any committal proceedings in New South Wales under (Section 48A Justices Act 1902 (NSW). Moreover it should be noted that Section 48H Justices Act 1902 provides that if a person makes a false statement then they are subject to penalties. For an offence which is dealt with summarily the maximum penalties are 10 penalty units or imprisonment for a term not exceeding 12 months or both whilst where the offence is dealt with on indictment the penalty is fifty penalty units or imprisonment for a term not exceeding five years or both. In the light of these endorsements it seems to me that this statement although it is later in time then the earlier one is the one to which most attention ought to be directed.
It is clear that there are a number of variations to the story which was told by Mr Thompson although not in my view deliberate but they create sufficient discrepancies to make his evidence unreliable and to require a substantial discount when taking it into account.
The first alteration in his statement is as follows: "at approximately 1.30 am a Hazelton airline pilot subsequently known to me as Brett arrived at the motel." It is clear from the way this statement is worded that Mr Thompson could not identify First Officer McGeehan by name at the time he arrived back at the motel and that his description of his appearance at the time therefore is suspect.
The statement continues:
"I greeted him and then he went to the lift to go to the second floor where he was staying in room 215. Brett was dressed casually.” This statement differs from the impression gained from the earlier statement where he says that there was no conversation and that the key was simply taken.
The next part of the statement is "he appeared to have had a few drinks but was not what I would consider to have been drunk". This description differs from the description given in his earlier statement. In the later statement he mentions "as he walked towards the lift he appeared to sway a little". There is no suggestion in the earlier statement that First Officer McGeehan had swayed at all coming into the premises.
He makes the following statement regarding the night security checks: "during the night I conduct security checks of all areas inside and outside the building. When I undertake those tasks I lock the front door when I leave the reception area". There is clearly quite contradictory evidence from at least two or three other members of the Hazelton crews that they were able to come back into the motel and the front door of the premises was not locked.
There is an even more significant change as follows:
"About 4.00 am three more Hazelton flight crew members, two males and a female arrived. I allowed them entry to the motel, I recall giving room keys to two of them and they went also to the second floor. In my opinion none of those crew members were affected by alcohol."

I find his claim that none of those crew members were affected by alcohol a little difficult to accept given the acknowledgment that they had been out drinking for a considerable period of time. Nevertheless I am not obliged to consider this aspect of the matter in this case. The remainder of this part of the statement is quite clearly wrong because the evidence from Captain Newman, Flight Attendant Meredith Payne and Flight Officer Waldron is to the effect that Flight Officer Waldron returned to the motel separately and before Captain Newman and Flight Attendant Meredith Payne who returned together much later in the morning.
There is a further discrepancy in his statement on the question of the time of the early morning calls:
"in respect to rooms 214 (Don's room) and 215 Brett's room I rang them at the requested time 6 am approximately, there was no answer from Brett and Don's 214 was unobtainable indicating the telephone was either broken or disconnected."

He claimed in his earlier statement that he had phoned at 5.45 am.
Again he makes a further claim as follows:
"following this I went to the second floor and knocked on Brett's door, Brett answered I received no answer from Don's room and I then used my master key and entered Don's room. It has been my normal practice to use the master key to gain entry to any room which does not respond to either a telephone or a knock on the door".

This incident is set out in the reverse order to that which was outlined in the earlier statement.
The statement further goes on to say:
“I entered Don's room 214 he was in the bed with the blanket over his head lying on his back, I shouted and received no answer and then shook him by the toes. He appeared to awake and mumbled something I said it is your wake up call and then went back down to the foyer.”

The male flight attendant with Brett and Don's flight was already in the foyer waiting. I would estimate the time to be about 6.30 am. I told the flight attendant that I had just woken his mates up because they did not answer their calls.
It seems to me that his evidence then coincides with that of Flight Attendant Kinnell leaving to take the taxi to the airport.
Thereafter his statement again contradicts, the earlier statement about the dress: "In my opinion that morning Brett appeared to be suffering from a hang over but was properly dressed, Don appeared to be still under the influence of alcohol based on the way he looked and his general appearance."
He again makes the statement that he would not consider either Brett or Don fit to fly any aircraft that morning. I observe that unfortunately he did not see fit to make any complaint about it at the time although he had two clear opportunities when the "girl at the Hazelton desk rang."
In my view the exact time of the departure from the motel of the applicant and Captain Garside no doubt could have been independently checked with the records of the taxi company, however I expect that it was between 7.00 am and 7.10 am.
The Night Manager, Mr Thompson, is a witness who had a long aviation background in Britain and Australia before joining the motel and becoming its Night Manager. By his answers and demeanour whilst giving evidence he left no doubt in my mind that he was appalled by the behaviour of the air crew on this occasion. Mr Thompson also showed a degree of irritation in his manner towards the two men and I consider that this may have coloured, although not in an intentional way, his evidence to me. Moreover he had two clear opportunities being the telephone conversations with the Airport operator when by raising his concerns, he would have been able to put a stop to them flying the plane. For whatever reason, he did not adopt this course of action.
In the light of the discrepancies between his statements and his evidence, I cannot accept that Mr Thompson, albeit with all the goodwill in the world, can be regarded as a sufficiently reliable witness upon which an expert can rely to justify findings as to alcohol intake. My view is reinforced by the differences which have occurred in the various reports he has given of his observations of the applicant and Captain Garside. I have dealt with his observations of Captain Garside separately and not in this decision.
Observations made by me of Individuals present in the Public Gallery of the Court Room During the Hearing
Throughout the hearing, a number of male persons, presumably colleagues of the applicants or fellow employees, attended the hearing and sat together with First Officer McGeehan and Captain Garside. Occasionally, some females joined them. This sitting arrangement was, in view of the circumstances, no doubt intended as a forensic exercise to test the identification memory of Mr Thompson. This device failed because Mr. Thompson was able to correctly identify in court Captain Garside and First Officer McGeehan. Although his description of Captain Garside having dark hair was clearly wrong it being red or reddish in colour and he gave an incorrect estimate of his height.
The High Court has considered the question of “in court identification" recently in Dominican v R (1992) 173 CLR 555 and notes that “the Judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed”. Generally, reservations are often held about the identification of persons by eye witnesses. (See also the High Court decision Davies and Cody v. R (1937) 57 CLR 170 at 180) The importance of the identification made by Mr Thompson of the two applicants is that his description of their appearance on their return and exit from the motel is the keystone on which the evidence of the expert for the respondent stands. In my view little reliance can be placed on the evidence of Flight Attendant Kinnell on this issue as he consumed the same amount of alcohol as the applicant although in a slightly shorter time, nevertheless his observations of their appearance and sobriety is favourable to the applicants. It is clear from the statements made by Mr Thompson and from his cross examination that he has received some assistance after the events in identifying the applicant and Captain Garside. The extent of that assistance in identification is not clear. Although this is not a criminal trial the allegations are quite serious and the standard of evidence falls within the scope of Briginshaw v Briginshaw (1930) 60 CLR 336. My view is that this standard has not been reached.
Expert Report
The respondent engaged Dr Chesher to provide a report on "the consumption of alcohol by the applicant on the evening of August 4, 1995."

The Report dated February 5, 1996 contains the following qualification:
"It is possible to make estimates (and they are only estimates) of the blood alcohol concentration (BAC) of a drinker if one has accurate information as to several variables. The estimates I provide below are presented as a range of possible BAC’s as these take into account the extremes of the range of the rate with which alcohol is metabolised by the liver in healthy, moderate drinkers."
His initial report as is relevant to the applicant is as follows:
"A.     The matter of First Officer McGeehan
           Estimation of possible blood alcohol concentrations.
I understand that First Officer McGeehan is aged 29 years, about 6 feet tall and of “thin” build. I do not know his body weight, but for the purposes of the following estimations of the effects of alcohol I have assumed two possible body weights: 65 and 85 Kg.
I understand that First Officer McGeehan flew from Sydney to Albury as a passenger on 4 August 1995 arriving in Albury at approximately 9.00 pm. He may have consumed light refreshments during the flight. From 9 or 9.30 pm until approximately 11.00 pm you have told me that he consumed 5 schooners of full strength beer (82 G alcohol), without eating.
At approximately 1.30 am he returned to his motel where the night manager observed that “he appeared to have had a few drinks but was not what I would consider to have been drunk--as he walked towards the lift he appeared to sway a little”
He slept through a wake-up call at 6.00 am and was subsequently awoken by the night manager of the motel, knocking loudly on his door (Room 215) at 6.50 or 7.00 am.
The night manager of the motel observed that First Officer McGeehan had been sick in his room and had vomited near the bed and also towards the toilet.
First Officer McGeehan had a cup of coffee before leaving for the airport where he arrived at approximately 7.20 am and he flew from about 7.40 am on August 5th until approximately 5.00 pm on a number of continuous trips."
Dr Chesher in this report made estimations of blood alcohol concentrations for the applicant. They were made with the assumption that the alcohol had been consumed on an empty stomach.
His estimates were:
"I       Assuming a body weight of 65 Kg
(a)      Shortly after 11.00 pm, I estimate that the likely peak concentration of alcohol would have been between 0.14 and 0.16 G alcohol per 100ml blood (G%)

(b) At about 1.30 am (arrival at the motel) I estimate that his BAC would have been within the range of 0.07 to 0.14 G%

(c) At about 7.30 am I estimate that his BAC would have been within the range of 0.00 to 0.07 G%

II Assuming a body weight of 85 Kg the above estimates would be:-
(a) 0.10 to 0.13 G% (Shortly after 11.00 pm)

(b) 0.06 to 0.10 G% (At about 1.30 am)

(c) 0.00 to 0.05 G% (At about 7.30 am)"

Those aspects of his report concerning Captain Garside are not reproduced in these reasons.
He then went on to make “Comments and give opinions on the above estimates of blood alcohol concentration.
Mr McGeehan

Your list of assumptions indicated that the night manager of the motel indicated that at the time of his arrival at about 1.30 am observed that Mr McGeehan “appeared to have had a few drinks but was not what I would consider to have been drunk--as he walked towards the lift he appeared to sway a little”

I also note that the night manager indicated that Mr McGeehan had vomited in his hotel room.

Following the consumption of 5 schooners of beer over a period of only two hours I estimate that at 1.30 am, being some 2.5 hours after completion of his last drink, he was likely to have had a BAC between 0.06 to 0.14 G% (depending on his body weight). At this time he would have developed some degree of acute tolerance (see footnote), and the description by the night manager could be consistent with these estimations of BAC. This possibility is strengthened if one assumes that Mr McGeehan is not an experienced drinker. Indeed, I understand that when asked he described himself as a “light drinker”.

I believe that earlier in the evening, and shortly after 11.00 pm Mr McGeehan would have been exhibiting much more striking signs of drunkenness than those that were observed by the motel night manager.
The fact that Mr McGeehan had vomited during the night, and that this vomiting appears to have been quite sudden (not having had time to reach the toilet) could be attributed to an inexperienced drinker having consumed more than his usual intake of alcohol and over a relatively short period of time. There are of course other explanations for the induction of vomiting.
........ ........ ........ ...
Comment must also be made concerning the difficulty experienced by the night manager of the motel to arouse Mr McGeehan and the extreme difficulty in waking Mr Garside in the morning of August 5 1995. Such fatigue is consistent with a depressant drug such as alcohol. Nevertheless, in my opinion it is unlikely that a depression of this order is consistent with the blood alcohol concentrations estimated for both of these gentlemen. Either more alcohol than that stated in your instructions had been consumed, another hypnotic drug had been taken or both of these gentlemen were already fatigued and the events of the evening and morning of August 4 and 5 had been additive. However, in the case of First Officer McGeehan, if we assume him to be a light drinker, and if we take into account his episode of vomiting, it is possible that his deep sleep could be consistent with his stated alcohol intake.

The effects of fatigue on skills performance associated with the driving of a motor vehicle or the operation of machinery have been well documented. For this reason, the road safety programmes include fatigue as a special factor for their road safety measures.

Yours faithfully
[signed]
G B Chesher, M Sc, Ph D.

Footnote: Acute tolerance.

It is well documented that during the stage when drinking has stopped and the blood alcohol concentration is decreasing as a consequence of metabolism, an adaptation takes place in the brain to compensate for the behavioural effects of alcohol. This adaptation is termed an ‘acute tolerance’. This phenomenon is frequently demonstrated in experimental studies as showing a striking difference in the signs of drunkenness at the same BAC. When the BAC is rising (ie during the course of a drinking session) the signs of drunkenness are more obvious than they are at the same BAC after drinking has stopped and the BAC is falling."
Supplementary Report Dated 12 March 1996
On 12th March 1996 Dr Chesher amplified his earlier report dated February 2 1996 concerning the alcohol consumption of First Officer McGeehan. He did this having heard the evidence given by the applicant in court and receiving a copy of the transcript of the proceedings on February 8 and 9, 1996.
Dr Chesher gave a revised summary of his opinions concerning the alcohol intake of the applicant based on the information available then to him as to descriptions of his behaviour on the evening of August 4 and the morning of August 5 1995 as follows:
Mr Brett Andrew McGeehan
Mr McGeehan gave his age at the hearing as being 28 years, his height as 6’3” and his weight as 86 Kg. He indicated that his weight varies between 85 and 90 Kg and that in August 1995 he may have been heavier than 86 Kg
In my earlier report I made estimations of the possible blood alcohol concentrations achieved by Mr McGeehan after his consumption of five schooners of beer over a period of about 2 hours. For these I assumed a body weight of either 65 Kg or 85 Kg. Below I reproduce the values for 85 Kg and I have added my estimates for a body weight of 90Kg
I          Assuming a body weight of 65 Kg
           (a)      Shortly after 11.00 pm, I estimate that the likely peak concentration of alcohol would have been between 0.14 and 0.16 G alcohol per 100 ml blood (G%)
(b)      At about 1.30 am (arrival at the motel) I estimate that his BAC would have been within the range of 0.07 to 0.14 G%

(c) At about 7.30 am I estimate that his BAC would have been within the range of 0.00 to 0.07 G%

II Assuming a body weight of 90 Kg
(a) 0.10 to 0.12 G% (shortly after 11.00 pm)

(b) 0.05 to 0.10 G% (at about 1.30 am)

(c) 0.00 to 0.05 G% (at about 7.30 am)

Behaviour -v- blood alcohol concentration
In my earlier report I assumed that Mr McGeehan was not an experienced drinker and I therefore considered that the night manager’s description of his behaviour at about 1.30 am, some 2.5 hours after his last drink at 11.00 pm would have been consistent with my estimation of his BAC at this--time being between 0.06 and 0.14 G% or for 90Kg 0.05 to 0.10 G%.
During the course of the hearings, I have had some reasons to modify this. During cross examination by Mr Goot, Mr McGeehan described himself as a light to moderate drinker [p126; l 24]. However, he later qualified this definition to mean that since August 1995 he has been a light to moderate drinker. Prior to August 4th he admitted to having consumed as much as five schooners of beer in the space of one and three quarters of an hour, at a frequency of three, four or five times a month. [p132] Furthermore, he considered that after drinking five schooners in about one and three quarter hours, that he was not drunk, and that he could “handle” this amount of alcohol. [p127; l 46] He did not believe that he was over the legal limit of BAC for driving a motor car. [p131] It is also important to note that this amount of alcohol was consumed on an empty stomach. He had only eaten sandwiches at lunch and on the flight down to Albury.
Therefore from his description of his feelings of his own capacity shortly after drinking this amount of alcohol I would assume that at the time he returned to the motel some 2 to 2.5 hours later (at 1.00 or 1.30 am August 5) he would have not only metabolised more alcohol but also have developed acute tolerance. Therefore, as he was quite experienced in consuming this amount of beer, I would not expect that he would have exhibited the obvious signs of drunkenness as described by the night manager (“appeared to have had a few drinks but was not what I would consider to have been drunk--as he walked towards the lift he appeared to sway a little”)
This is one reason why I think we must consider the possibility that Mr McGeehan had consumed more alcohol than he has stated, perhaps at Dimitri’s.
Determining a possible cause of vomiting
Another reason concerns the reported matter of Mr McGeehan having been physically sick (vomited) in his room after he retired to bed on the morning of August 5th 1995. According to his evidence he had not consumed more than the five schooners of beer, completed at 11.00 pm (August 4). Mr McGeehan returned to the motel at about 1.00 or 1.30 am, some 2 to 2.5 hours after he claims he had his last drink. Mr McGeehan, who claimed to have consumed this volume of alcohol at a frequency of 3, 4 or 5 times per month made no mention of having been sick after this volume of alcohol on other occasions. Indeed, I believe it unlikely that this bout of vomiting could be attributed to the consumption this amount of beer some 2 to 2.5 hours previously. In my experience with laboratory studies involving the administration of alcohol at about this dosage, those volunteers who vomit, do so when the blood alcohol concentration is rising, or shortly after peak.
When vomiting does occur some hours after a drinking session it is usually after a greater concentration of alcohol than we are discussing here and usually involves the consumption of spirits. Under these circumstances the emptying of the alcohol from the stomach can be delayed because the alcohol causes a pylorospasm (a spasm of the sphincter through which stomach contents pass in order to reach the duodenum and the small intestine). Alcoholic spirits can be irritating to the stomach wall and eventually the contents of the stomach are expelled by vomiting, often very forcibly.
Of course, I cannot say with any certainty that this is what happened in the case of Mr McGeehan. He did have a recent episode of a viral infection that McGeehan described as glandular fever. Glandular fever can cause liver damage or hepatitis. In these cases the sufferer cannot tolerate alcohol and suffers nausea and vomiting. However as Mr McGeehan claimed to have consumed on many occasions several schooners of beer over the short period of two hours since his episode of the viral infection and had made no mention of any intolerance or vomiting, it is perhaps possible to exclude this infection as a cause of vomiting.
Mr McGeehan was not clear as to when the vomiting did occur. He said that on his return to the motel he just went up to bed, went to sleep and the next thing he recollected was that he woke up and was ill. [p118] He is not sure when this was though it could have been approximately one hour after he went to bed. It was still dark at the time. [p118]
In the absence of an alternative explanation, the described episode of vomiting must be considered as another possible reason for suggesting that Mr McGeehan may have consumed more alcohol (spirits?) after 11.00 pm, possibly at Dimitri’s.
A matter of oversleeping
From hearing the evidence and reading the transcript I am not aware of any clear evidence that the 6.00 am wake up call for Mr McGeehan did actually sound. Nevertheless, Mr McGeehan admits that it was unusual for him not to wake at the required time and he did indeed require the reminder given by the night manager of the motel knocking loudly on the door. There is no doubt that Mr McGeehan did oversleep.
After assessing all of the evidence to date I now believe it unlikely that this oversleep can be attributed to the consumption of five schooners of beer between 9.00 and 11.00 pm the previous evening. Mr McGeehan is certainly not a naive drinker and he reports that he was not unduly affected after he had drunk this amount of beer. Furthermore this alcohol was consumed some eight hours before the oversleeping. For these reasons I believe that a more likely possibility is that he had consumed more alcohol in the morning of August 5 1995, presumably at Dimitri’s.
The hearings resume on March 19th. Some of the opinions expressed above have been based on the assumption that the evidence yet to be presented by some witnesses will prove to be sustainable.
Yours faithfully
(signed)
G B Chesher, M Sc, Ph D"

Dr Chesher also sat through the whole of the proceedings to hear the evidence of all witnesses except for one occasion when he needed to leave the Court room for a personal reason and at that time I noted his departure and subsequently recorded it on the transcript after he returned. I am satisfied that during that period he did not miss any evidence which could have significantly affected his opinion. During the hearing he shared with me his opinion of the witnesses in a frank and honest discussion which took place between us.
Dr Chesher acknowledges under cross examination that "there are conflicts about times throughout, yes" and in the identification of parties. Moreover he agrees: “We are looking at events that are very time dependant.” He concurs with the view that the evidence of Mr Thompson is critical to his findings. I have already outlined my reservations about accepting certain aspects of the evidence of Mr Thompson for the purpose of assessing the level and concentration of alcohol in the blood of the applicant.
During the hearing between Dr Chesher and I an interchange occurred as follows:
“Now, in relation to First Officer McGeehan substitute the five schooners of beer - and are you able to give me a similar range?”
“Yes. Well, for five schooners, yes. I think I ....”
“Also taking account, perhaps, of the fact that he now describes himself as being “an experienced drinker”?”
“I’m sorry?”
“Taking account of the factors....?”
“An experienced drinker.”
“An experienced drinker and the glandular fever?”
“Yes, and there’s also the question of body weight, too.”
“Yes?”
“Well, taking him at his most liberal, where he said his weight varies and sometimes he’s as heavy as 90 Kilograms, at about 7.30 am the range of his blood concentration would have been zero and 0.05. I would put him there, you know, liberally at the lower concentration. He also would have been zero.”
Taking this opinion into account, I am not satisfied that, it is more likely than not, that First Officer McGeehan had a blood alcohol level in excess of zero at 7.30 am on Saturday 5 August 1995.
Report of Mr Gerard Comerford dated 13 October 1995
I am including in my reasons for this decision an extract from the report, as it relates to the applicant, of the Investigation Officer apparently appointed by the Civil Aviation Safety Authority (CASA) to investigate the incident.
It appears that this report was not given to "Hazelton" prior to the hearing. I understand that the managers of the respondent first became aware of its existence when I asked to read it for the purpose of determining its relevance to the proceedings although access had been granted to the report by court order some time earlier.
Initially I agreed to the report being tendered on the basis that Mr Comerford would be available to give evidence. He was not subsequently called even though, during the course of the hearing, I suggested to both parties that the court would be assisted by his evidence on some issues not covered in his report. I was advised by counsel for the applicant that he had answered a subpoena to give evidence in the court and was outside the courtroom and available for cross-examination if required by counsel for the respondent
In view of the adverse criticisms which were made by the Investigating Officer about certain alleged actions or omissions of Hazelton, I ordered initially that the Report not be made available to any person outside the legal advisers of the two applicants or the respondent and that it not be published by any person or organisation. (See Section 480 of the Act.) This was designed to allow “Hazleton” to consider its position about the report in a reasoned way without the impact of the possible glare of critical publicity on its actions which may have prejudiced the future conduct of the case. During the hearing I varied the order to allow Dr Chesher to read the document for the purpose of him taking it into account when formulating his opinion of the sobriety of the applicant.
There is no good reason, now apparent to me, as to how or why the publication of the report will prejudice the administration of justice or impact on the security of the Commonwealth. In my view, it is in line with the principle established in Section 373 of the Act that the report now be included in this decision.
An extract from the report, dated 13 October 1995, omitting the section devoted to Captain Garside, follows:
"Investigation re Alleged Breach of Civil Aviation Regulation 256
Intoxicated persons not to act as Pilots etc. - Albury 5 August 1995
Hazelton Air Services SAAB Aircraft VH-LIH
Flight Crew: Captain Donald Garside, First Officer Brett McGeehan
On 10 September 1995 FOI Stephen Weatherstone was contacted at his residence by Captain Garside and advised that both he and First Officer Brett McGeehan had been suspended from duty on 8 September by Captain Allan Terrell, Operations Manager Hazelton Air Services for allegedly breaching the provisions of CAR 256(3) on 4 August 1995 at Albury.
The following morning (11.9.1995) FOI Weatherstone contacted Captain Peter Hazelton, Chief Pilot of Hazelton Air Services. Captain Hazelton informed him he had only just been made aware of the matter through an unofficial source and was perturbed that as Chief Pilot neither he or CASA were not made aware of the alleged incident, or the decision to suspend both flight crew members.

"A written report should be submitted to the Company concerning any significant events occurring during a flight, which may require further Company action, eg. passenger complaints etc."

It seems to me that that allegation cannot be sustained against the First Officer, particularly in view of his subordinate role on the plane, and therefore a breach of Section 1.2 cannot be found against him.
2.16 Appearance and behaviour
Wearing of Uniforms
"All items of uniform issued to crew members are to be well maintained and worn without modification whenever a crew member is occupied on revenue flying duties. For pilots, plain black shoes, belt, and black or navy socks should be worn with the uniform. Hair should be neatly trimmed and of conservative style. Beards or moustaches, if worn, should be conventional and neat. Aircrew should be aware of potential difficulties with the use of oxygen masks when wearing beards. For information relating to Flight Attendant dress, see Section 3 of the Flight Attendant Operations Manual.
Uniforms must not be worn without company approval, except when on duty, or while travelling to and from duty."

I interpose that all of the crew members were careful to explain in their evidence that they changed into casual clothes before leaving the motel. In my view again there is nothing that can be sustained against First Officer McGeehan in relation to point 2.16 insofar as the company policy dealing with the appearance and behaviour and the wearing of uniforms is concerned. There is no allegation made against him that he was not fully dressed when he came down to take the taxi in the morning. There is no evidence that the applicant was not properly dressed in his uniform when on duty on Saturday 5 August 1995. Again there is no breach of policy by the applicant.
Consumption of Alcohol
The manual warns:
“Under no circumstances are aircrew to consume alcohol while in uniform in a public place, aircrew are also to be aware that there are readily identifiable by the public when on overnight stops, they must ensure that their behaviour does nothing to reflect adversely on the company image.”

I have dealt with the consumption of alcohol earlier in the Judgment.
It remains for me to comment on the state that the room was left in after First Officer McGeehan vomited. It seems to me that this is not a matter which adversely reflects on the company image. Objectively speaking First Officer McGeehan was the person who drank less alcohol than Captain Garside and no more that Flight Attendant Kinnell. He was not in breach of this policy. According to the report by Mr Comerford, the General Manager of The Greentree Motel did not wish to make any complaint about “personnel involved”. The state in which the motel room was left by First Officer McGeehan was regrettable. It was not sufficient upon which to base a decision to terminate his employment.
2.17 Fitness for Duty
Paragraph 2.17 refers to fitness for duty and is also dealt with under Civil Aviation Order 48, subs (1.4):
“Notwithstanding anything contained in these Orders, a flight crew member shall not fly, and an operator shall not require that person to fly if either the flight crew member is suffering from, or considering the circumstances of the particular flight to be undertaken, is likely to suffer from, fatigue or illness which may affect judgement or performance to the extent that safety may be impaired.”

“All aircrew are required to meet the conditions of CAO 48 in relation to maintaining themselves in a fit state for flying duties. To ensure that these conditions are met, pilots should be particularly aware of activities which may affect their fitness to fly, such as the following: Scuba Diving... Blood Donations......”

For a seven twenty flight, it could be expected, that the aircrew should be awake and out of bed by 6.15 am. That time would allow them to leave at 6.40 am and be at the airport at 6.50 am. The minimal period to be enable a pre-flight inspection to be completed before a departure at 7.20 am. Given the difficulties that shift workers or people who work varying shifts have in establishing a consistent sleep pattern, it seems to me that a curfew of 1.45 am or 2.00 am would have been a minimum period that ought to have been imposed on themselves by all members of the first crew. In my view, it would be preferable to allow even more time for sleep.
People who work long shifts or shiftwork can sometimes get through the day by taking short breaks and developing a capacity to have a quick snooze and revive their energy, however, there is no evidence at all that this was done during these flights, not could it have been in the sense, none of the crew on the plane could afford to disregard their duties while the plane was in the air. The applicant returned to the motel at 1.30 am and was awake at 6.50 am. It is barely possible that he achieved a four hour sleep period even with an allowance for the vomiting incident.
The evidence is that the flights operated by the applicant under the command of Captain Garside were normal. On the balance of the probabilities, I am unable to make a finding that the applicant suffered from fatigue or illness which affected his judgment or performance to the extent that safety was impaired.
3.2 Alcohol and Drug Usage
No alcohol is permitted to be taken by a crew member within at least 8 hours of commencing a tour of duty. Civil Aviation Regulation 256(2) prohibits any crew member from operating an aircraft while his performance is impaired by the use of drugs, medication or alcohol, irrespective of the time elapsed since its use.
“Any crew member who is taking a prescribed medication for any purpose must ensure, by reference to a designated medical examiner, that the treatment will not impair the performance of his duties.”

I find on the balance of probabilities that First Officer McGeehan did not consume any alcohol during the period of eight hours immediately preceding the scheduled departure time of the aircraft at 7.20 am on Saturday 5 August 1997.
3.7 Pre-flight Inspection
Daily Preflight
“Before the first flight each day, a thorough inspection of the aircraft is to be made. The items to be checked are listed in the Daily Inspection Schedule in the aircraft Document Folder.
The Captain is responsible for ensuring that the inspection is carried out, although the actual inspection may be delegated to the First Officer. Where time permits, both pilots should carry out independent inspections.
After completion of the inspection, certification is to be signed for in the Daily Journey Log.”

Turnaround Preflight
“Pilots are required to take note of unserviceabilities from previous flights which are recorded by deferred buff coloured Aircraft Maintenance Log (AML) cards situated above the AML in the aircraft Document Folder. This is to ensure that there are no entries left open to invalidate the maintenance release.
Before departure, the Captain must be satisfied that:
·   The aircraft is loaded correctly within the seating capacity, C of G range, and maximum weight limitations are in accordance with the Aircraft Flight Manual.
·   The passengers and hand luggage are correctly loaded and secure.
·   Luggage and freight is correctly loaded and documented.”

The allegation is that the preflight inspections were not carried out. First Officer McGeehan testified that he carried out the external pre-flight inspection and Captain Garside completed the inspection on an internal basis. In the circumstances there is no evidence that either of these inspections did not take place. The respondent has not proved any alleged breach of its policy. Again I do not find that this allegation can be sustained against First Officer McGeehan.
NEGLIGENT ETC. OPERATION OF AIRCRAFT
CIVIL AVIATION ACT 1988
20A. (1) No person may operate an aircraft in a careless or reckless manner so as to endanger the life of another person.
(2) No person may operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person.

There is no evidence that the applicant operated the plane under the command of Captain Garside in a careless or reckless manner.
LEGAL REPRESENTATION
In this matter, the applicants were represented by the same counsel. In considering the roles of the applicant and Captain Garside, I have accepted that First Officer McGeehan was in a subordinate position to Captain Garside. This does not mean that Captain Garside was responsible for the actions of First Officer McGeehan at all times during the evening and morning in question, although I infer that the applicant may have been influenced by his superior officer. During the course of the hearing, I referred counsel to the remarks of Moore J, in “The Awu-Fime Amalgamated Union v Queensland Alumina Limited” An unreported decision of this court, of 14 July 1995 as follows:-
“In conclusion, I should say that these proceedings evidence a potentially unsatisfactory aspect of the operation of Division 3 of Part VIA. Unlike many other provisions in the IR Act, Division 3 is directed to the creation and enforcement of individual rights. While s170EA(2) confers on trade unions a right to bring applications under s170EA, the capacity in which they make the application is, in my opinion, best described as one of statutory agency. These proceedings illustrate how problems might arise if a trade union
makes an application on behalf of two employees and one person effectively appears for both. The fundamental problem can be that the determination of the application might turn on the acceptance of the evidence of one of the employees and the rejection of the evidence of the other. In those circumstances the cross examination of each employee and indeed the cross examination of other witnesses may assume some importance. It is difficult if not impossible for one advocate to do justice to the case of each employee in such circumstances. In this matter it is only fortuitous that I have been able to decide the matter in the way I have. My decision may ultimately have turned principally on my acceptance or rejection of the evidence of Sonter and Merritt as to what occurred in the minutes leading up to the fight. If that had been the case then the interests of neither would have been served by the Union being represented by one person.
There is a well established rule that one counsel cannot appear for two parties where there is a conflict of interest. It is embodied in rules 108 and 109 of the rules regulating the conduct of barristers in New South Wales and rule 9.14 of those that apply in Queensland. I have little doubt provisions to similar effect are found in rules of conduct applying to the legal profession elsewhere in Australia.
In my opinion, the principles that underpin that rule have equal application to proceedings of this type even if there is only one applicant in a nominal sense, that is, the trade union bringing the application under s170EA(2). While accepting that the application of this rule to these proceedings would have been unclear because there was only one applicant, I consider that it would have been appropriate and desirable for there to have been separate representation to protect and advance the interests of Sonter and Merritt in these proceedings. More generally, when applications are made under s170EA(2) and there is one hearing dealing with the termination of the employment of several employees, it will be necessary for separate representation in circumstances such as the present unless it is clear there will be no conflict of the type I have just discussed. An alternative would be a separate hearing dealing with the dismissal of each employee which, for obvious reasons, has little to commend it if it involved duplication of the evidence. These observations are not directed only to representation by counsel but any representation that might be authorised by s469.”

I accept that the legal costs involved in separate representation for the applicant and Captain Garside may have been prohibitive. Senior Counsel for the applicant, Mr Sweeney, when asked by me, did not wish to make any submission on this issue. Mr Goot, counsel for the respondent appeared to me to conduct his careful cross-examination on the basis that there was no distinction to be drawn between the two applicants. He also had no submissions to make on this issue.
Summary of findings
1. The evidence is not sufficient for me to make a finding that it was more probable than not that the applicant consumed more alcohol than he has admitted in his testimony.
2. This finding is supported by the response given to me by Dr Chesher in his answer as follows:
“Well, taking him at his most liberal, where he said his weight varies and sometimes he’s as heavy as 90 Kilograms, at about 7.30 am the range of his blood concentration would have been zero and 0.05. I would put him there, you know, liberally at the lower concentration. He also would have been zero.”

3.        It is more probable than not that First Officer McGeehan was the first to         return to the motel. Apart from his vomiting attack, he was the one      person of the three crew members to be more likely to have had the most period of sleep.
4.        A great deal of the submissions on behalf of the respondent depends on          the evidence of Flight Attendant Kinnell. Flight Attendant Kinnell got     lost after leaving the two pilots . He does not remember which hotel it            was that they said they were going to nor does he recollect the name of          the hotel that he passed on his way back to the Greentree Motel. In my    view, his evidence is of no greater worth than that of First Officer McGeehan. His testimony may be "one schooner better", than that of Captain Garside. Moreover, he was not frank with Mr Comerford.
5.        I have carefully observed the witnesses who were or are employees of “Hazelton” and I formed the impression that the male witnesses were    generally supportive of each other. Moreover, they were generally            supportive of the case for the applicant, with the possible exception of            Flight Attendant Kinnell. That could be attributed to their professional       relationship as pilots or air crew. Such peer group support is not unusual            with respect to professional persons. In considering the evidence I have         made an allowance for this factor.
6.        Flight Attendant Meredith Payne, while sharing the same professional interest, was inclined to be a bit more candid in her evidence. For instance, her description of Captain Garside as being "immature..." and of            Flight Attendant Kinnell in the quote: "we dared him to stay out till one         thirty." provided a balancing factor otherwise her evidence does not            directly affect the applicant.
7.       “Hazelton” made a number of specific allegations against First Officer            Brett McGeehan in the letter dated 15 September 1995. They cannot be sustained against the applicant.
8.        There was a strong submission by Counsel for the Respondent that I    should not accept the times the applicants said they left the Hotel.            Because there is independent evidence from the second crew I feel that I    can be positive about the meeting occurring between Flight Attendant Kinnell and the second crew shortly after 12.15 am. Flight Attendant    Kinnell says that when he left the Terminus Hotel they were standing at      the bar finishing off their drinks at 11.00 pm
9.        Even if I were wrong about this time it would not allow me to conclude           that they were drinking Alcohol during the eight hour period preceding    the departure of the aircraft.
10.      I have reservations about accepting the recollection of any individual member of the first crew as to the time and occurrence of events without            some corroborative evidence given the amount of alcohol taken in a short         time
Termination
Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371, Justice Northrop describes the meaning of this phrase in the following way:
“Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."
In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”

The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the applicant.
Section 170DC: Employee Opportunity to Respond to Allegation
In his opening remarks Senior Counsel for the Applicants, Mr Sweeney, addressed me on the basis that there was a breach of section 170DC and he outlined a number of matters which he intended to make an issue in the case.
Again, the evidence given by the parties to the Court was deficient in that no evidence was called by the respondent from Mr Escott and Mr Terrell. It appears to me that it is likely that during the course of the interview the applicants had the opportunity to address the various issues on 8 September 1995. However, on 8 September 1995, they were suspended to allow the matter to be investigated. It is not my intention to make any finding against the respondent as being in breach of section 170DC in terms of the procedures followed at the actual interview. I note that at the second interview, Captain Peter Larsen was present as a witness for the applicant It is suggested that as well as being a pilot, he was a qualified lawyer. In those circumstances, on the surface, it appears to me that the procedural aspects of the interview may have been sufficient.
The letter of 15 September 1995 was issued two days after the company was informed by the Civil Aviation Safety Authority, through its Chief Pilot, that the Authority was investigating the incident. According to the report of Mr Comerford, the Chief Pilot knew nothing of the incident, until shortly before the discussion with Mr Comerford and after the suspension of the applicant had occurred. It seems to me, in the light of the importance of the Chief Pilot understanding what is happening with the pilots and Air Crew under his command, a very large breakdown in communications occurred on behalf of the company. That is not a matter for me to investigate.

I note the advice of Mr Comerford that once that matter was brought to attention, the officers of the company co-operated in every way possible with his investigation. It seems to that, as at 13 September 1995 the company was well aware that the CASA was undertaking an investigation of its own. The report of Mr Comerford on his investigation was dated 13 October 1995.
In the matter of Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC:
"Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery of parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.

A second purpose of s 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct."

There is no evidence that such an opportunity was given to the Applicant and I am satisfied that there was a contravention of section 170DC.
In order to provide the applicant with an opportunity to defend the major allegation against him, that is the allegation “of a probable breach of the Civil Aviation Act, Orders and Regulations” it was necessary for him to have available the result of the inquiry which “Hazleton” knew was in progress at 13 September 1995. There is no evidence that such an opportunity was given to the applicant. In the circumstance, the applicant should have been suspended with out pay, if necessary, until the result was known.
After considering the report and any representations, the company would then have been in a position to continue to dismiss the applicants without contravening the section. Mr Comerford’s report indicated that there should be no prosecution against First Officer McGeehan and there would be no prosecution against Captain Garside however, he would be counselled. In my view, the company has breached section 170DC of the Act, in that it should have given the applicant the opportunity of receiving the report of Mr Comerford and making representations based on the recommendation that he not be prosecuted. In addition he may have wished to give “undertakings about future conduct” to “Hazleton”. In those circumstances I propose to make a finding against the respondent that there was a contravention of Section 170DC. In my view, the company would have been justified in the circumstances as known to it on 15 September 1995 of advising the applicant that they proposed to suspend him without pay until the completion of the investigation by Mr Comerford.
IMPRACTICABLE
I turn to the question of impracticability. I am required by the provisions of the legislation to determine the impracticability of the reinstatement. Some early views were expressed on this issue in Liddell v Lembke, 1 ICRA 466. Based on the discussion of this issue in that case, I am satisfied that I have only a limited discretion not to re-instate the applicant. Nevertheless I am obliged by Section 170EE (1) to take into account all the circumstances of the case.
In view of the finding which I have made in the light of the opinion expressed by Dr Chesher that First Officer McGeehan had a zero blood alcohol content at the time of his departure of the aircraft, reinstatement appears to be required. There is no evidence that there is any previous incident of a similar nature in the case of First Officer McGeehan. However, I am not satisfied with the responses by either applicant, to the questions raised regarding their view, as at the date of hearing, of the possible affect of the amount of alcohol that was consumed by them on that night. It may be that the applicant needs to have a better understanding of the rate of metabolism of alcohol in his blood. This response appears to me to give me ground on which I could exercise the discretion to find that it is impracticable to reinstate First Officer McGeehan. In my view, Section 170EE (1) allows me to take account of the legitimate concerns of the company and the public interest in air safety as to the possibility, however remote, that there might be a repeat performance.
It seems to me that there is a need on behalf of the respondent and the public interest, that I impose a condition precedent to a finding that it is not impracticable to reinstate the applicant. Such a condition will ensure that the company is able to take practical steps towards ensuring greater certainty about the alcohol intake of the applicant. It will also restore the confidence of the general public in the capacity of the applicant to conduct himself more appropriately in the future.
It will be a condition of a finding that it is not impracticable to reinstate the Applicant that be agree to the monitoring of his usage of alcohol over a period of twelve months. It would be expected that such monitoring be of the same standard and nature as that required of a “Special Category Driver” or by the Rail Safety Act 1993 (NSW).
In the circumstances, I propose to find that it is not impracticable to re-instate First Officer McGeehan provided he gives a written consent to the respondent that he will satisfactorily attend a recognised education and counselling program on alcohol and drug addiction nominated by his Chief Pilot.
In addition, he is to sign a written consent addressed to the respondent that if required by his Chief Pilot he consents to the random monitoring of his drug and alcohol intake upon reporting for any period of duty or during such duty. His agreement is to include consent to breath analysis and to a supply of blood or urine samples if required. I propose that the monitoring program is to last for 12 months from the date of signing of the consent. The standard that he is to meet is that of the “Special Category of Driver” under the NSW Traffic Laws or the Rail Safety Act 1993.
The form of orders will be set out in a preliminary form. There will then be allowed a period of ten days for the applicant and respondent to consider the implementation of the orders.

I will arrange to list the matter before me in the event that either counsel wish to put forward any practical difficulties during the period of ten days. For example, if there can be an agreement between the parties as to the rehabilitation program and the form of monitoring, then that can be incorporated into my orders. In the absence of agreement, the applicant may sign a general consent as I have outlined and serve it on his Chief Pilot and file it in court.
COMPENSATION
Ordinarily an order for the payment of remuneration lost by the employee commences from the date of termination.
I propose to vary that order so that the payment of lost remuneration will start from 13 October 1995 that being the date shown on the report issued by Mr Comerford. In my view, the remuneration lost should be paid only from the date of the report of Mr Comerford. The period between 15 September 1995 and 13 October 1995 will be counted as unpaid leave although classified as service of the applicant with the respondent for all other purposes.
Should First Officer McGeehan decide that he does not wish to sign the agreement, with respect to the future monitoring of his alcohol intake, then the matter will be relisted on a date convenient to the parties to provide assistance to the Court on the question of compensation, if any, payable in such circumstances.
The applicant is to disclose to the respondent all income earned (excluding social security payments) from 13 October 1995 to date within 7 days. Hazleton is to pay only the difference between the remuneration which he lost, less any paid employment during the period. The applicant is entitled to have taken into account in calculation of his lost remuneration any expenses incurred in maintaining his licence to fly. Such income is to be deducted from the amount payable by the “Hazleton” for lost remuneration.
The findings proposed are:
1.        The respondent did not have a valid reason for the termination of the     applicant.
2. The respondent contravened Section 170DC of the Act.
3.        Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised     educational and counselling program on Alcohol and Drug addiction     nominated by his Chief Pilot, it is not impractical to reinstate the applicant to the position in which he was employed before his            termination.
4.        The respondent to reinstate the applicant to the position in which he was         employed immediately before his termination on 15 September 1995.
5.        The respondent to reinstate the applicant on the same terms and            conditions as applied to the applicant at the date of termination and that          such period commence from the date of termination.
6.        The period between the date of termination and the date of this decision          be treated as continuous employment of the applicant by the respondent     for all purposes.
7.        The respondent to pay to the applicant the remuneration lost by the      applicant because of the termination from 13 October 1995 to 9 April      1997, within twenty one days of the date of receiving the signed            agreement from the applicant.
8.        In the event that the parties are unable to agree on the amount to be paid          or other proposed orders by 4 pm on 16 April 1997, they have liberty to     apply to the court to relist the matter.
9.        In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with       the indication which I have given in this judgment. Those orders should            be filed with the court by 4.00 pm 18 April 1997. It will be preferable if       they can be agreed            with counsel for the respondent, if they cannot be           agreed then I shall provide a time commencing in the week beginning 21      April 1997 to hear the matter and    finalise the orders in this matter.
10.      Upon completion of the orders I propose to refer this judgment to the relevant authorities for consideration of the recommendations which have          been made regarding the need for further legislation.
11.      The applicant is to provide the respondent with details of his income from      paid employment and expenditure on maintaining his licence to fly within        7 days to enable the calculation of “lost remuneration”.
I certify that this and the preceding 81 pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine as recorded in the transcript and revised by the Judicial Registrar.

Associate:
Dated:            9 April 1997

APPEARANCES

Counsel appearing for the applicant: Mr M Sweeney SC

Solicitors for the applicant: Glover & Glover

Counsel appearing for the respondent: Mr R Goot

Solicitors for the respondent: Minter Ellison

Garside	McGeehan	Kinnell	Shout Time
Soden’s	1 Schooner	1 Schooner	1 Schooner	Kinnell 8.45
1 Schooner	1 Schooner	1 Schooner	Garside commenced
1 Schooner	1 Schooner`	1 Schooner	McGeehan
Terminus	1 Schooner	1 Schooner	1 Schooner	Kinnell 9.45
1 Schooner	1 Schooner	1 Schooner	Garside commenced
1 Schooner	no drink	orange juice	McGeehan

Counsel appearing for the applicant:	Mr M Sweeney SC
Solicitors for the applicant:	Glover & Glover
Counsel appearing for the respondent:	Mr R Goot
Solicitors for the respondent:	Minter Ellison

[1997] IRCA 118

09 April 1997