DECISION NO:119/97

 

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Valid Reason- CONDUCT AND PERFORMANCE - REINSTATEMENT - Alcohol and public safety - 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 1996ss 170DE, 170DC and 170EE,  ss 380 and 480.

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 4IB (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

 



Alidair Ltd  v Taylor (1978) ICR 445

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)

Nettlefold v Kym Smoker Pty Ltd (Unreported, IRCA, Lee J., 4 October 1996) Kerr v Jaroma Pty Ltd (Unreported, IRCA, Marshall J, 7 October 1996)

Perrin v Des Taylor Pty Limited (1994) 58 IR 254

 

 

 

 

GARSIDE -v- HAZELTON AIR SERVICES PTY LTD

NI 3852 of 1995


Before:                       MCILWAINE JR
Place:                         SYDNEY
Date/s of hearing:      7,9 FEB, 19-21 MAR, 10 MAY, 7 & 20 JUN 1996
Date of judgment:     9 APRIL 1997

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

NI 3852 of 1995

BETWEEN:

Donald Stuart GARSIDE Applicant

 

AND

HAZELTON AIR SERVICES PTY LTD Respondent

 

BEFORE:     MCILWAINE
PLACE:         SYDNEY
DATE:            9 APRIL 1997

           

 

 

DRAFT MINUTES OF ORDERS

THE COURT FINDS 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 positions of “Captain-Pilot” and “Type Specialist SAAB 340” in which he was employed before his termination.

 

4.         The respondent to re-instate the applicant to the position in which he    was      employed immediately before the termination being that of “Captain-       Pilot” and “Type Specialist SAAB 340”.

 

5.         The respondent to reinstate the applicant in those positions 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       employee 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.         The applicant has a period of Seven days to produce evidence to the court        of the concurrence of the Civil Aviation Safety Authority to his re-         instatement as Check and Training Captain.

 

9.         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.

 

10.       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.

 

11.       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.

 

12.       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 3852 of 1995

BETWEEN:

Donald Stuart GARSIDE Applicant

 

AND

HAZELTON AIR SERVICES PTY LTD Respondent

 

BEFORE:     MCILWAINE
PLACE:         SYDNEY
DATE:            9 APRIL 1997

 

 

 

REASONS FOR DECISION

This is an application by Captain Donald Stuart Garside 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 Limited. On 26 November 1996 the Act was renamed the Workplace Relations Act 1996.

 

In his claim, the applicant records the work performed for his employer as "Captain (pilot) - based at Sydney".  The applicant started work with the respondent on 4 December 1986  and the last day he worked was 8 September 1995.  He was terminated from his employment by his employer on 15 September 1995.  His period of employment was just under 10 years.

 

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 claim is reinstatement in his employment. The applicant is now 34 years of age.  He describes himself as “5 foot 11 inches tall, of solid build with red hair, weight 86 kilograms”.

 

The respondent, Hazelton Air Services Pty Limited, (“Hazleton”) 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 me.

 

The application was accompanied by a letter dated 15 September 1995:

 

"HAZELTON

THE BIG COUNTRY AIRLINE

 

 

15 September 1995

 

PRIVATE & CONFIDENTIAL

 

Captain Don Garside

(HOME ADDRESS)

 

Dear Don,

 

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 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  attention of the applicant 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 NI 3852 of 1995 in the court records was heard in conjunction with the trial involving Brett McGeehan (NI 3851 of 1995) and the respondent.  Both applicants were represented by Mr Michael Sweeney Senior Counsel, 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 phone, where an application was made for expedition of the hearing date.  This was an oral application and it was granted by the Judicial Registrar.  Although the application contains the following claim "Damages arising from the breach of contract", the court was then advised that a such claim would not be made in the accrued jurisdiction. 

 

On 16 & 22 January 1996, there were interlocutory proceedings involving the Return of Subpoenas. The trial was set down for hearing on 7 & 8 February 1996. 

 

On  2 February 1996 a Notice of Motion to vacate this hearing date was heard before a different Judicial Registrar. It appears that in this interlocutory application, reliance was placed on the affidavit filed by First Officer McGeehan  in his case.  First  Officer McGeehan deposed that there was a dispute at Board Level and claimed that a change in the Directors of the Company would result in his reinstatement.  There does not appear to be a similar claim made by Captain Garside with respect to his reinstatement.  This aspect of the case is dealt with in my Reasons for Decision regarding First Officer McGeehan.  In any event, the Notice of Motion to vacate the hearing date was dismissed.

 

The matter came on for hearing before me on 7 February 1996, 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, some of which were then available as well as those which were still to arrive at the Court. 

 

The hearing then commenced on Thursday 8 February 1996 & continued on 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 to 10 May 1996 and then on to 7 June 1996.  An earlier date which became available was not able to be utilised by counsel for the parties.  On 7 June 1996, in accordance with a request by both counsel, I directed that there be written submissions together with oral argument in support which 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 (1996) 66 IR 392declared 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 his behaviour as admitted by him in his evidence to the court.  I am of the opinion that based on his own admissions, he failed to give the leadership expected and required from an “Air Commander” participating in a social occasion with fellow crew members.

 

 

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 Captain or commander of the plane.  In addition to that duty, he also held the position of “Type Specialist SAAB 340” and "Check and Training Captain" for “Hazelton”.  This latter position was one which is apparently recognised by regulations under the Civil Aviation act and regulations.   He explained this position as follows:  “I was employed as a Captain, I had a significant role in the Training of pilots with “Hazelton”.”

 

The respondent operated regular commuter passenger services between Sydney and Albury.  On Friday 4 August 1995 the applicant sat in the observers seat of the plane which was flown to Albury under the command of Captain Larsen. He conducted a “Night Route” observation of Captain Larsen in his role as Check and Training Captain.  Before they left Sydney, Captain Larsen had reported trouble with the Altimeter.  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 was 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, First Officer McGeehan & Flight Attendant Kinnell, who also was a passenger on the first plane  left the motel 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 the evenings entertainment at a  night club where the usual social intercourse, including dancing and other behaviour consistent with being present in a disco, and 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 a 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 incident, when he was summoned together with First Officer McGeehan to the head office of the air service in Cudal, near Orange.  There they were subjected to an interview about the events on the 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 on 15 September 1995. 

 

Having broadly outlined the case, I now turned 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 attention of the Court.

 

CAPTAIN GARSIDE

 

Captain Garside testified that he was out of bed at 11.30 am on Friday 4 August 1995 When he got out of bed, he drank  two cups of coffee and ate two pieces of toast for breakfast.  He maintains he signed on for duty at 5.30 pm for the  6.30 pm scheduled departure of the flight to Albury.  Around this time, he consumed a substantial 3 course hot meal with an Orange Juice in the Ansett Cafeteria.

 

Captain Garside's role on the flight to Albury was to conduct a night route observation of Captain Peter Larsen .  This is required under the Civil Aviation Act or Regulations

 

Ian Waldron was the first officer on plane, Captain Garside occupied the observers seat in the crew compartment and First Officer McGeehan was a passenger on the flight.  Also in the plane were Flight Attendants John Kinnell and Meredith Payne.  There were up to 36 passengers on the flight.

 

The plane landed at Albury shortly after 8.00 and the crew signed off duty at 8.30 at  the Greentree Motor Inn.

 

Captain Garside admits that he was in the last room on  the right on the second floor.  I am satisfied that this was Room 214.  Captain Garside changed into casual clothes, met First Officer McGeehan 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 Attendant 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 First Officer McGeehan, 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.  He did not join them and they continued on to Dimitri’s.  On First Officer McGeehan's evidence, they arrived 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 ,Captain Garside denies consuming any more alcohol during this period.  First Officer McGeehan returned to the motel at 1.30 pm.  He did not see any other members of the second flight crew and according to Captain Garside left Dimitri’s without advising him.

 

Captain Garside testified that he returned to the motel at 3.00 am, that he had his key with him and did not speak with the Night Manager.  He walked through the electronically operated  sliding doors which were not locked.  The first thing that Captain Garside recalls after sleeping was at approximately 6.50 am,

 

“A gentleman knocking on my door, saying or words to the effect ,your taxi is here.   After I woke up I’d realised I’d slept in and I quickly just put on my clothes ,grabbed  my bags and raced down to the reception area where the taxi was waiting.”

 

He met First Officer McGeehan in the foyer and they went in the taxi together to the airport.

 

When he left the motel he had his uniform on, except for his tie, which was loose around his neck.  His cap was on, as was  his coat, although it was not buttoned up.

When he left the taxi at the airport, his tie was done up.

 

They arrived at the airport at 7.10 am to find that the prop ties had been taken off the aircraft engine, the unlet bungs were out and the pivot covers removed . Captain Garside testified that he delegated to First Officer McGeehan the task of carrying out the external checks of the aircraft and he did the internal checks. This is consistent with the evidence of First Officer McGeehan.

 

When asked in cross examination about the rate of drinking, he agreed that he was not a heavy drinker, although it was more than he would normally consume, but he wouldn’t consider it to be excessive.  He agreed that the amount of alcohol that he consumed would be well over the limit for driving a motor vehicle. 

An informative exchange occurred under cross examination as follows:

“Did it ever occur to you that you might still be over the legal limit at 7.20 am the next morning?” 

 “No, it did not.”

“You did not give it a moments thought?” 

“No, because I wasn’t.”

“Well, how do you know you were not?”

“Well, I know my own symptoms when I’m ...- in relation to alcohol consumption limit in the car.”

 

The Applicant denied specifically under cross-examination that his capacity to fly was affected by alcohol.  He denies being drunk at Dimitri’s.   He could not recall the name of the female with whom he was dancing.

 

He suggests that he had been surviving on four hours sleep for some time as a result of his performing the duties of Check and Training Captain.  His explanation was that he was socialising: 

 

“I was off Duty, I was - I wasn’t in bed but I was still fit to fly that aircraft the next morning.”

 

The minimum rest period is nine hours.  He had a hot dog on his way back to the motel.  He agrees that he organised a wake-up call for 5.45 am.  He agrees that he was anticipating  that he would only have two and three-quarters hours sleep.  He maintains that it is enough for him personally.  He was not aware on that morning that McGeehan had been physically ill.  The failure to report the late departure time was an irregularity only.

 

At the end of the flying activities for the day, the applicant maintained that he held a meeting with the former Chief Pilot, Captain Peter Hazelton, for about 45 minutes to an hour.  Captain Peter Hazelton had an Instrument Rating Renewal due.  Captain Garside was not cross-examined on this issue.

 

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 Inn 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 1.30  am.

 

 

Captain Newman amplifies this in his evidence:‑ “I remember we drank our drinks very quickly because there was nothing happening there”  ‑ ‑‑They then walked down Dean Street towards the centre of town.  They went across the street and then to another hotel.  Captain Newman cannot recall the name of the hotel. The only detail that he can recall is that it had a green front on it and that it was on the same side of Dean Street as the Greentree Hotel. In this hotel they had two drinks each: middies of Beer for Ian Waldron and Captain Newman and a white wine for Meredith Payne whilst John Kinnell drank Orange juice

Captain Newman estimated they remained in the hotel:  “around about 45 minutes.” They then left the hotel and walked half a block together.

“then my crew - Meredith, Ian and myself - crossed the street and went down to the New Albury Hotel - I don't recall the name of the street - and John Kinnell went - left us then and went back to the motel.”

 

Captain Newman estimates that they arrived at the New Albury Hotel: “around 1.30 am.” Although Captain Newman testified that John Kinnell had left the second crew shortly before 1.30 am  I am of the view that it was later than 1.30 am. when Flight Attendant John Kinnell left the gathering but before their arrival at the Dimitri’s Bar at 1.45 am.  I make this determination by taking into account the evidence of Flight Attendant Meredith Payne about her conversation with Flight Attendant Kinnell.

 

At the New Albury Hotel they went upstairs to a bar known as Dimitri's Bar or the Cactus Bar. Shortly after arriving there they meet  the applicant Captain Garside probably about 1.45 am.

 

Captain Newman states that he did not see Captain Garside drinking anything and that  he remained in his company for about an hour‑‑- “maybe a bit less.” He saw him dancing with Meredith Payne and he stopped occasionally for five minutes for a chat.  Most of the time when he was on the dance floor he was actually in sight of Captain Newman.

 

He also made observations as follows:

“How did he appear?  Did he appear effected by alcohol?‑‑‑No, he appeared quite normal.

 

At some time during that evening or during that night, did you say something to Don Garside about going home?‑‑‑Yes, I did.

 

All right.  What was it you said?‑‑‑I suggested that it might be time to head off - head off home.

 

Approximately what time was that?‑‑‑I'd say 2.30.

 

Did he say anything to you when you said these words to him?‑‑‑I think he just agreed - said, "Yes, okay."

 

And what happened next?‑‑‑Shortly thereafter he - he left our company and I didn't see him for the rest of the night.”

 

 

 

I am of the opinion that this evidence is of crucial importance  to the case of the Applicants:

 

“And what was the flight crew on that plane?‑‑‑The Captain was Don Garside, First Officer Brett McGeehan, and the Flight Attendant Shandell Flannigan.

 

Did you speak with Mr Garside?‑‑‑No, I didn't, apart from saying hello in passing.

 

What about Brett McGeehan, did you speak to him?‑‑‑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.”

 

 

Under cross examination by Mr Goot of counsel for the respondent  Captain Newman confirmed the following factors:

 

1. The second crew arrived at  Dimitri's,  about 1.30 in the morning.

 

2.  Dimitri’s was very crowded.

 

3.  There was” lots of music”..

 

4.  It was fairly dimly lit.

 

5.  The three of them had bought a drink and were just standing in a circle chatting when Captain Garside came over to the group.

 

 

Under further cross examination Captain Newman maintained  that Captain Garside “ wasn't out of control at all.” He was cross examined about statements he had made on the issue which are not in evidence in these proceedings.

 

There was a careful cross-examination of Captain Newman by Mr Goot on the question of the intoxication of Captain Garside:

 

Captain Newman was very careful in the way he gave evidence. I gained the impression that whilst supportive of his colleague he had no intention to misled the court. An illustration follows:

 

“And you recall saying to Mr Escott that Mr Garside was not particularly out of control?  Do you recall that?‑‑‑Yes, I do remember saying that, yes.

 

You, I take it, say that he did not appear to be intoxicated at all when you saw him?‑‑‑No, he wasn't.  Well, I can't say he wasn't.  He did not appear to be in my mind.

 

He did not appear to be.  All right.  And I think you said in a statement that you gave to the Civil Aviation Safety Authority - do you recall giving them a statement?‑‑‑Yes, I do.

 

That he did not appear to be "particularly intoxicated".  Do you remember saying that in your statement?‑‑‑I remember reading the statement and saying that.  Yes, I think I - I don't actually remember having said it.

 

I see, but you did not correct your statement when you read it in the statement?‑‑‑No, in that case I probably had said it, yes.

What did you mean by those "He was in control and did not appear to be particularly intoxicated"?‑‑‑Well, I can not say whether he was intoxicated or not.  He did not appear intoxicated to me.”

And later on in response to questions about a statement made on or about 18 October 1995 to Gerard Comerford at the Civil Aviation Safety Authority.

 

“Now, you see, you say there "He did not appear to be particularly intoxicated".  Do you now say that he gave no appearance of having been drinking alcohol at all?‑‑‑I'm saying he - I can not say whether he had been drinking.  All I can say is that he did not give the appearance of being intoxicated.  He was in a happy mood.  He was friendly as Don always is.  He was fairly chatty but he was not loud.  He was not boisterous.  He was not falling over drunk and that's about all I can say.  He did not - I was - when I saw him I was not concerned that he was drunk.”

 

“Would it surprise you to learn that Mr Garside has described himself, whilst at Dimitri's, as being well over the limit for the purpose of driving a motor vehicle?‑‑‑Wouldn't surprise me.

 

Had you been - had you - prior to this event, had you, in social occasions, been in Mr Garside's company whilst he had been drinking?‑‑‑Yes.

 

On many occasions, or on - on rare occasions?‑‑‑Oh, a few occasions, yes.

 

And you understood him to be a person who held his liquor well, is that right?‑‑‑Yes.”

 

Captain Newman testified  that he told Mr Garside around 2.30 am. whilst they were at Dimitri's, that it might be time for him to leave or to head off home or other  words to that effect. He did this because he knew he had “a flight later on that morning” about 7.20 am. He explained his reasoning as:

 

“And I just figured it might be time he got some sleep.

 

I didn't feel it necessary.  I offered it as - as personal advice.

 

I see.  Well, you were not doing it for practice;  you were doing it for a purpose, were not you?‑‑‑No, I was not doing it for practice;  I did it - did it for the reason I've just stated.

 

Yes.  Did it not surprise - did it not - sorry, I withdraw that.  Did it not strike you as odd that you ought to have to make that suggestion to Mr Garside in the circumstances?‑‑‑No, it didn't strike me as odd.

 

He is much more senior to you, is not he, in Hazelton's?‑‑‑He is a bit more senior, yes.

 

Yes.  He is a - you know him to be a check flight - a check train captain - check and train captain?‑‑‑He was a SAAB-type specialist and a check and training captain, yes.

 

Yes.  And notwithstanding that, it did not strike you as odd that you should have to tell him that it was time to move on?‑‑‑As I've said, I didn't have to tell him to move on.

 

Yes?‑‑‑I now feel he would have moved on whether I'd said it or not when he was - when he felt it was time.

 

Well, you say that he - shortly thereafter he left your company?‑‑‑Yes.

 

Yes.  You did not see him leave Dimitri's, did you?‑‑‑No.

 

And you saw Mr Waldron leave at about 3.30 am, is that right?‑‑‑Yes, thereabouts.

 

Yes, thank you.  Now, during the course of the time that you were with Mr Garside at Dimitri's with Ms Payne, you - I want to put it to you that you suggested to Ms Payne that she should buy Mr Garside a lemonade or some such.  Do you remember that?‑‑‑In honesty I don't remember saying that to her.

 

I see.  Now - but if - if Ms Payne had said that you said it you would not doubt it, would you?‑‑‑No, I wouldn't doubt it.  Why - however, why I would tell her to buy him a lemonade I'm not quite sure.

 

Yes.  Could it have been a lime and soda?‑‑‑Would have been more likely a lemonade. 

 

I was asked to excuse Captain Newman from giving further evidence but that it was the wish of Counsel for the applicant for him to remain in the court room. 

 

At the end of the cross examination of Captain Newman I posed the following question to Mr Goot after having Captain Newman leave the Court room..

 

“Mr Goot, the state of the evidence from this man is that he flew back with Captain Garside on the basis that the flight was uneventful.

 

Yes.”

 

At the close of the case, there was no contention to the contrary made in the submissions on behalf of the respondent.  I was impressed with Captain Newman.   I am of the view that had he believed Captain Garside to be unfit to fly then he would have taken some action himself to rectify the situation.  As this issue goes to other aspects of the evidence I set out an extract from his evidence as to the arrangements for entry to the motel after normal hours:

 

“Do you recall seeing anyone around or just inside the front door?‑‑‑I can't remember seeing the night manager.  He may have been there, but I'd stayed in that hotel on numerous occasions and I don't actually remember seeing him that night.”

And you are unable to tell us whether the night manager was there at the time?‑‑‑That's correct.  Although he normally did poke his head around the corner, or something, whenever we came in....If he wasn't at the desk, he would normally poke his head around the corner and acknowledge us.

 

Captain Newman had stayed at the motel probably 20 times.  On one other prior occasion, he had returned to the motel at about the same time early in the morning.  That occurred the week before.

 

From his evidence, I am able to conclude that on occasions when he has come back after midnight, sometimes he has had to press the button, and other times, such action was not necessary for him to enter the motel.  This conflicts with the later evidence of Mr Thompson.

 

Captain Newman and Flight Attendant Meredith Payne  continued their activities until  5.00 am returning to the motel together at about this time. He estimated that First Officer Ian Waldron left on his own at about “3.30-ish”. The evidence of First Officer Ian Waldron and Flight Attendant Meredith Payne confirm this part of the evidence.

Later on Saturday, 5 August 1995 Captain Newman. First Officer Waldron and Flight Attendant Payne travelled back to Sydney on the Hazelton flight at around 1 o'clock in the afternoon.

 

 

The evidence of Captain Newman was convincing, as was his positive contribution at two significant times with Captain Garside.  I am of the view that had he considered Captain Garside  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 Inn 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 they met near to 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, being his statement to the Civil Aviation Safety Authority,  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 juice.

 

He says they arrived at the Dimitri’s bar at around 1.45 am without Flight Attendant Kinnell who he suggests left at about 1.30 am.  About fifteen to thirty minutes elapsed before Captain Garside came up and joined their group.  He says that Captain Garside was with them “between an hour and an hour and a half”.

 

“With Meredith and there was another girl.  I don’t know who the girl was.”

 

First Officer Waldron testified that he did not see Captain Garside with a glass in his hand that night in Dimitri’s or drinking anything.   He did not see Captain Garside leave the group.  He described the situation as: 

 

“we were standing at a sort of stand-up table.  It was very crowded.  It was very smoky, lots of loud music, and just - Don wasn’t there.  I didn’t actually see him walk out.”

 

First Officer Waldron left the bar just after 3.00 - 3.15 am, and then walked back to the motel.  Captain Newman and Flight Attendant Payne remained after he left. 

 

In my view, the description which Mr Thompson gives to a member of the crew returning at 3.30 pm is most likely to be this incident which is recalled by First Officer Waldron, when being questioned by Mr Sweeney, as:

 

“....the night manager was there - I was sort of coming in, and the door normally opens for you when  you  arrive, and it didn’t, and it sort of took me by surprise, so I looked for the sign to ring the bell, and by the time we’d sort of actioned ourselves, he’d seen me coming, and he came across and opened the door. 

 

So it was the night manager who opened the door? 

 

I assume he’s the night manager - doorman - whatever his title is.

 

Did you have a conversation with this person you took to be the night manager?

 

Of no consequence, I might have just said “hello” in passing.  I can’t actually recall the conversation.”

 

As to the appearance of Captain Garside in Dimitri’s Bar:

 

“How did Captain Garside appear?

 

Well, he was in a quite happy mood.  He was being jovial.  We didn’t really talk that much, to tell you the truth, because, as I said, it was very, very noisy, and it was quite crowded, and sort of the time that we’d seen him it’d be lucky if we said a half a dozen words, really, but he appeared fine.

 

Did he display any signs of being drunk?

 

Not at all.”

 

Under cross-examination, he confirms:

 

1.         Arriving pack at the motel “some time around 3.30, maybe 3.35 am.”

 

2.         There was a park along the way back to the motel with a hot dog stand the location of which he could not identify from the maps in evidence. 

 

3.         He affirms the incident at the door:

“And as I understand it, the doors of the motel did not open but you did not have to ring the bell because the night manager saw you?

 

Yes, well as I sort of  stumbled and it didn’t open, I was looking for the thing to open it and then we sort of - our glances met and of course we walked across and I just stood there and the door was open.  Yes.”

 

4.         He confirms drinking several bottles of  beer at Dimitri’s.

 

5.         He flew out of Albury as a passenger on the flight flown by the two applicants             in the afternoon of Saturday 5 August 1995. 

 

6.         During the day, probably at the airport by the counter staff, he was told the       plane was late.

 

Finally in answer to a question by me:

 

“And as far as you were concerned, that flight was uneventful?

 

Absolutely.”

 

He has 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 goes out.  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 First Officer McGeehan had made abusive phone calls to him.  No allegation of that nature was levelled against Captain Garside and it is not necessary to further discuss it in these reasons. 

 

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 Inn 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 Inn 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.

 

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.

 

Mr Thompson testified he saw the second of the two people

“Just after 3 - I’d locked the doors and started to go up in the lift.

And what happened after that in terms of that person?

Well he pressed the night bell, and I came straight back down and let him in. 

Right.  Did you speak to him?

Yes.  I asked him - Oh well, every time anyone comes in, I ask them if they’ve had a good night and how they’re feeling.”

In my view, this was not an answer which can be relied upon as part of the actual recollection by Mr Thompson of what was said between them.  Shortly afterwards in his evidence MrThompson says:

“As I say, he muttered something.  He wasn’t very coherent at all.”

 

Mr Thompson was also asked for an opinion about the sobriety of this person.  He described him as drunk based on the way he walked and looked.  He amplified this:

“When he walked straight across, he looked at something - I don’t know what it was, and then he went to the lift.  It took him a couple of goes to get the lift down.

What do you mean by that?

He pressed the little square on the wall that opens the lift doors.  It took him a couple of goes to press that.”

 

Mr Thompson told the court that the second crew came back to the motel “about 4 o’ clock”. I have not included his description of the return of First Officer McGeehan 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".  Mr Thompson maintains he had to really shake him until he got a reply.

 

Mr Thompson testified that he next saw this person, who had taken a couple of goes to get the lift down, about 5 past, 10 past 6.  “

“I went up and banged on the doors.  I got no answer, so I used my master key and went in, shook him by the toes; he was dead to the world, and so I said, “It’s time you were up - your early morning call” and went out the door.  Mr Thompson says he went back and did the same thing at 6.30 am.

He “gave him a good shake, told him he was due to take off.”  He says “Righto; I’m coming”.  

He then saw him “20 to 25 minutes later, he came down the lift with a crowd of people”.  He then pointed out Captain Garside describing him as “second on the right, blue shirt and tie on”.

 

At about 6.25 am - 6.30 am 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 rooms 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.  I have omitted his description of First Officer McGeehan from these  reasons.

 

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".  There was no oral communication between Captain Garside and Mr Thompson at this time.  However Mr Thompson described Captain Garside as:

“Well, he’d got his strides on, his shirt, and tie just strung around his neck, jacket undone, the hat on the back of his head, and he just walked straight past, didn’t say a word or anything.” 

 

At this point in giving his evidence Mr Thompson made a punching gesture with his right hand which I regard as unusual.  He suggested that Captain Garside did not look very sober and, “looked virtually the same state as when he went to bed”.”

When asked to explain, he said:

“Well, he didn’t walk in a straight line, for a start off. 

Right? 

And, as I say, he just walked straight past as though there was nobody there.

Right?

Climbed in the taxi and away he went.”

A short time later, he added that he looked shocking.

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".  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 conceded:

1.         He told the CAA person that “he was in 214” and was informed that his name            was Captain Don Garside about five weeks later.

2.         He described the person he let in at 3.00 am as about 5”7’ in height, solid build,         dark hair, aged about 30 to 35 years.

3.         The person was about his height but stockier than Mr Thompson was with dark            hair.

4.         He did not need his key and “just meandered through the  reception area.”

5.         During his visits to room 214 because of the blanket covering the person, he does      not see him at all, in particular, he does not see his face.

6.         He had been told by Mr Escott that the person in room 214 was named “Don”.

7.         He agreed that his recollection of the events on 4 and 5 August 1996 had “faded        out”.

 

Mr Thompson also maintained:

1.         That the second crew came back together at four o clock.

2.         That the hair or the person he described as coming in at 3 o clock did not appear         to be red.

3.         When he opened the door of room 214, he saw “Oh just a bed with a body on it,      flat on their back, with the blanket right up over”.

4.         His feet were not sticking out of the bottom of the blanket

5.         He shook only one foot

6.         He did not check the telephone because he “had other early calls to do”

7.         At about 6.40 am, he knocked on room 215 and the door opened and “big Brett          was there three quarters dressed” and said he was okay, he then went into 214.

8.         He then opened the door and Captain Garside was in the same position so “I    shook his toes again and shouted at him”.  Captain Garside was still covered by        the blanket and he had not moved.

9.         He made a gesture with a closed fist moving the wrist from side to side and     backwards and forwards.

10.       First thing in the morning, he has to deal with “early calls, checking people out,        switching the gear on in the kitchen for when the breakfast staff come in”.

 

Mr Thompson was asked if he saw anything else around the bed or on the floor.  He was pressed on this issue.  “No suitcases or anything like that around the bed?”  “Didn’t take notice, I mean its a busy period.  Its just a case of in, wake them up, out again and downstairs.  People queuing up to book out.”

 

Mr Thomson was asked whether he knew that Captain Garside had lost a foot and wore a prothesis.  He denied that he knew this at the time of giving his evidence.  At that stage, he was asked if he noticed an artificial leg or foot on the floor next to his bed.  After he answered “No”, Mr Goot counsel for the respondent objected to the question on the ground that evidence of this disability had not been given by the applicant.  The questions were allowed.  There then developed a series of questions from Mr Sweeney to Mr Thompson as to whether or not he had  made prior statements referring to the shaking of “feet” in its plural sense.  Mr Thompson did not mention to Mr Comerford and Mr Escott the suggestion that Captain Garside had difficulty pushing the button to call the lift.   His explanation for this was that he only recalled it later  “when I had been thinking hard that I remembered it”.

 

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 any of 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 Captain Garside:

 

1.         He recalled the incident some four weeks ago on the 4th and 5th 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.         “Shorter fellow in #214(Don) arrived some 2 hours later (about 3.30 am).

            could tell he had considerable amount to drink.

            slurred speech.

            swayed in walk

 

4.         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”

 

5.         There was no other involvement with the two prior to the early morning call.

6.         Early morning calls were booked for Captain Garside and First Officer      McGeehan

7.         At 5.45 am Don’s phone at #214 was off the hook.

            Brett’s phone rang on #215 for 3 minutes without answering”

8.         He then went to Don’s room (#214)knocked loudly on door.

            No answer (I was concerned about customer’s physical 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

9.         He then went downstairs

            Suggested to flight attendant that he should go and send back taxi for other two   (it was close to 7.00 am). Said I will go and get them out!

            Went up to #215 knocked on Brett’s door, said he was coming.

            Knocked on #214.

No answer.

Unlocked door again.

I really shook him this time (I thought he was dead!).

 I said taxi waiting and plane due to take off.

He said OK.

I said you are supposed to be in the air.

 He said OK.

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”

Don looked a mess.

Cap on back of head,

Tie not properly on.

Coat carried.

Both walked to taxi.

No comments.

 

10.       There were a group of crew that came in after “Don” but they clearly were not      in the same state as Don.

 

11.       He had not heard anything about this incident in the hotel or about the town.

 

12.       In his view neither were in a fit state to drive a motor vehicle in the morning

13.       He thought on the previous night they were the” late crew”. He was in the English Airforce and if crew reported in that state, I would have reported

            them as” incapable of flying”

14.       He volunteered that the “Cactus Bar” is a night club primarily for younger            people in the New Albury Hotel

 

There is a further statement made some two days later to the Civil Aviation Safety Authority by Mr Thompson.  This document is dated the 14th September 1995.  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.  I have not included in these reasons the discrepancies which I have recorded in respect of First Officer McGeehan.

 

The first alteration in his statement is as follows:  

“At some time after 3.00 am, I was doing my security check when the front night bell/beeper system was activated.  I returned to the reception area and allowed a guest subsequently known to me as Don, another Hazleton pilot, entry to the motel.  I would describe Don as about 5 feet 7 inches in height, solid build, dark hair, aged about 30 to 35 years.” 

 

It is clear from the way this statement is worded that Mr Thompson could not identify Captain Garside by name at the time he arrived back at the motel and that his description of his appearance at the time therefore is suspect.  His description is factually incorrect in at least two aspects, being height and colour of hair.

 

The statement continues:

 

“I greeted him in my normal manner, I cannot recall if I gave him his room key or not.  In my opinion Don appeared to have had been drinking.  I base this opinion on my observation of him when he entered the motel.  He staggered when he walked towards the lift and his speech was slurred when I spoke to him and he answered.  My normal practice is to greet the guests when they arrive with “How are you, Did you have a good night?” or similar words.  Don answered me but I couldn’t recall what he said only his speech it was slurred.  In my opinion he was what I would describe as drunk”

 

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 difference 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 First Officer Waldron is to the effect that First Officer Waldron returned to the motel separately and before Captain Newman and Flight Attendant Meredith Payne who returned together much later in the morning.  I am of the opinion that it was First Officer Waldron who returned at 3.30 am to the motel and that this led to some confusion in the mind of Mr Thompson.

 

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 (Room 215) and Don's (Room 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 and there is no mention of opening the door to Room 215.

 

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 “its 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 who then left to take the taxi to the airport.  Although the statement seems to suggest that there was a 20 minute wait for the arrival of a booked taxi due at 6.30 am. 

 

“I then went up to the second floor and knocked on 215.  Brett answered the door, partially dressed, I said “the taxi has gone with the flight attendant and will come back for you and Don”.  I then went to 214, pounded on the door, I received no reply.  I then used my master key to gain entry and went inside.  I saw that Don was exactly in the same position as before (dead to the world) I really grabbed his toes strongly this time and shook hell out of him. 

I said “you  are supposed to be in the air”

He said “ok I’m on my way”

I then left the room and went down to the foyer.

After about 5 minutes, Brett came down and had a cup of coffee. 

The taxi then came back.

I said to Brett.  “You better get in this taxi and then send it back for your mate”

Brett finished his coffee and as he began to walk towards the taxi, the lift opened and Don arrived with other people in the lift.”

 

Thereafter his statement again contradicts, the earlier statement about the dress:

“He was dressed in uniform with his tie just hanging around his neck and his cap on the back of his head, his jacket was undone. 

He walked straight past me and went straight to the taxi with Brett.

In my opinion that morning Brett appeared to be suffering from a hang over but was dressed properly, 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 of the applicant and First Officer McGeehan no doubt could have been 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 as 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 the court.

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 First Officer McGeehan.

 

In the light, inter alia, of  these discrepancies, I am unable on the balance of probabilities to conclude that he entered the room occupied by Captain Garside on more than one occasion.   I am satisfied that he entered the room occupied by Captain Garside between about 6.35 am to 6.45 am and shook the foot of Captain Garside who then woke and said words to the effect:

“Ok, I’m on my way”

I am satisfied that Mr Thompson made telephone calls to wake both applicants prior to that occurrence.  I am of the opinion that the entry to the room occurred after Flight Attendant Kinnell left to go to the airport.  Mr Thompson may also have knocked on the doors of the rooms of the applicants at an earlier time.  However I am not satisfied that he then entered either room.  I conclude that the telephone to Room 214 was not operating during this period. 

 

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 the “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 First Officer McGeehan 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 First Officer McGeehan. 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. 

 

Flight Attendant Meredith Payne

 

Meredith Louise Payne  had been an employee of Hazleton for about 2.5 years and was Hazleton Flight Attendant  on the plane under the command of Captain Newman which arrived at Albury at about 11.30 pm on Friday 4 August 1995. Flight Attendant Payne gave evidence on behalf of the respondent confirming the time of arrival and departure from the motel and that her crew met Flight Attendant Kinnell at about 12.15 am on Saturday 5 August 1995 outside the police station. Flight Attendant Payne testified that all four went to the Terminus hotel where they had one drink and left to go to a hotel called the “Hub” . None of the other witnesses could recall the name of this hotel although there was a suggestion that it was green in colour.  Her recollection was that they had three drinks and were there for about an hour. Flight Attendant Kinnell  left about 1.30 am and they went on to Dimitri’s .  Flight Attendant Payne suggests they arrived there about 2.00 am and Captain Garside joined their group about twenty minutes later staying for about one and half  hours.  Her testimony was that he had been drinking and they danced together by her observation he was “a bit more immature, he was sort of mucking around a lot”.  Although suggesting he was drinking she is unable to say exactly what it was that he consumed. At the suggestion of Captain Newman when Flight Attendant Payne shouts a round of drinks she buys Captain Garside a lemonade which he drinks . Flight Attendant Payne confirms the awareness of the members of the aircrew about the rule against drinking alcohol at that time for Captain Garside . Her recollection is that a he left at “sometime after 3.00 am and that First Officer Waldron left “probably another half hour to 45 minutes afterward ,half an hour”. Captain Newman and Flight Attendant Payne return to the motel at “quarter to 5 in the morning” and walk straight in with out the doors being locked .

 

Asked to describe how the applicant looked when they piloted the 1.00 pm flight from Albury. Flight attendant Payne says:

“Don looked fine . He just looked tired but , its a pretty big  day ,so he was just looking tired .

......and Mr McGeehan? I was under the impression he wasn’t feeling totally well but that could be just tiredness .”

 

Flight Attendant Payne  suggests that First Officer McGeehan had discussed with her in a conversation that afternoon about how “that  they’d gone to bed so late, particularly Don”.

 

Subsequently, he blamed her for informing the company.  In her evidence to the court, she denied that this allegation was true.  Flight Attendant Payne testified that she and her parents had received some  “funny” telephone calls round October to up to Christmas time although no allegation was made that either applicant was responsible. 

 

Under cross examination Flight Attendant Payne admitted that she did not wear a watch although at around 1.30 am they were watching the time and saying to Flight Attendant Kinnell: “you have to stay to 1.30 just to keep us company” and saying “you couldn’t leave till 1.30.”  There is confirmation that First Officer Waldron left about half an hour after Captain Garside .Flight Attendant Payne told Mr Comerford “I was aware that Don had had a few drinks prior to when we met up with him. I did not consider him to be drunk” Flight Attendant Payne also confirms that the flight from Sydney to Albury was uneventful.

I conclude with an extract from her evidence as follows:

“How were you aware that he had something to drink?

As I said previously ,he was more immature and he sort of - we were dancing and carrying on.

It was the behaviour ?

Behaviour ,Yes.

And you said in relation to that behaviour that Don was not drunk?

No.”

When asked to amplify her meaning  Flight Attendant  Payne answered:

 “ When I say Someone’s drunk ,they’re on the ground

Right . He was not that drunk ?

No, no.”

 

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, was based on a number of Assumptions and  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 report as is relevant to the applicant is as follows:

 

"B.      The matter of Mr Garside

            Estimation of possible blood alcohol concentrations.

 

I understand that Mr Garside is aged 34 years, about 5 feet 9 or 10 inches in height  and of “stocky” build with a body weight estimated as approximately 85 Kg.

 

Mr Garside flew with Mr McGeehan as a passenger from Sydney to Albury on 4 August 1995 arriving at Albury at approximately 9.00 pm.  He may have consumed light refreshments during the flight. 

 

From about 9.00 or 9.30 pm until 11.00 pm you have told me that Mr Garside consumed 6 schooners of full strength beer (98.6 G alcohol), without eating. 

 

You have instructed me that he attended a disco until about 2.30 am on 5 August where he was observed to have given the impression that he had been drinking.

 

You also instruct me that one witness recalls that Mr Garside was drinking but was not able to say what beverage he was drinking although she says she was told when buying a round of drinks, including one for Mr Garside, to “make sure I bought (Garside) a lemonade”.

 

Mr Garside returned to the motel at approximately 3.00 or 3.30 am.  He may have had a hot dog after leaving the disco on his way back to the motel. 

 

Upon arrival at the motel he was observed by the night manager to have been drinking.  The night manager’s observation was that “he staggered when he walked towards the lift and his speech was slurred when I spoke to him and he answered.  He missed the button when trying to press it to call the lift to the ground floor”. 

 

I understand that a wake-up call to Mr Garside was ineffective because the phone for some reason had been disconnected.  The night manager attempted to wake him up by pounding on the door (Room 214) but in the absence of a response was forced to open the door with the master key.  The night manager shouted and  received no answer and then shook Mr Garside and he stirred.

 

The night manager returned some 20 minutes later and again knocked on room 214 and in the absence of a reply again used his master key to gain entry.  Mr Garside was in exactly the same position as before (“dead to the world”).  The night manager grabbed his toes strongly and “shook the hell out of him”.

 

The night manager said that Mr Garside (presumably when he left the motel for the air port) “looked  a mess” with his cap on the back of his head and tie not properly tied and so on.

 

Mr Garside arrived at the airport at about 7.20 am and I understand that he flew from about 7.40 am on 5 August until 5.00 pm on a number of continuous trips.

 

Estimations of blood alcohol concentrations.

 

These have been made with the assumption that the Alcohol had been consumed on an empty stomach.

 

I           Assuming a body weight of 85 Kg

 

            (a)       Shortly after 11 pm (about two hours after beginning to drink), I estimate that the likely peak concentration of alcohol would have been between 0.13 to 0.15 G%.

 

            (b)       At about 3.30 am, some 6.5 hours after he began drinking, I estimate that he would have had a BAC within the range of 0.05 to 0.11 G%.  This is the time he was observed by the motel night manager.

 

            (c)        At about 7.30 am I estimate a BAC within the range of 0.00 to 0.08 G%.

 

II         Assuming a body weight of 100 Kg (about 15.7 stones)

 

            (a)       0.11 to 0.13 G%

            (b)       0.04 to 0.10 G%

            (c)        0.00 to 0.07 G%

 

 

Comments and opinions on the above estimates of blood alcohol concentration.

.........................

Mr Garside

 

I have assumed that Mr Garside did not consume alcohol after approximately 11.00 pm. Therefore his peak BAC would have occurred shortly after this time. I have estimated that at peak his BAC would have been (depending on body weight) between 0.11 and 0.15 G%. After this time, with no further intake of alcohol his BAC would have steadily declined. Furthermore, with this decline in BAC, an acute tolerance would have developed such that the outward signs of drunkenness would be much less obvious.

 

Indeed, a witness indicated that at about 2.00 or 2.30 am Mr Garside had “given the impression that he had been drinking, although he was not particularly out of control not being overly boisterous”.

 

However, one or one and a half hours later, at 3.00 or 3.00 am, his behaviour was described by the night manager of the motel in quite a different manner. It is of importance to determine which of these two witness is the more reliable.

 

My estimation of the possible BAC of Mr Garside at this time (3.00 or 3.30 am), based on the stated amount of alcohol consumed by him and the time over which it was consumed indicated a possible BAC of between 0.05 to 0.11 G% (assuming a body weight of 85 Kg) or between 0.04 to 0.10 G% (assuming a body weight of 100 Kg).

 

I understand that Mr Garside has been described as being “a big drinker”. By this I am assuming that he is a regular drinker and has developed a degree of (chronic) tolerance to alcohol (ie. he is known to “hold his alcohol well”). If, as indicated in your instructions, Mr Garside had his last drink at 11.00 pm he would have developed, in addition to the chronic tolerance he had already developed by virtue of regular drinking, a degree of acute tolerance to the alcohol he had consumed. At this stage, as I have indicated above, his BAC would have been falling and one would expect the signs of drunkenness to be less than they were at 2.00 to 2.30 am. The evidence of the night manager of the motel clearly does not support this expectation.

 

Furthermore, if Mr Garside is indeed a regular drinker and has developed a degree of tolerance to alcohol, I find it difficult to reconcile the description of his behaviour at 3.00 or 3.30 am with the estimates I have made of the BAC.

 

I believe therefore that one must consider the possibility that his alcohol intake must have been considerably greater than the six schooners of beer between 9.00 to 11.00 pm or else he had consumed more alcohol after 11.00 pm.

 

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 Mr 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.

 

 

[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 Captain Garside.  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:

[12 March 1996]

 

“I refer to my earlier report dated February 2 1996 concerning the alcohol consumption of Mr Garside and Mr McGeehan. Since this report was prepared I have heard the evidence given by both these gentlemen before Judicial Registrar Mr G. McIlwaine of the Industrial Relations Court on February 8th and 9th 1996.I have also received from you a copy of the transcript of the proceedings on February 8 and 9, 1996.

 

As I now have more detailed information concerning the matters before the Court, I wish to set out below a revised summary of my opinions concerning the alcohol intake of each of these gentlemen and of the information available to me to assess their behaviour on the evening of August 4 and the morning of August 5 1995.

 

Mr Donald Stuart Garside

 

1     Mr Garside was born on 6 September 1962 and was therefore is [sic] 32 years of age at the time of the incident in August 1995. He stated that his weight is 86 kg and his height 5’11” and of “stocky” build.

 

2     Before his departure from Sydney and shortly after signing on for work at the airport at about 5.30 pm, he had a “substantial” three course meal in the Ansett cafeteria. On this occasion he dined alone and consumed no alcohol.

 

       The consumption of this meal would in my opinion be unlikely to have affected the estimations I previously made of the range of blood alcohol concentrations. Drinking began at 9.00 pm, some 3 or more hours after the meal. I would assume that gastric emptying was complete when drinking began and that there would be little if any influence on the absorption of alcohol consumed after this time.

 

3     The arrival at Albury airport was about 8.00 pm and Mr Garside signed off duty at about 8.30 pm. From the airport he then proceeded to the Green Tree Motor Inn which he estimated is about 15 minutes from the airport; Mr Garside considered that he arrived at the motel at about 8.30 pm. Here he checked into his room which he remembered was on the second floor, the last room on the right. He then changed into casual attire

 

4     Br prior arrangement he met John Kinnell and Brett McGeehan and walked to the Soden’s Hotel for drinks. They later went to the Terminus Hotel for more drinks. The evidence suggests therefore that between the hours of about 8.45 or 9.00 pm (on cross examination Mr Garside agreed that it was closer to 9.00 pm ) to about 11.00 pm, with an interval of only 10 or 15 minutes when they walked from one hotel to the other, Mr Garside consumed six schooners of full strength beer. He claims that he consumed no more alcohol after this time. He was quite firm in this assertion claiming that he was well aware of the 8 hours rule concerning his responsibility to fly an aircraft at 7.30 am the following morning.

 

Behaviour -v- blood alcohol concentration

 

       Assuming no further alcohol consumption, I estimate that shortly after 11.00 pm his blood alcohol concentration (BAC) would have peaked somewhere between 0.13 and 0.15 G alcohol per 100ml blood (G%).

 

5     From the Terminus Hotel, Mr Garside and Mr McGeehan walked to the New Albury Hotel, some 5 to 10 minutes walk, to visit Dimitri’s, a discotheque bar in that hotel. Mr Garside firmly asserted that he drank only non-alcoholic drinks.

 

6     At about 2.00 to 2.30 am he was observed “to have given the impression that he had been drinking, although he as not particularly out of control not being overly boisterous”.

 

       At about this time I estimate that his BAC would have been within the range of 0.07 to 0.12 G%.

 

7     Mr Garside claimed that he returned to the motel at approximately 3.00 or 3.30 am. Upon arrival at the motel he was observed by the night manager to have been drinking. The night manager’s observation was that “he staggered when he walked towards the lift and his speech was slurred when I spoke to him and he answered. He missed the button when trying to press it to call the lift to the ground floor”.

 

       At this time (3.00 or 3.30 am), on the assumption that Mr Garside had consumed his last drink at about 11.00 pm, I have estimated that his BAC would have been within the range of 0.05 to 0.11 G%.

 

       Mr Garside claimed that these accusations were incorrect though he agreed that he could see no reason for the night manager to fabricate them. (“I have no reason to whatsoever why he would say those things”)[p54 l27]

 

The matter of deep or sound sleep.

 

8     The night manager of the motel reported the extreme difficulty he had in waking Mr Garside. He had to enter the room on two occasions, the second occasion about twenty minutes after the first. Although Mr Garside did stir on the first occasion, it took vigorous shaking to waken him on the second.

 

       During cross examination Mr Garside was unaware that the night manager had at any time in the morning entered the room in his presence. He denied that the night manager (Mr Thompson) had entered the room and that the night manager had on the first occasion shaken him and on the second occasion had to “shake the hell out of him to get you up?” Mr Garside claimed that he was woken by a knocking on the door and a male voice saying  that saying “your taxi is here”.

 

       He was also unaware that shortly after 6.00 am Mr John Kinnell had knocked at his door to wake him up. He only learned of this later from conversation with Mr Kinnell.

 

       Concerning the issue of the difficulty in waking him, Mr Garside, when asked by Mr Goot-- “Now, if Mr Thompson is right about his attempts to wake you up, that would suggest, would it not, that you were very tired on the morning of 5 August?” Mr Garside replied “It would indicate that I was in a deep sleep”.[p67 l 30]. However Mr Garside still considered that the night manager’s (Mr Thompson) accusations were incorrect. [p68 l 22] Laterduring cross examination and in response to the question “You could not even wake up the next morning. You were dead to the world the next morning” Mr Garside replied “I was in a sound sleep”

 

A matter of memory.

 

9     During the course of the hearings, and in particular his responses to the cross examination by Mr Goot, Mr Garside had difficulty in recalling events that occurred after he left the Dimitri’s bar.

 

       First, he had difficulty in describing the location or the description of the place where he bought a hot dog on his way back to the Motel. He can remember that he turned left after leaving Dimitri’s. He described the hot dog stand as being “like a caravan” [p51 l 28] “..a caravan and it appeared to be in a disused lot” [p52 l 2] and later as being “..some type of a portable hot dog stand” [p52 l 10]. These descriptions are not necessarily contradictory, but it does suggest a hazy memory at this time of the morning.

 

10   In response to Mr Goot’s questions, Mr Garside described his entry to the motel on his return as being through the (automatic) sliding doors [p53 l 16] and that although he did see a gentleman standing at the reception desk he just walked past that person and took the lift. He described this gentleman and indicated that it was the first time he had seen this person [p53 l 21 to 31]. Mr Garside then denied the suggestions put to him by Mr Goot that the automatic sliding doors were, at the time of his arrival, locked and that he had to press the buzzer to alert the night manager to open them for him. He also denied the suggestion that he had a conversation with the night manager.

 

       If one can assume that the suggestions put to Mr Garside above are true and can be validated by a reliable witness, these events indicate a significant memory loss on the part of Mr Garside for events that occurred after he left the Dimitri’s bar.

 

11   Perhaps related to the above are Mr Garside’s recollections of his return to his room and his description of the work he completed before going to sleep. [p52 l 14 et seq.]

 

12   Mr Garside claimed that the time of his return to the motel was at 2.30 am. He indeed disputed the suggestion by Mr Goot that it was closer to 3.00 am. This time confusion may also be a function of a memory loss for events at this time of the morning.

 

 

 

 

Opinion

 

Set out above are three issues, each of which very strongly suggest to me that Mr Garside must have consumed more alcohol after 11.00 pm on the evening of 4th or the morning of the 5th August 1995. In my view it is more likely that extra alcohol must have been consumed in the morning of August 5 1995. These issues can be summarised and will be discussed under the headings of

 

A.         Behaviour -v- blood alcohol concentration.

 

These are not consistent with the stated consumption of alcohol nor of the time stated of the last drink.

 

B          The matter of “deep sleep”.

 

This is consistent with the recent consumption of a high concentration of alcohol. Taken alone it is not necessarily proof of an alcohol induced sleep.

 

C         A matter of memory.

 

The loss of memory of events that occur after the ingestion of alcohol is commonly referred to as a “blackout”. The events described here are consistent with an alcohol-induced “blackout”.

 

Behaviour -v- blood alcohol concentrations

 

In my previous report I stated that “I understand that Mr Garside has been described as being a ‘big drinker’. By this I am assuming that he is a regular drinker and has developed a degree of (chronic) tolerance to alcohol (ie. he is known to “hold his alcohol well”). If, as Mr Garside has insisted, he had his last drink at 11.00 pm he would have developed (in addition to the chronic tolerance he had already attained by virtue of regular drinking) a degree of acute tolerance to the alcohol he had consumed.

 

My estimate of his BAC at peak shortly after 11.00 pm was between 0.13 and 0.15 G%. For someone of the claimed drinking experience of Mr Garside such a BAC shortly after drinking may not necessarily have exhibited clear signs of drunkenness such as slurred speech and some swaying of gait at this time. These signs are those which in the experienced, regular drinker are practiced [sic] frequently whilst drunk. Experimental and epidemiological studies suggest that in a population of drinkers, the 50% probability of observing an individual as being drunk occurred at a BAC between 0.1 to 0.15 g%. I have estimated that shortly after completion of drinking at 11.00 pm, Mr Garside was likely to have been within this range.

 

As the evening progressed and shortly after arrival at the Dimitri’s bar I would expect that an acute tolerance would have developed (see footnote of my previous report) and I expect it to be quite possible that Mr Garside may not have then exhibited any obvious signs of drunkenness.

 

For this reason the description of his behaviour given some three to three and a half hours later (at 2 or 2.30 am) by a witness, when I estimated his BAC 0.07 to 0.12 G%, might be suggestive of his consumption of more alcohol at Dimitri’s.

 

A much stronger case for the consumption of alcohol after 11.00 pm by Mr Garside on August 4 1995 exists. This evidence depends on the reliability of the evidence of the night manager of the motel. The signs of drunkenness described by this gentleman are very clearly those of a seriously intoxicated individual. Had Mr Garside stopped drinking at 11.00 pm the previous evening, not only would he have developed a very considerable degree of acute tolerance but he would have clearly metabolised more alcohol. My estimation of his BAC at this time was between the levels of 0.05 and 0.11 G%. in view of the evidence of the experience with alcohol attributed to Mr Garside, the behaviour described by the night manager is not in any way consistent with this blood alcohol concentration.

 

 

 

The matter of “deep sleep”

 

Evidence for the very sound (or deep) sleep of Mr Garside on the morning of August 5 1995 is, I understand, to be described by the night manager and Mr John Kinnell. It is also conceded by Mr Garside as discussed in Number 8 above.

 

Alcohol is a hypnotic, but not a good one. Alcohol is a good sleep inducer and reduces the time it takes to fall asleep and increases deep sleep for the first part of the night. However, due primarily to its short duration of action, as the blood alcohol concentration falls to lower levels it notably alters sleep structure: sleep is fragmented, particularly at the end of the night. For this reason, the fact that Mr Garside, some two to three hours after he returned to the motel was very soundly asleep is to my mind consistent with him having a high BAC when he returned to the motel. Indeed it is consistent with the observations made by the night manager.

 

A matter of memory

 

The evidence outlined above in items 9, 10, 11 and 12 all attest to the fact that Mr Garside had a memory loss for the events that occurred after he left the Dimitri’s disco, Such a memory loss is a characteristic effect of depressant drugs and in the case of alcohol is referred to as a “blackout”. The intensity of the “blackout” is considered to be dependent on the degree of intoxication.

 

The strongest single factor that leads me to believe that Mr Garside had consumed alcohol after 11.00 pm is the striking discrepancy in the description of his behaviour at Dimitri’s disco at about 2.00 or 2.30 am and that of the night manager of the motel at 3.00 or 3.30 am. This change in the behaviour of drunkenness can not have occurred in the absence of the further consumption of alcohol. There are of course other possibilities to explain a behaviour such as this, but the experiences of the night manager would I expect be quite reliable so far as the recognition of the signs of drunkenness are concerned.

 

However, when these behavioural signs are taken together with the evidence of a “blackout” and of the deep, heavy sleep that required such effort on the part of the night manager to wake Mr Garside add to the equation of continued drinking after 11.00 pm. To this we must add evidence for the third characteristic of heavy drinking, the “blackout” with the clear evidence of amnesia to events after leaving Dimitri’s bar.

 

With all of these factors in mind I find it extremely difficult indeed to be persuaded that Mr Garside did not continue drinking (and quite heavily) after 11.00 pm of August 5 1995.

........................................

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.

 

Dr Chesher to support his opinion that the applicant consumed more alcohol then he said he did strongly relies on the difference in behaviour  described for Captain Garside from when he was at Dimitri’s  and arriving at the motel . --“I’m placing great emphasis on that behaviour.”

 

In my view there is a real prospect that Mr. Thompson  confused the incident admitted to by First Officer Waldron at the main door with the behaviour  of the applicant when he returned to the motel.

 

During the hearing between Dr Chesher and I the following interchange occurred:

 

“Let us deal with Mr Garside ?--- Right . Now this February report was assuming  a weight of 85. I did a re-calculation for 86 but it’s really- in this sense  I would say it’s the same. At 7.30 I estimated that he would be Zero to .08. Now they are the extremes. The .08 would be within the range of normals but a very slow metabolism, so I think to give the fairest and to be absolutely fair I would have to take the lower level, and I would say that Mr. Garside, on everything you have put to me ,would have been zero blood alcohol that morning.”

Taking this opinion into account, I am not satisfied that, it is more likely than not, that Captain Garside  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 decision an extract from the report, as it relates to the applicant, of the investigation officer apparently appointed by the Civil Aviation Safety Authority  to investigate the incident.

 

It appears that this report was not given to "Hazelton" prior to the hearing.  I understand that the mangers of the respondent first became aware of its existence, although access had been granted to the documents produced under subpoena some time previously, when I asked to read it for the purpose of determining its relevance to the proceedings.  An access order to view the documents had been granted to their solicitors 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 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, omitting the section devoted to First Office Brett McGeehan 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 (11.9.95) 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 Civil Aviation Safety Authority were not made aware of the alleged incident, or the decision to suspend both flight crew members.

 

Later that morning Captain Terrell attended the Mascot office and discussed the matter with A/DFOM K Stone and FOI Weatherstone.  Resulting from the meeting the matter was referred to the investigation section on 13.9.95.

 

On 15.9.1995 Hazelton Air Services terminated the services of Captain Garside and First Officer McGeehan for contravention of Section 1.2(Policy), 2.16 (Appearance and Behaviour), 2.17 (Fitness for Duty), 3.2 (Alcohol and Drug Usage), 3.7 (Preflight Inspection) of Part A of the Hazelton Airlines Operations Manual and probable contravention of CAO 48 (Flight Time Limitations), Section 20A(2) (Negligent operation of aircraft) Civil Aviation Act 1988 and Civil Aviation Regulation 256(2) (Intoxicated person not to act as pilots etc.).

 

Enquiries were conducted in Albury and Sydney with signed statements provided by

 

Mr F Thompson        -           Night Manager Greentree Inn Motel Albury

 

Ms K Taylor              -           Hazelton Passenger Service Officer Albury Airport

 

Mr J Kinnell              -           Hazelton Flight Attendant

 

Ms M Payne              -           Hazelton Flight Attendant

 

Capt. M Newman      -          Hazelton Air Services

 

F/O   I Waldron          -          Hazelton Air Services

 

Enquiries were also conducted at Soden’s Hotel, The Terminus Hotel and New Albury Hotel establishments in respect to the individuals concerned without reference to the airline involved.

 

... General Manager Greentree Inn Motel where the flight crew were accommodated was also interviewed.  He did not wish to make any complaint in respect to any alleged actions of the personnel involved.

 

Captain Garside and First Officer McGeehan both attended the office with their legal representative on 27 October and 1 November respectively and individually voluntarily took part in a recorded record of interview in respect to the matter.

 

The investigation revealed the following in respect to the allegations levelled against both Garside and McGeehan from a regularity perspective.

.......

Captain Donald Garside:

 

Captain Garside admitted to having consumed six schooners of full strength beer whilst in the company of FO McGeehan and Flight Attendant Kinnell prior to accompanying McGeehan to Dimitri’s (New Albury Hotel).  There are differences in the statements of Kinnell, Garside and McGeehan with respect to the  time Garside and McGeehan left the Terminus Hotel to go to Dimitri’s.

However there is no evidence either Garside or McGeehan continued to consume alcohol after 11.00 pm at the Terminus Hotel or Dimitri’s (New Albury Hotel) which if it had occurred would render one or both in contravention of CAR 256(3). (Alcohol consumed within 8 hours of acting or performing duties of the operating crew).

 

Whilst in attendance at Dimitri’s Garside stated he did not consume any alcohol only lime and soda.  The persons in the company of Garside who provided statements namely fellow Hazelton flight crew members Newman, Waldron, Payne, and McGeehan have stated they did not observe Garside consume any alcohol.  There are no witnesses to rebut that allegation.

 

One of Captain Garside's fellow Hazelton flight crew members has stated within an hour of meeting Garside at Dimitri’s he remarked to him "it was time for him to head home" or words similar to that effect.  The reason he has stated for that remark being, because he was aware of Garside's early morning flight crew commitments.

 

Captain Garside has stated he arrived back at the Greentree Inn between 2.30 and 3.00 am on the Saturday morning.  The night manager has stated he observed Garside return after 3.00 am and allowed him entry to the motel after Garside activated the night bell/buzzer.  He states he had a short conversation with Garside.  Captain Garside states he did not activate the night bell or have any conversation with the night manager.  The night manager in his statement described Garside "as drunk" on his return to the motel.

 

At 6.00 am approximately the night manager attempted a wake up call to both McGeehan ad Garside without success.  There was no response from McGeehan's room.  Garside was unobtainable indicating the telephone was either broken or disconnected.  Following this he went to both rooms and........... Garside was unobtainable indicating the telephone was either broken or disconnected.  Following this he went to both rooms and received a response from McGeehan.  There was no response  room 214 (Garside) and following normal motel practice he then used his security key to gain entry to room 214.  On observing that Garside was sleeping he attempted to wake him...... by shaking him by the toes and informing him it was time to get up.

 

The night manager then returned to his duties at reception.  Approximately 20 minutes later the night manager again returned to room 214 because the prebooked taxi was waiting to take Garside, McGeehan and Kinnell to the airport.

 

The taxi subsequently left with only Flight Attendant John Kinnell on  board with instructions to return to the motel for McGeehan and Garside.  The night manager again returned to room 214 and on receiving no reply used his security key to enter the room.  He has stated that "he had to shake the hell" out of him (Garside) on this occasion to wake him.

 

Captain Garside when questioned had no recollection of any person entering his room that morning.

 

It should be noted that the Hazelton Albury passenger service officer made two telephone calls to the motel concerning the whereabouts of Garside and McGeehan following their non arrival at the airport with Flight Attendant Kinnell.

 

When Garside subsequently arrived in the foyer to accompany the waiting McGeehan in a taxi to the airport, the night manager described him as "jacket undone, cap on back of head and tie hanging around his neck".  In the words of the night manager "he appeared to be still under the influence of alcohol".

 

In summary, in respect of Captain Garside there is no evidence that Garside consumed alcohol whilst in attendance at Dimitri’s (11.00 - 2.30 am approx.).  The evidence/statement of his physical condition on returning to the motel although circumstantial would appear to challenge that assertion.   The statement provided by the night manager is quite strong in respect to all aspects surrounding the incident, however it is uncorroborated.  FO McGeehan, Flight attendant Kinnell or Ms Taylor the airport passenger service officer do not support the allegation that Captain Garside was under the influence of alcohol when he reported for duty at the airport.

 

Based on the latter I am not of the opinion that this matter should be referred to the DPP consideration of the institution of legal proceedings.

 

Notwithstanding the above I have serious concerns that in consideration of all the circumstances, Captain Garside acted as Pilot In Command of SAAB aircraft VH-LIH an RPT service on Saturday morning 5 August 1995 at Albury in contravention of the provisions of CAO 48.0 subsection 1.4.  In particular there is the evidence of returning to the motel after 3.00 am in a condition describe (sic) "as drunk", and the efforts of the night manager on two occasions to wake him. Based on the above it would be probable that captain Garside without receiving sufficient rest (3.00 am + to 6.45 am approx.) was likely to be suffering from fatigue or illness (hangover), which may affect judgement or performance to the extent that safety may be impaired.

 

Whilst he and FO McGeehan continued to operate as flight crew for that day without any reported incidents, his conduct would indicate an unprofessional attitude in respect to his responsibilities.

 

There is nothing untoward recorded in respect to Captain Garside or FO McGeehan in the indices of the Authority.  The exemplary manner in which Captain Garside has exercised his responsibilities as a Certifying and Training Captain with Hazelton Air Service is acknowledged.

 

I recommend Captain Garside be counselled in the strongest terms in respect to the above incident.  That counselling to be recorded.

 

I have been informed by both FO McGeehan and Captain Garside that they have commenced legal proceedings to have their termination by Hazelton Air Services rescinded.

 

The failure of Hazelton Air Service to notify CIVIL AVIATION SAFETY AUTHORITY or their own chief pilot officially of this incident until the matter was brought to our notice by Captain Garside approximately six weeks after the incident, reflects in a very negative manner management attitude/conduct in respect to aviation safety matters on behalf of Hazelton Air Services.

 

Not withstanding the latter, I would like to place on record my appreciation of the assistance provided by Hazelton personnel once the inquiry commenced.

 

 

signed

 

Gerard Comerford

Investigation Officer

13 October 1995

 

 

CONSUMPTION OF ALCOHOL AND PUBLIC SAFETY

 

The attitude of the Australian public, over recent times,  to the consumption of alcohol has undergone a radical community change in Australia and in New South Wales in particular. Twenty years ago it was common for mostly men and sometimes women, to consume a large amount of alcohol and then to have no compunction about driving a motor vehicle, although the then traffic law forbade that practice.   There were many difficulties for the police and traffic authorities in enforcing this important rule as a result of the necessity for the proof of the incident to be by evidence of a subjective nature.  This was so because the usual charge was "driving under the influence of alcohol".  Similar difficulties can be noted in this trial.

 

In the early 1980's the New South Wales Parliament introduced a process of random breath testing by the use of mechanical devices which had the capacity to test the alcohol content in the blood in  a very practical way by the machine analysing the breath of a person blown into the breath analyser. “Breath analysing instrument” is defined in Section 2 Traffic Act, 1909 (NSW).  This allowed the use of equipment which could produce an objective standard. This system has gradually been refined and now there are machines that operate simply as a result of speaking into the instrument. Proof of the alcohol concentration in the blood was facilitated by providing in the legislation that certificates tendered to the court are prima facie evidence of that which is stated in the certificate.

 

Random Breath Testing provided a very effective means of changing the attitude of the community towards the consumption of alcohol whilst driving.   It is well known that people generally in the community are now more careful not to offer a potential driver any more alcoholic drinks.  There has been a substantial change from the former Australian culture of "one for the road".  As a result of this different community view, there has been enormous, sometimes inconvenient consequences, of a social, and in some places and instances of an economic nature.  Indeed, many clubs and hotels in the city have been closed and other suburban and country hotels and clubs have lost clientele who are no longer prepared to attend the club or hotel and then make their way home by transport other than by driving their own motor vehicle.  This attitude has affected the community's attitude to such an extent that it is not unusual for a fellow drinker to take positive steps to prevent a friend or drinking companion from driving a motor vehicle, if they are of the opinion that he or she will be "over the limit".

 

As a result of the community change of attitude, there is now a complex series of “drink driving” laws, which prescribe special categories for drivers of buses and other public transport. Section 4E(1B) Traffic Act 1909 (NSW) places certain holders of driver's licence into a "Special Category Driver".  See in particular Section 4E(1B)(e),(f) and (g).  These broadly cover the drivers of buses, taxis, coaches, heavy motor vehicles as well as motor vehicles carrying dangerous goods under Dangerous Goods Act 1975 (NSW) and radioactive substances within the meaning of the Radiation Control Act 1990 (NSW).  Section 4E(1D) makes it an offences for such persons, if they drive or attempt to drive a motor vehicle when their blood alcohol level at the time falls within the “Special Range Prescribed Concentration of Alcohol”. The “Special Range Prescribed Concentration of Alcohol” is a reference to a concentration of 0.02 grams or more, but less than 0.05 grams of alcohol in 100 millilitres of blood.  Apparently it is intended by the New South Wales Police Service to impose random breath testing on its officers in certain operational roles in the near future.

 

The Rail Safety Act 1993 (NSW) now authorises a responsible officer to require a person to submit to a "random" test when questions of rail safety are involved .

 

An extract from the Rail Safety Act 1993 follows:

 

 

“Railway employees - alcohol and other drugs

 

61  (1)  It is a condition of accreditation that an accredited person must ensure that all railway employees employed, or contracted, by the person to perform railway safety work are not under the influence of alcohol or other drugs when about to carry out, or while carrying out, railway safety work.

 

  (2)  The Director-General may at any time arrange with accredited persons for the random testing of any person carrying out railway safety work on railways owned or operated by those persons for the presence of alcohol or any other drug to ensure that accredited persons are complying with the terms of their accreditations.

 

  (3)  The result to any random test conducted under subsection (2) is not admissible against the persons tested in any proceedings for an offence under this Act or in any disciplinary proceedings. 

 

  (4)  Schedule (2) has effect.

 

  (5)  In this section, “about to carry out railway safety work”  has the meaning set out in clause 6 (2) of Schedule (2).” 

 

Schedule Two of the Rail Safety Act 1993 defines “a prescribed concentration of alcohol” to mean a concentration of 0.02 grammes of alcohol in 100 millilitres of blood. Section 3 of Schedule 2 creates an offence of:-

 

“a railway employee who carries out railway safety work while the prescribed concentration of alcohol is present in the employees blood is guilty of an offence.”

 

 A penalty of 10 penalty units, or imprisonment for 6 months, or both is imposed. 

 

The remaining sections of the Schedule provide detailed methods of testing for drugs or alcohol by breath analysis, or the submission of blood or urine samples.  It also provides a protection against double jeopardy in relation to the various offences which are created in Section 5 and there is a provision made for evidence of blood alcohol levels to be presented by certificate in any proceedings.  It seems to me if similar legislation is available to the Airline Industry, the general public would have a greater assurance of safety. In my view, the Aviation Safety Authorities and the Airline Industry would benefit from the introduction of legislation  similar to that outlined in Section 61 of the Rail Safety Act 1993 in Australia.

 

 

ALCOHOL AND AIRCREW

 

The Civil Aviation Regulations dealing with alcohol and aircrew are:

 

“Intoxicated persons not to act as pilots etc, or be carried on aircraft

 

 256.  (1) A person shall not, while in a state of intoxication, enter any aircraft.

 

Penalty:  5 penalty units.

 

            (2) A person acting as a member of the operating crew of an aircraft, or carried in the aircraft for the purpose of so acting, shall not, while so acting or carried, be in a state in which by reason of his or her having consumed, used, or absorbed any alcoholic liquor, drug, pharmaceutical or medicinal preparation or other substance, his or her capacity so to act is impaired.

 

Penalty:  50 penalty units.

 

            (3)  A person shall not act as, or perform any duties or functions preparatory to acting as, a member of the operating crew of an aircraft if the person has, during the period of 8 hours immediately preceding the departure of the aircraft consumed any alcoholic liquor.

 

Penalty:  50 penalty units.

 

             (4)  A person who is on board an aircraft as a member of the operating crew, or as a person carried in the aircraft for the purpose of acting as a member of the operating crew, shall not consume any alcoholic liquor. 

 

Penalty:   50 penalty units.”

 

The regulations for aircrew have a different emphasis to those which pertain to the general community.  I must say that I initially had some reservations about the strength of the Aviation regulation reg 256 (3) commonly called the “bottle to throttle rule”.  My reservations were based on the rate at which the applicant, First Officer McGeehan and Flight Attendant Kinnell consumed the alcohol, which they have all admitted in their evidence to the court.  Historically, this problem has been faced in New South Wales before as can be seen from the following extract from the 1959 report of the Royal Commission into the Liquor Trade issued by the Hon.  A.V. Maxwell,  Pusine Judge of the Supreme Court: 

 

“In respect of the six o’clock closing question:  “There is ample sworn testimony that the drinking conditions in many hotels during the peak hour, concluding at least nominally with six pm. amount to an evil.  This is especially so in many parts of the Metropolitan Licensing District and some cases close to the city proper and  in other cases farther removed.  Moreover, impartial observation of such conditions can lead to no other reasonable conclusion than that they range from the undesirable to the disgusting.  As is indicated in the summary later, the finding is inescapable that there are in many districts and in many hotels what has been inelegantly described as “pig swilling”.”

 

My initial reaction to Regulation 256 (3) was along the lines set out in that report. However, in the light of the evidence of the other aircrew present during the evening, I can well see the merit in maintaining that rule.  It is a visible sign to the community generally, including people who may have day to day contact with pilots and who can help to enforce the rule.  In a country town or regional centre, such as Albury, where those aircrew could be well known to the licensed establishments that they attend, the proprietor or barperson knows that a pilot or member of an aircrew can not drink any alcohol unless its more than eight hours before the scheduled flight time.  It seems to me that this concept still has a lot to commend itself to the airline industry.  Although it may be important to extend the period of time from eight to twelve hours, or longer. This is reinforced if account is taken of the fact that in other jurisdictions, the period of prohibition is twenty four hours before a flight.  A recent change in the legislative framework in New South Wales, which places a greater onus of accountability on the person serving or supplying alcohol to a customer to ensure responsible drinking, may also be of assistance.  

 

Much attention has been given by the responsible authorities to publicising the fact that a “standard drink” contains approximately 10 grams of alcohol and equals one middy (285ml/10oz) of ordinary beer.  Community awareness advertising has adopted this concept as a means of simplifying the rules for general acceptance in the community.

 

This has allowed considerable publicity to be given to the personal drinking behaviour which will assist a male person to understand the number of drinks he can consume over a set period of time if they are to drive a motor vehicle.  (The standard is different for females.)  As I understand the rule, it is:  a male drinker may consume up to three standard drinks in an hour and thereafter one standard drink per hour so it remains possible to stay under the .05 limit for driving a motor vehicle.  More beer may be consumed if it is of a reduced alcohol level commonly known as a "light beer".  Light beers were not consumed by the males who crewed the first flight out of Albury on Saturday 5 August 1995.  I have referred to this standard because it is well documented that errors of judgment are more likely to occur whilst driving at this blood alcohol level. 

 

Even placing the circumstantial evidence at its highest, I am unable, on the balance of probabilities, to make any specific finding as to the level of concentration of alcohol, if any, which remained in the blood of either applicant or Flight Attendant Kinnell at 7.30 am on Saturday 5 August 1995.  This conclusion thus leads to a very anomalous situation, namely that the bus, coach, or taxi driver, who having consumed the same quantity of alcohol over the same time frame as the applicant and is only driving him the relatively short distance to the airport, is the person who is most likely among the two of them of being exposed by the random breath testing system on the roads of New South Wales, as to the actual level of alcohol present in his blood.  Thus, the taxi or coach driver is more at risk, under the present system, of losing his or her livelihood. In my view there is no justification for allowing this situation to continue.

 

Alcohol and Civil Aviation

 

The parties have agreed to me receiving, by consent, an extract from an article written by Fridolin Holdener of the Medical Service of Swiss Air entitled “Alcohol and Air Safety”: (Source:  Addiction 1993).  I would have preferred to also have had the opportunity of questioning Mr Comerford, from the Civil Aviation Safety Authority on these issues, however, as I have indicated elsewhere in this judgment, he was not called to give evidence.  However, I am impressed by certain suggestions in that article, in particular, the need for education programmes to ensure that pilots have an understanding of their personal metabolism in relation to the rate at which alcohol is absorbed into their blood-alcohol stream.  There are also other issues discussed in relation to licensing and safety which I found to be helpful in coming to this decision.

 

In my opinion, the appropriate government authority and the airline industry generally should give early consideration to introducing by regulation, if necessary provisions similar to those contained in the Rail Safety Act 1993 (NSW) to provide added protection to the public.  In addition, the “bottle to throttle” rule, contained in reg 256 (3), should be extended from eight to at least twelve hours.  There should also be legislation introduced which allows proof of Blood Alcohol Levels to be given by way of certificate after a test is completed.

 

BREACHES OF AIRLINES OPERATIONS MANUAL

 

Four specific breaches of the Hazelton Airlines Operations Manual ("the manual") are alleged against the applicant.  In relation to the allegations that Captain Garside breached the company operations manual a number of particulars are alleged as follows: "contravention of sections 1.2, 2.16, 2.17, 3.2 and 3.7 of Part A."

 

1.2       Policy

 

Section 1.2 is a general outline of the policy of Hazelton Airlines which is to ensure "the safe and efficient operation of aircraft in regular public transport." It contains the statement that in normal operations no conflict is anticipated in meeting these dual objectives, however should such conflict arise, the safety of the aircraft must remain paramount.

 

It is maintained that the manual is designed to meet and complement the requirements of Civil Aviation Regulations (CAR), Civil Aviation Orders (CAO) and Aeronautical Information Publications (AIP).  Most importantly it outlines these principles “should any conflict arise between the Operations Manual and these documents, the relevant CAA document will take precedence.  Nothing contained in the Manual is to be construed as relieving the pilot in command of the responsibility to take action in emergency or unusual circumstances as considered necessary to preserve the safety of the aircraft and its passengers.

 

All Company personnel, whether flight staff, or ground staff are encouraged to see themselves as part of a single team, dedicated to the safe operation of Company aircraft and to providing comfortable and expeditious travel to our passengers.”   Captain Garside piloted the commuter flights on Saturday 5 August 1995 without incident.  There is no evidence  of a specific breach of this section of the policy by the applicant, apart from the late departure of the aircraft.

 

FAILURE TO REPORT

 

“Flight crew are well positioned to observe many aspects of the overall operation of the Company and are encouraged to provide reports on any aspect of operations that may require action to further the Company objective.”

 

Hazelton alleges that the applicant, Captain Garside, did not submit a report on the incident as is required by the sentence: "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 this allegation can be sustained against  Captain Garside.  He failed to disclose to the company the late departure of the Aircraft and his role in it . I am not satisfied that had he done so it would have  required him to give a full account of the events which led up to him not waking in sufficient time to allow the aircraft to depart on time

 

 

 

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.  The evidence as to breach of policy by Captain Garside relied on the evidence of Mr Thompson.  I have set out earlier the admissions made by Captain Garside on this issue.  Even if the evidence of Mr Thompson were to be totally accepted, on this issue I do not think it is a sufficient infringement of policy to justify any thing more than an oral admonition not to allow it to occur again.  There is no evidence that the applicant was not properly dressed in his uniform when he arrived at the airport on Saturday 5 August 1995 at 7.10 am.  I infer that he remained properly dressed that day including his meeting with the Chief Pilot at the end of his duty. 

 

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 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. Captain Garside did not drink alcohol whilst in Uniform.  The only adverse evidence about his behaviour comes from Mr Thompson which I have dealt with elsewhere in this judgment.  There is also the report by Flight Attendant Payne of him as acting immaturely at the disco.  According to the report by Mr Comerford, the General Manager of The Greentree Inn Motel did not wish to make any complaint about the activities of the aircrew.  The evidence is 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 expected for such a flight.  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 the bare 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 long hours 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 on his own admission at 3.00 am and was awake at 6.50 am.  He could not have had a four hours sleep period. 

 

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 find that the applicant suffered from fatigue due to his lack of sleep, and that his judgment or performance may have been affected to the extent that safety may be impaired. In coming to this conclusion, I have taken into account the evidence that he did not get out of bed until 11.30 am on Friday, 4 August 1997.  In the light of the evidence that the flights that day were completed without incident, I am unable to find on the balance of probabilities that there was any actual impairment of safety.

 

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 Captain Garside 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.  Captain Garside in his evidence maintained that the inspection was done properly.  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 Captain Garside.

 

 

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 Captain Garside operated the plane 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:- 

 

“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. 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.”

 

PROTHESIS

 

Captain Garside is a below the knee amputee.  This information was not disclosed in the evidence in chief given by him and I was unaware at the time of the cross-examination of Mr Thompson that he had this disability.  Although, I had been observing the applicant, up until that stage I had not noticed anything significant about his gait, when coming and leaving the court.  In fact,  the chance to observe that situation did not occur.  Mr Goot strongly objected to the evidence on the basis that the applicant was splitting his case.  However, I agreed to allow the evidence in, but gave rulings as to the scope of the evidence.

 

Captain Garside had a below-knee amputation of the right limb and wears a prothesis which he was wearing on 4 August and 5 August 1995.  He testified that he removed the prothesis and put it beside the bed.  He made a sketch of the Greentree Motel room in which he stayed and which was tendered in evidence. 

Subsequently I had the opportunity of watching him walk across the court room, I did notice that he had a gait that was consistent with a below-knee amputation.  I have also made a physical observation of his situation and describe it as follows:

 

“It appears to me to be a complete prothesis from the foot to above the knee with the usual fittings by way of straps and bandages.”

 

I have not found the necessity to test Mr Thompson’s evidence, against this evidence of the applicant in view of the way in which I have resolved the matter, based on other issues.  I should mention that I allowed the evidence to be given, inter alia, because it seemed to me that the respondent would have been well aware of this physical disability of Captain Garside. 

 

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:

 

“Right . Now this February report was assuming  a weight of 85. I did a re-calculation for 86 but it’s really- in this sense  I would say it’s the same. At 7.30 I estimated that he would be Zero to .08. Now they are the extremes. The .08 would be within the range of normals but a very slow metabolism, so I think to give the fairest and to be absolutely fair I would have to take the lower level, and I would say that Mr. Garside, on everything you have put to me ,would have been zero blood alcohol that morning.”

 

3.         The missing hour submission of the respondent cannot, in my view,      be        sustained in view of the need for such evidence to be of a high standard so as       to lead to the probable consequence suggested by the respondent.  I do not             believe that the evidence lead by the respondent  is of such a standard, nor do I             accept that it follows as outlined by Mr Goot that there is a missing hour in the           applicant’s account of his excursions that night.

 

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 Inn 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 with respect to    Flight Attendant Kinnell: "we dared him to stay out till one thirty." provided a balancing factor.

 

7.         “Hazelton” made a number of specific allegations against Captain Garside in   the letter dated 15 September 1995.   Those allegations cannot be sustained            against the applicant in their entirety.

 

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. 

Although not referred to by counsel, my attention has been drawn to the case of Alidair Ltd -v- Taylor (1978) ICR 445 in the English Court of Appeal.  In that case, the applicant was a pilot employed by the respondent company, Alidair Ltd.  He landed at Guernsey Airport, as pilot-in-command of a Vickers Viscount, with the Managing Director of the Company on board.  Captain Taylor “bounced” the air craft causing structural damage to the undercarriage at a significant cost.  Following an investigation by the company, the pilot was summarily dismissed on the grounds of incompetence.  On appeal from the Employment Appeal Tribunal the applicant alleged that he had been unfairly dismissed as a consequence of a single and isolated instance of error of judgment.  The Court of Appeal held that the findings of the Tribunal were correct and that the appeal should be dismissed. 

 

Reference is often made to the observations in the judgment of Bristow J upholding the appeal as follows:

“In our judgment there are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure of that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal.”

 

That decision to dismiss the employees’ appeal against his dismissal was upheld by the Court of Appeal.  It is not necessary for me to comprehensively examine the judgments in those matters. The facts of this case allow me to distinguish those proceedings from the present situation.  In that case, there was substantial damage, something more than an error of judgment. 

 

In this case, there is no evidence before the court that anything untoward happened during the course of the duty performed by Captain Garside on Saturday 5 August 1995.  There is evidence from experienced aircrew, which I accept, that the flight at 1.00 pm upon which they were passengers was uneventful, or normal.  From the point of view of Captain Garside, it may be that this result was due to his skill and experience as a pilot..  It may also have been completely fortuitous that there was no incident. I am not in a position to make any considered judgment. 

 

In this case, the opportunity has been given to the respondent to lead evidence, or to make submissions to the effect that there were something untoward, some incident in relation to the  command of the planes and aircrew by the applicant, which he flew during Saturday 5 August 1995.  Counsel for the respondent, Mr Goot, did not wish to make any submissions of that nature, to the court.  Had there been those submissions, then I think the result for Captain Garside may have been different.  However in my view, the respondent cannot, on the one hand, make no submissions as to anything occurring, yet suggest that the applicant’s employment should be terminated for the duty which he performed on Saturday 5 August 1995. 

 

In my view, this situation means that the respondent cannot be heard to say that it was justified in terminating the employment of the applicant. 

 

I propose to follow what is now a strong line of authority which has been developed following the decision of the High Court in Victoria & Ors v The Commonwealth (1996) 66 IR 392.  This line of authority commenced with the decision of  Lee J in Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J., 4 October 1996) and Marshall J in Kerr v Jaroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996) respectively.   Both of which decisions support the proposition that an employer must justify a termination in the sense that there must be objective and fair grounds.

 

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, Mr Sweeney SC addressed me on the basis that there was a breach of section 170DC and he outlined a number of matters which he intended to raise 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 as known to them 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 dated 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 Civil Aviation Safety Authority  was undertaking an investigation of its own.  The report of Mr Comerford on his investigation was dated 13 October 1995.

 

In  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."

 

 

 

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 Hazelton 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.  The respondent with the benefit of the report could then have given the applicant the opportunity to defend himself.  After considering the report and any representations,  the company would have then been in a position to continue to dismiss the applicant 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. 

 

There is a public interest aspect to this situation.  In coming to the conclusion that there was a breach of Section 170DC, I have taken into account Section 170DF(1)(e) makes it quite clear that it is unlawful for an employer to terminate a person who has against his employer, undertaken:

“the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”.

 

In this case, Captain Garside, as he was obliged to do, reported the matter to the Civil Aviation Safety Authority.  In my view, the reporting of incidents involving breaches of Aviation Safety is to be encouraged and therefore there is a public interest in ensuring that where somebody reports a matter to the Authority they do not immediately jeopardise their employment.  In my opinion, Section 170DC operates to protect him until the enquiries that have been initiated by his report, can be determined.  In this case, I am of the view that Captain Garside was entitled to have recourse to the competent administrative authority which he did and to have the respondent await the report of the Civil Aviation Safety Authority before terminating his employment.  He should have been given the opportunity to make representations based on that report. 

 

In addition he may have wished to give “undertakings about future conduct” to Hazleton following his counselling session with the Civil Aviation Safety Authority.  In those circumstances I propose to make a finding against the company 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.

 

 

Is it impractical to re-instate the applicant?

 

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, ICR 466.  Based on the discussion on 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 findings which I have made in the light of the opinion expressed by Dr Chesher, and the finding that Captain Garside had a zero blood alcohol content at the time of the departure of the aircraft, reinstatement appears to be required. There is a suggestion in the evidence that there was previous incident of late night drinking when he was off duty and was not part of the crew in the case of Captain Garside.  However, I am not satisfied with the responses by either pilot, to the questions raised by me 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 grounds on which I could exercise the discretion and find that it is impracticable to reinstate Captain Garside.  In my view, Section 170EE (1) allows me to take account 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.

 

At the conclusion of Mr Garside’s evidence and cross-examination, I asked him a question along the following lines:  If given the information that he now had in his possession in relation to the  events that occurred on that night and the other material, would he make the same decision to fly again?  Captain Garside immediately answered me:  “I don’t feel that I was fatigued”. I then pointed out that this was not answering my question and repeated the question.  He answered “Yes I would”. I noticed that he immediately left the court room in an agitated state.  The hearing then proceeded with Mr McGeehan giving his evidence, and after lunch, I was asked by Mr Sweeney SC if his client could be recalled to provide me with a further answer to my question.  This proposal was objected to by Mr Goot, however I allowed the recall of Captain Garside on the basis that Mr Goot would be able to further cross-examine him.

 

On his returned, he continued  his answer as follows:

You wanted to elaborate on that answer? --- Yes.  When I first heard the question, I guess I didn’t really understand what you were asking, sir.  I’ve had a chance now to think about that specific question and as soon as I walked out of the court room I knew I’d answered incorrectly.  I’m certainly not going to admit to being drunk and I’m certainly not going to admit to being fatigued but what I am concerned about is, as far as being out at such a late hour and having to fly an aircraft at such an early hour, I believe that there’s been an error.  An error in my professional judgment in relation to that.  Hazelton Airlines, I have been employed with for the past 10 years.  I valued my employment with Hazelton Airlines, in fact, it was more that employment.  It was - with my career, it was my life.  I’d like to think that I’ve contributed a great delay to the Hazelton Airline network.  As I said, I’ve been there for 10 years.  Hazelton’s have been a good employer for me in that I’ve been promoted through the ranks and to ultimately attain the position as Fleet Manager SAAB 340.  As I said, I now know that there has been a professional error in my judgment.  I’d like to give an undertaking to the court and certainly to Hazelton Air Services that given the opportunity I’ve certainly learned the error of my way.  It’s been a long, drawn out process - it’s six months - it’s been a very costly exercise and I’d just like to, as I said, give an undertaking that I’ve learned a valuable lesson from this and that certainly  - it certainly will not happen again given the opportunity.”

 

Mr Goot was allowed to further cross-examine him which he did. 

 

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 he 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 Captain Garside 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 required 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.

 

Another issue arises as to whether is impracticable to reinstate Captain Garside in the position he held as “Check and Training Captain” with the company.  During the course of the hearing, I expressed my reservations that there would be difficulty in reinstating Captain Garside, based on his own admissions, to that position.  He also held the position of “Specialist SAAB Type 340” and that of a Captain.  I draw a distinction between the checking and training role and that of “Type Specialist SAAB 340”, because in my view, it contemplates a leadership role.  I consider that Captain Garside, whilst off duty, failed to exhibit the leadership that is required of a person who holds that position with the company.  Counsel for the respondent and for the applicant submitted to me that if I used Section 170EE(a)(ii) and reappointed him to another position, that is a position as a “Captain-Pilot” and “Type Specialist SAAB 340”, the provisions of the legislation were such that the company would still be obliged to pay him the salary which he was receiving prior to his termination.  This is so because of the use of the  words:  “on terms and conditions no less favourable than those on which the employee was employed immediately before the termination” are included in the legislation.  In my view, if I decide that it is impracticable to appoint him as the “Checking and Training Officer”, then that could lead to an inequitable result in so far as the respondent is concerned.

 

In the circumstances, I propose to deal separately with the question of the impracticality of Captain Garside being re-appointed as “Checking and Training Officer”.  In my view, this position requires the consent of the Civil Aviation Safety Authority.  I note that the recommendation was that he be counselled and this has happened.  At the time of the report that Mr Comerford prepared, he was aware that the employment of Captain Garside had been terminated and therefore the question of Captain Garside remaining the “Checking and Training Officer” was not relevant  In the circumstances, I consider that the applicant should have a period of ten days to approach the Civil Aviation Safety Authority to ascertain whether it has any objection to his re-appointment as a “Checking and Training Officer”.  If the applicant needs more time, or the authority needs more time, then I propose that he be re-instated as a “Captain-Pilot” or “Type Specialist SAAB 340”, and this issue of a “Checking and Training Officer” be reserved.  However, it would seem to me to be more appropriate if this matter could be resolved within the ten day period. 

 

COMPENSATION

 

Ordinarily an order for the payment of remuneration lost by the employer commences from the date of termination.  I propose to vary the usual order so that the payment of lost remuneration will start from 13 October 1995.  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 that 13 October 1995 will be counted as unpaid leave although classified as service of the applicant with the respondent for all other purposes.

 

Should Captain Garside determine that he does not wish  to sign the agreement, 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 9 April 1997 within 7 days.  The employer 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 license to fly.

 

The findings I propose are:

 

1.         The company 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 positions of             “Captain-Pilot” and “Type Specialist SAAB 340” in which he was employed before his termination.

 

4.         The respondent to re-instate the applicant to the position in which he was         employed immediately before the termination being that of “Captain-Pilot” and “Type Specialist SAAB 340”.

 

5.         The respondent to reinstate the applicant in those positions 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 employee             because of the termination from 13 October 1995 to  9 April 1996 within        twenty one days of the date of receiving the signed agreement from the   applicant.

 

8.         The applicant has a period of Seven days to produce evidence to the court of   the concurrence of the Civil Aviation Safety Authority to his re-instatement as   Check and Training Captain.

 

9.         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.

 

 

10.       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.

 

11.       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.

 

12.       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 102 pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine.

 

Associate:                 

Date:                           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