JANSON v SCANLON and ANOR [1996] NSWCA 274

JANSON v SCANLON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, POWELL JA and HODGSON AJA 14 November 1995, 1 February 1996

[1996] NSWCA 274

ADMINISTRATIVE LAW — GREAT appeal — promotion appeal — decision "on... merit" — whether appointee eligible for appointment — whether statute incorporates eligibility provisions of employer's guidelines — held: (by maj): Duty to appoint on merit cannot be subverted by guidelines as to eligibility.

Commissioner or Corrective Services v Tilden and Anor (1992) 45 IR 465 (NSWCA) appld

PUBLIC SERVICE - promotion - appeal - eligibility of candidates - equal opportunity principles - alleged exclusion of successful candidate - held: (by maj): Appointment on merit upheld - no error of law shown.

WORDS and PHRASES - "decision"; "on merit".

ADMINISTRATIVE LAW - appeals on question of law from decision of GREAT Tribunal to the Court of Appeal - promotion appeal - appointee allegedly promoted "on merit" - contesting applicants assert that appointee was not eligible for promotion - applicable statute requires promotion to be made "on the basis of the merits of the applicants" - statute also envisages that only certain persons are "eligible for appointment or promotion' to a vacant position - effect of guidelines lawfully made and published by employer establishing procedure for regular assessment of eligibility for consideration to promotion - guidelines provide for validity of assessments to be postponed until following semester - applicant passes assessment after advertisement, and obtains favourable assessment which is invalid until after the selection process is completed, but before the appointment is made - GREAT Tribunal confirms decision of employer - rejects promotion appeal of other applicants - separately determines that guidelines cannot override the obligation in the Act to appoint on merit the best candidate - on appeal to the Court of Appeal - held: