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: (1) (by the Court): The decision of the Tribunal was a decision on a question of law, and thus eligible to invoke the jurisdiction of the Court of Appeal. Metropolitan Water Sewerage and Drainage Board v Histon and Ors [1982] 2 NSWLR 720 (CA); Clisdell vy Commissioner of Police (1993) 31 NSWLR 555 (CA) applied. (2) (per Powell JA and Hodgson AJA; Kirby P dissenting): The decision did not disclose an error on a question of law. (per Powell JA): The successful candidate was "eligible" at the time of promotion. In particular, the guidelines could not modify the statutory duty of the Commission to appoint the best candidate on merit, and to the extent that it purported to do so, such guideline would have no force or effect to invalidate the appointment. Mallett v Mallett (1984) 156 CLR 605 applied; Commissioner of Corrective Services v Tilden and Anor (1992) 45 IR 465 (CA); Treacy v Walker (1986) 12 IR 437 (CA) considered; (per Hodgson AJA): the breach of the guidelines was neither clear nor substantial and had little, if any, relevance to merit. PUBLIC SERVICE - appeal from Government and Related Employees' Appeal Tribunal - promotion appeal - availability of appeal - appeal against "decision... on a question of law" - whether objection to anterior procedures to appointment available in appeal against such decision - whether appeal unavailable as decision is against an order which is clearly right - held: 2 UNREPORTED JUDGMENTS (1) (by the Court): The appeal was against a "decision of the Tribunal on a question of law". Clisdell vy Commissioner of Police (1993) 31 NSWLR 555 (CA) applied; (2) (per Kirby P): In the appeal, the appellant could challenge the lawfulness of the procedures leading to ie promotion decision. Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 (CA) explained; (3) (per Powell JA and Hodgson AJA; Kirby P dissenting): No error of law was shown in the decision of the Tribunal. The guidelines affecting eligibility to apply for promotion could not override the requirement of the Act that promotion be decided "on merit". Commissioner of Corrective Services v Tilden and Anor (1992) 45 IR 465 (NSWCA) applied. WORDS and PHRASES - "against any decision... on a question of law"; "eligible for promotion"; "on the basis of... merit". Government and Related Employees 'Appeal Tribunal Act 1980, s20, s48, s54, s56. Technical and Further Education Commission Act 1990. s4, s5, s6, s7, s8, s10, s18. ORDERS Appeal dismissed with costs. Kirby P On first impression, this appeal from the Government and Related Employees' Appeal Tribunal (the Tribunal) appeared to lack merit. It involved a challenge to the promotion and appointment to a senior position in the employ of the New South Wales Technical and Further Education Commission (the Commission) of an applicant found by the Commission, and upheld by the Tribunal, to be of the highest merit. The Tribunal found that the challengers had not demonstrated that either of them had "more merit for appointment". At least since s18(1) of the Technical and Further Education Commission Act 1990 (the Act), the basis of appointment or promotion in the service of the Commission is, by Parliament's express instruction, that of "merit". The objection raised by the appellant appeared, at first blush, to be (as the Tribunal described it) one "relying upon a technicality". The appeal to this Court is not a merits review. It is limited to correcting a decision of the Tribunal found to be wrong 'son a question of law". See Government and Related Employees Appeal Tribunal Act 1980 (GREAT Act) s54. That formula limits the circumstances of the Court's intervention in the decisions of the Tribunal. A certain initial impatience with the contentions of the appellants was therefore natural in the circumstances. However, when more closely examined, the case presents a somewhat more difficult problem. Administrative law involves courts, such as this, upholding and insisting upon the lawful exercise of power on the part of administrators. It involves the supervision of the observance of procedural fairness. It involves protection from unacceptable unreasonableness. Of these three requirements, the insistence upon lawfulness is the first and most important. This is because at stake is the rule of law. It is the function of courts such as this to ensure that the donees of statutory power exercise their power as Parliament is imputed to have intended, ie lawfully, in conformity with applicable statutory requirements. A CANDIDATE FOR SENIOR APPOINTMENT IS ADVANCED The facts relevant to the limited function of this Court in the appeal are not in dispute. On 14 September 1994, in the TAFE Commission Gazette, the Commission advertised the position of Senior Head Teacher, Humanities, at its Granville College. Relevantly, the "essential" requirements for the position were stated to be: URJ JANSON v SCANLON (Kirby P) 3 "ESSENTIAL: Applicant's name must appear on the Promotion list or they must possess a valid TAA4 assessment and be eligible to apply for promotional positions (please include a copy of eligibility letter with application); possess appropriate qualifications relevant to the classification; demonstrate qualities of leadership and sound administrative and supervisory ability; understanding of current educational developments... demonstrated commitment and capacity to implement EEO, OH and S ethical practice and other legislative requirements." On 19 September 1994 Ms Lesley Scanlon, an Acting Senior Head Teacher, Humanities, at Granville College received a letter signed by Mr Michael Ryan, Manager, Human Resources of the South Western Sydney Institute of the Commission. It said: "IT would like to take this opportunity to congratulate you on your recent successful TAA4 assessment. You are now eligible for promotion positions WITH EFFECT FROM 1.1.95." (emphasis added) On 28 September 1994 Ms Scanlon applied for the position advertised as above. With her application she sent copy of the letter of 19 September 1994. The position was re-advertised on 12 October 1994. Two persons, at least, who had the "essential" qualifications, namely Mr Kenneth Janson (the appellant) and Ms Susanne Wright (the second respondent) also applied for the subject position. At the time of their respective applications they each had TAA4 assessments which they attached to their application. On 5 January 1995, Ms Scanlon received a letter, also from Mr Ryan, advising her that: "... Approval has been given for your appointment to the position of Senior Head Teacher Humanities at Granville College of TAFE,... Your appointment is to be effective from 30th January 1995. As you have already verbally accepted this position, please complete the attached acceptance form... within 7 days of the date of this letter. " Ms Scanlon duly accepted the offer as required. She was appointed to the position. Her appointment caused a grievance to Mr Janson and Ms Wright. On 6 March 1995 they appealed to the Tribunal. The first hearing of their appeal took place on 5 April 1995. By agreement of the parties, the hearing was divided into two parts. The Tribunal, comprising the Chairman (Mr RPJ Noonan) and two Members (Messrs J Willett and L Symonds) proceeded to what was described as a "Provisional Decision" published on 6 April 1995. This addressed the so-called merits of the claim of Mr Janson and Ms Wright (whom I shall call "the contestants"). The Tribunal identified what was in the nature of a preliminary objection of law which the contestants wished to raise. The resolution of that preliminary question-was reserved, as the GREAT Act required (s41(3)), to the Chairman. But first the Tribunal dealt with the other "merits" of the case. For reasons which were not elaborated, it reached the following conclusion: "Having carefully examined all of the evidence available following the hearing, the Tribunal formed the opinion that neither Ms Wright nor Mr Janson had established more merit for appointment t,o the position of Senior Head Teacher, Humanities, Granville College of TAFE than the recommended appointee Ms Scanlon." Upon this basis the Tribunal "provisionally disallowed" both appeals. But it then proceeded to consider the preliminary point concerning the effect, in law, of the employer's suggested non-compliance with its own guidelines. EMPLOYMENT GUIDELINES 4 UNREPORTED JUDGMENTS The Court was told that the total number of employees of the Commission is somewhere between 6,000 and 9,000. The exact number matters not. It is clear that the Commission employs a substantial number of persons. Necessarily, procedural regularity and fairness impose, as a consequence, an administrative necessity to have rules and procedures to govern appointments and promotion within the service of the Commission. Placed before this Court, as earlier before the Tribunal, have been two sets of guidelines which, it is agreed, were: * Endorsed by the Commission; * Widely publicised in the TAFE Gazette; * Known to staff; and * Ordinarily conformed to. The first set of guidelines comprises a document titled "Staff Selection - Policy Information for Staff'. This is a detailed document of 16 pages with a range of information arranged in numbered paragraphs dealing with such issues as "Staff Selection"; "Guidelines on Initial Considerations in Filling Vacancies"; "Eligibility for Promotion"; "Advertising"; "Formation of Selection Panels"; "Planning and Conducting the Cull"; "Referees"; "Panel Recommendation and Report"; "Notifying Applicants and Scheduling the Appointment'; "Appeals and Grievances"; and "Guidelines and Procedures". Relevant to the present appeal, the following items in this document can be noticed: "3. Policy 3.1 The purpose of TAFE's staff selection system is to get the best person for the job, to model excellent practice, and to improve effectiveness by devolving decision-making and streamlining procedures. Achieving this is based on: Open competition based on merit; Accurate description of position; A field of applicants with appropriate skills attracted through advertising;... Relative merit of applicants assessed against job-related selection criteria; EEO principles followed and the objectives of the EEO Management Plan implemented....." Amongst the guidelines on initial considerations in filling vacancies is included: "4.1.4(5) Staff selection - this is the process of open advertisement and competitive selection based on merit. Merit is defined in s18(2) of the TAFE Commission Act in terms of the nature of the duties of the position, and the abilities, qualifications, experience, standard of work, performance and personal qualities relevant to the performance of those duties. There follows an item, 4.3: "Eligibility for Promotion": "4.3.1 For positions of Head Teacher, Senior Head Teacher, Deputy Principal (Grade II), and Principal (Grade IV) a general selection criterion relates to the need for applicants to be eligible for promotion. Applicants require a specified member of years of current TAFE service, possession of recognised teaching qualifications and other prescribed qualifications (the academic prescription) and a satisfactory TAA4 assessment or they require placement on the former Promotions list..." The second set of guidelines, which came into force in April 1994, is titled "Guidelines for Assessment for Eligibility for Promotion to Senior/Head Teacher Positions - TAA4". This is an elaboration, for the particular URJ JANSON v SCANLON (Kirby P) 5 senior positions concerned, of the general guidelines already described. Relevantly for the present appeal, there is contained on page 2 the following statement: "All permanent teachers may apply for the assessment. It is a requirement for application that staff have completed a self-assessment to judge their readiness for promotional assessment.... Applications for assessment are called for in May and October each year in the TAFE Commission Gazette. May applicants are assessed in second semester, while October applicants are assessed in the first semester of the new year. Teachers who successfully complete the assessment may apply for senior/head teacher positions ADVERTISED IN THE FOLLOWING SEMESTER".(emphasis added) This last point is re-emphasised in a passage in the second guidelines under the heading "Validity of Assessment Report": "Successful assessments are valid for 3 years FROM THE FIRST DAY OF THE SEMESTER FOLLOWING THE ASSESSMENT. A letter is issued by the Human Resources Manager indicating the date from which the successful assessment can be used in applications for a senior/head teacher position. Teachers whose assessments are nearing the end of the 3 year validity period should seek re- assessment in the semester prior to the end of the 3 year period." (emphasis added) The purpose of the system described in the foregoing guidelines is not difficult to understand. Overall, it is to introduce criteria for appointments and promotions within the Commission's service. It is to substitute rules and norms for the exercise of unstructured discretions by selection panels. In this way, it is aimed to introduce elements of the rule of law into appointment and promotion decision-making: replacing the uncontrolled power of appointers by more disciplined, fair and principled administrative decisions, made by reference to publicly available principles of proper administrative conduct. The guidelines introduce concepts of equal opportunity in employment which are ordinary features of modern employment, both in the public service and in the private sector. Clearly enough, the object is to control such vices as favouritism, nepotism, cronyism and corruption by laying down procedures, establishing rules and ensuring that these are publicly known to all who may have an interest to apply for advertised positions. The judgment of "merit" being such a nebulous thing, there may perhaps be an understandable impatience on the part of some with this approach to administration. But it has been judged necessary and appropriate in the employment of the Commission. It has been endorsed by the Commission. In my view it has strong advantages, particularly in the employment of such a large number of employees. The problems of favouritism and nepotism have not been unknown in public (and private) service. It has, for example, been known in the past for positions in the public service to be advertised when those with the power to do so always intended to appoint a particular favoured candidate. This is no more acceptable where that candidate comes from within the service (and defeats outsiders) than it is where the candidate is an inside appointee who defeats other insiders. THE COMPLAINT OF THE CONTENDERS AND "MERIT" The complaint of the contenders can now be quite simply stated. They assert that Ms Scanlon was not "eligible for... promotion" to the vacant position in question. They assert this because, conforming to its own guidelines, the Commission could not appoint a person to the position of Senior Head Teacher 6 UNREPORTED JUDGMENTS who, at the time of application, did not have "a satisfactory TAA4 assessment" available for reliance in support of that person's application to the position advertised. The contender's argument went thus. True, Ms Scanlon had a letter telling her that she had been successful in her TAA4 assessment. But that letter was received after the advertisement for the position. More importantly, in its terms, it only took effect from 1 January 1995, ie after the advertisement. Most importantly of all, by the TAA4 guidelines of April 1994, the letter was inapplicable to a position such as that advertised until "the following semester". It was only "valid for three years from the first day of the semester following the assessment". It therefore had no "validity" at the time it was apparently utilised to appoint Ms Scanlon to the position. To the contention that this insistence upon eligibility was unduly technical and overlooked the claim which Ms Scanlon had been found to have to promotion "on merit", the contestants (relevantly the appellant) answered thus. "Merit" alone was insufficient. The Act required consideration of the criterion of"eligibility". The guidelines adopted by the Commission lawfully established criteria ofeligibility", as did the advertisement. The procedure for postponing the validity of assessment letters was neither irrational nor unjust. The process of regular triennial reassessments was an important, rational and just system for personnel management which the Commission was entitled to adopt and follow, so long as it retained flexibility and obeyed the injunctions of the Act. In order to be operated fairly, given the time taken for assessment of all candidates, it was necessary to provide rests and dates of eligibility so that applicants would not be disadvantaged by having been assessed later, and not earlier, in a period of assessment specified. This is the system to which Ms Scanlon submitted when she made her application for assessment. She was assessed within that system. She was entitled to the benefit of the assessment. But its validity would only operate, in its terms and by the guidelines endorsed by the Commission, as from the succeeding year. To ignore the terms of the letter of assessment and the guidelines would involve not just a serious departure from the administrative principles endorsed by the Commission. It would involve a departure from the assumptions upon which the advertisement calling for applications had been published to potential candidates. Fast tracking candidates because of supposed superior "merit" might have the superficial appearance of attractiveness. But it would actually represent a return to the uncontrolled power of appointers, no longer disciplined by the more open, principled approach to appointments contained in the Commission's guidelines. Some other candidates, with postponed assessments not yet valid, might also have applied for the position in question had they known that (contrary to the letter and the published guidelines) the validity of the assessment would be taken as immediately operative. Ms Scanlon had "jumped the queue". Others might have wished to do so. The endorsed criteria for promotion would effectively be torn up. The rules of fair procedure and equal opportunity would have been negated. In their place, would be restored the preference of the person(s) with power of appointment - with all the risks of favouritism, nepotism etc which the adoption and publication of guidelines, in this large area of skilled employment, was intended to remove or reduce. Cf, generally, Wijesoriya v Director-General, Department of Conservation (1994) 54 IR 384 (NSWCA). URJ JANSON v SCANLON (Kirby P) 7 Far from being a negation of "promotion on merit", the general adherence to such guidelines was, in the submission of the appellant, a surer way of securing merit promotion than a return to unstructured decisions justified on no more than the suggested "merits" of a preferred candidate or "special needs" of an institution as seen by those with power. There is much force, in my view, in these arguments. But does it have legal merit? Only on that footing may this Court disturb the contrary decision of the Tribunal. THE STATUTORY REQUIREMENT OF ELIGIBILITY The critical provision of the Act reads: "Appointments and Promotion on Merit 18 (1) Appointments to the staff of the TAFE Commission and promotions for members of that staff are to be made on the basis of the merit of the applicants for appointment or promotion. (2) The merit of persons eligible for appointment or promotion to a vacant position are to be determined having regard to: (a) The nature of the duties of the position; And (b) Abilities, qualifications, experience, standard of work, performance and personal qualities of those persons that are relevant to the performance of those duties." Rightly, the Commission laid emphasis upon s18(1). But the appellant laid emphasis upon s18(2). He suggested that the Commission, and the Tribunal, had been so blinded by the instruction of s18(1) as to overlook the requirements of s18(2) of the Act. Perceived merit was important. But merit had to be judged, not at large, but as between "persons eligible for appointment or promotion to a vacant position". By the guidelines, endorsed by the Commission, and by the "legitimate expectations" of the appellant, he and the other "contender" (Ms Wright) were "eligible for promotion". Put simply, Ms Scanlon was not. The Commission argued that this approach stretched the phrase "eligible for... promotion" intolerably. It went beyond what was intended by 18(2). Alternatively, it argued that the concept of eligibility in s 18(2) could not be controlled by guidelines. Neither the Commission nor anyone else could re-introduce, by a way of guidelines, the restrictive provisions of seniority which formerly controlled Crown employment. Parliament by s18(1) had insisted upon the overriding primacy of "merit". If Ms Scanlon was the most meritorious candidate, she was entitled to appointment. She was "eligible" within s18(2). This argument was advanced in the alternative: (a) Because the 'eligibility' referred to in s18(2) involved nothing more than the eligibility contemplated in s18(1), ie qualified; or (b) Because whatever 'eligibility' meant in s18(2) it could not exclude a person who had satisfied the eligibility criteria in every way except that, purportedly for administrative reasons, the effectiveness of the letter of assessment was postponed for a few weeks. Such postponement could not impinge on the kind of 'eligibility' intended by Parliament. To the extent that the guidelines suggested otherwise, having no statutory force, they would have to give way to the notion of*eligibility" in the statute. I do not consider that argument (a) advances the meaning of "eligibility". But there is force in argument (b). Clearly the guidelines, the terms of the advertisement and the correspondence cannot control what is meant by the phrase "eligible for appointment or promotion" in s18(2) of the Act. That is not to say that the guidelines are unlawful or irrelevant. In a body such as the Commission, 8 UNREPORTED JUDGMENTS constituted by s4(1) of the Act, and having regard to its functions (s5, s7) and objectives (s6) and powers of delegation (s8), it is entirely appropriate, to achieve its purposes that the Commission should propound and generally conform to guidelines of the kind seen here. They may not control or frustrate the attainment of the objective in s18(1) of the Act. Nevertheless, in the manner explained for the appellant, they can actually help promote the objective of merit appointments, including by preventing appointments on the basis of favouritism, nepotism, etc. At the very least, as it seems to me, it was obligatory for the administrative decision-maker to take the guidelines into account. Similarly, on an appeal, it was necessary for the Tribunal to do so. A failure to address itself appropriately to the "eligibility" of the applicants within the guidelines would be an error of law, both on the part of the Commission and on the part of the Tribunal. THREE PROCEDURAL GATEWAYS ARE PASSED Because no merits appeal lies to this Court from a decision of the Tribunal, it is important to ensure, before the grant of any relief, that the appellant has passed the three procedural gateways which previous cases establish to apply in cases such as this: 1. First, it must be shown that, within s54 of the GREAT Act an error has occurred in a "decision of the Tribunal on a question of law". The meaning of this phrase has been explained in Metropolitan Water, Sewerage and Drainage Board v Histon and Ors [1982] 2 NSWLR 720 (CA) and Clisdell v Commissioner of Police (1993) 31 NSWLR 555 (CA). In Histon, a suggestion was made by Mahoney JA that the adoption by the Tribunal of a particular conclusion on a question of law, without making operative or definitive orders directly as a consequence, was not a "decision" within s54 of the GREAT Act. However, this opinion was expressed in dissent. The majority view, expressed by Hutley JA (Samuels JA concurring) was that it was sufficient that the Tribunal should decide a question of law in the course of reaching its "decision". See ibid, 722, 725. The majority view has been followed and applied in Clisdell. See ibid, 560. It should be applied here. It is sufficient that the Tribunal's ultimate decision and order is contaminated by an error of law. There is no doubt that the appellant put to the Tribunal (for it repeated the argument) that "the appointee was ineligible to apply for the vacant position and therefore ineligible to be selected". The rejection of that argument was necessary to support the "decision" of the Tribunal reflected in its orders. Accordingly, I am of the opinion that the first gateway is passed. The decision challenged is a decision of the Tribunal on a question of law; 2. Secondly, the question whether the Tribunal had jurisdiction or power to review the lawfulness of the preliminary procedures in a promotion appeal was mentioned but not decided in Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 (CA), 58. The suggestion was that, because the Tribunal had no express power to quash a decision as unlawful in a promotion appeal (s48(1) of the GREAT Act) as distinct from the larger powers to make such other order with respect to the appeal as it thinks fit in a disciplinary appeal (s48(2) of the GREAT Act), Parliament must have intended a more limited scrutiny of the lawfulness of the decision under appeal, did not consider the larger scrutiny to which the remedies available under s48(2) were apt and so had withheld them. I find that argument unconvincing. There are several reasons why a larger range of orders might be apt in a disciplinary appeal. In a promotion appeal, the issue is confined to whether the appellant is "more entitled to be appointed to the vacant office". That argument will either be upheld or rejected. If it is upheld, it cannot be doubted that the structure of the Act contemplates that URJ JANSON v SCANLON (Kirby P) 9 effect would be given by the relevant decision-maker to the Tribunal's decision. See Smith (above), 61. Insofar as there was any suggestion, following Smith that the Tribunal lacked the jurisdiction or power to provide relief on the preliminary point as to eligibility raised by the appellant, I would reject that objection. It seems fairly clear that the Tribunal, by proceeding to its second decision, reached the same conclusion; and 3. Thirdly, the Court would not provide relief simply because the reasons of the Tribunal appeared in some way to be defective if it were convinced that the order made was correct or legally impregnable. It has been said many times that the appellate process is for the purpose of correcting orders (or in the case of an appeal from the Tribunal "decisions''). It is not, as such, to repair infelicitous reasoning. On the other hand, administrative appeals, being, in part, to uphold the lawfulness of the conduct of the donee of statutory power, quite often present issues of considerable technicality. Decisions which may be arguably correct will nonetheless be set aside because the decision-maker has acted on a wrong principle; taken into account matters which were irrelevant; failed to take into account matters which were relevant; or reached a conclusion which, in the relevant sense, is so unreasonable as to permit interference by the appellate court. In the case of an appeal, limited as this one is to correcting a decision on a question of law, one well established proof of error of law is the failure of the decision-maker to apply to the facts the applicable legal rule. Cf Hope v The Council of the City of Bathurst (1980) 144 CLR 1, 10; The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW), 126 (FC), 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA), 156. Cf Edwards (Inspector of Taxes) v Bairstow and Anor [1956] AC 14 (HL), 36. With respect to those who are of the contrary view, I see in the Tribunal's reasons for its decision. an error of the lastmentioned class. The Tribunal failed to address its attention to the issue posed by s18(2) of the Act. It failed to consider the issue of "eligibility" and the relevance to that issue of the Commission's guidelines. This was an error in the decision on a question of law which was certainly tendered to the Tribunal. The error vitiates the Tribunal's decision. THE ERROR OF SOLELY CONSIDERING MERIT Against the foregoing conclusion was pitched the Commission's argument that all that really mattered here was which of the candidates at the time of appointment had the greatest merit. As that had been found, in a factual determination insusceptible to appeal, to have been Ms Scanlon, this Court should not interfere. In support of that proposition, the Court was read a passage in the opinion of Meagher JA in Commissioner of Corrective Services v Tilden and Anor (1992) 45 IR 465 (NSWCA), 468: "Clearly if the Tribunal had decided the fate of the appeals on the ground thai the selection committee had used the wrong procedures it would have committed an error of law, and would have done so because it had failed to have regard to the only criterion which mattered, viz the merits of the rival candidates". It is clear that this dictum of Meagher JA attracted the approbation of the Tribunal. It was cited in the Chairman's opinion. The essential reasons stated were: "The Tribunal regards the arguments advanced on behalf of the appellants as RELYING UPON A TECHNICALITY. THE APPOINTMENT OF THE APPOINTEE, THE MOST MERITORIOUS CANDIDATE. IS CONSIDERED BY THE TRIBUNAL IN THE CIRCUMSTANCES OF THIS CASE TO BE ABSOLUTELY IN KEEPING WITH THE SPIRIT AND INTENT OF THE 10 UNREPORTED JUDGMENTS GUIDELINES. The guidelines are clearly designed to facilitate the expeditious appointment of the most meritorious of qualified personnel to promotion positions within TAFE. The fact that there was a situation here which did not fit precisely into the chronology of events foreshadowed by the Guidelines cannot be relied upon to obtain a result fundamentally opposed to their primary purpose ". (emphasis added.) That "primary purpose" was, by inference, the appointment of "the most meritorious candidate". But as I have endeavoured to point out, "merit" is a very slippery notion. In the context of employment within the Commission, it involved conformity to accepted and published criteria and procedures. It is also subject to the instruction of s18(2) of the Act, that eligibility for promotion should be given due weight. I see nothing in the decision of the Tribunal which indicates that attention was paid to this more refined notion of "merit", and to the controlling power of the necessity of "eligibility". True, the guidelines were not imported, as such, in the notion of "eligibility" under s18(2) of the Act. But prima facie they defined the pool from which those "eligible" were to be selected. Those ineligible were to be culled. S18(1) is to be read in the light of s18(2) of the Act. CONCLUSION AND ORDERS The appellant also raised arguments based upon suggested departures from legitimate expectations of procedural fairness. Whatever might be the merits of a complaint of this character (assuming it to be available in challenge to the Tribunal), it is not admissible in the present appeal because of the limitation that the appeal must be addressed to "a decision... on a question of law". The Tribunal never addressed itself to this issue. It therefore never made a "decision" on the point which betrays an error on a question of law". It is therefore not competent, in the appeal, to raise arguments concerning the legitimate expectations of the appellant and Ms Wright that the guidelines would be observed. To that extent, even if the appellant and Ms Wright had "legitimate expectations" that the guidelines would be followed on the eligibility of applicants, their disappointment leads nowhere in the way the appeal was "decided" by the Tribunal. This makes it unnecessary to consider the opinion of Spender AJ in Burns v TAFE Commission of New South Wales, Supreme Court (NSW), unreported, 15 November 1994, which was tendered on this point. However, a short passage in the reasons of Spender AJ deserves to be noticed. His Honour was speaking of the Commission. He referred to the need for principled personnel policies in such a large and diverse body: "The defendant is a large and publicly-funded organisation with establishments in various parts in New South Wales and employs a large number of people. It is notorious that such organisations have procedures laid down for dealing with such matters as staff recruitment, staff promotion and the discipline of staff members. Those who enter the employ of such organisations could reasonably assume that there would be set procedures which could be invoked in their favour in respect of such matters as promotion and discipline. It may well be that they would not individually be aware of the precise nature of those procedures or indeed, have any more than a general understanding. The procedures would relevantly be expected to be in place. However, that does not mean that staff members are entitled to the benefits of the procedures, simply because the details of the existence of settled procedures may not be known to them. Nor does it follow... that this particular defendant organisation is entitled to pick and chose as to the cases when it will, or will not, apply procedures which URJ JANSON v SCANLON (Powell JA) 11 it has itself laid down. It is in the interests of good administration that the defendant, having chosen, on grounds it must have considered sound, fair and consonant with the proper discharge of its... powers, to adopt particular procedures should be held to them. To allow the defendant to disregard its own procedures, depending upon the subjective views of those who enforce its... processes would open the door to arbitrary or unreasonable or wilful deprivation of particular individuals or the benefits of the [procedures established]". Spender AJ was right in what he said in the context of disciplinary procedures. But, with respect to those of a different opinion, it is my view that his words apply with equal force in the context of promotion procedures. Although the guidelines could not override the statutory requirements, alike with Spender AJ, I would infer that they were established in the interests of good administration, and should ordinarily be followed. By their terms they appear to have limited "eligibility" for appointment, in the way the appellant argues. Doing so was neither irrational nor unjust. Arguably, it was the best way, in such a large organisation, over the wide range of appointment decisions to be made, to secure "merits" appointments and promotions. The alternative is a reversion to the world of unstructured decisions, with the attendant risks which I have mentioned. An order of this Court is limited to the identification of the question of law arising in the appeal, its resolution and remittal of the decision to the Tribunal, or the making of appropriate other orders. The appellant simply asks that the decision of the Tribunal be set aside, and the matter remitted to the Tribunal, so that it will focus its attention on the issue of "eligibility", and not solely on the suggested "merits" of the contesting candidates. In my opinion, the appellant is entitled to that relief. The outcome of reconsideration in the Tribunal might be the same as the decision under appeal. But at least the Tribunal will then have reached its decision by a procedure which takes into account "eligibility", as s18(2) of the Act requires. That "eligibility" should not be forfeited to the guidelines, which have no statutory force as such. But obviously, the guidelines would have considerable relevance, which I do not believe the Tribunal has taken into account, in the way in which it approached the decision now challenged. The orders which I favour are: (1) Appeal allowed; (2) Set aside the decision of the Government and Related Employees' Appeal Tribunal dated 5 April 1995; (3) In lieu thereof, order that the proceedings be remitted to the Tribunal for decision, conformable with the decision of this Court; and (4) Order that the third respondent pay the appellant's costs of the appeal but have, in respect of such costs, a certificate under the Suitors' Fund Act 1951. Powell JA I have had the opportunity of reading in draft the respective Reasons for Judgment which have been prepared by each of Kirby P and Hodgson AJA. As those reasons appear to me to contain a sufficient statement of the facts which have ultimately led to this appeal, and, in addition, set out the various statutory provisions and the relevant parts of the various documents which bear upon the central question which was debated on the hearing of this appeal, no useful purpose would be served if I were to embark upon a similar exercise; accordingly, I am content to adopt what their Honours have written in their respective Reasons for Judgment in respect of those matters. 12 UNREPORTED JUDGMENTS With respect to those who may be of another view, it seems to me that, both on the hearing before the Tribunal, and on the hearing on the appeal to this Court, far too much time and attention was directed to the document entitled "Staff Selection - Policy information for Staff' and to the later document entitled "Guidelines for Assessment for Eligibility for Promotion to Senior/Head Teacher Positions" and that, in the result, attention has been diverted from what, to me, is the central question to be determined on this appeal. That question, so it seems to me, is the meaning to be attributed to the words appearing in s18(2) of the TAFE Act, "persons eligible for appointment or promotion to a vacant position". The TAFE Act contains no definition of the word "eligible" or of the phrase "persons eligible for appointment for promotion to a vacant position"; nor, so far as the material which has been placed before the Court permits one to judge, has, or have, there been made pursuant to the provisions of s36 of the TAFE Act any regulation, or regulations, dealing with the meaning to be attributed to that word or to that phrase. It appears that much of the debate which took place on the hearing before the Tribunal was, as was the case on the hearing in this Court, directed to seeking to draw from the "Staff Selection - Policy and Information for Staff' and the "Guidelines for Assessment for Eligibility for Promotion to Senior/Head Teacher Positions", some rule of law, or rule of interpretation, to be applied when one was required to determine whether or not an applicant for appointment, or promotion, was a person "eligible for appointment or promotion to a vacant position". That course, however, as it seems to me, was, and is, a totally impermissible one, if only for the following reasons: 1. the TAFE Act provides no statutory warrant for the TAFE Commission to lay down any form of binding rule, whether of law or of interpretation on the matter (see, for example, the discussion of the guidelines as to the proper manner of exercise of the discretion conferred by s79 of the Family Law Act 1975 (Cth) in Mallet v Mallet!); 2. even if the TAFE Commission has such a power, the power could not be exercised in such a way as to enlarge or restrict the meaning of the word "eligible" or of the phrase "persons eligible for appointment or promotion to a vacant position" where appearing in s18(2) of the TAFE Act (see Interpretation Act 1987 s11); 3. in any event, the matters contained in the documents sought to be relied upon are said to be no more than, in the first case, a statement of general policy, guidelines and procedures, for staff selection, and, in the second case, guidelines for assessment for eligibility for promotion to senior/head teacher positions, despite which fact the arguments advanced on behalf of the Appellants sought to treat those statements of policy and those guidelines as if they had become set in stone and were binding rules of law. In the absence of any statutory or other like definition of the word "eligible", or of the phrase "persons eligible for appointment or promotion to a vacant position", one is thus cast back to the normal or usual meaning to be attributed to such words or to that meaning as coloured by the context in which they appear. Although counsel for the TAFE Commission seemed to submit (Transcript at 27-28) that, at least in relation to applicants for promotion, the only criteria for "eligibility" were that the applicant be a member of the staff of the TAFE Commission and have made an application for promotion, it seems to me, with respect, that cannot be so, if only because the word "eligible" is used in relation 1. (1983-1984) 156 CLR 605 URJ JANSON v SCANLON (Powell JA) 13 to applications for appointment to the staff of the TAFE Commission as well as to applicants for promotion from one position on the staff to another. As a matter of ordinary English usage, the word "eligible" conveys a notion of "available", or "qualified", for whatever it is - as, for example, to be picked for something, to be appointed to do a task - that is in contemplation. In the present case, it seems to me that the appropriate meaning to be given to the word "eligible" is that of "qualified" for appointment to the staff or for promotion from one position to another position on the staff of the TAFE Commission. Since the concept of "qualified" must apply both to those seeking to join the staff and to those seeking to be promoted from one position to another on the staff of the TAFE Commission and since the range of positions to which appointment or promotion might be sought and the range of duties and the qualifications required in order that one might properly carry out those duties would inevitably be extensive, it seems to me that the only manner in which one might determine whether or not an applicant is "qualified", and, thus, "eligible", is by reference to the nature and statement of duties of the relevant position and the selection criteria set out in any advertisement of, or other form of invitation for applications for appointment or promotion to, the position in question. In the present case, the relevant portion of the advertisement which was published was in the following form: "Duties: As listed in the Statement of Duties for Senior Head Teacher. Essential: Applicants name must appear on the Promotions list or they must possess a valid TAA4 assessment and be eligible to apply for promotional positions (please include a copy of eligibility letter with application); possess appropriate qualifications relevant to the classification; demonstrated qualities of leadership and sound administrative and supervisory ability; understanding of current educational developments; demonstrated ability to plan, manage and monitor a teaching section's financial, human and physical resources; thorough knowledge and technical expertise relative to current syllabi; ability to liaise with community and industry; proven commitment to client services; demonstrated commitment and capacity to implement EEO, OHandS, ethical practice and other legislative requirements." As, by the time she lodged her application for promotion to the positions in question, Ms Scanlon had successfully completed the process (TAA4 assessment) which entitled her to promotions list status, and had been formally advised of that fact, and as it has not been suggested that, at the time of lodging her application, Ms Scanlon lacked any other of the selection criteria set out in the advertisement, she was, in my view, at that time, then "qualified" and, thus, "eligible", for promotion to the position of Senior Head Teacher Humanities. While the question whether or not, at the relevant time, Ms Scanlon was a person who was eligible for promotion depended in part upon the proper interpretation to be given to the provisions of s18 of the TAFE Act, and, thus, involved a question of law, thus enabling an appeal to this Court pursuant to the provisions of s54 of the GREAT Act to be brought by Mr Janson, the question whether the Tribunal ought to have held that Mr Janson was more entitled to be appointed to the office in question (GREAT Act s20) does not and, thus, is not a matter with which this Court is concerned now to deal. For these reasons, which, although they differ from those of both the Tribunal and of Hodgson AJA, I conclude that the Tribunal was correct in dismissing the appeals to it, it following that I agree with Hodgson AJA that the appeal should be dismissed with costs. 14 UNREPORTED JUDGMENTS Hodgson AJA On Sth January 1995, the respondent Ms Scanlon was advised that the TAFE Commission had appointed her to a position of Senior Head Teacher at Granville College of TAFE. On 6th March 1995, two unsuccessful applicants for the position appealed to the Government and Related Employees Appeal Tribunal (GREAT) against that appointment. GREAT dismissed that appeal on 23rd May 1995. One of the unsuccessful applicants, the appellant Mr Janson, then appealed to the Court of Appeal from that decision; and this appeal was heard on 14th November 1995. The facts, issues and contentions are fully set out in the judgment of Kirby, P, and so I will be very brief in outlining those matters. The relevant statutory provisions are s18 of the Technical and Further Education Commission Act (the TAFE Commission Act), and s20, s48 and s54 of the Government and Related Employees Tribunal Act (the GREAT Act). s18 of the TAFE Commission Act is as follows: "18(1) Appointments to the staff of the TAFE Commission and promotions for members of that staff are to be made on the basis of the merit of the applicants for appointment or promotion. (2) The merit of persons eligible for appointment or promotion to a vacant position are to be determined having regard to: (a) the nature of the duties of the position; and (b) abilities, qualifications, experience, standard of work - performance and personal qualities of those persons that are relevant to the performance of those duties. S20, s48 and s54 of the GREAT Act are as follows: "20. Subject to and in accordance with the Part: (a) an employee, being an officer within the meaning of s3(1) of the Public Sector Management Act 1988, may appeal to the Tribunal against a decision of an employer, being a Department Head within the meaning of that subsection, to appoint or recommend the appointment of another such officer to fill a vacant office; and (b) an employee, not being an officer within the meaning of s3(1) of the Public Sector Management Act 1988, may appeal to the Tribunal against a decision of the employee's employer to appoint or recommend the appointment of another employee of that employer to fill a vacant office, on the ground that the appellant is, having regard to the provisions of any Act, statutory instrument, industrial award or agreement or any advertisement published in good faith in relation to the vacant office, being an Act, statutory instrument, industrial award or agreement or advertisement which is required to be applied or taken into consideration by the employer in respect of an appointment to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made." "48(1) The Tribunal, in relation to an appeal under s20, may decide to allow or disallow the appeal. (2) The Tribunal, in relation to an appeal under s24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) The decision of the Tribunal in respect of an appeal shall, except as provided by Pt5, be final and shall be given effect to by the employer against whose decision the appeal was brought. URJ JANSON v SCANLON (Hodgson AJA) 15 (4) The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision." "54. A person being: (a) an employer against whose decision an appeal is brought; (b) an appellant with respect to that decision; or (c) where the appeal is an appeal under s20, the employee in whose favour that decision is made, may, subject to this Part, appeal to the Supreme Court against any decision of the Tribunal on a question of law." It is also relevant to have regard to two documents adopted and issued by the TAFE Commission. First, there is a document entitled "Staff Selection - Policy Information For Staff' issued 19th February 1992, s4.3.1 of which is in the following terms: "4.3.1 For positions of Head Teacher, Senior Head Teacher, Deputy Principal (Grade II) and Principal (Grade IV) a general selection criterion relates to the need for applicants to be eligible for promotion. Applicants require a specified number of years of current TAFE service, possession of recognised teaching qualifications and other prescribed qualifications (the academic prescription) and a satisfactory TAA 4 assessment, or they require placement on the former promotions list. The most recent revised arrangements were advised in Gazettes No 29 of 1/8/90 and No 43 of 7/11/90, which cover applications for assessment. Reference can be made to TAFE text for a list of eligible staff (available from December 1991) or the Section Leader, Teacher Status, Personnel Policies Division." Second, there is a document entitled "Guidelines for Assessment for Eligibility for Promotion to Senior/Head Teacher Positions", dealing with the assessment known as the TAA4 Assessment. This document was issued in April 1994, and the two most relevant passages appear on page 2 and 4 of the document, and are in the following terms: "Applications for assessment are called for in May and October each year in TAFE Commission Gazette. May applicants are assessed in second semester, while October applicants are assessed in the first semester of the new year. Teachers who successfully complete the assessment may apply for Senior/Head Teacher positions advertised in the following semester." "Successful assessments are valid for 3 years from the first day of the semester following the assessment. A letter is issued by the Human Resources Manager indicating the date from which the successful assessment can be used in applications for a Senior/head Teacher position." The relevant position of Senior Head Teacher at Granville College was advertised on 14th September 1994. At about the same time, Ms Scanlon successfully completed a TAA4 assessment; and on 19th September 1994, she received a letter confirming this fact, and advising "You are now eligible for promotion positions with effect from 1.1.95". On 28th September 1994, Ms Scanlon applied for the advertised position; and on Sth January 1995, she was advised of her appointment, which was to be effective from 30th January 1995. The essential grounds of the appeal brought to the Court of Appeal are as follows: (1) Ms Scanlon was not eligible for the position to which she was appointed, because the TAFE Commission was bound by its published guidelines in relation to eligibility for such positions; 16 UNREPORTED JUDGMENTS (2) the TAFE Commission's departure from its guidelines was a denial of procedural fairness; and (3) the decision of GREAT involved errors of law in dealing with matters (1) and (2) and /or in failing to properly address those matters. The essence of the submission was that, although s18(1) of the TAFE Commission Act specifies that appointments and promotions are to be made on the basis of merit, s18(2) makes it clear that the appointment or promotion has to be made from "persons eligible for appointment or promotion". Eligibility in turn depends upon the regular practices of the employer and the legitimate expectations which they create. In terms of the guidelines, Ms Scanlon was not eligible, because she successfully completed the TAA4 assessment in the second semester, and applied for the position in question in the same semester; whereas, under the guidelines, the assessment only became valid from the first day of the semester following the assessment, and she was entitled to apply for positions advertised in the following semester, not the same semester. Furthermore, granting the promotion to such a person in preference to persons who in all respects complied with the guidelines was a denial of procedural fairness. I respectfully agree with much of what Kirby, P says about the role and importance of the guidelines. "Merit" is a nebulous concept, and the provision of rules and standards promotes objectivity and fairness in appointment and promotion decisions, which otherwise could be unduly subjective and open to abuses such as favouritism, nepotism and corruption. Furthermore, while the guidelines, which do not even have the force of statutory regulations, cannot affect the interpretation of words such as "merit" and "eligible" in s18 of the TAFE Commission Act, much less qualify or override the application of s18, they are part of the factual matrix to which s18 applies. It would be wholly impractical for an employer such as the TAFE Commission to assess for itself de novo every aspect of merit of every candidate for a position. If a position requires abilities normally acquired only by the completion of certain processes of learning and of experience, which is in turn normally demonstrated by acquisition of certain qualifications, then it is reasonable for the employer to take the qualifications as being in general both pre-conditions of eligibility for the position and also important aspects of merit in relation to the position. Indeed, it may be unreasonable for the employer not to treat the qualifications as being both essential for eligibility and important aspects of merit. That is not to say that the qualifications may be treated as a substitute for the statutory test of merit; but rather that they are both an aspect of merit, and also an important part of the procedure by which an employer can fairly and efficiently address the question of merit. Turning to the interpretation of s18, I note that the TAFE Commission Act contains no definition of "eligible"; and in my opinion, the suggestion in s18(2) that the candidates whose merit is to be considered are only those "eligible" for the position cannot be used to introduce some further criterion for appointment beyond that of "merit" as required by s18(1). Accordingly, where as here the Commission has laid down criteria for eligibility for a position, a candidate's failure to fulfil those criteria cannot ipso facto disqualify that candidate from appointment; but, for the reasons set out in the previous paragraph, a reasonable approach to the question of merit may mean that the Commission should regard that candidate as ineligible or, if eligible, of less merit than candidates who fulfil the criteria. URJ JANSON v SCANLON (Hodgson AJA) 17 If the Commission makes an appointment which departs from criteria which it has laid down and publicised, then this may suggest that the appointment was not made on the basis of merit: it may suggest that the question of merit has not been fairly and efficiently addressed, and also that an aspect of merit has been disregarded. The strength of the suggestion will be related to the importance of the criteria involved and the degree of departure from them, and the validity of any justification for the departure which may be suggested or may appear. Such a departure could also suggest a denial of procedural fairness, in that candidates and potential candidates could have been misled by the published criteria in the way they advanced their application, or perhaps misled into refraining from making an application which might, in the event, have succeeded. However, the appeal under s20 of the GREAT Act is only on the ground that the appellant is "more entitled to be appointed"; and in the case of appointments under the TAFE Commission Act, that entitlement has to be judged solely on merit. In those circumstances, what Meagher, JA said in Commissioner of Corrective Services v Tilden (1992) 45 IR 465 at 468 is applicable: "Clearly if the Tribunal had decided the fate of the appeals on the ground that the selection committed had used the wrong procedures it would have committed an error of law, and would have done so because it had failed to have regard to the only criterion which mattered, namely the merits of the rival candidates." But I do not take this as meaning that departures from guidelines and related errors of approach by the Commission are irrelevant to the Tribunal's consideration of an appeal: in my opinion, they will be relevant in two ways. First, for GREAT, as for the Commission, the criteria laid down by the Commission will assist in addressing the question of merit fairly and efficiently; and fulfilment of the criteria will be an aspect of merit. Second, there is the question of what, if any weight should GREAT give to the opinion of the Commission. In general, if no error of approach by the Commission appears, the Tribunal would not uphold an appeal unless it was affirmatively satisfied that the appellant had more merit than the selected candidate; and in considering that question, the Tribunal could give appropriate respect to the views of the Commission. However, if the Commission is shown to have erred in its approach, this may reduce or eliminate any weight to be given to its views on merit. For these reasons, if GREAT dismisses an appeal against an appointment made in breach of the Commission's guidelines, this could involve an error of law if the Tribunal treats the guidelines as being irrelevant, rather than as being relevant in the two ways I have indicated. This could be shown, for example, (1) if the Tribunal asserted that the guidelines were irrelevant, or (2) if it disregarded a substantial breach of the guidelines without there being any reasonable justification advanced for such a breach, or (3) if it inappropriately gave weight to the Commission's views on the merits of the rival candidates in a case where the Commission's decision was vitiated by reason of its disregard of the guidelines. An error demonstrated in one of these ways would, in my opinion, support an appeal to this Court on a question of law within the meaning of s54 of the GREAT Act: see Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 and Clisdell v Commissioner of Police (1993) 31 NSWLR 555. 18 UNREPORTED JUDGMENTS Turning to the facts of this case, it seems to me that no error of law by GREAT is shown. In my opinion, (1) the breach of the guidelines in this case was neither clear nor substantial, and had little, if any, relevance to merit; and (2) the approach of the Tribunal was substantially correct and disclosed no error of law. On the first point, s4.3.1 in the staff selection document required "a satisfactory TAA4 assessment", and Ms Scanlon had this when she applied for the position. The Guidelines document stated that "successful assessments are valid for three years following the first day of the semester following the assessment"; and that teachers who successfully complete the TAA4 assessment may apply for positions "advertised in the following semester': it does not expressly state that the validity of assessments does not commence until the following semester, or that teachers may not apply for positions advertised in the same semester as they complete the TAA4 assessment. If the Guidelines document was a statutory instrument which had to be construed definitively so that its application could be certain, those limitations might well be implied; but it is not such an instrument. The letter of 19th September 1994 to Ms Scanlon was likewise ambiguous as to whether the eligibility it notified was for positions advertised or commencing after 1st January 1995. In those circumstances, in my opinion it cannot be said that the breach of the guidelines was clear. Furthermore, where the only breach suggested lies in the failure to require Ms Scanlon to wait until the next semester before applying for a position, the breach seems insubstantial and to have little, if any, relevance to merit. On the second point, since the breach was neither clear nor substantial nor significantly related to merit, the Tribunal was in substance correct to regard the appellants' argument as relying on a technicality, and to regard the appointment as being in keeping with the spirit and intent of the guidelines. In his judgment, which I have had the benefit of reading, Kirby, P. expresses the view that (1) there is an error of law when the decision-maker fails to demonstrate an application to the facts of the applicable legal rules; (2) the Tribunal failed to consider the issue of eligibility and the relevance to that issue of the Guidelines; and (3) this was an error in the decision on a question of law which vitiates the decision. For the reasons I have given, I do not think it was necessary for the Tribunal to address eligibility in terms of s18(2) as a separate issue from that of merit. The cases of Hope v Bathurst City Council (1980) 144 CLR 1 at 10, and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, relied on by Kirby, P, do establish that there is an error of law if it is SHOWN THAT THERE WAS AN ERROR by the decision-maker in the application to the facts of the applicable rule: in my opinion, no such error is shown in this case. For those reasons, in my opinion, the appeal should be dismissed. Appeal dismissed with costs. Counsel for the Appellant: JA Needham Solicitors for the Appellant: Macmahon Drake Balding Counsel for Ist Respondent: SB Benson Solicitors for 1st Respondent: Taylor and Scott Counsel for 2nd and 3rd Respondent: Submitting appearance URJ JANSON v SCANLON (Hodgson AJA) Solicitors for 2nd Respondent: IV Knight, State Crown Solicitor