Meehan & Ors v Commissioner of Police [1999] NSWCA 292

Reported Decision : 47 NSWLR 284

New South Wales Court of Appeal CITATION : Meehan & Ors v Commissioner of Police [1999] NSWCA 292 FILE NUMBER(S) : CA 40586/99 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 9 August 1999

PARTIES : Phillip John Meehan & Ors - Appellants Commissioner of Police - Respondent JUDGMENT OF : Mason P at 1; Giles JA at 16; Davies AJA at 50

LOWER COURT JURISDICTION : Government and Related Employees Appeal Tribunal LOWER COURT FILE NUMBER(S) : P126-127; P 129; P131-137; P143; P164-169; P178-179 & P193-199 of 1999 LOWER COURT JUDICIAL OFFICER :

COUNSEL : Dr G A Flick QC & R P L Lancaster - Appellants W R Haylen QC & G J Willis - Respondent SOLICITORS : Oates & Smith - Appellants Michael North Holmes, Legal Services of NSW Police Service - Respondent CATCHWORDS : GREAT - jurisdiction - s 81C Police Service Act - applicant must be "elligible for appointment" to position - appellants unsuccessful in assessment process - success a qualification determined for the position - whether appellants eligible for appointment - whether assessment by comparative merit or of achieving a standard - (by majority) the latter - appellants not eligible - no jurisdiction. Janson v Scanlon (1995) 63 IR 100 referred to. DECISION : (By majority) appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40586/99 P126-127, P129, P131-137, P143, P164-169, P178-179 & P193-199 of 1999

MASON P GILES JA DAVIES AJA

Monday 9 August 1999

MEEHAN & ORS v COMMISSIONER OF POLICE

JUDGMENT

1 MASON P: I have had the benefit of reading the judgments of Giles JA and Davies JA in draft form. Those judgments set out the facts and the legislative framework in detail. 2 In my view, the appeal should be dismissed with costs. 3 I agree with the reasons of Giles JA. 4 The onus lay upon the appellants to satisfy the Tribunal that they had invoked its jurisdiction (NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 at 521). In the particular context, s81C(1) of the Police Service Act 1990 required them to demonstrate (a) that they had been applicants for nine specific vacant positions of Inspector, and (b) that they were "eligible for appointment" to those positions. They failed because (b) was not satisfied. 5 The Tribunal found as a fact that the requirement of successful completion of the Assessment Centre program was a qualification which the Commissioner had determined in respect of the vacant positions the subject of the proceedings (Jurisdictional Decision, p18). 6 The appeal to this Court is confined to a question of law (Government and Related Employees Appeal Tribunal Act 1980, s54). The ground advanced in the appellants' written submissions was that the only eligibility criteria specified in the Act were that the person had "duly applied for appointment to the position" (Police Service Act 1990, s71(1)(a)) and that the person satisfied certain citizenship requirement (id, s94). 7 I agree with Giles JA and Davies AJA that this submission involves a misreading of the expression "eligible for appointment" in s81C. 8 The Police Service Act 1990 makes it plain that the Commissioner may determine the applications that must be possessed before a person is eligible for appointment to a particular position. This is implicit in the power to create, classify and grade positions (s10(2)). Indeed, it is expressly recognised in par (a) of the definition of "merit" in s3(1). It is also found in s71(1)(b) itself. (The appellants' construction of s71(1), confining eligibility to due application is tautologous when paragraphs (a) and (b) of the subsection are compared. The same can be said of the appellants' approach to s81C(1) itself.) Section 94 deals with a separate matter, as Giles JA demonstrates. 9 To deny the Commissioner the power to specify particular qualifications (eg rank, academic qualifications, length of service, particular language skills) if they seem appropriate to a particular position in the Police Service would also be an affront to common sense. It follows that, if the Commissioner can specify eligibility criteria, there is every reason why such specification should remain relevant both as to jurisdiction and merit assessed in the Tribunal. Section 81C(1) recognises the former and s81C(2) (when read with par (a) of the definition of "merit") recognises the latter. 10 Recognising that these arguments might have force with the Court, the appellants shifted ground in their oral submissions. They sought in effect to dispute that successful completion of the Assessment Centre program was a valid criterion of eligibility for appointment to a vacant position. It was suggested that the program was really part of a process by which applicants were assessed and judged by the Commissioner in their comparative merits. 11 It this proposition were correct and open, it would be a good answer to the jurisdictional point. In this area the law has regard to matters of substance. To take an extreme example, the Tribunal would not be precluded from entertaining an appeal by an applicant for a position in which the only criterion not satisfied was "selection by the Commissioner's selection panel as one of the four shortlisted candidates". 12 But this is not the present case. In the first place, no such proposition was advanced before the Tribunal, which (as indicated) found as a fact that the requirement of successful completion of the Assessment Centre program was a qualification determined by the Commissioner. On my reading of the material placed before us, all sides treated the Assessment Centre program as a genuine course in which candidates were assessed according to appropriate standards. It was not suggested that there was a maximum quota of successful candidates. The way the matter was fought below is fatal to the appellants' attempt to enlarge the grounds of appeal (cf Coulton v Holcombe (1986) 162 CLR 1 at 7-8) even if (which I doubt) the alternative argument relies on a question of law. 13 Furthermore, the material in evidence shows that various competency factors (decision making), individual leadership influencing, planning/ organising/work management, communication, teamwork/collaboration, maximising performance, technical/professional knowledge) were assessed according to five levels of effectiveness ( much need for development, need for development, minimum satisfactory standard, satisfactory, above satisfactory). The course lasted a whole day. Candidates were provided with detailed reasons based upon the examiner's assessment of their performance in a number of exercises. 14 Entry to the assessment stage depended upon assessment of the information provided in a pro forma application form in which candidates were invited to address various "competencies". The standard form refers to Selection Committees assessing applications on a comparative basis for the applications received. However, I am satisfied that this part of the standard form applied only to the method of determining who should be recommended for ultimate appointment. 15 The advertisements for the various positions sought by the appellants stipulated that progression to the assessment stage of the process was not automatic and that an application cull would be conducted. It is not indicated who would do that cull. It could have been the Section Committee and Committees involved. The evidence does not reveal this. What is clear is that an applicant may be admitted to assessment in connection with one position, meet the standards of assessment, be unsuccessful in obtaining the position, and may apply for another position without having to undergo Assessment Centre assessment a second time (see Police Service Weekly Vol 10 No 50, 14 December 1998, p12). 16 We know that one of the appellants, Mr Meehan was culled prior to attending the Assessment Centre. But there was no evidence as to the basis upon which the cull took place. In these circumstances, I am not prepared to find that the Tribunal erred in law in not addressing the possibility that the culling was based upon comparable merit in circumstances where failure to get to the Assessment Centre could be said not to involve failure to achieve a criterion of eligibility for the purpose of an appeal to the Tribunal. 17 GILES JA: This is an appeal from a decision of the Government and Related Employees Appeal Tribunal ("the Tribunal"). The Tribunal decided that it had no jurisdiction to hear and determine a number of related appeals by disappointed applicants for appointment to positions in the Police Service. By s 54 of the Government and Related Employees Appeal Tribunal Act 1980 the appeal to this Court is only on a question of law. 18 The positions were chief inspector and inspector positions within Crime Agencies. They were advertised in the Police Service Weekly on 14 December 1998. 19 The advertisements began - "Applicants who successfully completed the assessment centre for Crime Agencies (published in PSW Vol 10/18, dated 4 May) are now invited to apply for the following vacancies. Interested applicants should submit page 1 and 2 of the application form and forward to Placement Services by the closing date. Applicants who successfully completed the operational supervisor assessment centre, but did not submit an expression of interest for the Crime Agencies assessment centre, may also apply for these vacancies. Applicants in this category must submit a full application form addressing the relevant competencies. These applications will be subjected to a cull by the selection panel. All applicants are to nominate preferences if applying for more than one position."