DEPUTY PRESIDENT: The complaint is dismissed under s.75 of the VCAT Act and I now hand down my reasons.

Mr Lindon has lodged a complaint with the Equal Opportunity Commission which in these reasons I call the Commission. The Commission has declined to entertain the complaint under s.108(1)(a) of the Equal Opportunity Act 1995, which in these reasons I call the Equal Opportunity Act.

At Mr Lindon's request the Commission referred the complaint to this Tribunal. The respondent, which is the State of Victoria and which I call the State in these reasons, has applied under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, which I call the VCAT Act, to have the complaint struck out or dismissed. The Tribunal had given directions on that application giving the parties an opportunity to make written and oral submissions.

Counsel for the State has made both written and oral submissions. Mr Lindon has made neither written nor oral submissions and did not appear at the hearing of oral submissions. In my view the complaint should be dismissed as misconceived and on that basis is manifestly unsustainable. One of the grounds on which a complaint may be struck out or dismissed under s.75 of the VCAT Act is that the complaint, the proceeding in this case, is misconceived.

There are two bases for my decision. The first is that the complaint falls outside the scope of the Equal Opportunity Act. The second is that the complaint contains so little detail of the contravention of the Equal Opportunity Act claimed that it is not a valid complaint. I deal with each of these matters in turn.

I first deal with the application of the Equal Opportunity Act to this claim. Read broadly, the complaint is that the State has discriminated against Mr Lindon on the ground of his political belief or activity or personal association in relation to the refusal to grant a professional qualification to him, to use his formulation of his claim, or in the provision of a service, to use the Commission's formulation of the claim.

The conduct alleged is the refusal to appoint Mr Lindon as a Queen's Counsel after he had applied, as he puts it, for that appointment. On the material before me the process of appointment of Queen's Counsel is this: applications from those interested in appointment are received by the Chief Justice in the month of August in each year. There is no general public advertisement calling for applications. The guidance notes for applications are contained in a one page document which may be obtained from the Chief Justice's associate. That document lists matters that should be addressed in the application. Those matters include formal matters such as name, address and so on; particulars of education, qualifications and admission dates; practice particulars such as usual area of practice and the names of Justices to whom the Chief Justice may refer in relation to the application; and other information which the applicant considers relevant.

The Chief Justice then engages in a short listing process involving broad-ranging consultation with persons and bodies such as the President of the Court of Appeal, heads of other jurisdictions, Judges, the Bar Council and other persons who the Chief Justice considers relevant. The Chief Justice then sends a list of recommendations to the Attorney General. The Attorney General takes the list for consideration by the Executive Council. The Governor, with the advice of the Executive Council, then makes the orders for appointment.

Mr Lindon applied in August 1999 for appointment as Queen's Counsel. Included in the complaint is a letter signed by the Chief Justice, stating that in all the circumstances presently prevailing he was unable to make the recommendation. That is Mr Lindon's entire complaint.

The Victorian Civil and Administrative Tribunal, which I call VCAT, has two jurisdictions: review jurisdiction and original jurisdiction (see s.40 of the VCAT Act). The review jurisdiction is the jurisdiction conferred by or under an enabling enactment to review a decision made by a decision-maker. (See s.42(1) of that Act.) This complaint is made and referred to this Tribunal under the Equal Opportunity Act. The Equal Opportunity Act is an enabling enactment. The Equal Opportunity Act does not in its terms give VCAT jurisdiction to review a decision not to appoint a person as Queen's Counsel.

The Federal Court has held that a decision made under the Northern Territory Legal Practitioners Act not to appoint a person as Queen's Counsel was not justiciable. (See Waters v. Acting Administrator for Northern Territory (1994) Vol.119, A.L.R. p.557.) That decision made it clear that the same propositions would apply to the prerogative power which exists in Australian States other than the Northern Territory to appoint people as Queen's Counsel.

Under s.41 of the VCAT Act the original jurisdiction of VCAT is its jurisdiction other than its review jurisdiction. One of the ways in which original jurisdiction is invoked is by a matter being referred to VCAT under an enabling enactment in accordance with s.69. (See s.43(b) of that Act.) The effect of s.69 is that the referral must be made in accordance with the enabling enactment and the VCAT Rules.

As I have said, the Equal Opportunity Act is an enabling enactment. Among other provisions. s.108 of that Act permits the complainant, within a specified time, to request the referral to VCAT of a complaint which the Commission has declined. It also requires the Commission to Act on that request. This complaint was referred to VCAT in accordance with that section. Under s.134 of the Equal Opportunity Act VCAT has clear jurisdiction to hear such a complaint. It follows that VCAT's original jurisdiction has been invoked.

But a complaint must allege a contravention of the Equal Opportunity Act and must contain details of that contravention. (See ss.104 and 105 of the Equal Opportunity Act.) I am satisfied that this complaint contains no allegation capable of being characterised as a contravention of the Equal Opportunity Act. As the Federal Court held in the Waters case, appointment as a Queen's Counsel is appointment to an office. It is not a service which the States provides, offers or promises to any particular person. As was pointed out in the Waters case, the office is unusual because there are no obligations which the holder must perform to the State and no emolument from the State to the holder of the office. Nor is the State an employer of the Queen's Counsel within the terms of ss.13 and 14 of the Equal Opportunity Act. There is no employer/employee relationship, there is no contract of service or for services, nor is it a statutory appointment or statutory office. The power to make the appointment is a prerogative power. For these conclusions, see the definitions of employer/employee and employment in s.4 of the Equal Opportunity Act.

Nor is the State, here the Governor, acting with the advice of the Executive Council and acting as the Crown's representative, a qualifying body within the meaning of s.4 of the Equal Opportunity Act. This means that s.35 which contains prohibition of discrimination by qualifying bodies, has no application. The State is not a person or body, "empowered to confer, renew or extend an occupational qualification", and I quote from the definition of occupational qualification. That is, an authorisation or qualification that is needed for or facilitates the practice of a profession. Those two definitions are to be found in s.4 of the Equal Opportunity Act.

Appointment as Queen's Counsel is appointment to an office. It is not a qualification needed before one can practise as a barrister, practise in a particular area, or undertake work of a particular complexity. Although appointment might result in the remuneration of the barrister appointed rising because higher fees can be charged, the appointment does not facilitate or assist that person in the practice of his or her profession. Rather, it is a privilege or a dignity, a recognition of eminence.

I would add that although by s.5 of the Equal Opportunity Act the Act clearly binds the Crown and will obviously have application to some Cabinet decisions where they clearly relate to matters which come within the scope of the prohibitions in the Act, there is nothing in the Act which clearly shows me that Parliament intended the Act to apply to Cabinet decisions of this kind. I say this on the basis that the appointment of Queen's Counsel as was indicated in the Waters case, is a matter for Cabinet and is then formally implemented by orders made by the Governor on the advice of the Executive Council.

The Cabinet decisions to which I refer are decisions which occur as part of the Executive Government of the State and involve considerations of Government policy and general public interest as well as on occasion considerations of individual merit. The reasons for these decisions are imprecise and it is this and their nature which makes them not justiciable before courts.

If Parliament had intended the Equal Opportunity Act to operate in relation to decisions such as these, I would have expected a clearer indication of that intention in the Act, particularly where those decisions are not justiciable before a court.

The second basis of my decision is that the complaint contains insufficient detail of the grounds of the discrimination claimed to comply with s.105 of the Equal Opportunity Act. This means that it is not a valid complaint. The complaint does not specify the political belief or activity of Mr Lindon which is the basis of his claim. For the purpose of this proceeding I assume that Mr Lindon's reference to personal association in the complaint is a reference to the attribute mentioned in s.6(m) of the Equal Opportunity Act. That paragraph covers personal association, whether as a relative or otherwise, with a person who is identified by reference to any of the above attributes. The above attributes are those listed in s.6, paragraphs A to L. They include such attributes as sex, race, political belief and activity and so on.

The complaint does not indicate who is Mr Lindon's associate for the purposes of s.6(m) or by reference to what attribute that associate is identified. The complaint does not indicate how it is said that Mr Lindon's attributes, political belief and activity and personal association, were the reason for his not being appointed QC.

I conclude that the complaint is manifestly unsustainable because it is misconceived. This problem cannot be cured by amendment, and so it is appropriate under s.75 of the VCAT Act to dismiss the complaint.

Very well. I can now rule on this matter without having to adjourn. In my view costs should be ordered in favour of the respondent in relation to this application. I would propose that the costs be awarded on a party/party basis and on Scale A because it is still too early in the piece to know what the relief claim would have been, and that in default of agreement they be settled or assessed by the Principal Registrar. I will reflect that in the order I make, but I give briefly my reasons for ordering costs.

Under s.109 the general rule is that costs lie where they fall, but it's clear from sub-ss.2 and 3 of s.109 that the Tribunal has a discretion if it considers it fair to do so, and taking into account a number of specified factors, to order costs in favour of a party. The factors that the respondent relies on here are, first, that Mr Lindon has vexatiously conducted this proceeding and generally to take into account the way in which he has conducted the proceeding.

And, second, to that Mr Lindon has failed to comply with Tribunal directions; and third, that Mr Lindon has made a claim with no tenable basis, in fact or law. I am going to deal with those claims in reverse order.

First, I deal with the question of making a claim with no tenable basis. In my view there has been an application for an interim order in relation to this complaint and a finding by His Honour Judge Davey that there was no prima facie case. Even if Mr Lindon had prior to that time thought that his complaint had a tenable basis, he ought to have realised once that finding had been made that he ought not have pursued the complaint. Although I recognise that the Act gives the complainant the right to refer a complaint, to pursue it further to the Tribunal, given that finding, was in my view unreasonable, and any complainant ought to have realised that the complaint would eventually be doomed to fail. So that by pursuing the matter further the matter has come before this Tribunal. It has led to a further strike out application and the respondent has incurred costs which in fact were unnecessary for it to have incurred if Mr Lindon had previously withdrawn his complaint.

I would in fact not have to deal with the other two bases because that would resolve the application, but I will nevertheless briefly deal with the other two bases. In my view the question of non-compliance with directions at the time of the interim order application should not be taken into account as far as the failure to comply with directions paragraph is concerned in s. 109(3). That was a separate proceedings. It was brought at a time when the complaint was still before the Commission before the referral of the Complaint. I can have regard to it in relation to other matters but is seems to me that, given the fact that I am looking at costs on this application, I should only look at the directions make ;in relation to this application and after the referral of this complaint to the Tribunal.

The Respondent says that Mr Lindon has failed to comply with one of those directions by not submitting his written submissions within the time directed. Now, it is unclear to me, and the notes on the file are not clear, whether in fact it was explained to Mr Lindon that submissions were required or whether what was explained to him was the fact that if he proposed to make written submissions, he must do so on or before a particular date. On that basis I am not willing to award costs against him on the basis of failure to comply with directions.

The last point is vexatiously conducting a proceeding. Again I take the same view as I did in relation to the failure to comply with directions point. In my view, what should be looked at is the proceeding from referral to the Tribunal on, but in my view there has been conduct of the proceeding which is at least unreasonable and ought to be foundation of an award of costs.

If Mr Lindon had not proposed to make any submissions on this application, he ought to have told the Tribunal at the time of the compulsory conference, at the time the directions were being formulated. That would have meant a different set of directions and perhaps would have obviated the need to hear oral submissions at all. The matter could have been simply dealt with by written submissions from the Respondent and in that sense Mr Lindon has made the Respondent incur unnecessary costs, and has also meant that this Tribunal has put back other cases so that it could hear oral submissions today.

So for those reasons I award costs in favour of the Respondent. I will reduce this to a written order and sign it. If you wait five minutes, I will give you a copy.