Legal Practice Board of Western Australia v Fazio [No 2] - [2021] WASC 304

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA -v- FAZIO [No 2] [2021] WASC 304
CORAM:   SMITH J
HEARD:   ON THE PAPERS
DELIVERED          :   3 SEPTEMBER 2021
PUBLISHED           :   3 SEPTEMBER 2021
FILE NO/S:   CIV 1946 of 2017
BETWEEN:   LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Plaintiff
AND
ARTURO SALVATORE FAZIO
Defendant

Catchwords:

Application for leave to file application for judicial review of a decision to issue a certificate of taxation and injunctive relief – Application for review has no prospects of success – No grounds for injunctive relief
Judicial review – Application for leave an abuse of process – Application not brought against the decision maker
Practice and procedure – Taxing officer empowered to tax a bill of costs on the papers where no appearance entered by the party required to pay costs

Legislation:

Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Tottle Partners
Defendant	:	No appearance

Cases referred to in decision:

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663
Fazio v McNally [2014] WASCA 79
Fazio v St John-Ayre [2017] WASC 62
Fazio v Westpac Banking Corporation [2014] WASCA 80
Forrest & Forrest Pty Ltd v Marmion, Minister for Mines and Petroleum [2017] WASCA 153
Highway Hotel Pty Ltd v City of Bunbury [No 2] [2001] WASCA 385
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175
Jacob v Save Beelier Wetlands (Inc) [2016] WASCA 126
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Legal Practice Board of Western Australia v Fazio [2018] WASC 147
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

SMITH J:

Application by the defendant for leave to file application for judicial review

The defendant, Mr Fazio, applied by originating motion, filed on 19 July 2021, for leave to file an application for judicial review of a decision to issue a certificate of taxation by a taxing officer on 11 July 2018, assessing the plaintiff's bill of costs dated 26 June 2018, and allowing the bill at $31,088.11. The application for leave to file an application for judicial review was filed in CIV 1946 of 2017.

Background

The proceedings in CIV 1946 of 2017 commenced by originating summons dated 8 June 2017, seeking a permanent injunction to restrain Mr Fazio from engaging in legal practice in contravention of s 12(2) of the Legal Profession Act 2008 (WA) (LP Act), or from representing an entitlement to engage in legal practice in contravention of s 13(1) of the LP Act in the State of Western Australia, when he is not an Australian legal practitioner.
Mr Fazio was served with a notice of the application, following an Order made by the Master on 5 December 2017, for substituted service.[1]
[1] Legal Practice Board of Western Australia v Fazio [2018] WASC 147 [4].
Mr Fazio did not enter an appearance in response to the originating summons filed by the plaintiff, the Legal Practice Board of Western Australia (Board). On 4 April 2018, the application for a permanent injunction was heard by Pritchard J. Mr Fazio did not appear at the hearing. After considering the evidence adduced by affidavit by the Board, her Honour made the following Order:[2]
[2] Legal Practice Board of Western Australia v Fazio [2018] WASC 147.
1. Pursuant to section 585(1) of the Legal Profession Act 2008 (WA) (Act), an injunction be granted restraining the defendant:
(a)from engaging in legal practice in the State of Western Australia, when not an Australian legal practitioner, in contravention of section 12(2) of the Act; and
(b)from representing an entitlement to engage in legal practice in the State of Western Australia, when not an Australian legal practitioner, in contravention of section 13(1) of the Act, and
(c)without limiting the generality of the restraints in (a) and (b) above, from engaging in any of the following activities in the State of Western Australia, whilst not an Australian legal practitioner-
(i)providing legal advice in relation to legal proceedings or potential legal proceedings;
(ii)providing legal advice in respect of legal claims or causes of action, including providing advice as to how to advance or prosecute such claims or causes of action;
(iii)corresponding or communicating on behalf of litigants or potential litigants in respect of their legal claims or causes of action;
(iv)drawing or settling documents on behalf of or as agent for litigants, including but not limited to affidavits, pleadings and legal submissions;
(v)drawing or settling correspondence or letters of demand, for potential litigants or persons who have or assert legal claims or causes of action;
(vi)appearing in court on behalf of litigants to proceedings;
(vii)providing advice or counsel to persons who are appearing in court in connection with any such court appearance; or
(viii)representing to any person, expressly or impliedly, that he is entitled to engage in activities of the kind set out in (i) to (vii) above.
2.The Defendant pay the Plaintiff's costs of this action, to be taxed if not agreed.
3.The Plaintiff serve these orders on the Defendant by emailing a copy of the extracted orders to the email address [email protected] marked to the attention of the Defendant, namely Arturo Salvatore Fazio.
On 9 April 2018, the Board served the Order made by Pritchard J on 4 April 2018 on Mr Fazio.[3]
[3] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG1, 4 - 7.
On 26 June 2018, the Board filed its party/party bill of costs payable by Mr Fazio for taxation pursuant to the Order made by Pritchard J on 4 April 2018, which items totalled an amount of $31,088.11. The bill of costs itemised the amounts claimed by reference to the relevant scale item, as allowed by O 66 r 11 of the Rules of the Supreme Court 1971 (WA).
By 11 July 2018, Mr Fazio had still not entered an appearance in the proceedings.
On 11 July 2018, Registrar Dixon (the taxing officer) issued a certificate of taxation as follows:
I HEREBY CERTIFY that I have assessed the Plaintiff's bill of costs dated 26 June 2018 and allowed the bill at $31,088.11.
On the same day, the associate to the taxing officer wrote to the Board attaching a copy of the certificate of taxation and stated in an accompanying letter:[4]
I refer to your bill of costs filed 26 June 2018. It was the Registrar's intention to conduct a provisional assessment of the bill however in light of the fact that the defendant has not entered an appearance and therefore need not be given notice of the taxation and the Registrar's view as to the reasonableness of the bill, the Registrar has simply allowed the bill in the sum claimed of $31,088.11.
[4] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG2, 8.
On 22 August 2018, the Board served Mr Fazio with a copy of the certificate of taxation and made a demand of payment of the sum of $31,088.11 by Wednesday, 5 September 2018.[5]
[5] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG3, 9.
On 3 September 2018, Mr Fazio wrote to the Board, complaining the allowed bill of costs of $31,088.11 was excessive, asked for a copy of the bill 'presented to' the taxing officer, advised that he was an undischarged bankrupt, having been made bankrupt in February 2016, and complained that he had not been sent an appointment date for the taxation hearing.[6]
[6] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG4, 12 - 15.
On 19 September 2018, the Board sent to Mr Fazio a copy of the bill of costs filed in the matter, and made a demand that costs be paid by Wednesday, 3 October 2018.[7]
[7] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG5, 16 - 26.
On 3 October 2018, Mr Fazio wrote a letter to the taxing officer in which he complained that there was no provisional assessment of the bill, and whether particulars were provided in respect of some items of the bill of costs, whether invoices were provided for one of the items, and queried the hours of work claimed by the Board.
On 18 October 2018, the associate to the taxing officer responded to Mr Fazio (on instructions of the taxing officer) as follows:[8]
2.The Registrar taxed the bill by reference to the Court file without any appearance by the plaintiff and allowed it in the amount claimed on the basis that the costs claimed in the bill were reasonably and necessarily incurred by the plaintiff.
3.He did not conduct a provisional assessment as that was not appropriate as you had not entered an appearance to the proceedings. For that same reason it was not necessary for you to be served with the bill of costs - see O. 66 r. 34 of the Rules of the Supreme Court.
[8] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG7, 28 - 29.
On 15 May 2020, Mr Fazio's bankruptcy was discharged by law.[9]
[9] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG9, 30 - 31; On 31 March 2021, the Board conducted a search of the National Personal Insolvency Index recorded by the Australian Financial Security Authority which revealed that Mr Fazio had been entered in the index as bankrupt on 15 February 2016, and had been discharged from bankruptcy by law on 15 May 2020.
On 8 March 2021, the Board sent a further letter of demand to Mr Fazio, seeking payment of the costs by Monday, 22 March 2021.[10]
[10] Affidavit of Charlie Anne Gribble sworn 24 June 2021, Attachment CAG9, 32 - 35.
On 29 March 2021, the Board applied to the court for a means enquiry summons. Mr Fazio was served with a summons on 5 April 2021. The summons for a means enquiry order was listed for hearing at the court on 31 May 2021.
On 31 May 2021, Mr Fazio appeared before Registrar Griffin, and after hearing from counsel for the Board and Mr Fazio the means enquiry was adjourned to 21 June 2021.
On 14 June 2021, Mr Fazio filed a summons seeking orders that the Board's bill of costs be taxed in accordance with order 2 of the Order made by Pritchard J on 4 April 2018, and suspending the means enquiry pending taxation of the bill of costs.
On 21 June 2021, by consent Registrar Griffin dismissed Mr Fazio's summons filed on 14 June 2021, ordered the Board to file and serve written submissions objecting to Mr Fazio's proposed application for judicial review being accepted for filing by 25 June 2021, and ordered Mr Fazio to file and serve any written submissions in reply by 2 July 2021.
On 19 July 2021, Mr Fazio filed the originating motion seeking leave to file an application for judicial review.

The application for leave to apply for judicial review

The originating motion filed by Mr Fazio, in effect, seeks the following orders:
(1)Leave be granted to file the application for judicial review.
(2)Order 2 of the Order made by Pritchard J be upheld and effected by requiring the Board to have their bill of costs in the matter taxed by the court, as the bill is not agreed.
(3)Injunctive relief be granted to prevent the Board from seeking or furthering recovery proceedings for payment of their bill of costs, until such time as the bill of costs has been taxed by the court and a proper certificate of taxation issued.
In effect, Mr Fazio seeks leave to file an application for a writ of mandamus against the Board requiring the Board to submit its bill of costs for taxation, and injunctive relief against the Board to prohibit it from taking further steps in the means enquiry.
The grounds of the application can be distilled from the grounds set out in the notice of originating motion filed on 19 July 2021 that:
(1)the taxing officer never taxed the bill of costs, and in doing so erred in law;
(2)the taxing officer did not comply with order 2 of the Order made by Pritchard J;
(3)the taxing officer denied Mr Fazio natural justice in not having the bill taxed or being heard on the taxation; and
(4)the amounts claimed in the bill of costs and allowed are unreasonable.
In written submissions filed by the Board on 24 June 2021, the Board submits the application for judicial review should not be accepted for filing on grounds that it is an abuse of process, and, in the alternative, the application should be dismissed because the time allowed to bring any application for judicial review has long lapsed.
The Board submits that the proposed application for judicial review is an abuse of process for the following reasons:
(1)The application is brought against the Board, not the decision-maker, the taxing officer.
(2)Even if the registrar was substituted as the respondent to the application for judicial review, there has been no decision made capable of being the subject of judicial review:
(a)the decision of a taxing officer on all questions of fact are final;[11]
(b)Mr Fazio could only apply for a review of the taxation (by a judge) if there was an error of principle.[12] Mr Fazio has not indicated any error of principle. The taxing officer had the discretion to conduct the taxation in the manner he did and there was no requirement for Mr Fazio to be given notice of the taxation;[13]
(c)a review of a taxation by a judge can only be made within 14 days of a registrar deciding an O 66 r 53 application;
(d)Mr Fazio has never made an application under O 66 r 53;
(e)Mr Fazio never filed any other application or appeal to have the certificate of taxation dismissed and the taxation reopened.
(3)The relief sought does not relate to a reviewable decision.
[11] Rules of the Supreme Court 1971 (WA) O 66 r 43.
[12] Rules of the Supreme Court 1971 (WA) O 66 r 53.
[13] Rules of the Supreme Court 1971 (WA) O 66 r 34.

Judicial review – time for application – principles

Order 56 r 1 provides that a judicial review application must be made within 6 months of the date of the decision or the date a party received notice of the decision.
Mr Fazio's application is approximately 2 years out of time, if time is taken to have run from Monday, 3 September 2018 (being the date he received a letter from the Board dated 22 August 2018 making a demand for the payment of the taxed sum).
Although the 6 month time period may be extended by the court, an applicant should satisfactorily account for the delay in bringing the application. However, mere delay will not debar an applicant from obtaining relief.
The Board points out that although Mr Fazio is self-represented, he is no stranger to bringing applications and appeals before this court which have required extensions of time.[14] Consequently, the Board argues that he is, or should be, well aware of the time limits associated with appeals and the consequence of filing applications out of time and/or delaying proceedings.
[14] Fazio v St John-Ayre [2017] WASC 62; Fazio v Westpac Banking Corporation [2014] WASCA 80; Fazio v McNally [2014] WASCA 79.
As to whether an extension of time should be granted to any application for judicial review, what must be weighed is whether there is any prejudice to the other parties, the merits of the issues raised, including the general importance of the issues and whether they have any substance, and the overriding public interest in maintaining the rule of law.[15]
[15] Highway Hotel Pty Ltd v City of Bunbury[No 2] [2001] WASCA 385 [33] - [34], [38], [42] - [43] and [58].

Legal principles – judicial review

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If what the decision–maker does to perform the duty amounts in law to no performance because he or she has misconceived his or her duty, he or she may be commanded by the writ to execute his or her function according to law de novo (from the beginning as if it had not been done).[16] Before mandamus may lie to compel a decision–maker to perform his or her duty according to law, usually certiorari should first issue to quash the previous erroneous order which is still standing.[17]
[16] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228.
[17] Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663.
Judicial review is not concerned with the review of a decision on its merits, nor is it concerned with all kinds of error of the decision-maker. Judicial review is only concerned with jurisdictional error.
In Re Refugee Review Tribunal; Ex parte Aala, Hayne J pointed out:[18]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[18] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.[19] That is, the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do.[20]
[19] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).
[20] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J).
In Kirk v Industrial Court of New South Wales, the plurality observed that it is not possible to mark the metes and bounds of jurisdictional error.[21] Their Honours did, however, refer at [71] to the categories outlined by Professor Mark Aronson in his paper 'Jurisdictional Error without the Tears'. In summary, those categories are: [22]
(a)a mistaken assertion or denial of the very existence of jurisdiction;
(b)a misapprehension or disregard of the nature or limits of the decision-maker's functions or powers;
(c)acting wholly or partly outside the general area of the decision-maker's jurisdiction, by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance (for example, a civil court trying a criminal charge);
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant Act makes the validity of the decision‑maker's acts contingent on the actual or objective existence of those things, rather than on the decision‑maker's subjective opinion;
(e)disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision‑maker's act or decision;
(f)misconstruing the decision‑maker's act in such a way as to misconceive the nature of the function being performed or the extent of the decision‑maker's powers;
(g)acting in bad faith; and
(h)breaching (the hearing or bias rules of) natural justice.
[21] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[22] Aronson M, 'Jurisdictional Error without the Tears in Groves & Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, 335 ‑ 336.; See also Forrest & Forrest Pty Ltd v Marmion, Minister for Mines and Petroleum [2017] WASCA 153 [86] - [92].

Part of these categories is legal unreasonableness. In Minister for Immigration and Citizenship v Li, the High Court affirmed the principle that the legislature is taken to intend a discretionary power, statutorily conferred, will be exercised reasonably.[23] There are two types of legal unreasonableness, process unreasonableness and outcome unreasonableness. The difference between process unreasonableness and outcome unreasonableness was explained by McLure P in Jacob v Save Beelier Wetlands (Inc) as follows:[24]
The head note in Li appears to accurately capture the position of the plurality, being that:
'The legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. The standard is addressed to whether the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.'
It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process-related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision-maker has a genuinely free discretion: Li. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li.
[23] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63] (Hayne, Kiefel & Bell JJ), [88] - [89] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541.
[24] Jacob v Save Beelier Wetlands (Inc) [2016] WASCA 126 [67] ‑ [68] (Buss & Newnes JJA agreed) (footnotes omitted).
In Humich Nominees Pty Ltd v Commissioner of Main Roads, the Court of Appeal recently observed:[25]
A decision may be legally unreasonable where it lacks an evident and intelligible justification. While legal unreasonableness is fact dependent and requires a careful evaluation of the evidence, the ultimate question is whether the decision of the Commissioner was within the scope of the power conferred by reg 14. That ultimate question reflects the nature of judicial, as distinct from merits, review.

Taxation of costs – Order 66 and cl 4.7.2 of the Consolidated Practice Directions

[25] Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175 [122] (footnotes omitted).

Section 37 of the Supreme Court Act 1935 (WA) provides that subject to the provisions of the Act and rules of court, the costs of and incidental to all proceedings in this court are in the discretion of the court, having full power to determine by whom and to what extent such costs are to be paid.
Order 66 of the Rules of the Supreme Court sets out the applicable rules as to costs. Order 66 r 11(3) provides a costs determination made under the LP Act applies as between party and party. Order 66 r 19 provides for disbursements, expenses, payments, or charges allowable on taxation.
Order 66 r 11(2) provides, except when otherwise ordered, solicitors are, subject to the rules, entitled to charge and be allowed the fees set forth in any relevant scale in respect of the matters referred to in that scale and higher fees shall not be allowed in any case, except as allowed by O 66.
Order 66 r 32(1) provides that unless the court in a particular case otherwise directs, bills of costs and fees which are payable to practitioners admitted and entitled to practise in the court in respect of business transacted by them in the court or its offices, and which have been directed by judgment or order to be taxed, shall be taxed, allowed and certified by the taxing officer who shall appoint a time for taxation on the application of the party claiming taxation.
Order 66 r 42(1) requires that a bill of costs for taxation is to be prepared so as to clearly show items consecutively numbered, with the reference to the item in the scale to which the item in the bill relates, describing the items by reference to date and the applicable scale. Except for matters not provided for in the scale which may be allowed under O 66 r 18, the taxing officer may not exceed the items in the scale without a special order by the court.
Instead of appointing a time for taxation of a bill of costs, pursuant to 4.7.2 of the Consolidated Practice Directions a taxing officer may, prior to a bill of costs being listed for assessment, make a provisional assessment of the amount at which the bill should be allowed. However, invoking this procedure contemplates that it is only to occur where the party who is required to pay the lodging party's costs has entered an appearance in the proceedings. This is because the procedure for initiating provisional assessment is that if the taxing officer considers the bill of costs to be suitable for provisional assessment, cl 4 of 4.7.2 of the Consolidated Practice Directions requires the taxing officer to return the service copies of the bill to the filing party with a letter notifying the parties that the bill will be provisionally assessed and requires the filing party to serve the bill on the paying party with a copy of the court's letter.
Where a provisional assessment does not occur and a taxing officer proceeds to tax the bill of costs, prior to the taxing officer issuing his or her certificate of taxation, the normal procedure is that after the bill has been taxed there is an interval of time during which the taxation officer makes the necessary calculations and informs the parties of those calculations prior to signing the certificate. During this interval a party who wishes to object should inform the taxing officer of the matters to be objected to and ask the taxation officer to not issue a certificate, so as to allow the party dissatisfied with the taxation to object and apply for review by the taxation officer, pursuant to O 66 r 53.
A party dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under O 66 r 53 may apply to a judge in chambers for an order to review on grounds the taxing officer has made an error in principle in allowing or disallowing any item or part of an item. By r 55(2) the judge, if of opinion that the taxing officer has made an error in principle, may make such order to rectify the error as the judge thinks just. An application to a judge to review the taxation shall be heard and determined upon the evidence brought in before the taxing officer, and further evidence shall not be received upon the hearing of the application unless the judge otherwise directs.
A certificate of taxation is enforceable as a judgment,[26] and takes effect from the day on which it is pronounced.[27] Once a certificate of taxation has been signed, the taxing officer is functus officio (that is, he or she lacks any power to re-examine the decision).
[26] Rules of the Supreme Court 1971 (WA) O 66 r 57.
[27] Rules of the Supreme Court 1971 (WA) O 42 r 2.
Pursuant to O 66 r 34 notice of taxing costs need not be given to any party who has not entered an appearance or taken any part in proceedings to which the costs relate.
From these provisions, it is clear:
(a)a taxing officer is expressly empowered to issue a certificate of taxation without giving notice to (and thus hearing from) a party to the proceedings who is required to pay the costs of another party, if the party who is required to pay the costs has not entered an appearance in the proceedings; and
(b)in allowing any item or part of an item in a bill of costs, in the absence of any order made by a judicial officer allowing any part of any relevant scale,[28] to be lifted, a taxing officer is prohibited from allowing any item or part of an item in a bill of costs that exceeds the amounts set out in the relevant scale for that item.
[28] Being a costs determination as defined in the Legal Profession Act 2008 (WA) s 252.

Does the application for leave to apply for judicial review raise an arguable case?

As the Board points out in their written submissions filed on 24 June 2021, no writ of mandamus could lie against the Board, because the decision to issue the certificate of taxation was a decision of the taxing officer and not the Board.
Even if the application was to be amended to allow an application for judicial review to be instituted against the taxing officer, I am not satisfied that the application would have any prospects of success.
This is because in the absence of filing an appearance in the proceedings the taxing officer was not required to give notice that he intended to tax the Board's bill of costs. Put another way, in the absence of not entering appearance or not having taken part in the proceedings Mr Fazio was not entitled to be heard by the taxing officer prior to the taxing of the bill and the issuing of the certificate of taxation.
Further, in the absence of not entering appearance or not having taken part in the proceedings a taxing officer is entitled to tax the bill of costs on the papers, that is without formally listing the matter for hearing.
I do not accept that no taxation occurred by the taxing officer. In the letter from the associate to the taxing officer to Mr Fazio dated 11 July 2018, it is clear that the taxing officer had reviewed the bill of costs that was filed by the Board and had formed a view as to the reasonableness of the bill of costs before issuing a certificate of taxation.
Further, there is no scope for an argument that the amounts allowed in respect of each of the items in the Board's bill of costs were unreasonable. To succeed on a ground of unreasonableness in an application for judicial review an applicant must show that the decision that is sought to be impugned lacks an evident and intelligible justification, which when regard is had to the scope, subject matter and purpose of the statutory discretionary power of the taxing officer to make an award of costs must necessarily be outside the boundaries of what is allowable under the applicable scale. Plainly, the amounts allowed by the taxing officer in this matter were well within the maximum amounts contemplated by the relevant scale. In these circumstances, there is no arguable case that the decision of the taxing officer should be reviewed on the grounds of unreasonableness.
The relevant scale that applied at the time the costs were incurred by the Board was the Legal Profession (Supreme Court) (Contentious Business) Report 2016 (the 2016 scale).[29] Having reviewed the 2016 scale item for each of the items charged in the bill of costs (being scale items 11, 10(a), 15(f), 29(a) and 29(b)), it is clear that none of the items allowed by the taxing officer in the bill of costs exceeded the scale items prescribed in the 2016 scale. For example, the amount claimed under item 11 for the originating summons was an amount of $24,997.60 which is an amount well under the maximum allowable under item 11, being $36,080. Nor could an argument be made that any of the amounts allowed for the disbursements were unreasonable, which total $3,903.71, of which $2,846 was for court fees.
[29] This Determination came into operation on 1 July 2016 and remained in operation until 1 July 2018, when it was replaced with the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018.

Conclusion

The application to file an application for judicial review should be dismissed. First, on grounds that the proposed application was an abuse of process on grounds the application is brought against the Board and not the taxing officer. Second, the application should be dismissed on grounds that even if the application is amended to substitute the name of the taxing officer, none of the proposed grounds have any merit.
In circumstances where there are no grounds for judicial review, there is no basis upon which it could be argued that injunctive relief should lie against the Board to prohibit the Board from furthering the means enquiry.
For these reasons, leave to file an application for judicial review out of time should be refused, and the originating motion filed on 19 July 2021 dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
3 SEPTEMBER 2021