Discernment
42The Legal Profession Act does not make explicit any consideration which the decision maker must take into account, nor does it exclude from consideration any particular consideration.
43What the legislation does provide is a discretion which is at large and unfettered. In those circumstances, caution ought be exercised by this court in placing any fetter on the exercise of that discretion: See Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 per Dixon CJ; Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 400-402 per Kirby P. However, it is axiomatic, in the circumstances, that the exercise of the discretion must attend to the interests of justice.
44There are a number of features of the decision which, in light of the submissions of the Khans, merit comment:
(a) Paragraph 2 : The Manager makes a finding articulated in this paragraph, which must depend upon the drawing of an inference that Mrs Khan (as opposed to the company) was duly served with, or else notified of, the decision of the costs assessor by the mailing of the documents to the registered office of the company. Even if this is deemed to be proper service under the Corporations Law, that law does not extend to deeming the service as being effective on a director, here, Mrs Khan. But, more particularly, in light of the fact that correspondence addressed to Mrs Khan and the company remained in the file returned and undelivered, and the statement of Mrs Khan that she had not received copies of the relevant documents until very shortly before the application was made, the finding of fact that Mrs Khan had been served with the document was not open to the Manager, Costs Assessment to make. There was no factual basis to support it, and the only factual material was against it. It was a wholly irrational finding of fact.
There is also mention made of copies of the Certificates being sent to the solicitor for the Khans. But there was no material before the Manger, Costs Assessment to support that finding.
(b) Paragraph 3 : The Manager, Costs Assessment says in this paragraph that he or she: " ... does not consider the merits of any application ..." . This is a clear indication that he has not considered the merits of the application made by the Khans when coming to his decision. Long accumulated case law on the question of an extension of time has always regarded the issue, of whether the applicant for an extension of time would have an arguably meritorious claim (or defence) if time were extended, as constituting one essential element for considering whether the extension ought be granted.
In the circumstances of this matter, I would hold that this disregard of the merits of the application amounts to a failure to consider a relevant matter. An obvious example of what attention to the merits of the matter would have demonstrated is the error which I have identified earlier with the content of the second Certificate, which made a finding, contrary to the statute, that the Khans should pay the costs of the costs assessment.
(c) Paragraph 3: As well in paragraph 3, the Manager, Costs Assessment expresses no conclusion, or even a view, as to what the interests of justice require in the circumstances of the application. His failure to articulate that principle and what the application of that principle warranted in this case is a demonstrated failure to consider a relevant factor. The mere reference to " what is just and fair ... " is wholly insufficient to address this factor.
45One of the submissions made by the Khans was that the impugned decision was " Wednesbury unreasonable". This unappealing, but regrettably all too commonly used, short hand description refers to the well known ground of judicial review for setting aside an unreasonable decision on the basis discussed earlier in this judgment. The Khans, in effect, submit that, having regard to the fact that the application was made, in the circumstances, promptly after Mrs Khan was notified of the costs assessor's reasons and decision, the fact that the application for review which was lodged, albeit out of time, included some grounds which were arguably of substance and merit, the fact that there was demonstrated prejudice to the Khans if the Certificates were allowed to stand and could be enforced without a review of the original decision, and the fact that there was no claimed or demonstrated prejudice to Ms Mattila in granting the extension of time, a decision to refuse the extension was so unreasonable as to justify the decision being wholly set aside.
46Ms Mattila submits that, on the contrary, the decision was within the limits of reasonableness. She submits that she will suffer prejudice because the enforcement steps which she has taken will be wasted and that the application for an extension of time was not bona fide.
47The enforcement proceedings which have been taken were based, at least in part, on an erroneous Certificate. No prejudice can flow from losing the benefit of those enforcement proceedings. To the extent that there may be other prejudice, that can be addressed by orders for costs, and the accumulation of interest which will flow from the circumstances of the application for review. Such prejudice could not, even if identified, be sufficient to justify the decision which was actually made, when proper regard is had to the interests of justice of both parties to the application.
48In light of my earlier findings, which are sufficient to lead to the decision being set aside, it is unnecessary for me to finally determine this submission. However, I do note that on the facts and the material available to be properly considered, I could find no rational argument which was put, and could be accepted, against the grant of an extension of time.
49As well, the Manager, Costs Assessment has held that the motivation of the Khans in making the application for review was solely, and unreasonably so, to delay the enforcement of the Costs Certificates by Ms Mattila. The Khans submit that this was not an available finding. They deny any such motivation. It does seem clearly to be the fact that the consequence of the late application for review was to delay the enforcement process. But that consequence alone does not permit of a rational inference that there was an intention to achieve that result. Such an inference, without more, and in the face of denials by the Khans, was arguably not soundly based and was arguably irrational. Again, it is unnecessary to finally determine this issue, in light of my earlier findings.
50In all of the circumstances, the decision cannot stand, and the Khans' application for judicial review must be upheld. The decision must be set aside.