PLANNING AND ENVIRONMENT COURT 
OF QUEENSLAND

CITATION:	Serratore & Ors v Noosa Shire Council [2020] QPEC 27	
PARTIES:	GIUSEPPE SERRATORE, TERESA SERRATORE, ANTONIO SERRATORE, CARMELA SERRATORE, MICHELA SERRATORE, PRISCILLA SERRATORE AND FRANK SERRATORE (BY HIS LITIGATION GUARDIANS CARMELA SERRATORE AND ANTONIO SERRATORE)
(appellants)
v
NOOSA SHIRE COUNCIL
(respondent)	
FILE NO/S:	1781 of 2019	
DIVISION:	Planning and Environment	
PROCEEDING:	Application in Pending Proceeding	
ORIGINATING COURT:	Planning and Environment Court, Brisbane	
DELIVERED ON:	7 April 2020, ex tempore	
DELIVERED AT:	Brisbane	
HEARING DATE:	7 April 2020	
JUDGE:	Rackemann DCJ	
ORDER:	The application for costs is dismissed.	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION FOR COSTS –  where the respondent made an unsuccessful application for nunc pro tunc orders under rr 250 and 660 of the Uniform Civil Procedure Rules 1999 – whether the application was frivolous or vexatious – whether the respondent defaulted in the Court’s procedural requirements – whether costs should be awarded under s 60(1) of the Planning and Environment Court Act 2016 	
CASES:	Sincere International Group Pty Ltd v Council of the City Gold Coast (No.2) [2019] QPEC 9	
LEGISLATION:	Uniform Civil Procedure Rules 1999 rr 250, 660(3)
Planning and Environment Court Act 2016 s 60(1)
Planning and Environment Court Rules 2018 rr 4, 39(1)	
COUNSEL:	K Wylie for the appellants
M Batty for the respondent	
SOLICITORS:	Mullins Lawyers for the appellants
Heiner & Doyle for the respondent	

[1]	This is an application for costs brought by the appellants, against the respondent, in relation to the respondent’s unsuccessful application in pending proceeding filed on the 26th of August 2019 that was dismissed by an order of this Court on the 20th of November 2019.  The application was for costs of the application, including the costs associated with the associated attendances on the 30th of August 2019, the 18th of September 2019 and the 20th of September 2019. Counsel for the respondent initially opposed any application extending to the associated attendances, but later discontinued that position.  
[2]	The power of the Court to award costs is limited to the circumstances that are in section 60(1) of the Planning and Environment Court Act 2016.  The application is brought on the basis that the jurisdiction of the Court is enlivened under subsections (b) and (f), namely, that the proceeding was frivolous or vexatious and that the respondent defaulted in the Court’s procedural requirements.  I do not agree that this is a circumstance in which the respondent defaulted in the Court’s procedural requirements.
[3]	The subject proceeding was an application in pending proceeding for an order pursuant to rule 250 of the Uniform Civil Procedure Rules 1999 (UCPR), applicable by rule 4 of the Planning and Environment Court Rules 2018, for the inspection of the appellants’ land by a Council officer and experts retained by the Council and permission for them to do things specified in rule 250(3). The application sought orders made nunc pro tunc pursuant to rule 660(3) of the UCPR so as to, in effect, sanction an inspection effected at an earlier time.  
[4]	It was said that the application involved two defaults in the Court’s procedural requirements.  The first was a failure to have sought an order under rule 250 prior to carrying out an inspection.  There is no obligation on a party to seek an order for inspection pursuant to rule 250.  The carrying out of an inspection without an order may mean that the inspection is unlawful, unless later cured by an order made nunc pro tunc, however, the failure to apply for an order does not, in my view, constitute a default in a procedural requirement. 
[5]	The second alleged default is a non-compliance with rule 39(1) of the Planning and Environment Court Rules 2018, and, in particular, sub-paragraph (a) which requires an entity making an application in the Court to file the application and any affidavits to be relied upon.  It was submitted that the affidavit material, which was filed in support of the application, was insufficient. The rule says nothing of the sufficiency of the affidavit material.  The affidavit material in fact relied upon by the respondent was filed and served. There was no failure to comply with the Court’s procedural requirements in this respect.
[6]	The primary ground for the application for costs was the frivolous or vexatious ground.  It was common ground that the meaning of that expression is as explained by Williamson QC DCJ in Sincere International Group Pty Ltd v Council of the City Gold Coast (No.2) [2019] QPEC 9.  It was contended that the respondent’s application met the description principally because, as I found in paragraph 53 of my reasons, the respondent had failed to lay a sufficient evidentiary foundation for its application.  
[7]	As Counsel for the respondent pointed out, the frivolous or vexatious ground represents something of a high bar, particularly in cases like this where the relief sought in the primary application was discretionary and where, as the reasons for judgment record at paragraph 19, it was common ground that rule 250(1)(a) had been engaged such that the Court had the discretion to grant the relief that had been sought by the respondent.  The question was whether the discretion ought be exercised in the circumstances. As Counsel for the respondent submitted, there are no hard and fast rules as to the exercise of that discretion.  That makes the appellants’ task in demonstrating that the application was frivolous or vexatious more difficult, but not necessarily impossible.  
[8]	It should be recognised that not all of the factors that were relied upon by the appellants in resisting the relief sought by the respondent in its application were accepted, or accepted without qualification.  As the reasons record at paragraph 20, the appellants relied upon delay as a relevant factor, but I accepted that there was some explanation for the delay and concluded that there were no consequences of delay which would have caused me to decline the relief sought in the exercise of discretion.  
[9]	As paragraph 25 of the reasons records, Counsel for the appellants pointed out that the evidence obtained on the inspection, to the extent that it assisted in proving the relevant offence, would expose or assist in exposing the appellants to penalty in the event of subsequent prosecution proceedings in two possible scenarios.  
[10]	The first scenario involves a potential subsequent proceeding for the development offence. Whilst acknowledging that an order pursuant to rule 250 could be made conditional on the use of the evidence thereby obtained, it was submitted that the knowledge obtained from the inspection nevertheless infects the mind of the person who has undertaken it.  As I pointed out in paragraph 27 of the reasons, however, and as Counsel ultimately had to accept, the horse had bolted in that regard, because in this case, the inspection had already been carried out.  
[11]	The second scenario involves the potential for his clients to later be prosecuted for the offence of contravening the enforcement notice that is the subject of the current proceeding.  Whilst I did not reject that concern, I noted, in paragraph 29 of the reasons, that the exposure would only arise if his clients, having been unsuccessful in the current proceeding, contravened the enforcement notices.  Accordingly, this is not a case where I accepted, or accepted in an unqualified way, each of the matters urged upon me by the appellants.  
[12]	As I recognised in paragraph 53 of the reasons, the respondent identified a basis which I considered would potentially warrant the favourable exercise of the discretion to order an inspection.  That was a need to be able to properly respond to a positive case, pleaded by the appellants, that the clearing fell within certain categories of exempt development.  It is relevant, in assessing whether the application was frivolous or vexatious, to observe that not only was the relief sought discretionary but that the respondent had identified a basis upon which I potentially would have exercised the discretion in its favour.  The reason I did not do so was because I did not consider that the respondent had made out a sufficient evidentiary basis to conclude that it needed a site inspection in order to respond to that case.  
[13]	The affidavit material filed in support of the application included an affidavit of the respondent’s solicitor which contained a statement, in effect, that each of the respondent’s consultants had informed him that the site inspection was required.  That part of the affidavit was objected to and Counsel for the respondent appropriately agreed that it should be disregarded or struck out.  
[14]	The respondent then turned down an opportunity to apply for an adjournment to obtain further affidavit material, and instead pursued the application on the basis that it was self-evident, given the nature of the alleged categories of the exempt development, that there was a need to inspect the property in order for the respondent properly to respond to the appellants’ positive case, or in the alternative, that it would at least be of sufficient material assistance to warrant the favourable exercise of discretion.  Having traversed each of the categories of exempt development, I ultimately concluded against that submission, before going on to dispose of two other suggested bases for the exercise of the discretion. 
[15]	Whilst the failure of the respondent to lay a sufficient evidentiary foundation for its contention that it was necessary, or at least desirable in the interests of justice, for it to inspect the site in order to be in a position to respond to the appellants’ positive case, pushes this matter towards the frivolous or vexatious category,  I am ultimately unpersuaded that it falls into that category because I am ultimately unpersuaded that the application, in the total exercise of discretion, was unarguable. In that regard I have also had regard to the criticisms that the respondent did not give a better explanation as to why it did not seek this order at an earlier time, rather than seek nunc pro tunc orders.  
[16]	As would be obvious from the observations I made in the early reasons, this is a case where there is much on which respondent could and should reflect, but it is ultimately not one where I consider its application was frivolous or vexatious.  Accordingly, I dismiss the application for costs.