The case of Heather & Anor v Sunshine Coast Regional Council & Ors (No. 2) [2023] QPEC 4 concerned an application for costs to the Planning and Environment Court of Queensland (Court) by the respondent landowners (Respondents) in respect of an unsuccessful application by adjacent landowners (Applicants) to challenge the decision by the Sunshine Coast Regional Council (Council) to give to the Respondents a development permit for tidal works approval for a gangway, deck and pontoon (Development).  

In the initial case of Heather & Anor v Sunshine Coast Regional Council & Ors [2022] QPEC 37 the Applicants made an application challenging the Development on the basis of jurisdictional error (Initial Application). The Initial Application was dismissed on 7 October 2022 and the parties finalised their submissions for the costs application on 24 February 2023. The Council did not make an application as to costs (see [1]). 

The Court recognised that the power to award costs is conferred in legislation, and in particular by, section 59 and section 60 the Planning and Environment Court Act 2016 (Qld) (PECA) (see [3]). 

Section 59 provides that subject to sections 60 and 61 of the PECA each party must bear their own costs in court proceedings. Section 60 provides certain circumstances where it is appropriate for costs to be awarded. The Court found that section 61 is not relevant to this application as it relates to enforcement proceedings (see [4]). 

The Respondents contended that sections 60(1)(a), (b) and (i) of the PECA are engaged (see [5] and [11]). More particularly, the Respondents argued that section 60(1)(a) requires evidence that the Applicants started or conducted the Initial Application primarily for an "improper purpose" (at [5]), and that section 60(1)(b) requires evidence that the Initial Application was "frivolous or vexatious" (at [5]).

Late in the written submissions, the Respondents submitted that section 60(1)(i) applied on the basis that the Applicants failed to properly discharge their responsibilities in the proceeding (see [11]). 

The Court considered each contention separately. 

First, the Court considered section 60(1)(b). The Court cited the recent decision in Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9, which recognised at [27] "…'frivolous or vexatious' as it appears in s.60(1)(b) of PECA is not defined. It is, as a consequence, to be given its ordinary meaning…in Mudie v Gainriver Pty Ltd (No.2) 2 Qd R [2003] 271…[Williams JA] held that frivolous meant 'of little or no value or importance, paltry'; 'having no reasonable grounds'; and 'lacking seriousness or sense, silly'. McMurdo P and Atkinson J…held that the ordinary meaning of 'frivolous' was 'of little or no weight, worth or importance' and 'not worthy of serious notice'" (at [5]). 

The Court also cited Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54, in which the Court stated at [29] "…even when a party's case is unsuccessful and could properly be described as weak does not mean, without more, that costs ought necessarily be awarded to the successful party" (at [7]). 

The Court considered four issues in the Initial Application in relation to the application of acceptable outcome 10.1 and performance outcome 10.1 in Schedule 3 of the Coastal Protection and Management Regulation 2017 (Qld) (Code). Each of the three parties to the Initial Proceeding proposed a different construction of the Code, which was enough to demonstrate to the Court that there was not a single clear answer (see [15] and [16]). 

Ultimately the Court was persuaded that the proceeding was not frivolous or vexatious, and found that "…lack of success [by the Applicants] does not translate into a conclusion that points were raised frivolously or to vex the respondents" (at [17]). 

In order to determine that the proceeding was conducted for an improper purpose, the Court needed to be satisfied "that the predominant purpose was to use legal process for some outcome outside the scope of the proceeding" (at [9]).  

The Respondents submitted that the Applicants started the proceedings to prevent the Respondents from being able to use or to remove their pontoon as permitted in accordance with the Development to enable the Applicants to moor a larger vessel in their pontoon, amounting to an improper purpose (see [19]). The Court found this to not be an improper purpose as this purpose closely aligned with the legal proceeding (see [19]). 

The Court found that the Respondents reliance on section 60(1)(i) to be "misconceived" as the proceeding was not conducted in a way that was inconsistent with the lawyers' ethical responsibilities and statutory principles (at [20]).

The application was dismissed.