Jensen & Anor v Valuer-General [2024] QLAC 3

Land Valuation Act (Qld) s 45, s 46, s 57, s 147, s 151, s 155, s 157, s 169, s 170, s 171, s 214

Judiciary Act 1903 (Cth) s 78B

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, cited

BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 5, cited

BWP Management limited v Valuer-General [2019] QLAC 4, cited

Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 129, cited

Mabo v Queensland (No 2) (1992) 175 CLR 1, cited

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, cited

Department of Transport and Main Roads v Mahoney [2014] QLAC 1, cited

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, cited

Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337, cited

GPT RE Limited v Valuer-General [2019] QLC 8, cited

Valuer-General v Body Corporate for 'Tennyson Reach' Community Title Scheme 39925 [2018] QLAC 7, explained

William v Department of Environment and Resource Management [2014] QLAC 10, cited

Matthew Jensen, appeared self-represented for the appellants

In-House Legal, Department of Resources for the respondent

• [1] THE COURT: The Queensland Valuer-General assesses the valuation of land in various local government areas each year as at 1 October. Land valuation notices are then issued to landowners. They take effect at the start of the following financial year. Such valuations have financial consequences for owners, affecting the amount of council rates and state land tax they may be liable to pay.
• [2] Matthew and Stewart Jensen did not agree with the 2020 unimproved valuation of $640,000 for their rural land, near Lake Tinaroo opposite Yungaburra. They lodged an objection with the Valuer-General, who decided not to alter the valuation decision. They appealed the Valuer-General's decision on objection to the Land Court, arguing the valuation should be reduced to $400,000. The Land Court allowed the appeal, reducing the valuation to $615,000.[1]
• [3] Unhappy with that decision and an ensuing costs decision, the Jensens appealed both decisions to this court. The primary relief sought is that this court should 'remake the valuation of the subject property to be $400,000'.
• [4] Such appeals to this court are by rehearing on the record of the proceeding below, per s 56(1) Land Court Act 2000 (Qld). In an appeal by rehearing, it is well settled the appeal court should not intervene unless it first concludes there was some factual, legal or discretionary error below.[2] There was no substance to the main aspects of the Jensens' appeal. However, it emerged at the hearing of the appeal that, having decided to allow the appeal and reduce the valuation to $615,000, the acting President (hereafter Member) made a factual error which was relevant to the extent of that reduction.
• [5] That was the only error, but it will have the result that this court should intervene. The appeal should be allowed and this court should amend the valuation to $600,000.
• [6] Because the allowing of the appeal will not deliver a reduction in the valuation of the scale sought by the Jensens it will be necessary for these reasons to explain why the Jensens were unsuccessful in respect of the other issues litigated by their appeal.
• [7] Some arguments of no or limited relevance to the real issues in the case were advanced below. Arguments of a similar character were also pursued before this court. The court's obligation below, as it is here, was to give adequate reasons, not to address every argument no matter how irrelevant or peripheral it was to the real issues in the case.[3] The learned Members' reasons adequately addressed the real issues.
• [8] This court's obligation to give adequate reasons can best be met by addressing the following issues:
  1. Did the court err in its manner of reliance upon the evidence of the expert valuer?
  2. Did the court err in the weight it placed upon comparison sale numbered 1?
  3. Did the court err regarding the requirements of ss 45, 46 Land Valuation Act?
  4. Did the court err in determining the highest and best use of the Jensens' property?
  5. Was the court's decision affected by apprehended bias?
  6. Should this court remit the matter or quantify the correct reduction itself?
  7. What is the correct reduction?
  8. Did the Land Court err in its costs decision?

1. Did the court err in its manner of reliance upon the evidence of the expert valuer?

• [9] Consideration of issue 1 will have the effect of adequately addressing grounds 1, 2 and aspects of ground 4 of the primary appeal, and ground 5 of the costs appeal. They are:

Ground 1: That the court erred when it did not accept the expert valuer's views and when it relied on the expert valuer's report to establish the court's valuation of the subject property.

Ground 2: That the court erred when it did not accept the expert valuer's views when the expert report failed to meet the duties of an expert pursuant to the Land Court Practice Direction No 6 of 2020.

Ground 4: That the court erred in not finding any errors of law in the valuation methodology and the issued valuations for the comparison properties by the expert witness, particularly the expert valuer's issued valuation for the comparison sale No 1.

Ground 5 (of the costs appeal): That the court erred when it determined that Mr Moroney's report was not fatal to the Valuer-General's position.

• [10] The common premise of these grounds is that the learned Member should not have had regard to the expert valuation evidence of the Valuer-General's Mr Maroney because of flaws in his evidence. That premise is misconceived. Its pursuit appears to be a product of misunderstanding and frustration associated with the statutory framework regulating the case below. It is convenient to begin with that framework, for the evidentiary equation to which it gave rise in this case explains why there was no error in the court's manner of reliance upon the expert evidence.
• [11] As already mentioned, the Valuer-General assesses the valuation of land in various government areas annually. That valuation process deploys a mass appraisal methodology. Land valuation notices are then issued to landowners, who are entitled to object to their valuation in a process stipulated by Ch 3 Land Valuation Act 2010 (Qld). The Jensens made such an objection. Section 147 of the Act obliged the Valuer-General to consider and decide the objection and s 151 obliged the Valuer-General to give notice to the objector of 'the decision on the objection'.
• [12] The objection was duly decided, with the decision being that the valuation amount remained unaltered. The notice given of the objection decision relevantly included the following:

I wish to advise that the objection against the new unimproved valuation of $640,000 effective from 30 June 2021 with a date of valuation of 1 October 2020 has been decided and the valuation amount remains unaltered.

• When compared to similar properties, the delegate decided that no change in the valuation should be made.
• When compared to the valuation of the properties included in the objection, the delegate decided that no change in the valuation should be made.
• When compared to sale prices of similar properties, the delegate decided the figures supported the applied value and no change in the valuation should be made.

If you do not agree with your objection decision you may appeal to the Land Court within 60 days after the issue date of this notice. (emphasis added)

• [13] The reference in the notice to a 'delegate' is unremarkable. The Valuer-General is empowered by s 214 of the Act to delegate the Valuer-General's functions under the Act. The delegate's role in the decision caused the Jensens to expect the delegate would give evidence in the ensuing appeal to the Land Court below. That did not happen, but it was not required by the Act's appeal process.
• [14] Section 155(1) of the Act provides an objector 'may appeal to the Land court against the objection decision for the objection'. The Jensens did so, filing a notice of appeal 'against the Valuer-General's decision on objection'.
• [15] Such a notice of appeal against the objection decision is described in the Act, per s 157(1) as 'a valuation appeal notice'. Ensuing provisions of the Act refer to the resulting appeal as a 'valuation appeal'. That is because the Act's definition schedule provides:

valuation appeal means an appeal against an objection decision.

• [16] The Jensens' submissions have been distracted by concern over the learned Member's language supposedly indicating her Honour misapprehended the appeal as being against the valuation as distinct from the decision on objection to the valuation. There was no such misapprehension. The Act's definition of a valuation appeal substantially answers why the Jensens' concern is misplaced. Any residual concern is answered by the fact that, as now explained, if an appellant meets its threshold onus to justify the court's intervention, the court's task is, in effect, to determine the correct valuation.
• [17] Section 157(3)(a) requires that a valuation appeal notice must state the grounds of appeal. The Jensens' appeal notice stated grounds alleging in various ways that the subject land's valuation was excessive, too high and an over-valuation (there was also a misconceived jurisdictional ground of no relevance to the present issue). In such an appeal the onus was not on the Valuer-General to answer those grounds by justifying its valuation, for example by calling its delegate to give evidence. The onus for each of the grounds was on the Jensens, pursuant to s 169.
• [18] That section provides:

(1) The hearing must be limited to the grounds stated in the valuation appeal notice.

(3) However, the appellant has the onus of proof for each of the grounds of appeal. (emphasis added)

• [19] Section 169's operation is informed by the nature of the orders the Land Court might potentially make on a valuation appeal. In that regard, s 170 provides:

(b) reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under this Act. (emphasis added)

• [20] Those provisions are consistent with the general principle mentioned above that, in an appeal by rehearing, the court should not intervene unless it first concludes there was some error below. As was observed in Valuer-General v Body Corporate for 'Tennyson Reach' Community Title Scheme 39925,[4] the provisions effectively give rise to a two-step process in which the first step is to determine whether the appellant has met its onus of proving its grounds against the valuation in the objection decision. If, and only if, the appellant discharges that onus, then the court moves to the second step of deciding whether to reduce, confirm or increase the valuation to the amount the court considers necessary to correctly make the valuation.
• [21] The precision with which the court can exercise its role in the second step of that process is entirely dependent upon the evidence adduced by the parties in the proceeding. The court's role is not inquisitorial. It is not for the court to seek out evidence. Even if it is persuaded that it should intervene to reduce the valuation, its decision as to "the amount it considers necessary to correctly make the valuation" can only be made based on the evidence before it.
• [22] The Jensens adduced no expert valuation evidence. The only expert valuation evidence and evidence of comparable sales was the evidence adduced through the Valuer-General's expert, Mr Robert Moroney. To remove doubt, while Mr Moroney had been the original valuer in the mass appraisal process, his evidence was not of a mass valuation but of a comparable sales-based valuation of the Jensens' property.
• [23] There had been some reference by the Jensens to so called relativity properties but reliance on them was not pursued, it being accepted the necessary investigation of them had not occurred. Mr Matthew Jensen, who argued the Jensens' case below (and in this appeal), conceded below that they were relying on Mr Moroney's comparable sales to make their arguments.
• [24] This evidentiary equation is very significant. It left the Jensens on the one hand to criticise the expert's opinion, method and foundation, in trying to meet the onus they carried in the first step of the appeal. That worked. But it remained, for the second step of the process, that Mr Moroney's evidence, specifically his evidence of comparable sales, was the only evidence the Jensens had to rely on in contending, as they did, for a large scale reduction of the valuation from $640,000 to $400,000.
• [25] It was always going to be a challenge for the Jensens to gain the major reduction of the valuation sought by them in the appeal below, because they adduced no expert valuation evidence or comparable sales evidence of their own. Chipping away at features of the other side's comparable sales was only ever likely to result, at best, in a modest reduction of their valuation.
• [26] The Jensens' arguments below pursued attacks upon the very source of the only evidence it had to rely on. If their arguments were carried to their logical extent they would have the effect that the court below should have excluded or wholly disregarded the evidence of Mr Moroney. But where would that have left them? They would have had no evidence to meet their onus as appellants of demonstrating error and the appeal would have been dismissed.
• [27] The Jensens cannot have it both ways. Their reliance upon some aspects of Mr Moroney's evidence below had the consequence that they litigated the proceeding not on the basis Mr Moroney's evidence was inadmissible or ought be wholly disregarded. Rather they took the approach the court ought largely reject his opinions, yet accept aspects of his evidence of comparable sales.
• [28] The learned Member below was quite critical of aspects of Mr Moroney's evidence, including that:
  • the reliability of his evidence was qualified by a lack of independence, shown by the fact he had been responsible for the mass valuation appraisal and his comparable sales valuation was the same valuation as the mass appraisal valuation as well as the valuation arrived at by the Valuer-General's delegate in dealing with the objection to the valuation;
  • his expert report did not fully articulate all of the source details relevant to the comparable sales relied upon in his evidence;
  • he erred in stating in his report that the Jensens' property had full bitumen access to Yungaburra when in fact there is a 450 metre strip of road that is not bitumen, yet opined, in correcting his reporting of that fact, that it did not affect his overall valuation of the subject property;
  • there are differences between sale 1, which has a kerbside rubbish collection, a postal service and a school bus service, sale 4, which has a school bus service, and sale 5 which has a kerbside rubbish collection service, a postal service and a school bus service, yet, despite the Jensens' property not having town water, sewerage, kerbside rubbish collection, postal services or a school bus service, Mr Moroney maintained the services between the Jensens' property and the comparable sales sites were similar and made no allowance for the differences in his valuation;
  • he was likely in error in not accepting there was no lake view from the most likely building pad on the Jensens' property;
  • the inferiority of access to the Jensens' site compared to the site in comparison sale 4 is greater than that conceded by Mr Moroney.

The learned Member concluded from Mr Moroney's errors that the valuation his evidence was led in support of was incorrect. It was that conclusion of error which triggered the court's intervention and modest reduction of the valuation.

• [29] In determining the correct valuation, the learned Member still had regard to Mr Moroney's evidence of comparable sales, albeit qualified by her Honour's own views of their comparability where they diverged from Mr Moroney's. There was no error in that approach. Matters of degree are involved in the task of weighing whether unsatisfactory features of an expert's evidence warrant the exclusion of the expert's evidence as distinct from receiving the evidence but placing no weight on its unsatisfactory aspects.
• [30] No error has been demonstrated in her Honour taking the latter approach here. Further, the approach taken by the learned Member was consistent with the Jensens' own approach of drawing upon the expert's comparable sales evidence in support of a reduced valuation.

2. Did the court err in the weight it placed upon a comparison sale numbered 1?

• [31] Consideration of issue 2 will have the effect of addressing ground 3 and those aspects of ground 4 going to comparison sale 1, which are:

Ground 3: That the court erred when it considered that comparison sale 1 had the closest value to the subject land and did not ask which property was the best comparison for the purpose of the court's revaluation pursuant to section 170 Land Valuation Act 2010 (Qld).

Ground 4: That the court erred in not finding any errors of law in the valuation methodology and the issued valuations for the comparison properties by the expert witness, particularly the expert valuer's issued valuation for the comparison sale number 1.

• [32] The learned Member's reasons summarised Mr Moroney's ranking of the Jensens' property at 91 Fletcher Road, Yungaburra and the comparable sales in the following table:

• [33] Mr Moroney did not agree that sale 3 was an outlier, however the learned Member considered that it was. Nonetheless, she accepted that did not affect the valuation of the Jensens' property.
• [34] The learned Member noted the parties were in agreement that the properties, the subject of sales 1 and 2, were superior to the Jensens' property, whereas the property, the subject of sale 5, was inferior.
• [35] The Jensens contended that the property, the subject of sale 4, was superior in its access, slope, outlook and services but inferior in its area. In fact, the property, the subject of sale 4, was about half the size of the Jensens' property. The Jensens argued that because 23 per cent of their property was the subject of vegetation management overlays, that rendered the 23 per cent worthless. In an application of flawed logic, the Jensens accordingly reduced the sale 4 value by 23 per cent to arrive at the valuation they contended for in respect of their property.
• [36] The learned Member was correct to observe that, if anything, the Jensens should have increased their contended valuation beyond the sale 4 price to account for the additional area of their land. Her Honour also was correct to dismiss the argument that the portion of the Jensens' land covered by the vegetation overlays was worthless, in that all land has value, noting:

Just as there are people who will pay a little more for a kerbside collection, or a postal service, or a school bus service, there are also people who will pay a little more for a bushland aspect and a neighbour-free boundary.

• [37] The learned Member considered the comparable sale property which compared most closely to the Jensens' property was the sale 1 property. That view, of where the sale 1 property and the Jensens' property fell amidst the relative competing attributes of the properties, the subject of the comparable sales was well open to the learned Member on the evidence. It was therefore well open to her Honour to use comparable sale 1, as the closest comparable guide, in performing her statutory task of reducing the valuation to the amount her Honour considered necessary to correctly make the valuation.
• [38] It is not to the point that the available evidence, including sale 1, was imprecise in the assistance it gave. The learned Member was obliged to determine the reduction she considered necessary, doing her best with such evidence as was available. Her Honour's obligation in making that assessment was akin to the obligation on a judge assessing damages, as explained in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 83:

The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J went so far as to say that the "assessment of damages ... does sometimes, of necessity, involve what is guesswork rather than estimation". Where precise evidence is not available the court must do the best it can do. (emphasis added)

• [39] Unfortunately, in proceeding to make her determination, using sale 1 as the closest comparable guide, the learned Member made an error of fact, observing:

[59] The sale which has the closest value to the subject land is Sale 1. That sale was in 2018, so there must be some allowance for a rise in value from 2018 to the valuation date of 2020. Sale 1 is superior in all ways except for the land area and location. The land area is 42% of the land area of the subject land. The usable area of the subject land is greater than the entire area of Sale 1. I agree with Mr Moroney that the value of the subject land is a little less than the value of Sale 1.

[60] Given my findings about Mr Moroney's errors, although minor, the value of the subject land must be less than $640,000. The Jensens are not valuers, so their evidence of valuation has not assisted me. Doing the best I can, I assess the value of the Jensens' land at $615,000. (emphasis added)

• [40] The above underlined passage indicating there must be some allowance for a rise in value was likely incorrect for the following reasons.
• [41] After summarising the comparable advantages and disadvantages of the properties, the subject of the comparable sales, Mr Moroney opined:

In my expert opinion, the market was steady from the period 2018 to 2020 and the unimproved value of the subject property should be slightly less than $680,000 (sale 1). (emphasis added)

• [42] The 'steady' market referred to in the above passage does not suggest, for the purpose of the comparable sale exercise, that there would have been any material rise in value between the sale year and valuation year. Indeed, Mr Moroney's use of sale 1 as a comparable sale, when it was so removed in time, would have been of limited utility if there had been a material rise in value. It follows that in deploying sale 1 as a comparable sale no allowance should be made for a rise in value between the time of that sale and the valuation era. The learned Member therefore erred in making 'some allowance' for a rise.
• [43] That was not the only variable in the mix of variables influencing the use of sale 1 in quantifying the extent of the reduction of the valuation. But the making of such an allowance, however modest it may have been, must logically mean the reduction necessary to make the correct valuation should have been greater than the reduction made by the learned Member.
• [44] That error has the consequence that the appeal must be allowed. Before dealing with the issues flowing from that it is necessary to dispense, however briefly, with other issues.

3. Did the court err regarding the requirements of ss 45, 46 Land Valuation Act?

• [45] Consideration of issue 3 will have the effect of addressing ground 5 which is:

Ground 5: That the court erred in the conclusion that sections 45 and 46 of the Land Valuation Act 2010 (Qld) only required that the valuer ignore any subdivision potential of the subject land when those sections require the valuer to disregard any enhancement to the value.

• [46] The learned Member's consideration of ss 45 and 46 occurred in the limited context of dealing with her Honour's understanding of a submission of the Jensens referring to s 46's requirement that potential use for subdivision be disregarded, regardless of whether the potential use is lawful on valuation day. In that context the Member's observations as to the practical effect of ss 45 and 46 were uncontroversial and involved no error.
• [47] It is not apparent how any of the Jensens' submissions below or here regarding the need to consider development potential materially assists them. There is no suggestion the Valuer-General contended their property ought be valued having regard to its potential for sub-division - a consideration which could unfairly inflate a valuation. On the evidence that potential appeared to be as remote as it appeared to be for all comparable sale properties other than the property in sale 3, which in any event was disregarded as an outlier by the Member below. Given that state of the evidence her Honour should have and did approach the ensuing determination of the reduction of the valuation without any regard to potential for development as a relevant consideration in respect of the Jensens' property and the properties the subject of sales 1, 2, 4 and 5.

4. Did the court err in determining the highest and best use of the Jensens' property?

• [48] Consideration of issue 4 will have the effect of addressing ground 6 which is:

Ground 6: That the court erred when it determined that the highest and best use of the subject property was rural residential and in doing [so] conflated the zoning categorisations with the requirement to establish what brings the best return for the subject property.

• [49] There is no substance to the complaint that the learned Member conflated zoning with the highest and best use of the Jensens' property. To the contrary, her Honour correctly observed that on the one hand a property can be rural in zoning and its actual use, but that its potential use is relevant in deciding sales comparability.
• [50] The learned Member noted the Jensens had conceded below that the highest and best use of their property was rural residential but later contended it was 'a rural property capable of being supported by primary production'. That prompted her Honour to observe, a 'property that can be supported by primary production can still have a highest and best use as rural residential'. That was also a correct observation.

5. Was the court's decision affected by apprehended bias?

• [51] Consideration of issue 5 will have the effect of addressing ground 7 of the primary appeal,[5] and ground 6 of the costs appeal which are in identical terms, namely:

That her Honour's decision was affected by apprehended bias.

• [52] There is no objective indicia of bias in the conduct of the proceedings or the content of the reasons giving rise to those outcomes. It is difficult to avoid the impression the Jensens' complaint of bias is really driven by the fact that, while they won, they did not win big enough, and along the way incurred an adverse cost ruling.
• [53] As will be seen, there was no error in the outcome of the costs decision. To the extent there was error in the outcome of the primary decision, it occurred because of a factual oversight. It did not occur because of any unfairness or unreasonableness suggestive of bias against the Jensens or bias in favour of the Valuer-General. Indeed, the error occurred in the context of her Honour already having been critical of the Valuer-General's expert evidence in rejecting the valuation advanced by that evidence.
• [54] There is also no substance to the argument that there was a failure to address the Jensens' arguments, this supposedly indicating bias. As already explained, the Members' obligation was not to address every argument advanced, no matter how irrelevant or unmeritorious they were. The obligation was to give adequate reasons and her Honour did so.
• [55] As to the learned Member's treatment of Mr Jensen in her conduct of the hearings, it was entirely unremarkable. None of the passages identified by Mr Jensen go remotely close to suggesting bias. The learned Member at times had to rule on objections and did not always rule in the Valuer-General's favour. Her Honour occasionally intervened of her own volition to bring clarity to what was being asked or said. Her Honour's stewardship of the proceeding was a model of the tolerance and fairness expected of a judicial officer. It is inconceivable, that a fair-minded observer of the proceeding would have perceived any indication of lack of independence or impartiality on the part of the learned Member.[6]

6. Should this court remit the matter or quantify the correct reduction itself?

• [56] These reasons have found the learned Member made an error of fact as to the correct reduction, justifying this court's intervention. An issue arising from that turn of events is whether the court should remit the matter or quantify the correct reduction itself.
• [57] The court's powers of intervention are prescribed by s 57:

The Land Appeal Court may do 1 or more of the following -

(a) suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;

(b) affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;

(c) make an order the Land Appeal Court considers appropriate.

• [58] In the event the court finds error the court is, as Dalton J (as her Honour then was) observed in Department of Transport and Main Roads v Mahoney,[7] 'obliged to give the judgment which, in its opinion, ought to have been given at first instance while observing the natural limitations that exist in the case of an appellate court proceeding wholly on the record'.
• [59] That obligation is an incident of the appeal being by rehearing by this court. Meeting that obligation may not be appropriate or practicable because of the nature of the case, and a matter may therefore need to be remitted to the Land Court for continued determination or rehearing. Examples of why it may not be appropriate or practicable include:
  • where there is insufficient information before the court to perform an assessment task not undertaken below;[8]
  • where there was error below in determining, as a prerequisite to potential interference, whether an appellant had discharged its onus of proof;[9]
  • where there was an insufficiency of factual findings and wrongful exclusion of relevant evidence below.[10]

However, if it is practicable and appropriate for this court to reach its own conclusion from the record below, as to the judgment which should have been given below, it should so. That is because of the undesirability of further delay and expense and the desirability of the finality of justice.

• [60] Three points should be appreciated in this context. Firstly, it does not matter that the court is unaware of what allowance the learned Member gave below in applying her erroneous understanding that there must be some allowance for a rise in value of the property in comparison sale 1 between 2018 to the valuation date of 2020. That this court happens to agree with the approach articulated by the learned Member below, but for her single error, does not require knowledge of the quantification impact of that single error upon the Member's end amount. That is because, having found error, this court's task in the rehearing is to make its own decision as to what 'amount it considers necessary to correctly make the valuation'. There is no reason why it cannot take essentially the same approach as her Honour but do so unburdened by the error which occurred.
• [61] Secondly, that the evidence which this court must work with is imprecise is no more to the point now than it was below. For reasons already explained, the court's obligation, as the Member's obligation was below, is to do the best it can with the imprecise evidence before it.
• [62] Thirdly, to avoid the delay and expense of a rehearing in this case, the matter might conceivably be remitted to the Member who heard this case below, effectively to continue to determine the matter by arriving at an amount unaffected by the factual error. But that may merely pave the way for another appeal to this court and repeat consideration of the same or similar grounds to those already advanced and decided in this appeal. Because it would be a new appeal of a new decision, such grounds would need to be decided afresh. That would give rise to the added cost and inconvenience of this court repeating the task, already performed in the present appeal, of hearing and deciding the same issues. It would also give rise to the unattractive theoretical prospect of the same issues in the same case being decided differently by different benches of this court.
• [63] This court's task, having decided the learned Member erred in the task of deciding the extent of the reduction 'necessary to correctly make the valuation', is to perform that task itself, if it is practicable and appropriate to do so. It is. The court is here equipped with the same imprecise information the learned Member was equipped with below when exercising the power conferred on her by s 170 Land Valuation Act, to reduce the valuation 'to the amount it considers necessary to correctly make the valuation'. In those circumstances a remittal is unnecessary, and this court should proceed to decide the correct amount.

• [64] These reasons have agreed with the eventual approach taken below by the learned Member in deploying sale 1 as the best relative indicator of the value of the Jensens' property.
• [65] This court should take the same approach in this rehearing for the reasons given below, but on the basis that the value of the property in sale 1 did not increase by the time of valuation for the Jensens' property. Regard to where the Jensens' property falls in comparison to the property in sale 1, its closest but slightly superior comparator, supports a valuation less than the Valuer-General's.
• [66] As to how much less, the evidence does not allow precision. However, the determination of that matter of degree is also aided by the closest apparently inferior sale to the Jensens' property, sale 4. It is appropriate to preserve some proportionality upwards to sale 1 and some proportionality downwards to sale 4, bearing in mind sale 1's comparable degree of superiority is less significant than sale 4's comparable degree of inferiority.
• [67] This court should conclude that to correctly make the valuation it is therefore necessary to reduce the Valuer-General's valuation to $600,000.

8. Did the Land Court err in its costs decision?

• [68] Consideration of issue 9 will have the effect of addressing grounds 1 to 4 in the appeal as to costs,[11] which are:

Ground 1: That the court erred when it determined that the evidence and arguments made by the Appellants in support of the submission questioning sovereignty were "untenable" and that therefore the application was frivolous and it further erred when it failed to consider relevant considerations put by the Appellants.

Ground 2: That there was otherwise a failure to give sufficient reasons by her Honour to establish that the jurisdictional proceeding was frivolous and that costs in the substantive hearing should not be awarded to the Appellants in accordance with section 171(2)(f) of the Land Valuation Act 2010.

Ground 3: That the court erred when it inferred that the Appellants' reasoning for the Valuer-General not properly discharging her responsibilities was "because of" her Honour's comments about the valuer, Mr Moroney. It further erred when it failed to consider relevant considerations put by the Appellants regarding the Valuer-General not discharging her duties in accordance with section 171(2)(f) of the Land Valuation Act 2010.

Ground 4: That the court erred when it failed to consider the issue of which valuation decision was being appealed and the Respondent's obligation for this pursuant to section 171(2)(f).

• [69] In making its decision as to costs the learned Member was constrained by s 171 of the Land Valuation Act which relevantly provides:

(1) Each party to a valuation appeal must bear the party's own costs of the appeal.

(2) However, the Land Court may make a costs order if it considers any of the following circumstances applies--

(a) all or part of the appeal was frivolous or vexatious

(f) a party did not properly discharge the party's responsibilities for the appeal.

• [70] In the proceeding below the Valuer-General sought its costs of and incidental to a notice issued in the appeal by the Jensens under s 78B of the Judiciary Act 1903 (Cth), on the basis that component of the appeal was frivolous or vexatious. Conversely, the Jensens sought their costs on the basis the Valuer-General did not properly discharge its responsibilities for the appeal, citing the learned Member's dissatisfaction with aspects of Mr Moroney's evidence and his deployment as the Valuer-General's chosen expert witness in the case.
• [71] The learned Member accepted the Valuer-General's argument and ordered that the Jensens pay the Valuer-General's costs of and incidental to the notice issued by the Jensens under s 78B Judiciary Act on the standard basis. However, the Jensens' argument, founded on s 171(2)(f), was unsuccessful, with the learned Member otherwise ordering that each party was to bear their own costs of and incidental to the appeal.
• [72] The learned Member's determination on the costs point regarding the Judiciary Act notice was unsurprising and ample reasons were given for it. The Jensens purported to contend their land was outside the jurisdiction of the Valuer-General in the State of Queensland, because it was land on the separate sovereign nation of the Yidindji people and thus beyond the reach of the laws of the State of Queensland. No error has been shown in her Honour's conclusion that such a contention was 'quite impossible in law to maintain'.[12]
• [73] In determining costs, the learned Member rejected the Valuer-General's submission that the jurisdictional component of the Jensens' case had been vexatious, but effectively accepted it was frivolous. It is noteworthy that, as her Honour observed, the Jensens had persisted in the pursuit of their argument, even after the Valuer-General had pointed out to them at an early stage that there were no reasonable grounds for it. The Jensens' persistence with their objectively frivolous argument amply justified the learned Member's exercise of the discretion conferred by s 171(2) to make the costs order which she did.
• [74] As to the Jensens' reliance upon s 171(2)(f), it was founded on the criticisms the learned Member made of Mr Moroney's evidence, summarised in dot points earlier in these reasons. The learned Member rejected the Jensens' argument that those deficiencies, which included a lack of independence, meant the Valuer-General had not properly discharged her responsibilities for the appeal.
• [75] In addressing the Jensens' argument, the learned Member distinguished GPT RE Limited v Valuer-General[13] in which the Valuer-General had adopted two different methodologies of analysing the same sale, resulting in the appellant incurring additional costs. As her Honour observed, this was not a case in which the nature of Mr Moroney's evidence caused the Jensens to incur additional costs. The learned Member also distinguished another case relied upon by the Jensens, William v Department of Environment and Resource Management.[14] In that matter there had been a suggestion of witness shopping and a delaying of the proceeding while looking for a new expert which 'strung the appellants along'.
• [76] In contrast the problems with the expert evidence in the present case did not involve a failure to properly discharge the party's responsibilities for the appeal. Her Honour reasoned:

[21] In the appeal decision I noted that there was tension when the independent expert evidence as provided by a valuer who was an employee of the party, and that it was preferable to appoint an expert who was objectively independent. My comments should not be construed as a statement that a valuer employed by the Valuer-General is not an appropriately qualified expert. In this case, during cross-examination there were indications that Mr Moroney's mind may have been affected by his previous involvement in the mass appraisal system, but I am not persuaded that he was not an appropriately [sic] professional expert.

[22] The fact that I did not always agree with Mr Moroney's observations do not justify an order for costs against the Valuer-General. The fact that Mr Moroney's report fell short of the standard required by the Court is unfortunate, but not fatal.

• [77] The practical effect of her Honour's reasoning was that the problems with Mr Moroney's evidence derived from poor witness selection and performance, not a failure to properly discharge a party's responsibilities for the appeal. No error has been shown in that reasoning.
• [78] The fact this court will intervene and reduce the valuation does not bear upon the validity of the reasoning which led to the costs orders below. Those orders need not be disturbed by this court and thus no order about them is required.
• [79] Finally, in respect of ground 4, the issue to which it relates has already been dispensed with in the above reasons in respect of issue 1. For the reasons there given, there was no error in respect of what valuation decision was being appealed.

• [80] The Jensens' primary appeal has been successful but their appeal as to costs has been unsuccessful.
• [81] As to the costs of those appeals, s 57A Land Court Act 2000 empowers this Court to order costs for an appeal 'as it considers appropriate'. It is appropriate that costs should follow the event of each appeal.
• [82] The Court's orders are:

(b) the order of the Land Court of 29 September 2023, that the site value was $615,000 as at the date of valuation 1 October 2020, is revoked and, in substitution thereof, it is ordered the unimproved value was $600,000 as at the date of valuation, 1 October 2020;

(c) the respondent will pay the appellants' costs of and incidental to the appeal, to be assessed, if not agreed, on the standard basis.

(b) the appellants will pay the respondent's costs of and incidental to the appeal, to be assessed, if not agreed on the standard basis.

[1] The order referred to the valuation as of site value but it was obviously a reference to the unimproved value.

[2] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [23].

[3] DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, [33].

[4] [2028] QLAC 7.

[5] Added by leave at the outset of this appeal hearing, at which time there was also an extension of time given for service of the notice of appeal.

[6] Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 [6].

[7] [2014] QLAC 1, [26].

[8] BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 5.

[9] Valuer-General v Body Corporate for 'Tennyson Reach' Community Titles Scheme 39925 [2018] QLAC 7.

[10] BWP Management limited v Valuer-General [2019] QLAC 4.

[11] Grounds 5 and 6 in the costs appeal were dealt with above.

[12] Citing Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 129 and Mabo v Queensland (No 2) (1992) 175 CLR 1.

[13] [2019] QLC 8.

[14] [2014] QLAC 10.