Cost Pty Ltd v Valuer-General; Allen v Valuer-General [2026] QLAC 4

LAND APPEAL COURT OF QUEENSLAND CITATION: Cost Pty Ltd v Valuer-General; Allen v Valuer-General [2026] QLAC 4 PARTIES: Cost Pty Ltd (appellant) v Valuer-General (respondent) FILE NOs LAC No 006-25 LAC No 007-25 LAC No 009-25 Land Court No LVA531-23 Land Court No LVA532-23 Land Court No LVA533-23 PARTIES: Reece Justin Allen (appellant) v Valuer-General (respondent) FILE NOs: LAC No 008-25 Land Court No LVA539-23 PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 24 April 2026 DELIVERED AT: Rockhampton HEARD ON: 26 May 2025 HEART AT: Rockhampton THE COURT: Crow J JR McNamara, Member of the Land Court ND Loos, Member of the Land Court -- 1 of 26 -- 2 ORDERS: 1. Each appeal is dismissed. 2. By 4:00pm on Friday, 8 May 2026, the parties may file a written outline of submissions no longer than five pages as to the costs of the appeal. CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – GENERALLY – Nature of appeal – meaning of s 169(2) Land Valuation Act 2010 – s 169(3) merit of error in grounds of appeal – power to receive additional evidence – operation of s 7 Land Court Act 2000 – valuer acting as agent – where exclusion of properly comparable sales by an expert valuer can be reason to reject that valuer’s opinion – whether the primary judge was in error in affording no weight to the evidence of the appellants’ valuer – where the respondent’s valuer made inadvertent errors – where it was not an objection taken at trial – whether it can be raised as a basis for the rejection of any part of the respondent’s valuer’s opinion – whether the primary judge should have accepted or relied upon the evidence of the respondent’s valuer – where the Land Court accepted minor errors by valuer but valuer’s opinion not based on incorrect material fact – where the respondent first raised its challenge to the appellant’s valuer’s evidence in its submissions – where the appellant argues that the Land Court did not adequately explain why no weight was afforded to their valuer’s evidence – whether the appellants have been denied natural justice Land Valuation Act 2010 s 105, s 109, s 112, s 129, s 130, s 145, s 151, s 155, s 167, s 168, s 169, s 170, s 171, s 172, s 256 Acts Interpretation Act 1954 s 14, s 27B Valuation of Land Act 1944 s 55, s 64 Land Court Act 2000 s 7 Allesch v Maunz (2000) 203 CLR 172, applied Blue Mountain City Council v Mulcahy [1998] 100 LGERA 193 BT Dillon v The Valuer-General (1987) 11 QLCR 231, applied Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 616, considered BWP Management Ltd v Valuer-General [2019] QLAC 4 CDJ v VAJ (1998) 197 CLR 172, applied Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations (1985) 3 NSWLR 685, applied Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427, applied Dasreef v Hawchar (2011) 243 CR 588, cited Fox v Percy (2003) 214 CLR 118, applied -- 2 of 26 -- 3 APPEARANCES: George v The Crown (1979) QLCR 89 Lacey v Attorney-General of Queensland (2011) 242 CLR 573, followed Oakley v Chief Executive Administering the Coastal Protection and Management Act 1995 (1985) 3 NSWLR 6, applied Qualischefski and others against Determination by Valuer- General – Shire of Laidley [1979] 6 QLCR 167 Re Coldham ex parte Brideson (No 2) (1990) 170 CLR 267 Registrar of Titles v Franzon (1975) 132 CLR 611, applied SAS Trustee Corporation v Miles (2018) 265 CLR 137, applied SZTAL v The Minister for Immigration and Citizenship (2017) 262 CLR 362, applied The Queen v A2 (2019) 269 CLR 507, applied Valuer-General v Body Corporate for ‘Tennyson Reach’ Community Titles Scheme 39925 [2018] QLAC 7, followed Wakefield v Commissioner of State Revenue [2019] 3 Qd R 414 RJ Allen (solicitor), Project Legal, for the appellant E Goodwin KC, with WA Isdale (instructed by the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development) for the respondent [1] CROW J: Introduction [2] Cost Pty Ltd is the owner of three parcels of industrial land in the Gladstone area: 6 and 8 Chapel Street, Gladstone, and 20 Blaine Drive, Callemondah. Mr Allen is the owner of a fourth parcel of industrial land at 10 Morgan Street, Gladstone. The appellants appealed the Valuer General’s decision on the unimproved land value of each of the four parcels of industrial land to the Land Court. That appeal was unsuccessful.1 [3] The Notice of Appeal to the Land Appeal Court in respect of each of the four appeals raises the same seven grounds of appeal. Grounds one, three, and five essentially raise the same complaint, namely that the primary judge was in error in affording no weight to the evidence of valuer Mr Sheehan. Grounds two and six make a similar complaint that the primary judge ought not to have accepted or relied upon the evidence of Mr 1 Cost Pty Ltd v Valuer-General; Denby Pty Ltd v Valuer-General; Allen v Valuer-General [2025] QLC -- 3 of 26 -- 4 Ferrando, the valuer retained by the respondent, for a variety of reasons. By grounds four and seven the appellants allege they have been denied natural justice. The Tennyson Two Step [4] In Valuer-General v Body Corporate for ‘Tennyson Reach’ Community Titles Scheme 39925 (Tennyson Reach)2, Member Smith, at [50], stated that the Land Court has a duty to undertake a two-step process in considering an appeal to the Land Court, stating: …The first step is to determine whether or not the evidence in its totality supports the case put by an appellant that the issued valuation is in error, on the balance of probabilities, so that the onus of proof is discharged. If the onus of proof is discharged, the second phase of the evaluation to be undertaken by the court comes into play. That is, what is the correct valuation of the subject land? The court can only get to a consideration of the correct valuation of the subject land and thus section 170(b) of the LVA in circumstances where the onus of proof has been discharged. [5] Chapter 3 of the Land Valuation Act 2010 (LVA) provides a process where a landowner who wishes to object to the value placed upon his land is provided with a right to object,3 by giving, the Valuer General a properly made objection4 in an approved form within 60 days5 after the date of issue of the valuation notice. This leads to an objection decision which is provided to the objector pursuant to s 151 of the LVA. Section 155 then provides that the objector then has a right of appeal to the Land Court. [6] Chapter 4 Part 5 of the LVA deals with the hearing of valuation appeals and relevantly provides in ss 167 to 170 as follows: 167 Application of pt 5 This part applies for the hearing of a valuation appeal. 168 Constitution of Land Court The Land Court must be constituted by 1 member sitting alone. 169 Nature of hearing (1) The hearing must be limited to the grounds stated in the valuation appeal notice. (2) The appeal must be by way of a rehearing. Note— See also section 256 (Particular evidentiary provisions for valuation appeals). 2 [2018] QLAC 7. 3 LVA, s 105. 4 LVA, s 112. 5 LVA, s 109. -- 4 of 26 -- 5 (3) However, the appellant has the onus of proof for each of the grounds of appeal. 170 Order on valuation appeal The Land Court may— (a) confirm the valuation appealed against; or (b) reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under this Act. Note— The Land Court Act 2000 and the rules under that Act apply for valuation appeals and further appeals to the Land Appeal Court— see sections 5 and 21 of that Act. [7] A ‘valuation appeal’ is defined in the dictionary in the schedule to the LVA, as ‘valuation appeal means an appeal against an objection decision’. However, even though the appeal is by way of rehearing, s 169(1) limits the grounds of appeal to those stated in the Valuation Appeal Notice, and s 169(3) places the onus of proof for each of the grounds of appeal upon the appellant. The first task for the Land Court, therefore, is to determine whether the appellant has discharged its onus of proof on one of the stated grounds of appeal. [8] In this sense, as pointed out by Member Smith in Tennyson Reach at [46], the general test stated by Demack J in BT Dillon v The Valuer-General6 is able to be applied in determining whether or not, on the balance of probabilities, an appellant under the LVA has discharged the onus of proof. [9] It seems to me that if the onus of proof has been discharged, the Land Court is then faced with a decision under s 170 of the LVA, that is, to determine if the error that is demonstrated in the appeal renders the valuation incorrect. If the valuation is correct (even if it contains some error), then under s 170(a), the Land Court confirms the valuation appealed against. If the valuation is incorrect, the court acts under s170(b) to make the correct valuation. [10] Accordingly, it seems to me there may be a three-step process, that is, first, whether on the balance of probabilities, the appellant has demonstrated that one of its stated grounds of appeal ought to be accepted. If so, the second step requires the Land Court to determine whether the demonstrated error renders the valuation incorrect. The third step occurs if the appellant succeeds in the first two steps, the Land Court then must determine the correct valuation. 6 (1987) 11 QLCR 231. -- 5 of 26 -- 6 [11] An example of the second step arises in the present appeal. The appellants assert, and the respondent concedes, that one comparative sale relied upon by Mr Ferrando contained an error. Thus, the first step is satisfied. The agreed error is that in assessing one item of value improvements, Mr Ferrando assessed a concrete apron setting an area of 60m² at a rate of $90/m2, less 10% depreciation, placing a value upon it at $4,860. The concrete apron is in fact 110m². Accordingly, Mr Ferrando had undervalued one aspect of the value improvements on one comparative sale by $4,050. Mathematically, this has the effect in Mr Ferrando's analysis of producing a comparative for the sale at 12 Helen Street from Mr Ferrando's analysis of $116/m2 to an accurate analysis of $115/m2. This error in the analysis of a comparative sale is de minimis and has not been shown to have affected Mr Ferrando's valuation of any of the subject properties. As the primary judge relied upon Mr Ferrando's valuation which contained an error the first step is satisfied. However, step two has not been satisfied as the error has not been shown to be material in the sense of rendering Mr Ferrando's opinion nor the Land Court’s valuation to be incorrect. The Nature of a Section 169(2) “Rehearing” [12] Section 169(2) of the LVA requires that the appeal to the Land Court be heard by way of a rehearing. It is orthodox doctrine that the nature of a statutory appeal must ultimately depend upon the terms of the statue conferring the right of appeal and not upon the statute which establishes the appellant body.7 [13] In Allesch v Maunz (Allesch)8 Gaudron, McHugh, Gummow and Hayne JJ said: [23] For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can 7 Re Coldham ex parte Brideson (No 2) (1990) 170 CLR 267 at 273-274 per Deane, Gaudron and McHugh JJ; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204. 8 (2000) 203 CLR 172 at 23. -- 6 of 26 -- 7 only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (footnotes omitted) [14] In Lacey v Attorney-General of Queensland (Lacey)9, French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ said: [56] Ascertainment of the statutory purpose is to be based on the words of s 669A(1) and, in particular, the word “appeal”, which encompasses the jurisdiction conferred by the subsection. An appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context. The purpose of s 669A(1) is to create an appellate jurisdiction exercisable upon the application of the Attorney-General and coupled with a wide remedial power. The question is what kind of jurisdiction does it create? [57] Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are: (1) Appeal in the strict sense — in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. (2) Appeal de novo — where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. (3) Appeal by way of rehearing — where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance. [15] In determining the nature of the appeal in the present case, therefore, although “no taxonomy is likely to be exhaustive”, it is useful to attempt to discern, as a matter of construction of the LVA and by s 169(2) of the LVA, whether the appeal falls into the second or third category as identified by the plurality in Lacey. 9 (2011) 242 CLR 573 at 596-597. -- 7 of 26 -- 8 [16] The LVA, as the conferring statute, does not provide the Land Court in hearing an appeal under the LVA with a power to receive additional evidence, however, there is, by s 169(3) of the LVA a statutory requirement that the powers may be exercised only if was an error at first instance. The limitation of the grounds of appeal to those stated in the valuation appeal notice in s 169(1) of the LVA and more importantly the casting of the onus of proof for the grounds of appeal in s 169(3) of the LVA, suggests that the appeal is not a classic type of appeal de novo as the Land Court has no power to alter the Valuer-General’s valuation unless the appellant can demonstrate legal factual or discretionary error relating to at least one of the grounds stated in the valuation appeal notice. [17] The nature of the decision of the Valuer-General in making an objection decision is that it is a decision of an administrative nature albeit that the decision is made upon the background of detailed processes set out in the LVA. The LVA requires proper objections notice to be filed, the holding of objection conferences, the potential requirement for the objector to give further information, all leading to the decision on the objection as required pursuant to s 151 of the LVA. The objection decision notice given to the objector must state the reasons for the decision. Appeals from administrative decisions are commonly appeals de novo as there is no record upon which an appeal by way of rehearing can proceed. Under the LVA there is only a limited form of recourse and the reasons for the decision is the critical document. Section 151 of the LVA requires the Valuer-General to give an objector notice of the decision on objection, which includes the reasons for the decision. The reasons must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based (Acts Interpretation Act 1954 s27B). The decisions on objection made by the delegate for the Valuer-General are found at pp48, 78, 108 and 139 of the Appeal Record Book. The reasons are brief. They do not describe the path of reasoning by which the decision maker arrived at his decision. They are inadequate. [18] The practice of the Land Court in conducting an appeal de novo (and hearing evidence) in respect of a valuation appeal may have its genesis in s 55 of the Valuation of Land Act 1944, which provided a statutory right of appeal against the decision of the chief executive upon the valuation of land to the Land Court. However, s 55 did not provide any statutory direction upon the nature of the appeal, and so, at common -- 8 of 26 -- 9 law, the nature of the appeal was in the nature of an appeal de novo with evidence being taken. In Re Coldham ex-parte Brideson No 210, Deane, Gaudron and McHugh JJ said: …it is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings… [19] The nature of the appeal from the decision of the chief executive to the Land Court under s 55 of the Valuation of Land Act 1944 (an appeal de novo from an administrative decision with no record of proceedings) can be contrasted with the nature of the appeal from the Land Court to the Land Appeal Court as set out in s 64 of the Valuation of Land Act 1944 which specifically provided that the appeal was to be by way of re-hearing. Any former practice, therefore, of the Land Court taking evidence upon an objector’s appeal was based on a different statutory regime. [20] The Land Appeal Court sought and received further submissions on the nature of the appeal. The appellants’ submission is that an appeal to the Land Court under s 169 is a hearing “de novo”. The submission of the respondent that it is a “rehearing on the record”. [21] The starting point for the analysis is that s 169(2) LVA expressly states the appeal must be by way of rehearing. The second point is under s 169(3) of the LVA that an error must be demonstrated by the appellant. This is, as was identified in Allesch, a critical difference. The third point is explained by Jacobs J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd11, “the word rehearing” does not have “a meaning different from its ordinary natural meaning.”12 Jacobs J said:13 How far fresh evidence will be received, in the absence of statutory provision and subject to considerations of fairness, reasonableness and justice, depends upon the procedure of the court to which the appeal lies. The procedure may be found in its rules or, if there are no rules governing the matter, or no established practice, then by direction of the court on the procedure to be followed […] In the absence of statutory provision or of rules governing the procedure or of established practice, the adoption of one or another of the courses open, a rehearing de novo or a rehearing on the material before the 10 (1990) 170 CLR 267 at 273. 11 (1976) 135 CLR 616 at 628-629. 12 Discussing the fresh evidence that may be received in an appeal by way of rehearing. 13 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 629. -- 9 of 26 -- 10 person or body from whom the appeal is brought with the reception of further evidence, involves the exercise of a judicial discretion applying principles of fairness and reasonableness. The procedure adopted will depend largely on the nature of the appeal — whether it is from the exercise of an administrative discretion, or from a decision of an administrative tribunal on a question of fact, or the decision of a judicial tribunal on such a question... [22] In my view, s 169(3) of the LVA, in placing the onus of proof of the grounds of appeal upon the appellant raises a presumption that the decision of the Valuer-General is correct and therefore, for an appellant to succeed in the Land Court, the appellant must persuade the Land Court that there is an error in the Valuer-General’s conclusion and importantly, the error must be found in one of the grounds of appeal stated in the valuation appeal notice.14 [23] In my view, therefore, the nature of the appeal under s 169(2) is not of a classic appeal de novo type appeal where the Land Court can alter the Valuer-General’s decision, because the appellant must establish an error in the Valuer-General’s approach which is limited to one of the grounds of appeal stated in the valuation appeal notice. As explained by Jacobs J in Sperway at 629 the procedure of the court to which the appeal lies may regulate the approach taken to the reception of fresh evidence in an appeal to the Land Court. [24] In this regard, most importantly, the note to s 170 specifically says that the Land Court Act 2000 (LCA) and its rules apply to valuation appeals. Section 14(4) of the Acts Interpretation Act 1954 (Qld) states that a note in an Act, as opposed to a footnote in an Act, is a part of the Act. [25] Section 7 of the LCA provides: 7 Land Court to be guided by equity and good conscience In the exercise of its jurisdiction, the Land Court— (a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. [26] As may be observed from s 7, the Land Court, in hearing a land valuation appeal is not bound by the rules of evidence and may inform itself in the way it considers appropriate. It is therefore very much a matter for the Land Court hearing any 14 LVA, s169(1). -- 10 of 26 -- 11 particular appeal under the LVA to determine how it may proceed subject only to the strictures of s 169 of the LVA which casts the onus of proof on each of the grounds of appeal on the appellant and limits the grounds of appeal to those stated in the valuation appeal notice. There is no impediment to the Land Court allowing either party to adduce further evidence because, as set out in s 7 of the LCA and as Jacobs J explained in Sperway, the reception of further evidence involves the exercise of judicial discretion applying to principles of fairness and reasonableness. Depending upon the issues involved in the appeal, it is a matter for the Land Court hearing the appeal to determine the appropriate procedure within the broad parameters of the guidance set out in s 7 of the LCA. S 171(3) of the LVA shows that parliament considered that witnesses may be called in as a valuation appeal in the Land Court. [27] As the Land Court, in undertaking an appeal by way of rehearing in a land valuation case is, pursuant to s 7 of the LCA, not bound by the rules of evidence and has the ability to inform itself in the way it consider appropriate, the procedure adopted by the Land Court may result in the appeal being conducted in a manner very close to a classic appeal de novo, in that after error is established, the Land Court may hear the matter on fresh material. However, in my view, the Land Court cannot overturn the Valuer-General’s decision, regardless of error, as s 169(3) of the LVA demands that the appellant satisfy the Land Court of the merit of one of the grounds of appeal as stated in the valuation appeal notice. [28] Chapter 3 of the LVA creates a statutory procedure for the objection to the valuation of land, which is intended to be as cost-efficient as possible. Chapter 4, in particular through s 169(1), in its limitation of the grounds of appeal to those stated in the Valuation Appeal Notice and the requirement for the appeal to be by way of rehearing, also evidences Parliament's intention to ensure that land valuation appeals are conducted in a cost-efficient manner. [29] A consequence of s 169(2) of the LVA requiring the appeal to be by way of rehearing is that the parties to an appeal do not have a right to adduce new, different or additional valuation evidence upon an appeal before the Land Court. Whether such evidence is allowed is a matter for the Land Court utilising its powers under s 7 of the LCA. My conclusion upon this issue is that, as provided in s 169(2) LVA the appeal -- 11 of 26 -- 12 to the Land Court is an appeal by way of rehearing, with a power to receive additional evidence. That is the appeal is a type 3 in the Lacey taxonomy. [30] The s 169(1) LVA statutory constraint may explain the common practice of landowner’s who wish to appeal an objection notice to engage a valuer as an expert at the outset in order to ensure that the grounds stated in the Valuation Appeal Notice are accurate. [31] Section 169(1) can be contrasted to s 130 of the LVA, which specifically provides that at an Objection Conference, the conference is not limited to the objection grounds and s 145 provides many bases upon which an objection may be amended. Section 129(1) provides that a party may, with the Chairperson's approval, be represented by an agent or other representative at an Objection Conference. This is a clear acknowledgement of the practice of a valuer or other person acting as an agent of the landowner at an Objection Conference.15 Section 129(1) of the LVA may blur the distinction between the concept of an independent expert and an agent of the landholder. It would appear that Parliament has deliberately made this choice to enable landowners to challenge land valuations in a cost-efficient manner. [32] It seems to me, therefore, that criticism of a valuer acting as an agent at a conference, drafting objection grounds and providing a valuation report in respect of land ought not be considered, of itself, as a matter which deprives that expert’s evidence of any weight. It is, after all, a potential consequence of the statutory scheme of the LVA. However, when the valuer has acted in such a fashion the valuer places himself in a position of conflict which may subject the valuer to the type of criticisms made by the primary judge concerning Mr Sheehan. In my view, the primary Judge was correct in concluding that Mr Sheehan’s lack of independence was established by his involvement in providing advice, drafting the notice of appeal and appearing at the objections conference, however the primary Judge did not reject Mr Sheehan’s evidence only because he had acted as an advocate. 15 Earlier examples of non-lawyer advocates include George v The Crown (1979) QLCR 89 in which Mr Kerry Heron, valuer, appeared for the land owner Mr Alec George and in J.L. and I. Qualischefski and others against Determination by Valuer-General – Shire of Laidley [1979] 6 QLCR 167 the local state member Mr Bill Gunn M.L.A. appeared for the land owners. -- 12 of 26 -- 13 Grounds One, Three and Five: Rejection to Mr Sheehan’s Evidence [33] Grounds one, three, and five in each appeal are: 1. The Land Court erred in affording no weight to the evidence of expert valuer Michael Sheehan (Mr Sheehan). 3. The Land Court erred, and denied the appellant natural justice, in relying on inadmissible evidence of what Mr Sheehan did at an objection conference to afford nil weight to Mr Sheehan's evidence. 5. The Land Court erred in failing to properly consider all of the evidence in deciding whether or not the valuation appealed against was in error by affording nil weight to Mr Sheehan's evidence, and only considering the evidence of Mr Ferrando, and whether or not Mr Ferrando's evidence was in error, not whether or not the valuation appealed against was in error.” [34] The principal submission made by the appellant is:16 Having admitted Mr Sheehan's evidence, which as a valuer he is competent to give, it is submitted that the Land Court was bound to give it proper evaluation and reach appropriate conclusions about it, rather than rejecting it entirely. Rejecting it entirely after admitting it is an error of law in the evaluation of evidence for which the appeal should be allowed. [35] The primary judge did not place any weight on Mr Sheehan's opinions for several reasons. [36] The first, was the conclusion of the primary judge that Mr Sheehan did not act impartially.17 In this regard, the primary judge's reasons accurately recorded that Mr Sheehan had acted as the appellant's agent in lodging notices of objection, acted as the agent in filing the Notices of Appeal, had attended two preliminary conferences to assist the appellants, and had, in the Notice of Appeal, drafted comprehensive submissions on his own letterhead, running to some 20 pages of comparable sales analysis. In his evidence, as accepted by the primary judge, Mr Sheehan admitted that he did not read the Rules of Professional Conduct for Experts despite certifying that he had. As discussed above, as a matter of construction of the LVA Mr Sheehan ought not to have his evidence devalued due to his action in acting as an agent for the appellant per se, however Mr Sheehan acting in a partisan fashion was not the only reason why the primary judge placed no weight upon Mr Sheehan's opinion. 16 Outline of Submissions of the Appellants, filed 28 April 2025 at para 20. 17 Decision below, paragraphs 4 to 9. -- 13 of 26 -- 14 [37] The second was that Mr Sheehan's approach was to analyse the value of minor improvements on the comparable sales by reference to the cost of construction or installation, in circumstances where the cost of construction should really reflect its value to a purchaser.18 [38] The third reason the primary judge referred to was that Mr Sheehan did not provide any source materials or any other objective evidence to justify his costs. [39] The fourth reason was that Mr Sheehan, in valuing, also adopted an interest rate not explaining where the interest rate had come from. [40] The fifth reason was that Mr Sheehan relied upon hearsay conversations but did not provide any detail of the conversations beyond the summaries in his evidence. [41] The sixth reason was that Mr Sheehan did not comply with the requirements of Land Court Practice Direction No. 6 of 2020, despite certifying that he did. [42] The seventh reason was that Mr Sheehan rejected two comparable sales based on reasoning that the sale price would be uneconomical to build on the land which was based on a table of investment returns, without demonstrating why that table of investment returns was relevant to the site value. [43] The eighth reason was that Mr Sheehan conducted a circular analysis. [44] The ninth reason was that Mr Sheehan did not utilise the comparable sales of the properties at 6 and 8 Warne Street, Gladstone. [45] Accordingly, it is incorrect to conclude that the sole reason for the rejection of Mr Sheehan's evidence was that the primary judge concluded that Mr Sheehan was partisan, even though it was plain that Mr Sheehan had acted as the appellants’ advocate. [46] In Fox v Percy (2003) 214 CLR 118, Callinan J at paragraph 151 said: [151] The third matter to which reference should be made is that touched upon by Beazley JA in the Court of Appeal, the adversarial stance taken by Mr Tindall. This is very much to be regretted. It also might have been basis enough for the rejection of his evidence. What was 18 BWP Management Ltd v Valuer-General [2019] QLAC 4 at [59]; Blue Mountain City Council v Mulcahy [1998] 100 LGERA 193 at 200. -- 14 of 26 -- 15 said in the 10th edition of Phipson on Evidence and earlier editions before enactment of the Civil Evidence Act 1972 (UK), and notwithstanding the enactment of the Evidence Act 1995 (NSW) remains relevant: Value of Expert Evidence. The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre- conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will. (footnotes omitted) [47] As Callinan J reflected, in instances where an expert witness adopts an adversarial stance, that may be a sufficient basis of itself for a court to reject that expert's evidence. [48] In paragraph 21 of the appellants’ written outline19, the appellants argue that although Mr Sheehan had engaged in advocacy for the appellant prior to the hearing, that “is not relevant evidence as to whether Mr Sheehan's evidence (the JER and oral evidence at the hearing) should be afforded no weight. Further, in any event, the Land Court erred in finding Mr Sheehan engaged in advocacy.” [49] Both of these submissions ought to be rejected. Firstly, it is difficult to understand why lodging a notice of objection, filling out notices of appeal, attending two preliminary conferences, and providing detailed comprehensive submissions running to some 20 pages of comparable sales evidence cannot be considered advocacy. It is also illogical to submit that a person who has acted as a partisan advocate in bringing an appeal somehow magically becomes an independent witness at the time of the appeal. [50] An important example of Mr Sheehan's lack of independence is as set out in the Appeal Record Book,20 is Mr Sheehan’s evidence on the increase of value of industrial land in Gladstone. There had been a substantial increase in the market value for industrial land in Gladstone between 2021 and 2022. The expert called by the respondent, Mr Ferrando, opined there had been such a substantial increase and was able to demonstrate that comprehensively by reference to comparable sales. 19 Filed 28 April 2025. 20 ARB page 188 to 192. -- 15 of 26 -- 16 [51] Mr Sheehan's oral evidence was that there was not a substantial increase. This opinion of Mr Sheehan was carefully tested in cross-examination, and it was demonstrated on the record that an industrial property at 8 Warne Street had experienced an 18% increase in value over 6 months in 2022. Even after accepting this, Mr Sheehan adhered to his opinion that there was not a substantial increase in the market value of industrial land in Gladstone. [52] Mr Sheehan's position was indefensible, as Mr Sheehan's own written opinion in the joint expert report showed that Mr Sheehan had calculated that, in respect of 12 Helen Street, there had been a 41% increase in the value of that parcel of industrial land between 27 May 2021 and its subsequent sale on 8 September 2022. Mr Sheehan was also directed to his own letter, in which he opined that there had in fact been an increase between 40 to 50% in the value of industrial sites within the Gladstone Central Industrial Area. Mr Sheehan was forced to accept that his oral evidence was inconsistent with his written expert evidence.21 [53] The appellants submit that Mr Sheehan's decision to exclude comparable sales, which Mr Ferrando included, is no basis to justify the finding that Mr Sheehan's evidence ought to be given no weight, and that “this is particularly the case given the inclusion or exclusion of comparable sales as a matter for the valuer's own professional opinion, and a matter which is for the very reason valuers are engaged to assist the court.”22 [54] Whilst it may be accepted that an independent valuer, as an expert, ought to use their professional opinion to choose comparable sales, the failure of a valuer to utilise a closely comparable sale may raise issues as to that valuer's competence, independence, or judgement. [55] The comparable sales relied upon by Mr Ferrando were in industrial areas in close proximity to the 4 parcels of land the subject of the appeals. The comparative sales evidence was recent to the valuation date. The availability of market information to opposing valuers ought to have the salutary effect of discouraging a valuer from cherry-picking sales, i.e., at a higher or lower than usual value to suit that valuer's client's case. 21 ARB page 190, line 40; AB 192, line 31. 22 Outline of Submissions of the Appellants, filed 28 April 2025, paragraph 23. -- 16 of 26 -- 17 [56] The transcript of the proceedings before the primary judge demonstrated that the decision to include or exclude comparable sales, and the reasons for doing so, are often at the heart of the difference in expert valuation opinion. Accordingly, where a tribunal of fact concludes that an expert valuer has excluded properly comparable sales, that may well be a reason to reject that valuer's opinion or, depending upon the circumstances, to conclude that the expert valuer is not impartial. [57] The appellant is incorrect in its criticism of the primary judge's “blanket finding” that Mr Sheehan did not use the second sale of 12 Helen Street in 2022. The primary judge was correct to conclude that Mr Sheehan did not use the 8 September 2022 valuation of $508,000 of 12 Helen Street,23 but rather reverse engineered the valuation figures using the 14-month-old sale of 11-13 Helen Street to find a $90/m2 rate.24 [58] It has not been demonstrated that the primary judge was in error to place no weight upon Mr Sheehan’s opinions. Grounds Two and Six: Alleged Error in Accepting Mr Ferrando's Evidence [59] The appellant argues that the Land Court is not relieved of correcting each statutory valuation if Mr Ferrando was shown to be in error.25 The primary judge reflected at [27],26 that the appellants did secure minor concessions from Mr Ferrando as he made some inadvertent errors. However, as the primary judge said, those errors were inadvertent and had little impact upon Mr Ferrando's final valuation opinion. In most part, the difference in the valuation, once Mr Ferrando corrected his error, was well within the acceptable margin where reasonable valuers may differ. [60] The submission that any minor error renders any opinion inaccurate is a non-sequitur. If any expert renders an opinion based upon a material fact which is shown to be wrong, then the consequence is that the opinion is not admissible. That is a matter of evidence. [61] The point of the reasoning rule at common law, as stated in Dasreef v Hawchar,27 is to provide an explanation of the expert's reasons demonstrating how the expert uses 23 ARB 366. 24 ARB 199; T1-36, line 20. 25 ARB 821, at [29]. 26 Decision below. 27 (2011) 243 CLR 588, per Heydon J at pages 622 to 624. -- 17 of 26 -- 18 their field of expertise to build the bridge between material facts relied upon by the expert and the opinion propounded by the expert. The primary judge did accept there were minor errors made by Mr Ferrando, but it was not demonstrated that Mr Ferrando had based his opinion upon any material fact which was shown to be incorrect. Mr Ferrando's opinions, therefore, were admissible as to value notwithstanding minor error. [62] In the present case, the alleged errors relating to the building's fit-out at 12 Helen Street have, in any event, not been established. The only other demonstrated error was the failure by Mr Ferrando to take into account the Q100 flood risk and coastal hazard influence overlay as a negative risk factor. That, however, has not been shown to have any impact upon any material fact assumed by Mr Ferrando. On the contrary, the areas of land which are developed as industrial land are precincts of developed industrial land surrounded by other industrial premises in the coastal port city of Gladstone. [63] If, as may perhaps be inferred by the appellant's submission, Mr Ferrando's opinion ought not to have been admitted because it is based on an error in the material facts, then that is a point which ought to have been taken at trial. The argument that two minor errors rendered Mr Ferrando's evidence inadmissible, was not an objection taken at trial and cannot now be properly raised as a basis for the rejection of any part of Mr Ferrando's opinion. Grounds two and six, therefore, ought to be rejected. Grounds Four and Seven: Denial of Natural Justice [64] Ground four is framed that the Land Court erred and denied the appellant natural justice by relying on evidence from a site inspection or, alternatively, acting inquisitorially and inspecting the site, building, and fit-out of the comparable sale at 12 Helen Street, Clinton. [65] That submission cannot be accepted. The first reason is that s 7 of the LCA provides that in the exercise of its jurisdiction, the Land Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate and the Land Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. -- 18 of 26 -- 19 [66] The appellants point to Land Court Practice Direction No. 2 of 201828 concerning site inspections and rule 38 of the Land Court Rules, which permit inspections to be done. The Site Inspection Practice Direction provides that site inspections can provide useful context for the hearing.29 However subordinate legislation or court practice directions cannot limit the effect of s 7 of the LCA 2000. The Site Inspection Practice Direction merely reflects the practice in other courts that a “view” or site inspection is not an evidential matter in a superior court of record. The Land Court, however, is not bound by the rules of evidence, and s 7 explicitly provides that it may inform itself in any way it considers appropriate. [67] At [47]30, the primary judge said: I inspected the building at 12 Helen Street. It is an older building in poor condition. The fit-out is tired. Mr Ferrando told the court there was not matching description for the improvements on 12 Helen Street, and I agree. I also agree that, given the age and condition of the improvements, Mr Ferrando's assessment that the building is a shed is more accurate. [68] Section 7 of the LCA expressly authorises the Land Court to inform itself in a way it considers appropriate. It is apparent that the primary judge's inspection of the building did allow the primary judge to inform herself in a way the primary judge considered appropriate. Accordingly, despite the Site Inspection Practice Direction providing that site inspections can provide useful context for the hearing31, it is plain that s 7 allows the observations made or impressions formed by the Land Court at such an inspection to be taken into account evidentially, and in particular, in the present appeal, as another logical reason for the preference of Mr Ferrando's opinion. Furthermore, the phrase “the fit out is tried” cannot be entirely attributed to any inspection, as there were numerous photographs in evidence supporting the finding that the building at 12 Helen Street was old, in poor condition and had a tired fit out. [69] Ground seven is “The Land Court denied the appellant natural justice by providing inadequate reasons”. The appellant's written submissions,32 appear to develop two arguments. The first argument raised is that the appellant has been denied natural justice because the respondent first raised its challenge to any weight being given to 28 (Site Inspection Practice Direction). 29 At paragraph 1. 30 Decision below. 31 At paragraph 1. 32 ARB 831, at [87] to [92]. -- 19 of 26 -- 20 Mr Sheehan's evidence in its submissions, which was after the hearing. This is a curious submission, as it begs the question as to when any party to a hearing ought to raise an issue of weight. Conventionally, that is done in submissions at the end of the evidential hearing and usually after the expert has been cross-examined with a view to making such a submission. As the appellant conceded upon his appeal, that is precisely what the respondent did. [70] The next complaint made by the appellant is that the Land Court did not adequately explain why no weight was afforded to Mr Sheehan's evidence in the judgment. A reading of the reasons of the primary judge, however, shows that in paragraphs 1 to 26 and 48 to 51, the primary judge thoroughly exposed her reasoning as to why she afforded no weight to Mr Sheehan's evidence. [71] The primary judge did provide adequate reasons for her conclusions. The appeals ought to be dismissed. [72] MEMBER MCNAMARA: I agree with the reasons and orders proposed by Crow J. [73] MEMBER LOOS: I agree with the orders proposed by Crow J. [74] I also respectfully agree with the reasons for judgment of Crow J, save as one matter relating to the nature of a valuation appeal in the Land Court.33 [75] I have a different view as to the nature of the appeal and consequently, the entitlement of parties to lead fresh evidence in a valuation appeal before the Land Court. The Nature of the Appeal [76] The reasons of Crow J conclude that the appeal to the Land Court is a rehearing, with a power to receive additional evidence.34 Crow J concludes that fresh evidence can be permitted before the Land Court on a case by case basis through s 7 of the LCA. [77] Instead of relying on s 7 of the LCA, I prefer the construction of the LVA and LCA that the word “rehearing” as it appears in s 169 (2) of the LVA means a rehearing de novo.35 33 See paragraphs [12] to [32] of Crow J’s reasons. 34 that is, the third type of appeal identified by the High Court in Lacey [57]. 35 the second type of appeal identified by the Court High in Lacey [57]. -- 20 of 26 -- 21 The Statute [78] It has been observed that where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. 36 It depends on the terms of the legislation. [79] Here, the LVA and the LCA are relevant. [80] The principles of statutory construction apply.37 [81] The plurality in CDJ v VAJ reiterated the principle that: …a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature…38 [82] The purpose provision of the LVA offers limited assistance, stating only: 4 Main purpose of Act The main purpose of this Act is to provide for how land is to be valued for particular other Acts. [83] Sections 169, 170, 171, 172 and 256 of the LVA are relevant. Those provisions appear in the annexure to the judgment. [84] The LVA contains indications that “rehearing” in s 169(2) means a de novo rehearing. Those indications are: (a) section 170 states the orders that can be made in valuation appeals. Subsection (b) permits the Land Court to reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under the Act. By that provision, the Court is given the opportunity to engage in a broader, more evaluative process, than simply an examination of error by the administrative decision maker below; 35 37 38 For example, Wakefield v Commissioner of State Revenue [2019] 3 Qd R 414 [18], citing Sperway [621]. SAS Trustee Corporation v Miles (2018) 265 CLR 137[41]; SZTAL v The Minister for Immigration and Citizenship (2017) 262 CLR 362 [35] -[43]; The Queen v A2 (2019) 269 CLR 507 [32][37]. (1998) 197 CLR 172 [110] (McHugh, Gummow and Callinan JJ). -- 21 of 26 -- 22 (b) section 171 states the Court’s power to order costs in a valuation appeal. “Costs” includes “witness allowances for attending to give evidence”; 39 (c) section 256 states evidentiary provisions for valuation appeals. Subsection 3(b) has the effect that a valuer general’s certificate stating the amount of the value of site improvements or non-site improvements concerning the objector’s land is sufficient evidence of that value in the absence of any other evidence enabling the Land Court to conclude another amount should be decided to be the value. (emphasis added) [85] With the indications listed in (a)-(c) above in mind, what the statute calls upon the Land Court to do is engage in an evaluative process (involving evidence), rather than a simple examination of error. The Authorities [86] Separate from the statute, there are indicators from the authorities which reinforce the conclusion that “rehearing” in s 169(2) here means a rehearing de novo.40 Those indicators are: (a) the appeal to the Land Court is an appeal from an administrative decision; (b) there is no judicial process, quasi-judicial process or hearing which results in the land valuation decision being appealed; (c) it is an appeal to a Court, constituted by a Member sitting alone who conducts hearings in open Court. The Court may hear evidence (given on oath or affirmation). Parties have a right to be represented. The Court can award costs. The Court determines the appeal in a way which is final.41 39 LVA s 171(3). 40 Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations (1985) 3 NSWLR 685 at 692, Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427, 442- 443 (Kirby P); Re Schubert [1989] 2 Qd R 99 102. 41 Each of these features was thought to be significant by the Planning and Environment Court in Oakley v Chief Executive Administering the Coastal Protection and Management Act 1995 [2014] QPEC 58, 5. -- 22 of 26 -- 23 [87] The authorities explain the rationale or foundation of those indicators. In Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations42, Kirby P observed: Where an appeal is provided from an administrative body to a court, it may be more readily inferred that the court should not be confined to the materials that were before the authority: Builders Licencing Board v Sperway Constructions (Syd) Pty Ltd (at 621). Doubtless this presumption arises, in part at least, from a disinclination to confine courts with their superior status and fact finding facilities, to the material gathered by an administrator, sometimes lacking the techniques, and often the coercive powers, which courts find useful in the elucidation of disputed issues. [88] Kirby P continued: …a facility of appeal from a senior administrative officer to a statutory tribunal suggests a change in the quality of decision making: the one being private and evaluative in nature, the other being public and adjudicative (d) nature of proceedings: where an authority is required to determine justiciable issues formulated in advance, to conduct a hearing at which the parties may be represented, to take evidence on oath or after affirmation which is subject to cross-examination, to keep a transcript, to apply the rules of evidence and to give reasons for its decision, such an appeal may suggest, especially in conjunction with a reference to “rehearing”, an obligation to provide an appeal facility of rehearing on fresh facts, released from confinement to the initial decision.43 [89] In Kirkpatrick44, the indicators that the appeal was a de novo re-hearing were that (1) the appellate body is called a “court”; (2) it is constituted by a District Court judge appointed by the Governor; (3) he sits alone; (4) he may summon witnesses and hear evidence; (5) he may award costs; and (6) he may determine the matter and such determination shall be final. All of these suggest a body having full power to conduct an appeal from an administrative decision, in a judicial way and on the merits. 45 What about section 172(1) of the LVA? [90] The word “rehearing” is also used in s 172(1) of the LVA, to describe an appeal from the Land Court to the Land Appeal Court. [91] The same word in an Act is to be given the same meaning unless there is a reason to do otherwise.46 [92] Here, there is reason to give a different meaning to the word as it appears in s172(1). 42 (1985) 3 NSWLR 685. 43 Ibid 692. 44 Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427. 45 Ibid 442-443 (Kirby P). 46 Registrar of Titles v Franzon (1975) 132 CLR 611, 618. -- 23 of 26 -- 24 [93] In s 172(1) the word “rehearing” does not mean a rehearing de novo. [94] That is because: (a) section 56 of the LCA identifies that a Land Appeal Court appeal must be decided on the evidence on the record of the Land Court proceeding (with a specified qualification); and (b) for an appeal from one court to another to be a rehearing de novo would “have the practical effect of obliterating the distinction between original and appellate jurisdiction”.47 Conclusion [95] The indicators in the statute, operating in concert with the indicators from the authorities, lead to the conclusion that “rehearing” in s169(2) of the LVA means a rehearing de novo. [96] That is, a rehearing at which the parties are entitled to introduce additional or fresh evidence48 – without recourse to s 7 of the LCA. [97] As the majority have concluded, the appeal ought to be dismissed. Orders 1. Each appeal is dismissed. 2. By 4:00pm on Friday, 8 May 2026, the parties may file a written outline of submissions of no longer than five pages as to the costs of the appeal. 47 CDJ v VAJ (No. 2) (1998) 197 CLR 172 [111] (McHugh, Gummow and Callinan JJ). 48 Subject, of course, to the principles of admissibility and subject to the case management of the Land Court. -- 24 of 26 -- 25 Annexure A 169 Nature of hearing (1) The hearing must be limited to the grounds stated in the valuation appeal notice. (2) The appeal must be by way of a rehearing. Note— See also section 256 (Particular evidentiary provisions for valuation appeals). (3) However, the appellant has the onus of proof for each of the grounds of appeal. … 170 Order on valuation appeal The Land Court may— (a) confirm the valuation appealed against; or (b) reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under this Act. Note— The Land Court Act 2000 and the rules under that Act apply for valuation appeals and further appeals to the Land Appeal Court— see sections 5 and 21 of that Act. … 171 Costs (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; (b) a party has not been given reasonable notice of intention to apply for an adjournment; (c) an applicant for an adjournment incurred costs because of the other party’s conduct; (d) a party incurred costs because the other party did not comply with the court’s procedural requirements; (e) without limiting paragraph (c), a party incurred costs because the other party introduced, or sought to introduce, new material; (f) a party did not properly discharge the party’s responsibilities for the appeal. (3) In this section— costs includes witness allowances for attending to give evidence. … 172 Provisions for appeals to Land Appeal Court (1) An appeal to the Land Appeal Court against a decision on a valuation appeal (the further appeal) must be by way of a rehearing. Note— For the right of appeal, see the Land Court Act 2000, section 64. (2) The member of the Land Court who constituted that court in the valuation appeal must not hear the further appeal. (3) Sections 170 and 171 apply for the further appeal as if a reference in the sections to the Land Court were a reference to the Land Appeal Court. … -- 25 of 26 -- 26 256 Particular evidentiary provisions for valuation appeals (1) This section applies for a valuation appeal. (2) However, this section does not limit the application of any other provision of this division to a valuation appeal. (3) A valuer-general’s certificate stating the amount of the value of site improvements or non-site improvements concerning the objector’s land is— (a) evidence of the value of the site improvements, non-site improvements or of all of the improvements; and (b) sufficient evidence of that value in the absence of any other evidence enabling the Land Court to conclude another amount should be decided to be the value. (4) A valuer-general’s certificate stating a document was received by the valuer-general from the appellant during the course of the objection is evidence of the contents of the document and any opinions contained in it. -- 26 of 26 --