50 Long Pty Ltd as TTE v Valuer-General; Roma Street Properties Pty Ltd as TTE v Valuer-General [2017] QLC 50

LAND COURT OF QUEENSLAND CITATION: 50 Long Pty Ltd as TTE & Anor v Valuer-General; Roma Street Properties Pty Ltd as TTE v Valuer-General [2017] QLC 50 PARTIES: LVA1115-16: 50 Long Pty Ltd as TTE & Arras Pty Ltd as TTE (applicants) v Valuer-General (respondent) LVA1116-16: Roma Street Properties Pty Ltd as TTE (applicant) v Valuer-General (respondent) FILE NO/s: LVA1115-16 LVA1116-16 DIVISION: General division. PROCEEDING: Hearing of an application-jurisdiction DELIVERED ON: 6 September 2017 DELIVERED AT: Brisbane HEARD ON: 31 May 2017 HEARD AT: Brisbane JUDICIAL REGISTRAR: GJ Smith ORDER/S: LVA1115-16 1. The application is refused. 2. The Court does not have jurisdiction to hear LVA1115-16. -- 1 of 18 -- 2 LVA1116-16 1. The application is refused. 2. The Court does not have jurisdiction to hear LVA1116-16 CATCHWORDS: PRACTICE AND PROCEDURE – Failure to file notice of appeal in time – Land Valuation Act 2010, sections 157 and 158 –– whether lost in the ordinary course of post–– whether reasonable excuse exists –– substantive nature of application –– conclusionary evidence –– onus of proof–– equity and good conscience–– provisions of Land Court Act 2000. Land Valuation Act 2010 s 157, s 158 AG Russell v The Crown (1992-93) 14 QLCR 202 Anthony v Department of Natural Resources [2000] QLC 72 Body Corporate for Parklands CTS and Anor v. Department of Natural Resources and Water (2009) 30 QLCR 50 Dafallah v Fair Work Commission [2014] FCA 328 at [127] James & Cooktown Earthmoving & Quarrying Pty Ltd v Department of Environment and Resource Management [2010] QLC 134 Director-General, Department of Transport v Congress Community Development and Education Unit Ltd (1998) 19 QLCR 168 Jackamarra v Krakouer (1998) 195 CLR 516 R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965)1 QB 465 Villa Sul Mare v Valuer-General [2011] QLC 77 APPEARANCES: NP Murphy, as agent, Savills Valuations, for the applicants TW Quinn of Counsel, instructed by In-house Legal, Department of Natural Resources and Mines for the respondent. Background [1] These applications require the Court to determine whether it has jurisdiction to hear and determine two appeals lodged pursuant to s 157 of the Land Valuation Act 2010 (the LVA). Although each matter involves a different owner, the applications were heard together as in each case the representatives are the same and the evidence not materially different. These reasons relate to both proceedings, LVA 1115-16 and LVA 1116-16 -- 2 of 18 -- 3 [2] In each case the proposed appeal has been filed 100 days late and is only able to be heard if “reasonable excuse” is objectively1 demonstrated by the applicants on the balance of probabilities. [3] Section 157 (2) of the LVA provides – (2) Subject to section 158, an appeal cannot be started after 60 days after the day of issue stated in the objection decision notice (the appeal period). [4] Relevantly, s 158 of the LVA provides – “158 - Late filing (1) This section applies if a valuation appeal notice is filed after the appeal period has ended. (2) The Land Court can hear the appeal only if— (a) the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and (b) the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period. Example of reasonable excuse— The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post.” [5] Upon the hearing of these applications, Mr NP Murphy, a valuer of Savills Valuations Pty Ltd represented the applicants and Mr TW Quinn of Counsel instructed by In-house Legal, Department of Natural Resources and Mines (DNRM) represented the respondent. The applicants evidence [6] On behalf of the applicant in each case an affidavit of Neil Patrick Murphy was filed. The affidavits (Exhibit 1) are almost identical, were filed on 26 October 2016 and depose to the following matters: i. Mr Murphy is National Head of Advisory at Savills Valuations Pty Ltd ii. Mr Murphy is authorised to act on behalf of the appellant in each case. iii. Mr Murphy deposes to the following matters from his own knowledge by virtue of his day to day involvement in the proposed appeals. iv. The Annual Valuation Notice in respect of each property was issued by the Valuer-General on 2 March 2016. (Exhibit NPM-01) 1 AG Russell v The Crown (1992-93) 14 QLCR 202 at 204. -- 3 of 18 -- 4 v. On 3 May 2016 Savills, on behalf of each appellant lodged an online objection. Savills is identified as the appellant’s agent on the Online Valuation Objection System (the system)2. (Exhibit NPM-02) vi. On 13 May 2016 Savills, received correspondence dated 7 May 2016 from the Valuer-General confirming receipt of the Online Objection Lodgement. The correspondence noted that the objection was properly made and the time required to make a decision depended on several factors. (Exhibit NPM-03) vii. On 16 August 2016, it came to the attention of Mr Murphy and Savills that a Decision on Objection had not been received by post for these matters. On that same day, Savills ascertained, by looking on the system, that Decisions on Objection had been issued but had not been received by post which would ordinarily be the case. Following a review of the system, Savills contacted DNRM on 16 August 2016 in relation to the status of the Online Objection Lodgement. viii. On the afternoon of 16 August 2016, Savills received email correspondence from Ms Ashman, Senior Land Officer DNRM, enclosing the Decisions on Objection dated 18 May 2016. Ms Ashman noted in her correspondence that the 60 appeal period had expired and any application would need to be discussed with the Courts. (Exhibit NPM-04). ix. Later on 16 August 2016, Mr Murphy contacted Ms Belinda Harris, Executive Officer of the State Valuation Service, to escalate the matter and obtain a more meaningful response as to why Savills had not received the Decisions on Objection in circumstances where the system indicated they had been issued on 18 May 2016. x. On 17 August 2016, Savills received correspondence from Ms Ashman. Savills subsequently determined, through a review of the system, that it had not received any of the Decision on Objection notices issued on 18 May 2016. (Exhibit NPM-05). xi. At 12.16 pm on 17 August 2016, Mr Murphy emailed Ms Belinda Harris to notify DNRM of the irregularity. (Exhibit NPM -06). 2 Valuer-General’s Online Valuation Objection System. -- 4 of 18 -- 5 xii. Based upon Mr Murphy’s experience in the field, it is common practice that all Decision on Objection notices are delivered by the ordinary course of post. It was always contemplated by Mr Murphy and Savills that a decision on objection would be posted to the nominated address. Therefore, Mr Murphy and Savills would not have reason to review the system to determine the issued dates for each decision on objection. Further, given the significant number of objections which have been lodged by Savills, it is not practical to review the system to determine the status of each document. Nor would it be necessary to do so when the notices have always been received by post. xiii. In Mr Murphy’s professional opinion, and based on his experience in the field, the time taken by the delegate of the Valuer-General to make a decision can vary greatly between matters and therefore it would be difficult to determine the date when a decision ought to have been received by. xiv. On 16 August 2016, Savills received the Decisions on Objection. By this time the appeal period had expired. It follows that it was not possible to lodge a Notice of Appeal within the appeal period. Mr Murphy (and Savills) only became aware of the Decision on Objection after the appeal period had expired. xv. Consequently, the appellants’ Notices of Appeal were filed outside the appeal period but within a year or less after the issue of the Decision on Objection. In Mr Murphy’s view, the appellant has a reasonable excuse for not filing the notices within the appeal period. xvi. All the facts and circumstances deposed to above are within Mr Murphy’s own knowledge save such as deposed to from information only and my means of knowledge and sources of information appear on the face of this my affidavit. The respondent’s evidence -- 5 of 18 -- 6 [7] On behalf of the respondent, an affidavit of Theresa Dunn, Senior Land Officer, Department of Natural Resources and Mines was filed on 29 May 2017. Ms. Dunn deposes to the following matters: i. That on 26 May 2017 she searched the Department’s records (QVAS) regarding the annual valuation notices issued by the Valuer-General in respect of the subject properties for date of valuation 1 October 2015. The records that were located as a result of the search were exhibited to Ms Dunn’s affidavit and included true and correct copies of annual land valuation notices, objections and decisions on objections for the subject properties for the 1 October 2015 annual valuation. (Exhibit TD1). ii. The QVAS records show that the annual valuation notices were issued and posted on 2 March 2016 to the addressees and addresses recorded on the notices iii. Further, the QVAS records show that the relevant objections were lodged as agent by Neil Murphy of Savills and were received by online lodgement on 3 May 2016 and entered into QVAS on 3 May 2016. iv. For the 1 October 2015 annual valuation date, the QVAS records show that there were 519 objections lodged with Mr Neil Murphy listed as the owners contact agent with the postal service address details included as Savills, GPO Box 2607 Brisbane Qld 4001. v. QVAS records show that the only objection decision notices issued and posted by ordinary mail on 18 May 2016 to the landowners, at care of Neil Murphy, Savills, GPO Box 2607 Brisbane Qld 4001 were the two objection decision notices in respect of the subject properties. vi. Ms Dunn searched the Department’s records and found no record or trace of the objection decision notices having been returned to the Department as sender. vii. All objections to annual valuation notices lodged online are able to be monitored online regarding the decision making process including when decisions on objections are made and whether an objection is allowed or dis- -- 6 of 18 -- 7 allowed. When a decision on objection is posted online, on the same day a decision notice is posted by ordinary mail. If there are multiple decision notices issued and posted on the same day to the same postal address, the notices are put in the same envelope. Applicant’s submissions [8] Mr Murphy made oral submissions in support of a finding that “reasonable excuse” be established on the basis of the affidavit evidence sworn by him. The submissions were generally directed toward case law concerning the definition of “reasonable excuse”. His oral submissions informally referenced judgments by name only without any citation reference. Notwithstanding this approach, the cases referred to are well known and readily identifiable. In these reasons the Court has included a full citation as a footnote for the purpose of cross referencing the informal citations provided by Mr. Murphy. The contentions are set out as follows: i. Relevant cases include Barry James3, Villa Sul Mare4 and Anthony5, Department of Transport v Congress Community6. Anthony provides a summary of the authorities regarding “reasonable excuse” and also refers to the High Court decision of Kirby J in Jackamarra v Krakouer7. ii. The circumstances of this case are deemed to be a reasonable excuse as s 158 (2) (b) of the LVA provides an example of reasonable excuse as the objection decision notice being lost or delayed in the ordinary course of the post. iii. Savills are the agent and it is not the fault of the client that Savills or Mr Murphy missed the date for filing or lodging the appeal in time. Savills act as professionals and agents who are employed by the client who thinks the process is being looked after for them. But it is not the fault of the owners that we missed the date. 3 James & Cooktown Earthmoving & Quarrying Pty Ltd v Department of Environment and Resource Management [2010] QLC 134. 4 Villa Sul Mare v Valuer-General [2011] QLC 77. 5 Anthony v Department of Natural Resources [2000] QLC 72. 6 Director-General, Department of Transport v Congress Community Development and Education Unit Ltd (1998) 19 QLCR 168. 7 (1998) 195 CLR 516. -- 7 of 18 -- 8 Respondent’s submissions [9] The submissions made on behalf of the respondent are summarised below: i. Matters arise in the context of one firm having lodged 519 objections in respect of the 1 October 2015 valuation. ii. The question for determination in respect of each proceeding is whether it can be said on the whole of the evidence that “the Appellant satisfies the Court there was a reasonable excuse for not filing the Notice within the appeal period”. iii. Subject to an evaluation of the evidence tendered by the appellant, it is apparent that the Land Court has no jurisdiction because: a. The appellants made objections on 3 May 2016; b. The Valuer-General’s decisions disallowing those objections were notified to the Appellant by notices of objection issued and dated 18 May 2016; c. The 60 day appeal period therefore expired on 17 July 2016 d. The purported appeals were not lodged in the registry until 26 October 2016 and were therefore well out of time. iv. The evidence tendered by the appellant is unsatisfactory in form and insufficient to justify any conclusion “there was a reasonable excuse for not filing the Notice within the appeal period” because: a. Savills has a large Brisbane office, 87 people, not including administration assistants such as Ms Harmsworth. b. Savills had 519 objections in relation to a single valuation year. c. The affidavit of Mr Murphy, the National Head of Advisory at Savills Valuations Pty Ltd, provides no insight into his firm’s procedures or mechanisms regarding collection of mail, distribution of mail within the firm, filing of objection decision notices for the large number of matters on hand, the monitoring of notification of -- 8 of 18 -- 9 such decisions, the programming for obtaining instructions in relation to such decisions and the actioning of appeals in response to such decisions. d. At the domestic level the equivalent would be a failure to explain whether a resident bothered to check their letterbox for mail, where they would put the mail, how many others might pick up items of mail and how often a particular member of the household might bother to open their mail. e. Bald references to “the system” are quite uninformative and provide no factual basis to assess reasonableness. f. Argumentative unqualified opinion in attempted justification of his position, such as offered by Mr Murphy, will not suffice. The reasoning is inherently unpersuasive; g. No quality assurance is provided by Mr Murphy; h. High level conclusions, rather than basic factual information indicates confusion and potential inconsistency with difficulty in acceptance of the reasoning where a 60 day time period is involved. i. Inherent unlikelihood of a person as senior as Mr. Murphy actually being involved with the collection and distribution of mail and the absence of any affidavit from the person actually performing the collection and distribution function coupled with the absence of any explanation for the lack of an affidavit from that person j. Absence of any explanation of any inward mail recording system, the volume of mail and the number of files searched or ignored in any search for the notices, assuming such a search was in fact undertaken. v. For a Court to conclude that a reasonable excuse exists for delay, there must first be identified an actual cause of the delay vi. There is no evidence at all to inform the Court of the extent to which there was any demarcation or division of responsibility between the appellant -- 9 of 18 -- 10 companies and Savills. The Court just doesn’t assume that the appellants have relied wholly or to some unidentified extent upon the role of Savills. There is no evidence about the extent of reliance. It is for the client to actually depose to that as a fact because it is a fact that can’t just be spirited out of thin air. vii. The actions of an agent are in fact the actions of the company because the company doesn’t exist independently of the actions of its agents and their actions are the actions of the company. Decided Cases / Authorities [10] In Director-General, Department of Transport v Congress Community Development and Education Unit Ltd 8 (Congress Community) the Land Appeal Court was required to determine if there was a reasonable cause pursuant to s 44(11)(d) of the Land Act 1962 for the late lodgement of a notice of appeal (the lodgement was one day late). Muir J reviewed a number of earlier cases and concluded that: "In my view, the above authorities support the conclusion that for a reasonable excuse to exist it is not necessary that the conduct of the applicant (by itself or its agents) be blameless. The expressions under consideration are broad in meaning and quite apt to cover a "slip" of the nature of that made by the employee of the Crown Solicitor. One should not lose sight of the fact that the provision under consideration is remedial in nature, having been introduced in order to ameliorate the harsh consequences of a failure to comply with the requirements of s 44(11)(a) and (b) …"9 [11] Muir J went on to consider the meaning of “reasonable cause or explanation” and observed that: “Those authorities though, offer assistance in an assessment of whether any given conduct satisfies the statutory test but each application must be considered on its own merits and by reference to its own facts. In my view, the conduct discussed above is consistent with a reasonable standard of conduct. It is the kind of thing which might be expected to delay the "taking of action by a reasonable man".10 [12] The application was granted by Muir J and in doing so decided that it was not necessary “to consider whether, on an application such as this, the applicant is necessarily fixed with his agent's conduct to the extent that the agent's conduct is in all respects to be treated as that of the applicant”.11 8 (1998) 19 QLCR 168. 9 Ibid at 171. 10 Ibid at 172. 11 Ibid at 172. -- 10 of 18 -- 11 [13] Notwithstanding the approach taken by Muir J, the others on the Court, Member Wenck and Member Divett granted the application on the basis of the more flexible approach. The Members stated: "That does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgement of the notice and payment of the prescribed fee, is, in our opinion, the fact that the solicitor failed in the duty entrusted to her. The applicant had done everything that should have been expected of him. The facts indicate that the solicitor acted reasonably at least until the last week of the prescribed period, in taking the instructions of her employer's client to the stage of having a notice of appeal prepared in its settled form, ready for checking, signing, service and lodgment. There was a personal work system in place to ensure things were not forgotten but that system was not properly implemented and failed.”12 [14] The decision in Anthony v Department of Natural Resources13 involved an examination of the meaning of “reasonable excuse” as set out in s 57(2) of the Valuation of Land Act 1944 (VOLA) in circumstances where the late filing had been occasioned by an incorrectly addressed letter, and compounded by non-compliance with a requisition by the Registrar under s 58 (3) of the VOLA. Member Divett noted: “In seeking understanding of the term "a reasonable excuse", I am directed by Mr Paterson to the findings of the Land Appeal Court in AG Russell v. The Crown (1992-93) 14 QLCR 202. That matter dealt with failure by the appellant to meet the strict time limitations imposed under s.44(11)(a) and (b) of the Land Act 1962. In the circumstances then prevailing under the Land Act 1962, the Land Appeal Court found at page 204: "Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation." The Land Appeal Court rejected the claim by the appellant that ill health had been the reason for the late lodgment of the appeal, noting any lack of particularity to support such a claim.”14 [15] Later in his reasons Member Divett added: 12 Ibid at 173. 13 [2000] QLC 72. 14 [2000] QLC 72 at 7. -- 11 of 18 -- 12 “The question to which I should address my mind was clearly espoused in Stevens v Motor Vehicle Insurance Trust (1978) WAR 232, where in the Full Court Burt CJ said at page 235: "What one is looking for is some 'cause' which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the 'taking of action' by a reasonable man. (See Quinlivin v. Portland Harbour Trust (1963) VR 25 at 28 per Sholl J)." 15 [16] The judgment of Member Jones (as he was then) in Body Corporate for Parklands CTS & Anor v C/E DNRW16(Parklands) concerned an application to determine jurisdiction pursuant to s 57 of the VOLA in circumstances where the Notice of Appeal was 6 months out of time. A solicitor retained by the applicant after the expiry of the appeal period swore an affidavit for the purposes of attempting to establish reasonable excuse pursuant to s 57 of the VOLA. [17] The Court noted that the contended factual basis of the “reasonable excuse” was that: “… The letter was not apparently received by the previous Body Corporate manager who say they would have sent it on to the new Body Corporate manager. The new Body Corporate manager did not receive it. There can be no explanation for the non receipt of the letter. It cannot be found and there is no record of it being received.”17 [18] The Court, on balance, concluded that it was “more likely than not that the subject notice was issued by way of normal post addressed appropriately to and received by the first managers”18, and observed that “It is also submitted on behalf of the applicants that the applicants should not bear the consequences of non performance by their agent or agents”.19 [19] A central issue in the Parklands application was the hearsay nature of the affidavit relied upon to establish “reasonable excuse”. Member Jones (as he was then) made the following observations regarding the nature of the application and the evidence in support: “[15] Before proceeding further with this matter I should deal with some specific submissions made by Mr Fynes-Clinton, counsel for the respondent. Mr Fynes-Clinton properly described this application as being 15 Ibid at 9. 16 (2009) 30 QLCR 50. 17 Ibid at [11]. 18 Ibid at [14]. 19 Ibid at [12]. -- 12 of 18 -- 13 substantive rather than procedural in character. And, that pursuant to s (57)(1) a two step process is involved. First, the applicants must clearly put before the Court an excuse established by probative evidence upon which it relies for relief. It is only then that the next step arises, namely whether or not, in the facts and circumstances of the case, the excuse relied on is “reasonable”. I agree with this analysis. [16] Mr Fynes-Clinton submits further that in this application the applicants fail at the first hurdle because the evidence relied on is, in nearly all material respects, merely hearsay and applications such as this require direct evidence to establish the excuse relied on. [17] I have considerable sympathy for the approach advocated by Mr Fynes-Clinton. Save for those cases where the Court is satisfied that there are sufficient grounds for accepting hearsay evidence, applications such as this should be supported wherever practicable by direct evidence. [18] Section (7) of the Land Court Act 2000 (LCA) of course provides that the Land Court is not bound by the rules of evidence and 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. Section (7) however does not provide a blanket excuse or basis for not putting before the Court probative evidence capable of being tested by the other side. It is well established that statutory provisions such as s (7) of the LCA permits the Court to resort to common sense judgement in the circumstances of the case before it. However, that does not mean that the Court can act in an arbitrary way. It must still apply appropriate legal principles including the standard of being satisfied on the balance of probabilities. The equity and good conscience provisions do not empower the Land Court or the Land Appeal Court to ignore established principles of law or to dispense justice other than in accordance with basic principles of natural justice to all parties. [19] In re Pochi and Minister for Immigration and Ethnic Affairs (at 41) Brennan J stated: “Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence”. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence as such, do not bind, every attempt must be made to administer “substantial justice”. That does not mean, of course, that the rules of evidence that have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence…". [20] In the course of his reasoning Brennan J cited with approval observations made by Diplock LJ in RV Deputy Industrial Inquiries Commission, Ex parte Moore (at 488) where his Lordship observed that the technical rules of evidence form no part of the rules of natural justice but a -- 13 of 18 -- 14 decision of the tribunal of fact must be based on evidence which is logically probative. [21] I respectfully agree with the observations of Brennan J but it must be stressed that I am not attempting to formulate a test or rigid formula applicable to all applications brought in the Land Court. Each must be dealt with on its own facts, circumstances and merits. [22] The force and effect of s (7) of the LCA must not be construed in such a way as to limit the flexibility Parliament intended the Land Court to have in the exercise of its jurisdiction. However, in applications such as this and in many other cases no doubt, hearsay evidence, if admitted, runs the real risk of unfairly advantaging one party and disadvantaging the other. That is so because the evidence cannot be adequately challenged or otherwise tested.20 (Citations omitted) Conclusion / Determination [20] Clearly, each application must be considered on the basis of the facts, circumstances and merits21 surrounding the delayed filing of the appeal notice and the existence or otherwise of a reasonable excuse determined on evidence that is logically probative.22 [21] Although the parties’ submissions have focused on whether it is more likely than not that the relevant notices had been lost or delayed in the post, it is important that this issue not be considered in isolation from the totality of the overall evidence. [22] It is not in dispute that the relevant objection decision notices were issued by the respondent on 18 May 2016 and that the final date upon which an appeal could have been filed was 17 July 2016. [23] If it is assumed for present purposes, that the objection decision notices were in fact lost in the ordinary course of post and first received by Mr Murphy on 16 August 2016 and the Notices of Appeal filed on 26 October 2016, a delay in the order of 100 days has accrued. However, also on this assumed basis, the delay occasioned by the objection notices being lost in the post is in the order of 30 days (17 July 2016 to 16 August 2016). 20 Body Corporate for Parklands CTS and Anor v Department of Natural Resources and Water [2009] 30 QLCR 50 at [15]-[22]. 21 Ibid. 22 R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 465 at 499. -- 14 of 18 -- 15 [24] It is against this background that the Court must determine whether, as a matter of fact, the objection decision notice was lost in the ordinary course of the post as contended on behalf of the applicants. [25] The most relevant evidence concerning this issue is contained in paragraphs 7 and 10 of the affidavit of Mr Murphy in proceeding LVA1115-16 and paragraphs 7 and 9 of Mr Murphy’s affidavit in proceeding LVA1116-16. Paragraph 7 is slightly different in each affidavit whilst paragraphs 9 and 10 are identical in each. For the sake of clarity the relevant paragraphs are set out below: LVA1115-16 Para 7: “On 16 August 2016, it came to my (and Savills) attention that a Decision on Objection had not been received by post for this matter. On that same day, Savills ascertained by looking on the system, that a Decision on Objection had been issued although it had not been received by way of post which would ordinarily be the case. Following a review of the system, Savills contacted DNRM on 16 August 2016 in relation to the status of the Online Objection Lodgement”. LVA1116-16 Para 7: “On 16 August 2016, it came to my (and Savills) attention that a Decision on Objection had not been received by post in relation to another Online Objection Lodgement (‘matter no.1’). On that same day, Savills ascertained by looking on the system, that a Decision on Objection had been issued for matter no.1 although it had not been received by way of post which would ordinarily be the case. Following a review of the system, Savills contacted DNRM on 16 August 2016 in relation to the status of matter no.1 and more broadly the status of all of its lodgements. In particular, Savills was concerned that other notices may have issued and not been received.” LVA1115-16 Para 10 and LVA1116-16 Para 9 [identical except for exhibit numbers] “On 17 August 2016, Savills received correspondence from Ms Ashman. Exhibited hereto and marked NPM-05/NPM-03 is a copy of the correspondence. Savills subsequently determined, through a review of the system, that it had not received any of the Decision on Objection notices issued on 18 May 2016. [26] In weighing the evidence, it must not be overlooked that applications of this type are of a substantive nature and therefore “should be supported wherever practicable by direct evidence.”23 23 Body Corporate for Parklands CTS and Anor v Department of Natural Resources and Water (2009) 30 QLCR 50 at [17]. -- 15 of 18 -- 16 [27] Each of Mr Murphy’s affidavits have been considered in light of the respective submissions regarding “reasonable excuse”. I agree with the submission by counsel for the respondent that the relevant paragraphs are of a conclusionary nature and fail to reveal any of the underlying facts that might have led to the stated conclusion. The weight that can be attributed to this type of evidence24 is a significant factor when determining if reasonable excuse is established on the balance of probabilities. [28] Aside from the issue of weight, the absence of any underlying factual basis also precludes any objective assessment of the reasonableness being undertaken by the Court. Given the nature of the contended excuse it is surprising that Mr Murphy’s affidavits do not address any of Savills office procedures for the collection, receipt, handling or filing of objection decision notices or detail of any physical search or internal enquiries undertaken to locate the objection decision notices. [29] Further, it is also surprising that neither application is supported by any affidavit evidence from Ms Nadine Harmsworth, the Administration Assistant within the Statutory Valuations team at Savills Australia. Ms Harmsworth is referred to in several of the exhibits25 to Mr Murphy’s affidavits and, given her central role it seems likely that she would be well placed to give direct evidence of the relevant office procedures and circumstances. [30] I find the nature and extent of the evidence deposed to by Mr Murphy insufficient to enable the Court to find, on the balance of probabilities, that each objection decision notice was lost in the ordinary course of the post as contended. [31] Although it was submitted by Mr Murphy that the basis upon which “reasonable excuse” was sought to be established26 was that each objection decision notice was lost in the ordinary course of post, the specific contentions appear to also address what is referred to as the “second limb” of the Land Appeal Court decision in Congress Community27. This decision has been discussed earlier at paragraphs [10] to [13] of these reasons. 24 Dafallah v Fair Work Commission [2014] FCA 328 at [127]. 25 Ex 1, NPM-04 Page 1, NPM-05 Page 1, NPM-06 Pages 1 and 2. 26 T 1-14, lines 5 to 20. 27 (1998) 19 QLCR 168 at 173. -- 16 of 18 -- 17 [32] The reasoning of Member Wenck and Member Divett in Congress Community was considered in Body Corporate for Parklands CTS and Anor v. Department of Natural Resources and Water. Member Jones (as he was then) said: “[32] I have also concluded that the submission made on behalf of the applicants to the affect that the consequences of any fault of their agents should not be visited upon them. In the Congress Community case the other Members of the Court agreed that, in the circumstance of that case, the application should be allowed but went on to say: ‘… that does not imply however that, in our opinion, there was a reasonable excuse for the conduct of the solicitor to whom the applicant had entrusted the institution of the appeal. The reasonable cause and explanation of the lateness of the service and lodgment of the notice and payment of the prescribed fee is, in our opinion, the fact that the solicitor failed in the duty entrusted to her. The applicant had done everything that should have been expected of him.’ [33] If by that statement the learned Members meant to convey that provided the applicant engaged an appropriate agent and gave appropriate instructions that will save the applicant in all cases where the agent has failed to carry out the duty entrusted to him then I must respectfully disagree. I prefer the reasoning of Muir J which requires all of the relevant facts and circumstances of the case to be considered in determining whether or not reasonable excuse has been established and, the expression “reasonable excuse” is broad enough in its meaning to cover a “slip” made by the applicant’s agent. In this regard in Union Fidelity Trustee Company v. The Coordinator General the Land Appeal Court said: ‘It must not be thought that in this case the Court is imposing any rigid formula as to what is or is not reasonable cause or reasonable explanation. Each case will be decided on its own facts.’ [34] In any event, the reasoning of Mr Wenck and Dr Divett do not assist in this case. There is no probative evidence that would support a finding that ‘the applicants had done everything that should have been expected by (them)’…”28 [33] I agree with the preceding analysis of Member Jones and consider that his observations are relevant when considering the evidence relied upon by the applicants to establish “reasonable excuse”. I do not consider that there is sufficient probative evidence that would permit the Court to find that a reasonable excuse was established on the basis of the reasoning of Member Wenck and Member Divett in Congress Community29. Further, the absence of such evidence again precludes the Court from being able to undertake any useful examination of the facts and circumstances that might have demonstrated a reasonable excuse on the basis of some fault or omission on the part of Mr Murphy or Savills. 28 (2009) 30 QLCR 50 at [32] to [34]. 29 (1998) 19 QLCR 168 at 173. -- 17 of 18 -- 18 ORDERS: LVA1115-16 1. The application is refused. 2. The Court does not have jurisdiction to hear LVA1115-16. LVA1116-16 1. The application is refused. 2. The Court does not have jurisdiction to hear LVA1116-16. GJ SMITH JUDICIAL REGISTRAR OF THE LAND COURT -- 18 of 18 --