26th January 2019 marked not only the anniversary of
Captain Cook’s the First Fleet’s settlement invasion of Australia but also the addition of various people to the ‘Order of Australia’, including nineteen new Companions of that Order, a group that now numbers over 500 Australian civilians. As well as singer Olivia Newton-John, tennis player Roy Emerson and children’s author Jennifer Rowe, the latest batch includes two sitting High Court justices:
The Honourable Justice Michelle Marjorie GORDON Parkes ACT 2600 For eminent service to the judiciary, and to the law, to legal education and judicial administration, as a role model, and to the community.
The Honourable Justice Geoffrey Arthur NETTLE Kingston ACT 2604. For eminent service to the judiciary, and to the law, to criminal and civil appeals reform, to legal education, and to professional standards.
Honours for sitting High Court justices are nearly always for ‘services to the law’ – and, since French CJ’s award, ‘for eminent service’ to either ‘the law and the judiciary’ (French CJ & Kiefel, Keane and Gageler JJ) or ‘the judiciary and the law’ (Bell J and, now, Gordon & Nettle JJ.) Justice Gordon is the first High Court justice to be cited as a ‘role model’.
This year marks the first time in three decades that two justices have been honoured in a single year. Continue reading →
By Barry Diamond
How is a mining company valued? Does it have goodwill? How does the goodwill analysis impact the valuation of the company’s land? What role do the facts, evidence and relevant taxing statute (the context) have to play in the analysis? These were the key questions to be answered by the High Court in Commissioner of State Revenue v Placer Dome Inc  HCA 59. The decision arose from a Western Australian stamp duty dispute, but it has implications far beyond stamp duty. It is significant for what it says about approaches to valuation methodology and evidence, the nature of goodwill and the contexts in which each of these things are considered. Placer Dome Inc was a substantial gold mining company with land and mining tenements around the world, including in WA. Barrick Gold Corporation was one of the largest gold mining companies in the world. Barrick led a hostile takeover of Placer. The acquisition was the largest of its kind in the gold industry. The amalgamated entity was to become the world’s largest gold mining business.
The decision concerned the ‘land rich’ rules in the former Stamp Act 1921 (WA) (and which have since been replaced with ‘landholder’ rules). Under these rules, a corporation was land rich if 60 per cent or more of the corporation’s total property (by value) comprised land (situated anywhere in the world). The land rich ratio was therefore total land (the numerator) divided by total property (less certain property excluded by the Stamp Act) (the denominator). If a person acquired a controlling interest in a land rich corporation, stamp duty was payable on the value of the corporation’s landholdings in WA.
Was Placer Dome ‘land rich’?
The Commissioner of State Revenue assessed Barrick’s acquisition for duty of $55 million on the basis Placer was a land rich corporation. Was this correct? The answer to this question required a closer examination of the numerator and denominator of the land rich ratio. Was the land (numerator) correctly valued? Was the total property (denominator) correctly identified and valued, and, in particular, was there goodwill (of substantial value) which could be included as property in the denominator? Continue reading →