HIGH COURT SUCCESS FOR PARK LEGAL SOLUTIONS’ CLIENTS

On 14 September 2018, Park Legal Solutions acted for 2 successful respondents to applications for special leave to appeal to the High Court of Australia from the seminal decision of the Full Court of the Federal Court in Ellison v Sandini Pty Ltd & Ors [2018] FCAFC 44 in which our clients were also successful.

Sandini primarily concerned the availability of “CGT roll-over relief” under Commonwealth taxation legislation and the meaning of beneficial ownership of shares in a publicly listed company; Mineral Resources Limited.

Much has already been written about the effect of the Sandini case since Justice McKerracher delivered the first instance decision on 22 March 2017.

Our clients then successfully appealed the first instance decision to the Full Court of the Federal Court. The majority reasons in the successful appeal to the Full Court of the Federal Court were delivered by Justice Jagot with whom Justice Siopis concurred and Justice Logan dissenting.

The “Sandini Parties”, as they became known in the court proceedings, sought special leave to appeal the Full Federal Court’s decision to the High Court. The High Court of Australia comprised of Justices Bell and Gordon sitting at Sydney refused that application and ordered the “Sandini Parties” to pay our clients’ costs of the proceedings.

The Park Legal Solutions team at first instance, on appeal before the Full Court and before Justices Bell and Gordon of the High Court of Australia comprised our principal John Park who also appeared as junior counsel (led by Stephen Owen-Conway QC before the Federal Court and Helen Symon QC before the High Court of Australia respectively) and Jack Carroll as instructing solicitor.

You can access copies of the various decisions comprising the Sandini story (so far) at:

Sandini Pty Ltd atf Karratha Rigging Unit Trust & Ors v Ellison; v Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] HCATrans 190.

Ellison v Sandini Pty Ltd & Ors [2018] FCAFC 44.

Ellison & Anor v Sandini Pty Ltd & Ors (No 2) [2018] FCAFC 67.

Sandini Pty Ltd v Commissioner of Taxation & Ors [2017] FCA 287.

Sandini Pty Ltd v Commissioner of Taxation & Ors (No 2) [2017] FCA 905.

Perhaps, we will soon see: Sandini Pty Ltd & Ors v [???] represented by its insurer. (Any such decision would be an interesting read).

The reasons of the majority of the Full Federal Court canvas in some detail aspects of various Acts including those relating to taxation, family proceedings and corporate life. It also discusses and conveys meanings associated with the common law principles of ownership and equity (the law, as we see it, which relates to fairness and good conscience) and the effect of orders of the Family Court considered against those common law principles.

We have been told that the “Sandini case” has been the subject of more continuing professional development presentations than any recent matter and that the Full Federal Court hearing drew the attention of Family Court Judges.

John Park attended a “national” presentation about the “Sandini case” and was surprised by the many generalities and innuendo expressed during that presentation.

We also attended at a “family law” focused presentation about the “Sandini case” at which the query from “family law practitioners” was why wasn’t the case run by family law practitioners because it was in essence a “family law case”.

Nonsense, it was an equity case, a property case (property being defined in the broad legal meaning of the word as referring to things capable of ownership and not to any narrow context relating it only to land or the physical assets of the parties to a marriage (borrowing from the family law lexicon)) and a case about the interpretation of tax legislation. The family law aspect was the background (an unfortunate background).

However, we recognise that the family law jurisdiction should be the bastion of equity (using the above simple definition of it) considering the overriding requirement in “section 79” that: the Court can only make orders in property settlement proceedings if it is “just and equitable to make the order”.

Given the breadth and depth of the topics covered and decided by the Full Court, perhaps His Honour Justice Logan’s invitation for thought: “about the risk of over specialisation in the [legal] profession” (Ellison v Sandini at [5]), sounds as a new warning about the need for people to obtain legal advice, including the drafting of legal documents, from a legal practitioner and not from “professionals” other than lawyers who might consider the “legal bit” easy and within what they perceive as their “speciality”.

It also raises a question about whether the lawyer should be a “specialist”, a generalist, a well-read specialist or an experienced generalist with the desire and ability to now apply that broad knowledge in a “specialist” application. Is, for example, 10 years of “speciality” work, 10 years of experience or 1 year of experience repeated 10 times?

But, despite all the potential issues, it was our clients’ case that required thought and their courage and broad vision about and the rigorous consideration of many legal concepts, rules, and doctrines. It was not a specialised case, it was and remains a special case.

We recommend a reading of the Full Federal Court decision to anybody still interested enough to read to this part of this commentary; it will be both more exciting and edifying. Perhaps, in the style of “Cluedo”, you can guess “who done it”.

Take care and ensure you get legal advice for legal issues and documents.