After all, he might have double the reason to sing it.

In Bond’s case, the tune was about Swan beer and his success in winning the America’s Cup in 1983. It was the first time a foreigner had lifted the trophy in 133 years.

But Forrest had good reason to sing about “never making it” last week – scoring a comprehensive victory in Australia’s High Court to end a six-year legal battle with the Australian Securities and Investments Commission.

What follows is a question that ought to have everyone in the mining industry wondering. Is there a chance of a third against-the-odds win for WA entrepreneurs – with the scrapping of the federal government mining super tax?

There aren’t too many legal experts who believe Forrest will succeed in having the High Court strike down the controversial Minerals Resources Rent Tax (MRRT).

The popular view is that the Australian government’s power to levy taxes overrides any power of held by the states.

Perhaps that view will prevail. But if you look back at how Bond overcame a century of prejudice against America’s Cup challengers, and how Forrest built an iron ore business against the odds before thrashing ASIC (also against the odds), then it would be a very confident lawyer who would say it could not happen again.

What particularly catches the eye of Dryblower is the potential for the Forrest-led High Court challenge, supported by the Queensland government, to demonstrate that the MRRT is unfair in how it affects different states.

That boils down to an argument that some states have big mining industries and rely on them for royalty income to balance their books. Other states actively discourage mining, but will potentially benefit from the MRRT when the Commonwealth distributes part of the income it raises.

This is not a column to dissect complicated legal arguments, but it is a place to make four points. They are: 

The MRRT, as it stands, does appear to impinge on the power of a state to adjust its royalty regime because of the way the Australian government proposes to reimburse mining companies any royalties they pay.

Because the tax only applies to coal and iron ore, it is not fairly balanced as it was in its original form, which applied to all mining profits, no matter the mineral.

Critics of Fortescue’s case say its only chance of success is if the High Court takes a literal view of a part of the Australian constitution, which deals with possible discrimination against any of the states, and

The X-factor (also known as the Don Quixote factor), which deals with seemingly impossible undertakings such as winning the America’s Cup or beating ASIC in a case where “they said you’d never do it”

That first point about affecting state royalties hangs on a curious argument. If the Australian government reimbursed miners the amount they paid in royalties, then the states could not use a reduction in royalties to attract mining investment because if they did (and they do sometimes reduce royalties to assist financially distressed companies) the miner would be hit with a higher MRRT.

The second point about the MRRT only applying to coal and iron ore could attract the eye of the High Court judges. This is because Victoria and NSW, for example, do not have iron ore mines and it may be argued the tax is really directed at just two states, WA and Queensland.

The third point about discrimination requires a little bit of technical jargon in the form of section 51 (ii) of the Australian Constitution, which covers the power of the Australian parliament to make laws with respect to: “Taxation, but so as not to discriminate between states or parts of states”

It doesn’t require too much legal knowledge to see that this is the key to the anti-MRRT case because the tax could be seen to discriminate between states, and even more so when a state is reduced to its component parts.

As for point four, that’s Dryblower’ favourite because it really has the Don Quixote factor – a challenge taken against the odds, which, in the case of Don Quixote, involved charging a windmill in the belief it was a monster. In Forrest’s case, it involves charging at the powers of the Australian government, whether represented by ASIC or the tax office.

Will Forrest succeed in killing the MRRT?

No one knows, but it can never be said he didn’t try. And when fortune is smiling, as it was in the High Court appeal against ASIC, there’s no harm in rolling the dice a second time.