Mining magnate Clive Palmer and WA Premier Mark McGowan defamed each other, the Federal Court has heard, in a war of words over WA’s hard border and a claim for damages over a failed mining project worth up to to 30 billion dollars.
Key points:
- Both Clive Palmer and Mark McGowan were awarded damages
- The case relates to comments made after WA’s borders were closed
- Costs will be assessed at a later court hearing
Mr Palmer was awarded $5,000, while Mr McGowan won a counterclaim of $20,000, in a ruling handed down by Judge Michael Lee on Tuesday.
Palmer took legal action against McGowan following a series of comments made at press conferences in 2020, during the early days of the coronavirus pandemic.
The Queensland mining magnate told the Federal Court he was held to “hatred, ridicule and contempt” after Mr McGowan branded him an “enemy of the state” over his challenge he sought to overturn WA’s hard border policy.
McGowan countersued Mr. Palmer for comments focused on legislation that prevented the Queensland businessman from claiming up to $30 billion in damages over a mining development by his company Mineralogy.
Judge Lee said that when assessing damages, he considered the fact that much of the public would already have “well-founded perceptions” about the character and reputation of political figures.
However, in deciding damages for Mr McGowan, Mr Justice Lee said that while the damage to his reputation was “non-existent”, Mr McGowan’s “evidence on one aspect of the subjective harm he suffered was convincing”. .
In delivering his sentence, Judge Lee noted the significant costs accrued in prosecuting this case.
“The game wasn’t worth the candle,” he said.
“These proceedings have not only involved considerable expense on the part of Mr Palmer and the taxpayers of Western Australia, but have also consumed considerable Commonwealth resources,” he said.
“Significantly (they have) diverted court time from resolving disputes of real importance to people who have a compelling need to litigate.”
At a news conference, McGowan said the last thing he wanted to do was fight a defamation action, adding that the start of the pandemic was a “very anxious time”.
But he defended the steps he took to put in place the hard border and Mineralogy legislation.
“They will go to my grave proud of what we did,” he said.
“In fact, I think it was one of the proudest moments, that and the hard border, in recent Western Australian history.”
The court will reconvene at a later date to assess costs, which are expected to far exceed the damages awarded.
McGowan, Palmer chose the “horny chunky” political life.
In his ruling, Judge Lee referred to the comment of British Conservative MP Enoch Powell “that a politician complaining about the press is like the captain of a ship complaining about the sea”.
“As these proceedings demonstrate, a politician litigating on the barbs of a political adversary could be seen as an equally futile exercise,” Judge Lee said.
The judge said that Mr. McGowan and Mr. Palmer chose to be part of the “corpulent force” of political life, despite the fact that Mr. Palmer resisted being characterized as a political figure.
He described Mr Palmer as a “tireless litigator”.
The public spat between mining magnate Clive Palmer (pictured) and Mark McGowan erupted at the start of the coronavirus pandemic. (ABC News: Steve Keen)
“This was clearly not his first experience in the witness box … he carried himself with the unmistakable aura of a man assured of the correctness of his own opinions,” Judge Lee noted.
The judge described Mr Palmer as a generally “combative and evasive witness” who on more than one occasion was unwilling to make obvious concessions.
He also rejected the claim of Mr. Palmer who feared for his safety and lives, that of his family and his employees, after the mineralogy legislation was passed.
“Even to his most hardened supporters, it is unlikely that Mr McGowan would have thought he resembled Ian Fleming’s fictional MI6 character James Bond,” Judge Lee said.
Mr Justice Lee described Mr Palmer’s evidence that McGowan had been given a “license to kill” as “fanciful”.
Fight breaks out over WA’s hard border
The stress began when WA closed its border with the rest of the country in 2020, which Clive Palmer challenged in the High Court, angering Mr McGowan.
The court heard Mr McGowan made comments about an alleged plan by Mr Palmer to promote the drug hydroxychloroquine, which in the early days of the pandemic was briefly touted as a potential treatment.
Palmer brought the defamation action against McGowan over his comments about the mining magnate’s bid to enter the state in 2020. (Facebook: Clive Palmer, Mark McGowan)
After a series of trials, it became clear that the drug was not effective.
McGowan said at a press conference in August 2020 that Mr Palmer was coming to “promote” hydroxychloroquine, when all the evidence showed it was not a cure and was in fact dangerous.
In defamation proceedings, Palmer argued that this meant he wanted to harm the people of Western Australia by providing them with a drug he knew was dangerous and that he dishonestly promoted it as a cure for COVID-19 .
Judge Lee disagreed, saying that “it is too much of a stretch to say that vehement disagreement with Mr Palmer’s opinion conveys that Mr Palmer subjectively intended to cause harm or behaved dishonestly”.
Multimillion-dollar mining damage claim at the heart of the case
The defamation proceedings also examined a state deal by Palmer’s company Mineralogy for the Balmoral South iron ore project.
Palmer tried to develop the site in 2012 but was rebuffed by the Barnett government, prompting him to take legal action against the WA government seeking compensation for what he said was a breach of agreement state
The WA Government then passed extraordinary legislation that prevented Mr Palmer from succeeding in that claim, which was estimated at $30 billion, equivalent to the state government’s annual budget for 2020.
Mr. Palmer attacked Mr. McGowan as the architect of this legislation.
Mark McGowan said Mr Palmer’s comments had sparked “anger and madness” in the community. (ABC News: Cecilia Connell)
The court heard in an August 2020 interview on ABC radio, Mr Palmer described Mr McGowan as “an outlaw who is moving his gun to protect him and his attorney-general from the criminal law”.
“What crime did you commit Mark that you want to be immune from?”
McGowan countersued Mr. Palmer for those and other comments, which he said suggested he had acted corruptly.
Palmer smeared McGowan saying he ‘lied’
McGowan also argued that Mr Palmer had defamed him when he claimed he had lied about the health advice he relied on when he decided to close the state’s border.
Judge Lee upheld this contention.
However, the judge said that while Mr McGowan was generally an impressive witness, he “sidestepped” the substantive issue of whether Dr Robertson, the health director, had given advice to that effect.
Mr Justice Lee noted, however, that the impact on Mr McGowan’s reputation was “inconsequential”, citing his personal approval rating of 89 per cent and Labour’s landslide victory in the 2021 state election, in which he increased the margin in his seat of Rockingham to 37.7%.
WA Government behavior ‘very disturbing’: Palmer
Palmer responded to Tuesday’s finding by saying it highlighted the extent to which the Premier and WA Attorney-General had secretly conspired to change the legislation.
This was designed to deprive Mineralogy of its ownership, according to Palmer.
“Today’s trial in Sydney by Mr Justice Michael Lee revealed that Mark McGowan and John Quigley conspired with each other through late-night texts to change the legislation,” he said.
“It’s very disturbing that this is how the WA Government is acting.”
Premier’s relationship with media mogul under microscope
The public dispute which took place in the Federal Court has also revealed aspects of Mr McGowan’s relationship with the state’s sole owner of the paper, Kerry Stokes.
Texts were read between Mr. McGowan and Mr. Stokes in court over the introduction of legislation which prevented Mr. Palmer claimed damages in relation to the failed Balmoral South mining project.
A text from Mr. McGowan flagged the legislation in question, which was a closely guarded secret, just minutes before it was introduced to Parliament, saying he would call Mr. Stokes to discuss.
The back covers of The West Australian newspaper featured images of Mr Palmer digitally manipulated to appear as a cane toad and a cockroach, prompting Mr McGowan to thank him for the “wonderful covers”.
In a press conference, Mr. McGowan was asked a series of questions about the nature of his relationship with Mr. Stokes.
McGowan defended his decision to brief Stokes on the legislation before it was read in parliament. (ABC News: James Carmody)
He denied Mr Stokes was one of the few people briefed on the legislation before it was introduced, saying he had told the Cabinet Expenditure Review Committee the previous Friday.
He said he briefed a number of people before the legislation went before the Upper House, including senior members of the federal government, the state opposition, former premier Colin Barnett, industry associations and groups and a “wide variety of journalists”.
The Prime Minister said he rarely contacted Mr Stokes for advice or discussion on matters of state and could not recall whether he called him that day.
Judge Lee also noted WA Attorney-General John Quigley’s evidence was “confused” but did not believe he was trying to be dishonest.
Quigley later corrected the evidence he gave at trial, although he insisted that his evidence could be trusted.
The opposition criticizes McGowan for the trial
Opposition Leader Mia Davies said the trial was “a waste of the government’s money and time”.
Mia Davies says Mr McGowan should have been attending to issues affecting WA instead of…