The federal court has found Clive Palmer and Mark McGowan defamed each other in a war of words over Covid-19 and extraordinary legislation extinguishing the billionaire’s $30bn claim against Western Australia.
The chair of the United Australia party walked away second best, receiving “very minor” damages of just $5,000 after justice Michael Lee was unpersuaded Palmer had suffered any “real or genuine hurt to feelings”.
McGowan was awarded $20,000 from Palmer because, although damage to the premier’s reputation was “nonexistent”, Lee concluded his evidence about his hurt feelings was “compelling”.
In a summary of the case read in court, Lee noted political figures “must expect a degree of criticism, fair or unfair” and litigation should be reserved for cases with “real hurt to feelings and significant damage to reputation”.
A further hearing will follow on costs, which Lee noted would be in “glaring disproportion” to the damages awarded.
Palmer and McGowan were in dispute about the WA premier’s decision to close the state’s border during the Covid-19 pandemic, and a separate commercial dispute over the state’s “proven breach” of an agreement with Palmer’s mining company, Mineralogy.
In August 2020 the WA government rushed through legislation to extinguish Mineralogy’s claim, warning it could cost the state up to $30bn and giving McGowan and other officials immunity from civil or criminal claims. In October the high court upheld that legislation.
Lee found that in the two weeks either side of the bill’s passage, McGowan made statements that contained defamatory imputations including that Palmer posed a threat to the people of WA and Australia; promoted a drug (hydroxychloroquine) that all evidence establishes is dangerous; selfishly used money made in WA to harm the state; was prepared to bankrupt the state; and was “dangerous”, requiring passage of the bill.
In the cross-claim, Lee found Palmer had made statements containing defamatory imputations including that McGowan had lied to the people about the justification for travel bans; had lied about the harm to people’s health if the borders didn’t close; “corruptly” sought immunity under the law, and “attempted to cover up” his involvement in passing the laws.
Lee said Palmer was an “indefatigable litigant” who “carried himself with the aura of a man assured of his own correctness”.
The judge found the billionaire was “generally a combative and evasive witness”, was “unwilling to make obvious concessions” and “in one important respect” gave evidence that was “fantastic – in the original but now secondary sense of that word”.
He cited Palmer’s evidence that he had a “genuine fear for his physical safety” because the WA law might give McGowan a “licence to kill” him without criminal consequences.
Lee said it was “hardly surprising” that Palmer was “angry and upset” but found his evidence “so unbelievable” it undermined his credibility generally. The judge also rejected Palmer’s claim he was not a political figure.
McGowan was “sometimes unresponsive”, particularly in skirting questions about the medical advice of the chief health officer on WA’s hard border, but was “otherwise candid”, Lee said.
Lee read at length extraordinary text messages from WA attorney general, John Quigley, about him “thinking of ways to beat big fat Clive” and “drop the big fat man on his big fat arse”.
In an annexure to today's Palmer v McGowan defo judgment, fascinating 'how the sausage was made' details on the statute @highcourtofaus upheld in Palmer v Western Australia [2021] HCA 31: https://t.co/f1Qtqr3PkZ pic.twitter.com/mnrgwVCj5X
— Jeremy Gans (@jeremy_gans) August 2, 2022
Lee said Quigley’s evidence in the trial was “confounding”, as he had changed his account of the truthfulness of an interview with the ABC spelling out the state’s legal strategy with respect to the bill. Quigley was not dishonest but “all over the shop” due to limited time to prepare, the judge said.
Lee rejected Palmer and McGowan’s defences of qualified privilege, and Palmer’s defences of contextual and substantial truth.
Despite the text messages between Quigley and McGowan – including one in which McGowan described Palmer as “the worst Australian who’s not in jail” – the judge found there was no malice.
Lee found McGowan had used “hard words” but said Palmer’s claim they amounted to a serious libel “pitches his case too highly”.
Lee said he “cannot ignore the reality that, for many [people], views as to Mr Palmer’s reputation were already baked in”.
“The estimation of some may have diminished, or the adverse views held by some may have become more entrenched, but identifying any real or material damage to reputation … is difficult.
“While damage to reputation is presumed, I conclude that there was very little damage caused to Mr Palmer’s reputation by the defamatory publications.”
Despite Palmer’s evidence that McGowan’s commentary was “uncalled for or unfair”, the judge said he had not reached the state of “actual persuasion he suffered real or genuine hurt to feelings”.
Lee said McGowan’s claim to damage to his reputation “collided head-on with objective facts”, that he was re-elected in a landslide, and still enjoyed “stratospheric” approval of 89% in March 2021.
He said it was “more likely” McGowan’s reputation had actually been enhanced, citing the premier’s evidence that Palmer was “someone McGowan was happy to have a blue with”.
“The game has not been worth the candle,” Lee said, noting “considerable expenditure” by Palmer and the WA government, and the diversion of court resources away from other cases.
After the court’s decision, defamation academic Michael Douglas said that “although each side won, the value of these awards is so low that it is better characterised as a loss-loss”.
