Premier Mark McGowan and billionaire Clive Palmer have been found to have defamed each other during their vicious war of words in 2020 — but the harm done was minor, according to the Federal Court — as they were the damages awarded.
Delivering his judgment today, Justice Michael Lee said the defenses of both sides to allegations of defamation had failed — and the back-and-forth barbs had been defamatory.
But because the Federal Court judge found that both were involved in political argument — as nasty as it was — finding “real or material” damage was almost impossible.
He declined to award claimed aggravated damages to Mr Palmer, and said he could not find he suffered any real damage from Mr McGowan’s comments.
He assessed the damage to Mr Palmer’s reputation warranted an award of $5,000.
And Justice Lee then pointed to Mr McGowan’s landslide election victory as to the fact his reputation was not damaged by Mr Palmer — and might actually have been enhanced.
However, he said Mr Palmer’s comments warranted an award of $20,000 to the Premier.
In summing up the case, Justice Lee said arguments that neither side was involved in political posturing was “unpersuasive and superficial”.
He said amid the feud, the pair had both taken the opportunities to advance their political stance — particularly Mr McGowan, who he said “had a bully pulpit”.
And he concluded the “game had not been worth the candle” — taking up valuable resources from the court and the WA taxpayer.
“These proceedings have not only involved considerable expenditure by Mr Palmer and the taxpayers of Western Australia, but have also consumed considerable resources of the Commonwealth and, importantly, diverted Court time from resolving controversies of real importance to persons who have a pressing need to litigate ,” Justice Lee said.
“At a time when public resources devoted to courts are under strain, and judicial resources are stretched, one might think that only a significant interference or attack causing real reputational damage and significant hurt to feelings should be subject of an action for defamation by a political figure.”
The defamation case between the Premier and the billionaire stemmed from public barbs traded more than two years ago, as the pandemic was still spreading — and with Mr Palmer’s $30 billion claim against WA not yet public.
In press conferences of varying ferocity, Mr McGowan labeled the mining magnate the “enemy of the state” and “the enemy of Australia.”
In response, Mr Palmer allegedly implied Mr McGowan lied to West Australians about the pandemic — and was willing to accept bribes from Chinese interests.
That prompted both Mr Palmer to sue, and Mr McGowan to sue right back – with both men called to personally give evidence, which at times bordered on the bizarre.
During the sometimes florid and emotional testimony, both Mr McGowan and his Queensland adversary made striking claims about how the other’s words had impacted.
The Premier linked the verbal Mr Palmer’s attacks on him to the threats of physical attack from others, which he said left him fearing for the safety of his wife and children.
He promotes these ideas. He encourages all these people to weaponise themselves physically against my family.
“He is the sort of person who gets a band of people out there who believe this stuff. A band of followers he acquires who get wound up and outraged,” Mr McGowan said.
“He promotes these ideas. He encourages all these people to weaponise themselves physically against my family.”
And Mr Palmer went as far as claiming he believed Mr McGowan had granted himself a James Bond-style “license to kill” – and might use it to murder the mining magnate and get away with it.
That clause, he claimed, was his reading of the so-called ‘Palmer Act’ – the extraordinary piece of legislation drafted and passed in haste to kill off Mr Palmer’s mega-bucks royalties claim from the Balmoral South iron ore project in the Pilbara region .
“I then thought about James Bond movies… how would you license someone to kill? I didn’t know what the limits might be,” Mr Palmer told the court.
“I reached a view that that’s what I thought it enabled them to do if they wanted to at an extreme level… that was a level of concern.
“To my mind, that meant that they could make offenses under the criminal code and not be held liable for them.”
Embedded within the case — and teased out by the lawyers — were communications between Mr McGowan and state attorney general John Quigley, which revealed the level of enmity within the WA government towards Palmer.
In them, Mr Palmer was referred to as fat, as a liar, as a turd and as “the worst Australian who is not in jail.”
Mr Quigley texted that he was working on a “poison pill for the fat man”.
And the 73-year old attorney general even referenced his own love life, asking Mr McGowan: “Are you glad me single again?.”
“Not making love in sweet hours before dawn – instead worrying how to defeat Clive,” Mr Quigley admitted.
That opened him up to being called as a witness — which opened another can of worms. Because Mr Quigley’s performance on the witness stand prompted accusations that he lied on oath, and he had to admit making glaring errors in his evidence of him.
“I gave inaccurate evidence to the court,” Mr Quigley said. “I am embarrassed about them (the answers). What I said was wrong.
Justice Lee summed up his thoughts on Mr Quigley’s courtroom performance abruptly: “Not dishonest — but all over the shop”.
In his summary to the case on Tuesday, Justice Lee cited a quote from British politician Enoch Powell, saying politicians complaining about the press was like a “ship’s captain complaining about the sea”.
And he said the war of words between Mr McGowan and Mr Palmer was the “hurly burly” of two politicians arguing about political issues — predominantly the WA response to the Covid 19 pandemic, and the state response to Mr Palmer’s claim of $30 billion in damages.
Justice Lee also commented that the legislation which blocked that claim proceeded with the “speed of summer lightning”.
He described Mr Palmer’s evidence that he feared for his life at the hands of the WA government was “fantastic” — and “so unbelievable” that it undermined his other evidence.
“Not safe to place any particular reliance on it,” Justice Lee said.
And on Mr McGowan, Justice Lee said he was largely an “impressive witness” — but sometimes fell into the “muscle memory” of non-responsive answers.
And of Mr Quigley, Justice Lee said his evidence was both “confused and confusing”.
“Being a confused witness is quite different from being a dishonest one,” Justice Lee said. “Mr Quigley was not a reliable historian of events.”
Arguments about costs of the case, and who will pay them, will be made later this month.
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