Judge blasts McGowan, Palmer for wasting court time after defamation case ends in draw

A Federal Court judge has delivered a stinging dressing down of billionaire mining magnate Clive Palmer and West Australian Premier Mark McGowan for wasting the court’s time and resources in a lengthy defamation case that resulted in just $25,000 in damages being awarded.

Federal Court Justice Michael Lee found the pair did defame each other during a war of words in July and August 2020 over WA’s hard border and the state’s decision to introduce extraordinary legislation to block a $30 billion damages claim by Palmer over a stalled iron ore project.

But in handing down his verdict in Melbourne on Tuesday Lee said the case had involved considerable expenditure by Palmer and WA taxpayers, but diverted resources away from “real” Federal Court proceedings.

“The game has not been worth the candle,” he said.

“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.”

“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.”

Lee said neither party’s defences against the defamation allegations were able to be proven to a satisfactory level but said it was unlikely anyone’s reputation had been damaged because they were both political figures with baked-in reputations.

“Enoch Powell once remarked: ‘for a politician to complain about the press, is like a ship’s captain complaining about the sea’. As these proceedings demonstrate, a politician litigating about the barbs of a political adversary might be considered a similarly futile exercise,” Lee said in his opening remark to the court.

“Both the applicant, Mr Palmer, and the respondent, Mr McGowan, have chosen to be part of the hurly-burly of political life.

“Many members of the public will have instinctive views about them absent any personal interaction.”

Lee awarded McGowan $20,000 and Palmer $5000 in damages respectively but rejected both parties’ claims of aggravated damages.

While Lee found the men both defamed each other he said the impact was minimal on their reputation.

Lee said Palmer’s commentary may have actually enhanced McGowan’s reputation—referring to friendly texts between him and The West Australian’s proprietor Kerry Stokes revealed during the trial that showed the media mogul was backing the premier’s actions around the stalled mining project legislation.

“It is more likely that Mr McGowan’s reputation was enhanced, as the coverage Mr McGowan celebrated with Mr Stokes revealed, and as his language in the cross-claim Matters made plain, they provided a common foe against which Mr McGowan could unite Western Australians,” he said.

“As Mr McGowan accepted, Mr Palmer was someone with whom Mr McGowan was ‘happy to have a blue with’.”

Lee described both Palmer and McGowan as “political antagonists” and rubbished claims by Palmer made during the hearing that he was not a political figure at the time.

“No-one picking up a newspaper in Australia in 2020 could be in any doubt as to the political profile of Mr Palmer,” he said.

“Although he was not running for office in 2020, he was the chairman of the United Australia Party, and was one of the most well-known figures operating in the sphere of Australian politics generally.”

WA taxpayers are being charged for McGowan’s defence and counter-suit, of which the cost has so far remained private.

The defamation bid is one of several legal challenges Palmer has pursued against the WA premier since 2020, including a failed bid in the High Court to have the state’s hard border closure deemed unconstitutional.

The September 2021 state budget revealed the West Australian government had spent at least $1.47 million fighting the myriad court actions brought against it by Palmer and anticipated spending a further $3.25 million over the next two years.

More to come.

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