02/08/2022 - 12:10

‘Game not worth the candle’: Palmer, McGowan lashed in defamation suit

02/08/2022 - 12:10

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Mining magnate Clive Palmer and Premier Mark McGowan have been found to have defamed one another during their very public war of words.

‘Game not worth the candle’: Palmer, McGowan lashed in defamation suit
Photo: David Henry

Mining magnate Clive Palmer and Premier Mark McGowan have been found to have defamed one another during their very public war of words, with the court finding the game had not been worth the candle.

In handing down the judgment in the Federal Court in Victoria this afternoon, Justice Michael Lee determined the damage on both sides to have been 'minor'.

He ordered Mr McGowan to hand over $5,000 to Mr Palmer, while ordering Mr Palmer to fork out $20,000 for the damage caused by his comments about Mr McGowan.

The legal costs of the two-year trial are expected to stretch far beyond the amounts being exchanged, but it won't be clear exactly how much it will cost Western Australian taxpayers until the next hearing on August 11.

Justice Lee lashed Mr Palmer for the action, saying the pair had taken it upon themselves to be part of the 'hurly-burly' of political life.

He was also critical of the state’s most senior legal official John Quigley, who was forced to return to Sydney to correct previous evidence after a "memory failure".

Justice Lee told the court he believed the evidence provided by Mr Quigley to be "confused and confusing" and "all over the shop", but stopped short of accepting Mr Palmer's submission that it was "untruthful".

He said the lawsuit had not only involved considerable costs but had diverted court resources away from serious matters.

“As Enoch Powell once said, for a politician to complain about the press is like a ship's captain complaining about the sea,” Justice Lee said.

"As these proceedings demonstrate, a politician litigating about the barbs of a political adversary might be considered a similarly futile exercise.

Mr Palmer and Mr McGowan have chosen to be part of the hurly burly of public life and members of the public will have instinctive views about them without any personal interaction.

"The game has not been worth the candle.

"Political figures occupy a special place in our system of representative and responsible government.

"Insofar as a subset of political figures are concerned, this special place carries with it protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.

"But balanced against these considerable privileges are the costs or downsides of a political profile, including the reality that such figures must expect a degree of public criticism, fair or unfair."

In reflecting on the trial, Justice Lee described the mining magnate as an indefectible litigant who carried himself with confidence and self-assuredness, but that he was often combative and evasive in the witness stand.

On the other hand, Justice Lee described Mr McGowan as an impressive and candid witness, but said he exhibited the muscle memory of a politician in being non-responsive.

He concluded that the highly popular premier, also referred to as 'Mr 89 per cent', had a bully pulpit and took advantage of the opportunity to speak out to a wide audience using "hard words".

Justice Lee deemed the damage Mr McGowan alleged Mr Palmer had done to his reputation was "non-existent", with the premier still enjoying an approval rating at the "stratospheric level" well after the comments were made.

In fact, he found Mr McGowan's reputation was likely enhanced by the verbal combat, which he deemed to be part and parcel of political life.

Mr McGowan's evidence as to the subjective hurt he suffered was compelling, but he is the premier and robust criticism is and should be part and parcel," Justice Lee said.

While accepting that Mr Palmer had attempted to resist being characterised as a politican, Justice Lee insisted the parties were two political antagonists dealing with largely political matters.

Ultimately, Justice Lee determined many ordinary, reasonable people would not be swayed by public statements concerning politicians about whom they had already formed a view.

Judgment ends two-year battle

The judgment comes almost two years after Mr Palmer brought the lawsuit over public comments Mr McGowan made labelling him the "enemy of Western Australia".

In response, Mr McGowan lodged a claim of his own, alleging the billionaire had defamed him in several interviews and public advertisements and compared him to some of history’s worst dictators.

The bitter feud had been brewing for several years, with legal tussles over the state’s hard border policy, a $27 billion damages claim over his stalled iron ore project and the passage of top-secret legislation to thwart the action.

It also played out publicly, referenced almost daily in press conferences held during the start of the pandemic and splashed across the front pages of newspapers.

With Mr McGowan enjoying record high approval ratings and a landslide election victory that delivered his government the majority in both houses, lawyers for Palmer argued the comments had little to no impact on the premier’s reputation.

The trial pored over the checkered history between the pair, as well as the premier’s relationship with media mogul Kerry Stokes and his newspaper’s coverage of the pair’s battle, which Mr McGowan conceded had been to his political advantage.

Both Mr McGowan and Attorney-General John Quigley were forced to travel to Sydney to give evidence, with private text messages revealing Mr Quigley referred to Mr Palmer as a “BFL - Big Fat Liar” and stressed the importance of the legislation remaining under wraps.

During the trial, Mr Palmer was candid about the emotional and physical toll he claims the stoush and the subsequent media coverage had on him, claiming he retreated from public life over fears for his own safety.

He also told the court he believed the state government’s conduct to have "effectively destroyed" his mining companies and the assets he had spent the past two decades developing.

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