25/11/2020 - 12:00

Judge savages WA’s Palmer legislation

25/11/2020 - 12:00

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The Supreme Court has delivered a tactical win to the WA government in its legal battle with Clive Palmer but strongly criticised legislation that is subject to a High Court appeal.

Clive Palmer has had another setback in his $30 billion legal battle against the state of WA. Photo: WA Club de Madrid

The Supreme Court of Queensland has delivered a tactical win to the WA government in its legal battle with Clive Palmer but strongly criticised legislation that is subject to a High Court appeal.

The Court ruled today that it would not formally register arbitration awards in favour of Mr Palmer.

In his ruling, Justice Glenn Martin also canvassed the sweeeping impact of the the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020.

This legislation was passed by the WA parliament in August, specifically to overturn arbitration awards in favour of Mr Palmer in a long-running commercial dispute with the WA government.

The dispute, related to the Sino Iron project, was valued at $30 billion, though Mr Palmer has claimed any damages would be less.

Justice Martin said the Act “if valid, is a juggernaut destroying everything in its path”.

He drew an analogy with ancient Rome’s destruction of the city of Carthage at the end of the Third Punic War.

“It was the last step in Rome’s complete destruction of that commercial and military competitor,” he said.

“The devastation was so great that legends grew about its severity.”

Justice Martin said WA was not Rome and Mineralogy was not Carthage.

“But the authors of the (Minerology Act) might be thought to have had the same level of obliteration in mind when that Act was drafted.”

He noted that the Act ends the arbitrations conducted by former High Court judge Michael McHugh and deems any awards made to be void.

It provides that no current or future liability associated with disputed matters attaches to the State and no proceedings alleging liability can be brought against the State.

The Act also provides that no reviews or appeals can be prosecuted in respect of disputed matters and excludes the use of Freedom of Information provisions or discovery for any documents connected with a disputed matter.

In today's ruling, Justice Martin said he would proceed on the assumption the Act was constitutuionally valid - a question the High Court will be asked to decide next year.

The Law Society of Western Australia has also been critical of the Act, saying it challenges fundamental legal principles.

“The law unilaterally amended a State Agreement for the first time in some 60 years,” the Law Society said in a statement.

“It exempted the State from defined liabilities, removed potential appeal and review rights and excluded principles of natural justice.

More fundamentally, the Law Society said the new law departs from the principle that all people, whatever their status, are subject to the ordinary law of the land.

“The new law is unprecedented and extreme,” it said.

“Its terms, particularly those which limit the public’s access to information, require close scrutiny and further justification.”

Premier Mark McGowan was unapologetic today.

“We make absolutely no apologies for being harsh when it comes to Clive Palmer,” he told journalists.

“He is trying to take us for 30 thousand million dollars.

“In extreme circumstances, you take extreme measures.”

Asked about the Law Society’s concerns, he added: “there will be critics but we are dealing with Clive Palmer and we are trying to save the state”.

“We will continue to take whatever steps we need to, to fight Mr Palmer.”

The commercial dispute stems from decision taken by the Barnett government regarding development of the Sino Iron project, which was subject to a 2002 State Agreement.

The State Agreement specified that any disputes would be settled via arbitration.

The WA government introduced the urgent legislation when it lost the arbitration.

Mr Palmer, through his companies Mineralogy and International Minerals, secured orders in the Supreme Court of Queensland to have the arbitration awards formally registered shortly before the Act was signed into law.

Justice Martin ruled today the orders should be set aside.

He found Mr Palmer's companies had not been entitled to proceed with the action without having first notified the WA government.

Mr Palmer had sought to have the proceedings adjourned until the validity of the legislation had been tested in the High Court.

Justice Martin said there was no basis for an adjournment.

He said if Mineralogy was successful in the High Court, it could return to the Supreme Court and apply again to have the arbitration orders enforced.

WA Attorney General John Quigley claimed today’s ruling was a very significant win.

"I feel pleased and utterly vindicated by Justice Martin’s recognition that the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act completely and totally wiped out Clive Palmer’s outrageous claim of $30 billion against the taxpayers  of Western Australia," he told Business News

"This Act enjoyed the total bipartisan support of every member of the WA Parliament."

Legal battles between Mr Palmer and the WA government are continuing to be fought on several fronts.

Mr Palmer in August filed a defamation lawsuit against WA Premier Mark McGowan, who lodged his own counter-claim a month later.

Mr Palmer, via Mineralogy, is pursuing further damages from the WA government with a claim of "unconscionable conduct" in the Federal Court.

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