Is the game worth the candle? McGowan loses “licence to kill” as Federal Court finds he and Clive Palmer defamed each other

Quick hit:

Clive Palmer has succeeded in defamation proceedings against Western Australian Premier Mark McGowan in the Federal Court over a claim that Mr McGowan portrayed Mr Palmer as a threat to the people of Australia and is dangerous to them (among other portrayals that Mr Palmer argued were defamatory).

Mr McGowan was also successful in a counter claim that he was defamed by Mr Palmer.

The case is an important reminder to consider the likely damages award before commencing proceedings. Here, Mr Palmer was awarded $5,000 in damages, while Mr McGowan was awarded $20,000, despite both no doubt spending considerable sums bringing the matter to the Court.

What happened?

Mr Palmer launched defamation proceedings after a war of words with Mr McGowan over COVID-19 border restrictions and controversial legislation that extinguished a $30bn claim Mr Palmer had against the State of WA.

The Court found that Mr McGowan made several statements containing defamatory imputations about Mr Palmer, including that Mr Palmer posed a threat to the people of WA and Australia, that he promoted a dangerous drug to treat COVID-19 (hydroxychloroquine) and selfishly uses money he has made in Western Australia to harm West Australians.

The Court also found that Mr Palmer conveyed several defamatory imputations about Mr McGowan, including that Mr McGowan lied to the people of Western Australia when he said that he had acted upon the advice of the Chief Medical Officer in closing the borders and was acting corruptly by seeking to confer upon himself immunity against his criminal acts.

Among the more extraordinary evidence that emerged during the course of the trial were statements by Mr Palmer that he had a “genuine fear for his physical safety” because the law might give McGowan a “licence to kill” him without criminal consequences, as well as text messages from WA attorney general, John Quigley calling Mr Palmer “big fat Clive” and describing his hopes the legislation would “drop the fat man on his big fat arse !”

What did the Court say?

In rejecting Mr McGowan’s and Mr Palmer’s defences, the Court noted that both Mr Palmer and Mr McGowan “have chosen to be part of the hurly-burly of political life.”

The Court rejected the defence advance by Mr McGowan of qualified privilege as his statements were made to a wide audience, were expressed as statements of fact and in harsh terms and so were not reasonable in the circumstances.

The Court also rejected the defences advanced by Mr Palmer of substantial truth, contextual truth and the reply to attack aspect of common law qualified privilege. Mr Palmer failed to establish that the imputations he conveyed were substantially true. The Court also rejected the defence of reply to attack because any attack had already been responded to, Mr Palmer’s statements were not sufficiently connected to any attack by Mr McGowan and the statements were in essence, separate attacks on Mr McGowan.

In considering the award of damages, the Court noted that most Australians had established views of both Mr Palmer and Mr McGowan which were unlikely to have been changed by any of the statements made.

The Court also noted Mr McGowan case as to damages was inconsistent with his “stratospheric” personal opinion rating of 88-89%, and that it was more than likely his reputation was enhanced rather than diminished. Notwithstanding this, the Court awarded $20,000 in damages based on the “compelling” evidence of the subjective hurt he suffered.

The Court only awarded $5,000 to Mr Palmer as the Court did not consider Mr Palmer to be a reliable witness and so disregarded his evidence on the impact of the statements on his feelings.

Why is this interesting?

The decision is a timely reminder to always consider the likely outcome of any case prior to commencing proceedings. In most circumstances, this will mean considering the quantum of damages likely to be awarded by a court. In some circumstances, other remedies may be important, including injunctions or a vindication of a party’s rights. Even where the desired remedy is non-monetary, it is important to consider the financial and emotional toll of court proceedings.

What now?

The matter appears to be at a close for now, but we will be watching the court lists for Mr Palmer’s next foray in the legal system.

For more information about defamation or litigation generally, contact our defamation lawyers and litigation lawyers, Adam Simpson and Ian McDonald.