The game was not worth the candle: Palmer v McGowan defamation judgment handed down

Clive Palmer has been awarded $5,000 in damages in his high-profile defamation case against WA Premier Mark McGowan who, in his cross-claim against Mr Palmer, has been awarded $20,000 in damages.?Justice Lee handed down his decision on Tuesday, ultimately finding that various of the pleaded imputations had been conveyed and were defamatory.?

The proceedings commenced in August 2020 and arose out of a protracted and heated dispute between ‘two political antagonists’ dealing with political matters. ?The significance of this decision is its discussion on the impact of political identity on an assessment of damage to reputation. ?Justice Lee found that the damage to both parties’ reputation was minimal and remarked that ‘a politician litigating over the barbs of a political adversary might be considered a… futile exercise’.

Clive Palmer’s claim

Justice Lee found that many of the imputations pleaded by Mr Palmer were conveyed and were defamatory, including that Mr Palmer:

1. represented a threat and danger to the people of Western Australia (and the people of Australia generally);
2. promoted a dangerous drug;
3. selflessly used money he had made in Western Australia to harm Western Australians; and
4. is so dangerous a person that legislation was required to stop him making a claim for damages against Western Australia.

Mr McGowan’s defences of common law qualified privilege (including the defence identified in Lange v ABC (1997) 189 CLR 520) and statutory qualified privilege were rejected.?However, only minimal damages in the amount of $5,000 were awarded for the following reasons.

First, Lee J concluded that there was very little damage to Mr Palmer’s reputation caused by the defamatory publications.?Although Mr McGowan used ‘hard words’, he was speaking to an audience including reasonable people accustomed to receiving criticisms by politicians expressed forcefully, and often couched in hyperbolic terms. ?The nub of his Honour’s reasoning for finding minimal damage was that, when assessing causation, views as to Mr Palmer’s reputation were already ‘baked in’ for many people. ?Secondly, given the lack of damage to reputation, there was little need for an award of damages to vindicate Mr Palmer.?Thirdly, his Honour found that Mr Palmer’s hurt to feelings evidence was unpersuasive and did not indicate that he suffered any great vexation. ?

Mark McGowan’s cross-claim

Justice Lee also found that many of the imputations pleaded by Mr McGowan had been conveyed and were defamatory, including that Mr McGowan:

1. as Premier, 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
2. was acting corruptly by seeking to confer upon himself criminal immunity.

Mr Palmer’s defences of substantial truth, contextual truth and common law qualified privilege were not established and Justice Lee concluded that the appropriate amount for general damages was an award of $20,000. ?Damage to Mr McGowan’s reputation was assessed as non-existent due to the fact that the evidence established the inconsequential impact of the publications upon reputation.?To the contrary, Lee J held that it was more likely that Mr McGowan’s reputation was enhanced as a result.?Although Mr McGowan’s evidence as to an aspect of the subjective hurt suffered from the allegations of corruption was compelling, it was held that robust criticism was part and parcel of his role as Premier.

Next steps

The proceedings involved considerable expenditure by Mr Palmer and the taxpayers of WA and, as Justice Lee said in his judgment, perhaps the ‘game has not been worth the candle’. ?Although his Honour is yet to hear the parties on the appropriate award of costs, he foreshadowed that a ‘relevant consideration will be the glaring disproportion between the damages awarded and the extent of legal expense’.