Palmer v McGowan (No 5)

Case [2022] FCA 893

FEDERAL COURT OF AUSTRALIA

Palmer v McGowan (No 5) [2022] FCA 893  

File number: NSD 912 of 2020
Judgment of: LEE J
Date of judgment: 2 August 2022
Catchwords:

DEFAMATION – proceeding brought by prominent political figure and businessman against Premier of Western Australia in respect of six matters – cross-claim brought by Premier against applicant in respect of nine matters – series of extended skirmishes between applicant, Premier and Attorney-General of Western Australia in print and online media, and on television, radio and social media – colourful language deployed by applicant, Premier and Attorney-General – allegations of lying and corruption – declarations of “war” – primary proceeding and cross-claim dominated by context of COVID-19 pandemic and enactment of Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amendment Act) – consideration of scope of matters – whether imputations conveyed

DEFAMATION – where Premier advanced three defences – defence of common law qualified privilege – where publications reached a wide audience – publications incapable of attracting requisite reciprocity of duty and interest – defence of qualified privilege pursuant to s 30 of the Defamation Act 2005 (Act) – consideration of s 30 criteria – reasonableness pursuant to s 30(3) – publications not reasonable in circumstances – defence of constitutionally protected privilege recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 – consideration of criticisms of Lange – consideration of reasonableness threshold – threshold equivalent to s 30 of the Act

DEFAMATION – where applicant advanced three defences against cross-claim – defence of substantial truth under s 25 of the Act – insufficient evidence of substantial truth – defence of contextual truth pursuant to s 26 of the Act – where all contextual imputations failed – “reply to attack” species of common law qualified privilege defence – cross-claim matters do not constitute proportionate “replies” or “ripostes”

DEFAMATION – consideration of principles of malice with respect to primary proceeding and cross-claim – malice not established in either proceeding

DAMAGES – where damages for non-economic loss sought in both primary proceeding and cross-claim – where limited damage to applicant’s reputation – hurt to feelings not established – where Premier did not suffer damage to reputation – where Premier’s reputation likely improved by reason of the impugned publications – where Premier suffered some hurt to feelings – where both parties made extensive case for aggravated damages – consideration of principles of aggravated damages in defamation proceedings – no separate head of damages – where conduct is not unjustified, improper or lacking in bona fides – aggravated damages unavailable

DAMAGES – compensatory and aggravated damages – assessment of quantum – case for vindication overstated – consideration of award of nominal damage – modest damages awarded

Legislation:

Constitution s 92

Evidence Act 1995 (Cth) s 191

Federal Court of Australia Act 1976 (Cth) Pt VB, s 37P(2), 51A

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules 2011 (Cth) r 30.02

Constitution Act 1889 (WA) ss 2(1), 2(3)

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Details
AGLC
Palmer v McGowan (No 5) [2022] FCA 893
Case
[2022] FCA 893
Decision Date

CaseChat Overview and Summary

The case of Palmer v McGowan (No 5) involved a defamation proceeding brought by a prominent political figure and businessman against the Premier of Western Australia. The cross-claim was brought by the Premier against the businessman in respect of nine matters. The series of skirmishes between the parties had taken place in print and online media, as well as on television, radio, and social media. The colourful language deployed by the parties included allegations of lying and corruption, declarations of "war," and other defamatory imputations. The primary proceeding and cross-claim were dominated by the context of the COVID-19 pandemic and the enactment of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amendment Act). The court considered the scope of the matters and whether the imputations conveyed were defamatory.

The court examined the Premier's three defences: common law qualified privilege, qualified privilege pursuant to s 30 of the Defamation Act 2005, and constitutionally protected privilege. The court found that the publications did not attract the requisite reciprocity of duty and interest for the defence of common law qualified privilege. The court also found that the publications were not reasonable in the circumstances and did not meet the criteria of s 30 of the Act. The court found that the threshold for constitutionally protected privilege was equivalent to s 30 of the Act. The businessman's defences against the cross-claim were also considered, including substantial truth, contextual truth, and common law qualified privilege. The court found that the businessman's defences were unsuccessful.

The court considered the principles of malice with respect to both the primary proceeding and cross-claim. The court found that malice was not established in either proceeding. The court also considered the damages for non-economic loss sought in both the primary proceeding and cross-claim. The court found that the limited damage to the businessman's reputation did not warrant an award of damages for non-economic loss. The court found that the Premier did not suffer damage to their reputation and that their reputation was likely improved by the impugned publications. The court also found that the Premier suffered some hurt to feelings, but that the award of aggravated damages was unavailable.

The court assessed the quantum of compensatory and aggravated damages. The court found that the case for vindication was overstated and awarded modest damages. The court concluded that the proceedings had not only involved considerable expenditure by the parties, but also consumed considerable resources of the Commonwealth and diverted Court time from resolving controversies of real importance to persons who have a pressing need to litigate. The court found that political figures must expect a degree of public criticism, fair or unfair, not usually visited upon other members of the public. The court found 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.

The court awarded judgment for the applicant against the respondent on the amended statement of claim in the sum of $5,000. The court also awarded judgment for the cross-claimant against the cross-respondent on the amended cross-claim in the sum of $20,000. The court dismissed the applications for relief by way of an injunction enjoining the opposing party. The proceedings were adjourned to deal with any issue as to the costs of the proceedings.

Orders

Orders of the court

1. Judgment for the applicant against the respondent on the amended statement of claim in the sum of $5,000.

2. Judgment for the cross-claimant against the cross-respondent on the amended cross-claim in the sum of $20,000.

3. The applications for relief by way of an injunction enjoining the opposing party be dismissed.

4. The proceedings be adjourned to 10:15am on 11 August 2022 to deal with any issue as to the costs of the proceedings.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

No injunction should run. J CONCLUSION AND ORDERS The game has not been worth the candle. 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. Political figures occupy a special place in our system of representative and responsible government. Insofar as a subset of political figures (serving members of Parliament) 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. Political figures more generally have a position which allows them to further their agenda, and potentially influence the course of economic and social policy and current events. 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, not usually visited upon other members of the public. Article 17 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) relevantly provides that no-one shall be subjected to “unlawful attacks on his honour and reputation” and that “[e]veryone has the right to the protection of the law against such interference or attacks”. This important human right does not disappear like a will-o’-wisp once someone becomes a political figure. But 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. I will hear the parties on the appropriate award of costs. A relevant consideration will be the glaring disproportion between the damages awarded and the extent of legal expense.

Ratio Decidendi

Legal Principle Established

By late 2019, it had been agreed that Mr McHugh would hear and determine these claims for damages in a third arbitration (Third Arbitration). Third Arbitration Directions In December 2019, directions were made as to the exchange of a Statement of Issues, Facts and Contentions, written statements of witnesses of fact and expert witness reports. Mr McHugh foreshadowed the making of further directions. In June 2020, Mr McHugh directed that the Third Arbitration would be heard for 15 business days commencing at the end of November 2020. Relevantly, direction 10.4 provided that “[t]he Arbitrator shall deliver his award in the Arbitration on or before 12 February 2021”. The directions further provided that the parties attend a mediation by the end of October 2020 and “act in good faith towards each other” in respect of the mediation. In July 2020, an arbitration agreement was executed. Both the arbitration and the mediation were confidential.The planning of the Amendment Act Notwithstanding these events preparatory to and facilitating the Third Arbitration, Mr McGowan and Mr Quigley had already started work on what would become the Amendment Act. Mr McGowan said that from about March 2020, he and Mr Quigley were discussing the prospect of legislation as a means of dealing with the problem represented by Mr Palmer’s damages claim: T463.21–464.1. In late May, Mr Quigley and Mr McGowan had an SMS exchange in the following terms (reproduced in Annexure A):Mr Quigley: I must be a bit OCD! I have been awake since 4.15 thinking of ways to beat big fat Clive and his arbitration claim for 23.5 billion in damages remembering the turd has pulled off 2 big wins in arbitration … The solution is to be found in an amendment to legislation obstensibly [sic] to protect us Re [the possibility of an unrelated dispute] … which amendment for that purpose is merely a Trojan horse as within the very small legislative amendment will be a poison pill for the fat man … It’s such a neat solution obstentially [sic] to solve one almost non existent problem but the side wind could drop drop the fat man on his big fat arse ! … Hey are you glad me single again … not making love in sweet hours before dawn instead worrying how to defeat Clive! 藍Mr McGowan: Let’s discuss the $23 billion claimWe need to really sort out what to do.I don’t want to let Parker know or any journo before we r readyMr Quigley: Absolutely secrecy of essence …  In July, Mr McGowan sent Mr Quigley an SMS in which he asked: “How’s our Bill Re legal action by Mr Palmer coming along[?]”. By the end of July, they were discussing the precise timing of its introduction into Parliament. The work in relation to this proposed legislation continued until just before 5pm on 11 August, when the bill that became the Amendment Act (Bill) was introduced in the Legislative Assembly. The Bill moved through the Parliamentary process with the speed of summer lightning. It reached the Legislative Council on the morning of 13 August; passed the Legislative Council at about 10:35pm on the same day; and the Governor provided Royal Assent approximately 40 minutes later.