While we wait for the Homeric epic of the Ben Roberts-Smith “defamation trial of the century” to produce its denouement, some light entertainment arrives in the form of the Federal Court’s decision to throw out the stupidest defamation case since Dutton v Bazzi: the Clive Palmer and Mark McGowan show.
Justice Michael Lee, following a fine tradition of judges waxing lyrical to entice interest in his succeeding 526 pages of legal reasoning, made plain from the outset where he was heading:
Enoch Powell once remarked: ‘For a politician to complain about the press, is like a ship’s captain complaining about the sea.’ As these proceedings demonstrate, a politician litigating about the barbs of a political adversary might be considered a similarly futile exercise.
Props for quoting a fascist! Not that Powell was wrong but, you know, Goebbels said a lot of clever things too.
Anyway — Palmer and McGowan, it is well known, hate each other’s guts, for reasons that have little to do with the public interest and much to do with their shared conviction of their own importance.
During 2020, the egos were battling out a very public spat — reported obsessively in Western Australia and sparingly everywhere else — over two points of disagreement. One was WA’s tough border closure regime, which Palmer unsuccessfully challenged in the High Court; the other was an extraordinary piece of legislation passed by McGowan’s government that was intended to, and did, take away from Palmer’s corporate interests the benefit of arbitration decisions (in relation to mining tenements), which would have delivered them a financial windfall worth potentially billions of dollars. With a stroke of the legislative pen, McGowan had rubbed all that out.
In the public square, neither man held back. McGowan called Palmer an enemy of Australia; Palmer labelled McGowan a liar, corrupt and a criminal. All very defamatory, as the judge inevitably found.
Turning to the personalities before him, Lee was impressed by Palmer in the literal sense of that word: “Mr Palmer is an indefatigable litigant … His confidence and self-assuredness was evident.” However, “he was generally a combative and evasive witness … In one important respect, he gave fantastic evidence.” That was on Palmer’s professed belief that the special law McGowan had passed would, and was intended to, allow McGowan to have him (Palmer) killed with impunity. The judge thought this was fantastic, albeit disappointingly only in the literal sense of that word.
Ultimately, his honour decided it wasn’t “safe to place any significant reliance upon Palmer’s evidence. McGowan, by contrast, “was generally an impressive witness, but sometimes when he was pressed … he did exhibit what might be described as the muscle memory of a questioned politician in being non-responsive”. Still, overall, he was “generally candid”.
Lee then turned to each party’s defences. McGowan had run with qualified privilege, but failed comprehensively since his behaviour had not been reasonable (although, possibly surprisingly, Lee didn’t think he’d acted with malice towards Palmer). It’s a very technical defence that rarely succeeds, and pretty much never when you’re using a megaphone as McGowan had done.
For his part, Palmer bravely pleaded a defence of truth, requiring him to prove that McGowan was in fact a lying, conniving criminal. That went as well as you’d expect.
He also tried on a relatively exotic defence, a form of qualified privilege called “reply to attack”. Basically, it allows a degree of latitude in defaming someone if you’re only doing it because they assaulted you first. It’s a bit analogous to self-defence in the context of murder. For Palmer, it was a non-starter. The only good news for him, too, was the judge didn’t think he was being malicious either.
Everyone’s defences having failed, Palmer and McGowan were found to have indefensibly defamed each other. Lee awarded damages of $20,000 to McGowan, and $5000 to Palmer, a carefully calculated insult.
As Lee said in paragraph 522, “the game has not been worth the candle” (not from a fascist, this time thankfully, but the 16th-century French philosopher Michel de Montaigne).
Underlining how deeply unimpressed he had been left, Lee kicked everyone out of his courtroom with a stinging judicial rebuke:
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.
He’s right, of course. This was a ridiculous waste of everyone’s time. McGowan can at least console himself that he didn’t sue first, and that he got the bigger verdict. Palmer is a persistent menace, clogging the courts with litigation that should have him and his interests verging on being declared vexatious and locked out altogether. He demonstrates as much genuine care for the justice system as he does for our democracy.
Neither man is likely to agree with the judge’s rulings or his reflections on their conduct, but an important reminder has been delivered nonetheless: litigation is for mugs.
Should Justice Lee have been even more caustic? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
It would be entirely reasonable and long overdue to declare Palmer a vexatious litigant. He exemplifies the often misattributed quotation “If you want to know what God thinks about money just look at the people He gives it to.”
But following from Bradley’s complaints concerning quoting the words of an alleged fascist (among other things Enoch Powell served with the British Army fighting against the fascists in the Second World War, so maybe it’s a bit more complicated than Bradley allows) I think we can overdo getting exercised about the moral character of those we quote. If the quotation is a good one that’s enough. Same with books, painting, music and so on. If we really believe any moral defect in the character of the author, artist or maker taints all they produce we will have to discard just about everything we have, since very few of us are perfect throughout our lives. Alternatively, we could rigorously insist on removing all attribution, so nobody would know who was responsible for any of these things, and each work of art or whatever would have to be judged solely on its merits and nothing else. That would be hugely beneficial in so many ways.
cool idea – and then we could remove nations from the Olympics and just have individuals (and teams) compete in generic sports gear
Yawn… what would you do without Palmer’s entertainment factor SSR?
I’d manage fine, I’ve enough other sources of entertainment. But there are plenty of other Australians whose lives would be significantly better if this chronic pest was put back in his box and forgotten, and it’s unlikely Palmer’s value as an entertainer is sufficient to outweigh that. It would be nice to think that, on balance, those who enjoy the Palmer freak show would be ready to give up the pleasure in service to the common good.
I think McGowan said Palmer was an ‘enemy of the State’, by which he meant Western Australia – not Australia. I know the distinction might be hard to grasp in the east, but Western Australians heard a very precise meaning. I think Mr Stokes also had his stenographers in The West use the same phrasing. Neither meant ‘Australia’, which was the team the unfortunate Christian Porter was playing for and supporting Palmer.
Enoch Powell, while probably a racist in the good old British tradition, was no fascist and had a good war record fighting fascism ( or at least Germany and Italy ). He was an admirer of GErman culture and was repelled by the Nazis.
While having repellent views on race he was also highly intelligent and well-educated, being a very good classicist – full professor at 25, albeit in that obscure colonial outpost, Sydney.. The snide comparison with Goebbels is unfair and fails the Godwin test. Powell was in furious disagreement with Moseley‘s fascists in the 1930‘s and had predicted the war with germany.
I am sure that had we ever met we would have found ourselves in furious disagreement about just about everything, except perhaps the classics, but he is owed fair treatment and the characterisation as fascist is unconscionable.
Powell was no racist – he had a Ghanaian son-in-law – but he knew that the average Pom was.
It seems that these days “Fascist” is s synonym for “someone whose politics I disagree with” Like many other common new uses it simply fudges the real meaning and makes the word useless. “disinterested” now meaning the same as “uninterested” is another example and both are losses to precise language
I’m not sure how far back your ‘these days’ extends, but George Orwell made exactly that point about fascism in his essay What is Fascism?, published in Tribune magazine in 1944. It’s easy to find on the web. He also argued forcefully that other such political terms, including “democracy”and “democratic” are equally devalued and meaningless.
Palmer wanted $30 billion which would have crippled the WA economy, and put a dent in that of the Eastern States too. The border thing was only a subsequent skirmish but had to be won, so of course words were said. Palmer may only be a flea but he carries the plague. The judge would no doubt prefer to have his talents exercised on murders, sex crimes and bikie gangs, but this case was just as important, if not more so. A billionaire usurping the law puts us all at risk.
And Enoch Powell called it as he saw it and, arguably, has been proved correct. He was not called a fascist at the time and should not be now. Unless you want to call turning the boats back fascist. Horrible man, but.
That’s a clever little put-down of Goebbel’s genius too. The fact that he enabled the very worst of last century should be cause to carefully study his methods and results, in order to guard against them being used here and now, which of course they are. To belittle propaganda is to succuumb to it. But there I go again.