analysis: Mark McGowan, Clive Palmer fight out dull draw in court stoush that left both with black eyes

After a two-year journey through the court system, the contest between two of Australia’s most high-profile political characters is nearly at a close, but without a clear winner.

At the end of it all, both Mark McGowan and Clive Palmer were found to have defamed each other, although the Premier was decided to be deserving of the greater sum of damages.

It all seems to have been part of a gamble for the Premier, who was not only trying to avoid giving Clive Palmer a single cent on multiple fronts, but as Justice Michael Lee found, also likely had his reputation “enhanced”.

Even still, he’s walked away bruised in other ways, having had his relationship with the owner of the Perth’s only daily newspaper, Kerry Stokes, laid bare, and the capability of his Attorney General called into question.

It’s left many West Australians asking one question: was it all worth it?

As much as McGowan has, and will, be criticised for counter-suing Palmer, there’s one good reason he did.

McGowan’s reputation ‘enhanced’?

Yesterday, Justice Lee ordered McGowan to pay Palmer $5,000 in damages – a bill that could have been left to the WA taxpayer.

By countersuing, Palmer has been ordered to pay McGowan four times that – $20,000 – leaving the Premier, and WA, ahead.

That could change depending on whether either side is required to pay some or all of the other’s legal fees, but for the moment at least, McGowan’s gamble has paid off.

On top of that, Justice Lee also found that the Premier benefited in some ways from his disputes with Palmer.

“As the coverage Mr McGowan celebrated with Mr Stokes revealed … they provided a common foe against which Mr McGowan could unite Western Australians,” he wrote in his judgement.

“As Mr McGowan accepted, Mr Palmer was someone with whom Mr McGowan was ‘happy to have a blue with’.”

For everything he’s gained, the Premier’s been left with two other headaches though, including fresh attention on his relationship with businessman, and proprietor of the West Australian newspaper and Seven TV network, Kerry Stokes.

The Premier and the mogul

Messages revealed during the case showed McGowan contacting Stokes the minute before legislation was introduced into Parliament, aimed at stopping Palmer from suing the government for damages over a stalled mining venture. 

In the days that followed, The West depicted Mr Palmer variously as a cockroach and a cane toad, something McGowan joked with Stokes about.

But the Premier has sought to defend that relationship by now explaining that a variety of people were informed around the same time.

“We had communications with senior members of the opposition, senior members of the Commonwealth government … former Premier Colin Barnett, a whole range of industry associations, a whole range of business people, a whole range of journalists, probably 10 … plus chiefs of staff and newsrooms,” he said.

“So we did everything we could to make sure people were properly informed and people understood the gravity of what we were dealing with.”

He also tried to play down the relationship, saying he spoke to Stokes “rarely”.

“You could go through virtually every major company and every major investor in Western Australia, at some level I’ve had contact with the,” he said.

“I deal with them, I talk to them. That’s the reality of being the Premier of a state like Western Australia that actually invites and welcomes activity and investment.”

two men looking
Mr Palmer brought the defamation action against Mr McGowan over his comments about the mining magnate’s attempt to enter the state in 2020.(Facebook: Clive Palmer, Mark McGowan)

That was before continuing that he found Stokes to be “an engaging and interesting person, and a committed Western Australian who has done a great many good things for the state”.

But given Stokes owns the state’s most popular TV channel, the only daily metropolitan newspaper, and the fact he’s receiving $69 million in government money to redevelop the East Perth Power Station, the relationship is still likely to raise some eyebrows.

Quigley the unreliable historian

And then there’s the issue of McGowan’s long-serving Attorney-General, John Quigley.

A colourful character of WA politics, Mr Quigley was not considered to be a “reliable historian of events” by Justice Lee after he requested to return to the witness box to correct some of what he’d said initially.

He did note that it seemed Quigley had “limited time” to prepare himself for the case, but it will only add fuel to the fire for those calling on McGowan to refresh his cabinet.

A close up of Attorney-General John Quigley wearing a blue suit and tie standing in front of Australian flags and a blue curtain
John Quigley infamously required a ‘do-over’ on his evidence during the trial. (ABC News: Hugh Sando)

“The Federal Court judge has labelled the Attorney General’s evidence as ‘confused and confusing’ and ‘all over the shop’,” opposition leader Mia Davies said on Tuesday.

“Clearly, it is time for Mr Quigley to go – the Premier needs to wake up and take responsibility for his embattled cabinet.”

Despite that, the Premier insists nobody is going anywhere, and Quigley will remain Attorney General until the next election.

The next two-and-a-half years will show whether that remains true.

Reasonable people will ‘not be influenced’

As politics in WA returns to normal, and the accommodations afforded during COVID start to fall away, issues like these are hardly what the Premier would like to be dealing with.

But perhaps, as Justice Lee noted, the saga will do little to change Mr McGowan’s reputation.

“People will likely fall on a continuum between admiration and resentment, with some who are neutral or open-minded in the middle,” he said.

WA premier Mark McGowan stands at a lectern wearing a suit and tie.
Did the legal fight take some of the shine off Mark McGowan? (ABC News: James Carmody)

“The parties recognised that those on the admiration end of the continuum will tend to support the political figure no matter what material is published.

“Many ordinary, reasonable people will not be influenced, positively or negatively, by statements concerning a politician about whom they have already formed a view.”

McGowan will no doubt be hoping those words ring true, as the bruising case draws to a close.

Political figures need thicker skin

In concluding his 139-page-long judgement, Justice Lee lamented the “considerable resources” the matter had consumed, without criticising either side in particular.

“The game has not been worth the candle,” he deduced.

“And, importantly, [the case] diverted court time from resolving controversies of real importance to persons who have a pressing need to litigate.

“At a time when public resources 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 the subject of an action for defamation by a political figure.”

While explaining everyone, including political figures, deserved protection from the law, he noted the reality they should also expect, and accept, both fair and unfair criticisms levelled at them.