Clive Palmer’s bid to have complaint and summons declared invalid dismissed

Billionaire Clive Palmer’s challenge against criminal proceedings, where he claimed his human rights had been breached has been stayed by a court.

Australian billionaire businessman Clive Palmer at the Opera House in Sydney. Picture: Rohan Kelly

A legal challenge by billionaire Clive Palmer against criminal proceedings in which he claimed his human rights had been breached has been stayed by a court and labelled “embarrassing” by lawyers for the former Justice of the Peace being sued.

However the Supreme Court’s Justice Paul Smith stopped short of finding the mining magnate’s lawsuit was an abuse of process.

The Australian Securities and Investments Commission have charged Mr Palmer with two counts each of fraud (dishonestly gained a benefit or advantage) and dishonestly using his position as a director.

Clive Palmer leaves the Supreme Court in Brisbane in 2022. Pic: Dan Peled

The former Queensland MP is vigorously defending the charges which relate to the transfer of $12 million from his company Mineralogy to other various entities controlled by, or related to, Mr Palmer allegedly to fund the Palmer United Party’s 2013 Federal Election campaign.

His defence team will seek to argue the charges are defective because it’s not alleged how he was dishonest and how he was not authorised to transfer the funds to PUP.

Mr Palmer has also used civil proceedings to challenge the criminal process.

Last year he sued ASIC and Heather Gibson who in 2020 worked for the corporate regulator and as a JP witnessed the criminal complaint against Mr Palmer and issued the summons.

In an amended statement of claim Mr Palmer alleged Ms Gibson, now retired, failed to give proper consideration to his human rights in doing so.

Mining Magnate Clive Palmer leaves Brisbane Supreme Court in 2023. Picture: Glenn Campbell

Mr Palmer claimed he has been singled out for special treatment and his right to a fair trial, to be informed and to a defence had been limited by the decision, the court heard.

He also alleged Ms Gibson committed the tort of misfeasance in a public office which caused him damages.

ASIC and Ms Gibson brought an application to have the matter dismissed. Alternatively Ms Gibson sought the amended statement of claim (ASOC) be struck out on the basis it disclosed no reasonable cause of action and/or was an abuse of the process.

ASIC also sought the dismissal of Mr Palmer’s application for declaratory relief that the complaint and summons against him was unlawful.

Ms Gibson submitted the proceeding was an abuse of process because it fragments the criminal proceedings currently before the Magistrates Court.

“It is submitted that this pleading does not disclose a reasonable cause of action and, as such, the pleading is embarrassing. It is submitted that the claims have no prospect of success at the final hearing and are vexatious,” Justice Smith said.

“It is submitted that the ASOC does not meet the high bar for pleading a claim of misfeasance in a public office.”

ASIC submitted the proceeding amounts to a “direct and collateral attack on the PUP payments prosecution”.

“It is submitted there has been a history of collateral attacks on the prosecution,” Justice Smith said.

American journalist Tucker Carlson with Clive Palmer ahead of the Australian Freedom Conference last year. Picture: Glenn Campbell

In opposing the application Mr Palmer argued the decisions made to issue the complaint and summons against him were not made in compliance with the Human Right Act “and as a result, the summons were unlawful and invalid and should be set aside”.

He argued the court should reject the defendants’ submissions that the criminal proceedings should not be fragmented.

“The criminal proceedings should not continue in circumstances where the complaint and summons relied on are unlawful and invalid,” Mr Palmer’s legal team argued.

“The question of lawfulness and validity of the complaint and summons is not one which can be determined by the Magistrates Court.

“If it was thought the claim was ambiguous or embarrassing, leave to re-plead could be given.”

But Justice Smith found “it would inappropriately further fragment the criminal proceedings” if the Supreme Court embarked on a trial concerning the complaint and summons.

He dismissed the claim for declaratory relief and stayed the action until after the criminal proceeding.

Justice Smith said the issue of the lawfulness of the complaint and summons could be argued before the District Court, if Mr Palmer was committed for trial.

He also concluded Mr Palmer had not pleaded how his human rights were purportedly limited or breached by the decisions made by Ms Gibson. He struck out allegations concerning human rights allowing them to be re-plead after the stay was lifted, noting there was no documentation that Ms Gibson did turn her mind to these rights.

Pleadings concerning the alleged misfeasance in a public office were also struck out by Justice Smith.

“Whilst I might have my doubts as to whether the action can be established, I have decided to permit the plaintiff to re-plead his case after the stay is lifted,” he said.

Justice Smith declined to find Mr Palmer’s lawsuit was an abuse of process.

“In light of my findings, that may possibly be the case, but I am not prepared to make the finding contended for,” he said.

A two week committal hearing on the fraud charges has been “tentatively listed” for November in Brisbane Magistrates Court.