When a defamation action ‘isn’t worth the candle’

On Tuesday Justice Michael Lee of the Federal Court handed down judgment in Clive Palmer’s defamation battle against Mark McGowan, in which the WA premier mounted his own cross‑claim against Palmer. It’s fair to say that everyone was a loser.

As the judge concluded, “The game has not been worth the candle.” After more than a year of litigation and legal costs for both parties likely to have exceeded $3 million (McGowan’s to be picked up by the WA taxpayer), Palmer was ultimately awarded $5000 and McGowan $20,000. According to the judge, neither man suffered any significant damage to their reputation, and in fact McGowan’s was probably enhanced by the stoush.

Clive Palmer (left) and Mark McGowan.Credit: Fairfax

Both Palmer and McGowan gave evidence (the premier having to fly to Sydney and isolate for seven days on his return to Perth). Palmer was described as an “indefatigable litigant” who, while confident and intelligent, “carried himself with the unmistakable aura of a man assured as to the correctness of his own opinions” and on whose evidence it was not “safe to place any significant reliance”.

McGowan fared better, and although he was an “impressive witness” his occasional unwillingness to answer questions exhibited “the muscle memory of a questioned politician”. Perhaps the witness who emerged most scathed was John Quigley, the WA attorney-general. His evidence was described as “confused and confusing” and his second appearance in the witness box (to clarify his earlier evidence) was found only to have added to the fog of confusion. Text messages with the premier revealed embarrassing exchanges about Quigley’s private life and his views on Palmer. The WA Opposition is now calling for his resignation.

Credit as a witness “in issue”: WA Attorney-General John Quigley.Credit: Philip Gostelow

Both men technically made out their claims, but was it worth it? For defamation winners and losers, and everyone in between, the costs and stresses are substantial.

Geoffrey Rush was successful in his defamation case against Nationwide News in 2019, being awarded record damages of almost $3 million. However, the publicity generated by the hearing was ugly, the actress Eryn Jean Norvill was forced out into the open as his accuser, and another actress, Yael Stone, emerged with her own allegations of improper behaviour.

Two months ago, Craig McLachlan pulled the pin on his defamation claim against Nine (publisher of this masthead), the ABC and actress Christie Whelan Browne, after four years of litigation. [The author acted for Nine and Whelan Browne in the case.] He had commenced the claim after four women accused him of sexual impropriety and bullying. On the day he discontinued his case, 11 women were lined up to give evidence against him. McLachlan blamed his decision on the toll the case had taken on his family’s and his own mental health. Add to that the impact on his accusers.

Christian Porter’s case against the ABC ended in a settlement, but not before some details of the defendants’ truth case were made public. While he described the settlement as a “humiliating backdown” by the ABC, that is a contested view for an outcome where the ABC gave no apology and Porter obtained no verdict, no take-down, and only his costs of the mediation as well as a brief editor’s note to the story. The case also generated its own spin-off litigation, with later judgments about whether the full ABC defence should be made public (no) and whether Porter’s barrister should have accepted the brief (no).

In 2017, Rebel Wilson celebrated outside court as she won a record damages award of more than $4.7 million in her defamation claim against what was then Bauer Media. This was reduced on appeal to $600,000, and Wilson would likely have ended up out of pocket after wearing the costs of that appeal and an unsuccessful High Court appeal.

And regardless of the outcome of the Ben Roberts-Smith case that has just ended after 110 days of hearings, 41 witnesses and more than $25 million in legal costs, one certainty is that every aspect of the former soldier’s personal and professional life for the last two years has been exposed.

Of course, whether to litigate over damaging publications will depend on a range of factors, including the seriousness of the meanings conveyed and the likelihood that the allegations will be forgotten by the next news cycle.

The names of defamation cases over the last few years - Dutton, Barilaro, Porter, Laming, Hanson Young, Husar, Hanson, Parke, Burston and Hockey – has read like a parliamentary roll call.

In Palmer, Justice Lee was particularly scathing of the fact that this case was brought by two public figures who are, and should be, used to the cut and thrust of heated political skirmishes. While politicians, the judge concluded, must expect a degree of public criticism, even if unfair, the important human right to protect one’s reputation “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.

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