Clive Palmer v Mark McGowan as it happened: McGowan cross-examination a surreal sight

Thanks for reading today’s coverage.

It has been a surreal few hours, watching a sitting Premier being berated by one of Australia’s top lawyers, Peter Gray SC, on the other side of the country.

Mark McGowan’s usual suavity took a battering in court today. Credit: Flavio Brancaleone/The Sydney Morning Herald

It is a significant contrast to Mark McGowan’s regular press conferences in WA, in which he runs rings around the press pack on matters of COVID.

During earlier evidence, Mr McGowan’s chest-beating over Western Australia’s COVID-19 record reared once again like muscle memory as he rattled off death and case numbers, but his cross-examination was a different story.

Huge moments and big decisions made during WA’s pandemic journey in 2020 were scrutinised at a microscopic level.

The “health advice” the WA public took as gospel when it came to the hard borders at that time was shown to have undergone some degree of government interpretation.

But Mr McGowan was defiant that sticking by the hard border was the correct thing to do and that all the advice he received said it was an effective tool.

Frustratingly for him, he was given little opportunity to provide context for his decisions during cross-examination.

At a normal press conference he would launch into a spiel about how the health outcomes of Western Australians were better than anywhere else in the world in terms of COVID-19 and how the state’s economy was performing better.

Very little of this counts during this case, however.

A key pillar of Mr McGowan’s cross-claim is that Mr Palmer incorrectly labelled him a liar by telling the public the hard border was necessary.

Mr Palmer’s defence only needs to prove that Mr McGowan lied, on specific occasions, that the hard border was necessary because of health advice.

Ironically, a case of COVID-19 has now drawn out the trial by another day meaning Mr McGowan must stay in Sydney for longer.

With COVID-19 commentary out the way, the trial will move to the Balmoral South legislation that blocked any ability by Mr Palmer to seek billions in compensation from WA, which the state agreement his company signed with the state government could have theoretically allowed.

We’re also expecting text messages between Mr Quigley and Mr McGowan in the lead-up to the legislation being introduced to be revealed to the court.

Tune in to WAtoday on Wednesday 6.30am WA time to read the rest of Mr McGowan’s evidence as well as WA Attorney-General John Quigley’s. See you then.

After some brief questioning about Mr McGowan labelling Mr Palmer an “enemy of the state” court has been adjourned until Wednesday.

The trial was originally scheduled to run tomorrow but one of Mr McGowan’s legal team contracted COVID-19.

This means Mr McGowan and Attorney-General John Quigley, who is also in Sydney for the trial, will likely not return to WA until Wednesday evening or Thursday morning.

Mr Palmer’s lawyers put it to Mr McGowan that his disparaging comments about the billionaire contributed to public hate that culminated in a Facebook campaign in which West Australians were encouraged to “cough” on him if his High Court challenge was successful.

The enemy of the state comment was made at a press conference on July 31, 2020.

Mr Gray suggested to Mr McGowan it was a planned comment but Mr McGowan denied this and said he often came up with phrases on the spot during press conferences.

Mr Gray also put it to Mr McGowan he used the phrase knowing that Soviet dictator Joseph Stalin had used a similar phrase, “enemy of the people”.

Mr McGowan conceded it was a damning statement, but said, “I was not thinking about Joe Stalin when I said it”.

Mr Gray says it was unbelievable that Mr McGowan was not thinking of Stalin given he was a “keen student of modern history” and “leader of the Australian Labor Party”.

Clive Palmer’s lawyer Peter Gray is moving to the Premier in 2020 calling Mr Palmer the “biggest loser” and a “jerk”.

It’s akin to a scolding, with Mr Gray asking whether “vulgar” insults befit his public role.

Mr McGowan addressing reporters outside court on Monday.Credit: Flavio Brancaleone/The Sydney Morning Herald

Mr Gray asks Mr McGowan if the biggest loser comment was about Mr Palmer’s “physique”.

Mr McGowan says yes, describing it as a bit of “Australian humour”.

The lawyer questions whether the Premier used “cheap shots” and called Mr Palmer a “jerk” to denigrate him and improve the Premier’s political standing.

Mr McGowan says said it wasn’t for political advantage but was to encourage Mr Palmer to rethink his high court border challenge.

Mr Gray is incredulous.

“By telling him to stop being a jerk? You thought that might appeal to his higher sense of duty?”

Clive Palmer’s lawyer Peter Gray is examining the timeline of Mark McGowan’s knowledge of the anti-malarial drug, hydroxychloroquine.

Mr Palmer was denied entry into the state in May 2020, but Mr McGowan made his comments that the mining magnate wanted to promote a “dangerous” drug in August 2020.

Hydroxychloroquine - one of the most-studied treatments in Australian clinical trials.Credit: AP

Mr Gray suggested to Mr McGowan that he had no idea that hydroxychloroquine was dangerous and ineffective at treating COVID-19 at the time, because the medical community had not yet come to that conclusion.

Mr McGowan said he had asked WA Chief Health Officer Andy Robertson and senior health bureaucrats about the drug at the time and they “recoiled in horror” at its use to treat COVID-19.

He did not, however, recall exactly when he asked that question, only that it was around the time it entered the public discourse when it was being discussed by former US President Donald Trump (whose comments you can see in the video in our previous post).

We’ve now moved on to the hydroxychloroquine saga.

In 2020, Clive Palmer bought $30 million worth of the anti-malarial drug, which he intended to donate to the Australian Government – see this video from the time.

One of the triggers for Mr Palmer contesting WA’s hard border in 2020 was him wanting to enter the state was to discuss the drug.

He applied for an exemption to enter WA partly on the basis that he was to meet former WA Senator Mathias Cormann; however, WA Police rejected the application.

“He wanted to come to WA to promote hydroxychloroquine as some sort of cure for COVID,” Mr McGowan said at the time.

“Not only is it not a cure, it’s dangerous.”

During previous evidence, Mr Palmer said Mr McGowan’s comments painted him as a drug dealer.

Mr Palmer’s lawyer Peter Gray SC has put it to Mr McGowan that the mining magnate was not coming to the state to promote the drug, because he was merely donating it to the Australian Government’s medical stockpile.

Freshly energised from the lunch break, Clive Palmer’s lawyer Peter Gray SC has dived straight back into comparing WA Premier Mark McGowan’s public justifications of the hard border in 2020 with the health advice he was receiving.

Mr Gray is scrutinising Mr McGowan’s public comments in mid-2020 that the state needed to keep the hard border with the whole country in place.

He is walking through health advice received from Chief Health Officer Dr Andy Robertson at around the same time that suggested the state could consider opening its borders to low risk jurisdictions such as South Australia and the Northern Territory, as they had little spread.

He is attempting to get Mr McGowan to say he lied to the public, but the Premier is standing his ground and says the totality of the health advice at that time reaffirmed it was an effective measure to keep the virus out.

Mr Gray has also brought up Mr McGowan’s comments that October, that jobs and tourism dollars would be lost if the government opened travel bubbles with other low risk states.

“They are not advocating for this for any other reason than that they want to see Western Australian income spent in Sydney or Brisbane, or wherever it might be,” Mr McGowan said at the time.

At the time, Mr McGowan’s comments attracted criticism from the federal opposition and Clive Palmer, to the tune that the state was keeping its hard border up with lower risk states for economic reasons, not health reasons.

Court has adjourned for lunch, which will be a welcome break for Mark McGowan who has copped a shellacking from Clive Palmer’s lawyer Peter Gray SC for his public statements about the hard border in the early days of the pandemic.

Mr Gray walked through the medical advice WA’s Chief and Deputy Health Officers, Andy Robertson and Paul Armstrong, provided the Premier in late March 2020 about options to reduce COVID-19 risk.

Mark McGowan arrives at court on Monday.Credit: Flavio Brancaleone/The Sydney Morning Herald

The advice did not say the hard border was necessary but suggested it could help curb the spread of the virus.

When Mr McGowan announced the hard border on April 2 he said the medical advice suggested the measure was necessary.

For about 10 minutes Mr Gray asked Mr McGowan to find where in the advice it said the hard border was necessary.

In a tense exchange, Mr Gray then accused Mr McGowan of lying to the public that the hard border was necessary based on the health advice.

“Every time you made such a public statement that the hard border was necessary because of the medical advice you had, they were knowingly false,” Mr Gray said.

“No,” Mr McGowan responded.

“Every time you said it – and you said it many times – you were lying, weren’t you?” Mr Gray said.

“No,” Mr McGowan said.

Court resumes at 11.15am WST.

Clive Palmer’s lawyer Peter Gray is hammering the Premier, putting it to him that it is not “honourable” to use taxpayers dollars to fund his cross-claim.

Mr McGowan responds that he had no other choice.

Mr Gray says he could have paid for it himself.

Mr McGowan counters he could not, as Mr Palmer has billions of dollars.

He says the decision to engage in the cross-claim was based on legal advice received.

“It was clearly the right course of action,” he says.

Mr McGowan has told the court the reason for the cross-claim was to reduce any financial impact on the state if Mr Palmer’s original defamation claim was successful.

Effectively, he means one lot of damages would help to cancel out the other.

Mr Gray put it to Mr McGowan that this was a gamble of public funds and “dishonourable” behaviour.

“No, I don’t agree,” Mr McGowan says.

Clive Palmer’s lawyer Peter Gray SC is not pulling punches as he cross-examines Mr McGowan.

He runs through Mr McGowan’s career history as a Navy legal officer then asks why taxpayers are footing the bill for his cross-defamation claim.

He asks about comments the Premier made in response to media questions about funding of the cross-claim, that it formed part of his defence to Mr Palmer’s original actions.

Earlier Mr Gray asked Mr McGowan to find any reference of the cross-claim in his official defence of Mr Palmer’s claims, which he could not.

Mr Gray puts it to Mr McGowan that the comments about the cross-claim being a defence to Mr Palmer’s action were untrue.

“Perhaps in a technically legal way, but my understanding it was part of these proceedings, which is what I meant,” Mr McGowan says.

Mr Gray says Mr McGowan knew full well at the time it was untrue to say the cross-claim formed part of his defence, noting the Premier has a law degree and had practiced law for six years.

“That was a long time ago,” Mr McGowan responds.