EYE-WATERING bill expected after Palmer, McGowan scrap

Billionaire Clive Palmer has been forced to pay part of the legal fees of West Australian Premier Mark McGowan after they both came out losers in their bitter defamation trial.

The Premier and the mining magnate sued each other for defamation in the NSW Federal Court, with $5000 in damages awarded to Mr Palmer and $20,000 to the Premier.

On Thursday, the matter returned to court to work out costs, with Justice Michael Lee ruling Mr Palmer should pay part of Mr McGowan’s costs, noting Mr McGowan had made an offer for both parties to walk away last December to avoid the trial.

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“I’m amply satisfied that unless Mr Palmer sued, Mr McGowan would not have sued,” Justice Lee said.

“In circumstances where Mr McGowan was already dragged into court, and was already required to expend legal costs, the commencement of the cross-claim in relation to plainly defamatory publications cannot be stigmatised as being unreasonable.”

Justice Lee reiterated it was Mr Palmer who “first picked up the cudgels”.

“Both men went too far in their political jousting and both men litigated, but only one was willing to draw back and avoid the long and costly hearing,” he said.

“The appropriate order is that Mr Palmer should pay Mr McGowan’s costs of the cross-claim.

“On balance, however, I do not think the costs should be awarded on an indemnity basis, mainly because of the mixed ultimate result, but also because Mr McGowan’s increased cost by running a number of points that were not exactly dripping in merit, including a common law and statutory qualified privilege defence that could not succeed.”

Mr Palmer was ordered to pay the Premier’s costs from 11am on December 22 last year.

The exact figure has not yet been publicly revealed and if there is a dispute between the parties a court registrar will make a determination.

But it was revealed earlier during the hearing that the daily cost of Mr McGowan’s barrister, Bret Walker SC, was higher than the damages awarded — some $25,000 per day.

“It’s an interesting stage of your career you reach when your daily fee exceeds the award of damages,” Justice Lee commented.

Mr Walker replied: “I’d hate your honour to think this is the first time that’s happened.”

His response drew laughs from people in court.

Regarding the offer, the court was told a letter was sent by the Premier’s legal team in December to Mr Palmer’s lawyers, calling for both sides to admit they had “gone too far” and for the case to not proceed to trial because there was a risk they would both lose.

It was suggested both sides should walk away and pay their own costs at that point, but Mr Palmer’s legal team rejected the offer.

Mr Palmer’s legal team argued the offer came late, but Justice Lee noted the trial was still some time away at that point.

The Queensland businessman’s team argued the court case had ultimately ended in a tie, so both sides should have to pay for their own lawyers.

But the Premier’s legal team argued the December letter should be taken into account as well, as it was Mr Palmer who started the legal fight.

“The failure to engage with the offer did not serve to best facilitate the optimal use of the resources of the court and the parties,” Justice Lee determined.

“But in the end, Mr McGowan also defamed Mr Palmer, and despite the offer, he should not get his costs of the primary proceeding.”

During the trial, evidence was heard about Mr Palmer’s legal fight over the WA hard border, his stalled iron ore project, arbitration between the parties, and the extraordinary legislation which was passed to block the mining magnate’s ability to claim almost $30bn in damages.

Justice Lee delivered his judgment in the case earlier this month, saying “the game has not been worth the candle” as he criticised both parties.

“These proceedings have not only involved considerable expenditure by Mr Palmer and the taxpayers of WA, but have also consumed considerable resources of the commonwealth and, importantly, diverted court time from resolving controversies of real importance to persons who have a pressing need to litigate,” he said.

In parliament immediately after the costs decision was handed down, Mr McGowan said he would never give in to someone like Mr Palmer.

“Mr Palmer chose to initiate this court action, and I had no option but to respond and stand up for WA,” the Premier said.

“I never wanted to end up in court over this matter. I didn’t want to spend time and money in court, but I had no choice other than to defend myself and our state.

“It’s also important to make the point that when Clive Palmer started this action, he started it in the context of this government’s effort to save the state from Mr Palmer’s attempts to take WA for $30bn — a move that would have destroyed our budget, devastated our economy and caused pain for every single West Australian.”

Mr McGowan said he would not be bullied by Mr Palmer.

“I refuse to give in to Mr Palmer’s demands,” he said.

“This is as good an outcome as we could have hoped.

“We have to expect that someone like Mr Palmer won’t stop until he gets what he wants.

“Litigation is his self-confessed hobby … and comes at no real financial cost to him.

“I wish this was the end of the matter and I hope it is, but I can assure the parliament and all West Australians that whatever is thrown at us, whatever is thrown at my government and me personally, I’ll continue to stand up for WA.”

Mr Palmer is yet to comment on the outcome.