Consideration
251 Despite the matters relied upon by Mr Palmer, and despite the evident political hostility between the protagonists, I have not reached the level of satisfaction to conclude that Mr McGowan was actuated by malice as alleged.
252 As to the First, Second and Fifth Matters, Mr Palmer's argument largely boils down to an assertion that the language used by Mr McGowan was such that he could not have believed the matters sued upon to be true or, alternatively, that he was actuated by malice in the relevant sense. In doing so, Mr Palmer focuses on graphic words used by Mr McGowan (for example, "enemy of the State"). While it is true, as Mr McGowan accepts, that the actual language used by him is not irrelevant to the question of whether he was actuated by malice, to the extent that Mr Palmer alleges that Mr McGowan did not believe the truth of the matters sued upon, close attention must be given to what Mr McGowan intended to convey by the language used. Approached realistically, Mr McGowan did not intend to portray Mr Palmer as morally commensurate to a tyrant of historic proportions. Rather, the expressions such as "enemy of the State" were used figuratively and were intended to convey meanings similar, if not identical, to those objectively conveyed; that is, that Mr Palmer represents a "threat".
253 Notwithstanding the texts and the flourishes used by Mr McGowan, the evidence indicates strongly that he viewed Mr Palmer as a "threat" or "dangerous", and that, in Mr McGowan's view, the actions taken by Mr Palmer were inimical to the interests of the Western Australian people. These included, for example, that:
(1) the High Court Border Proceeding sought to bring down the "hard border", a key pandemic response which Mr McGowan's viewed as "absolutely necessary for protecting Western Australians from COVID-19". Indeed, he was of the view that if the border came down, the health and safety of Western Australians would be put at risk and hence the High Court Border Proceeding could thereby "harm the health and wellbeing of Western Australians";
(2) success on the part of Mr Palmer in the High Court Border Proceeding would obstruct the ability of States other than Western Australia to impose their own border restrictions such that Mr Palmer was, in Mr McGowan's view, acting contrary to the interests not merely of Western Australians, but of Australians generally;
(3) Mr McGowan believed that Mr Palmer was bringing the High Court Border Proceeding for his own benefit rather than for any altruistic reasons and funding them with money earned from Mr Palmer's interest in the Sino-Iron project in the Pilbara; and
(4) the damages claim concerning the Amendment Act put the financial wellbeing of Western Australia at risk. Mr McGowan's evidence was that the thought of the State being made to pay Mr Palmer $30 billion made him feel "more than sick": T443.20; T408-10; T443.20.
254 Indeed, Mr Palmer's real complaint, it seems, is that in the light of the reasonableness he perceives in his own position, it was unfair or wrong for Mr McGowan to characterise him as a threat or a danger. But these issues distract from the focus of the present enquiry: that is, the subjective state of mind of Mr McGowan.
255 As to the Third Matter, Mr McGowan's evidence was that he had consulted with the Chief Health Officer and the Director General of the Department of Health and had received very clear advice that hydroxychloroquine was dangerous when used as a treatment or cure for COVID-19: T368.14-29; T369.17-19; T370.22; T398.12-19. Mr McGowan could not recall exactly when he spoke with these persons, other than it was some time prior to the 3 August press conference when the issue was "current in the press": T368.25; T368.25; T370.20; T368.32; T370.11-31. Mr McGowan also gave evidence that he was aware of increasing numbers of negative media reports regarding hydroxychloroquine: T364.24. On the basis of the advice he had received and the media reports of which he was aware, Mr McGowan's evidence was that he believed hydroxychloroquine was dangerous when used as treatment or cure for COVID-19.
256 I accept that at the time Mr Palmer sought to enter Western Australia in May, there was limited evidence as to the efficacy of hydroxychloroquine as a treatment for COVID-19. But when one appreciates the terms of the Third Matter, I do not accept that Mr McGowan was being dishonest as contended. Mr McGowan commences in past tense, talking about Mr Palmer's motivation for flying to Western Australia: "he wanted to come to Western Australia to promote Hydroxychloroquine to the people of the State as some sort of cure for COVID" (emphasis added). Mr McGowan then shifts to present tense when he notes "[a]ll the evidence is not only is it not a cure, it's actually dangerous" (emphasis added), while continually making reference to Mr Palmer's purported travel to Western Australia in past tense, "[s]o, him coming to Western Australia to promote a dangerous drug I don't think was a good thing for our State and I'm pleased the Police rejected him" (emphasis added). Mr McGowan was reflecting, ex post, on the refusal to grant Mr Palmer visitation, given the information which had since come to light in relation to hydroxychloroquine. Further, any attempt by Mr Palmer to distinguish between the terms "promote" and "donate" is not compelling. To "promote" is readily understood simply to mean "further the development, progress, or establishment of (a thing); encourage, help forward or support actively … a cause, process": Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007). It is not inaccurate to say that Mr Palmer was promoting hydroxychloroquine in this sense.
257 As to the Sixth Matter, Mr McGowan's evidence was that he believed the statements to be true. In short, he believed that the damages claim, having an approximate quantum of $30 billion, would, if successful, have devastating consequences. Put in graphic terms, this would, in effect, result in an "impost" of about $12,000 per person. Further, it is not in dispute that Mr Palmer chose not to proceed with the BSIOP proposal with the conditions attached to it after the 2014 Award was rendered. The statements in the Facebook post to the effect that the Amendment Act was not about stopping Mr Palmer from pursuing the BSIOP Proposal are understandable on the basis that it was open to Mr Palmer to accept the conditionality and proceed with the BSIOP proposal.
258 Rather, the substance of Mr Palmer's complaint appears to be that the conditions were unreasonable and that the unreasonableness was the real reason that the BSIOP proposal did not proceed. But, as I have already stated above, the difficulty is that Mr Palmer's state of mind as to the reasonableness or otherwise of the conditions is not to the point. Mr McGowan's evidence was that he understood that different mining projects had different conditions applied to them and, in that sense, the conditionality of any project was unique to it: T429.05-12. I cannot be satisfied that Mr McGowan believed the conditions imposed were unreasonable or that he viewed any such unreasonableness as the true cause of Mr Palmer's decision not to proceed with the project. Indeed, Mr McGowan's evidence, which was not relevantly challenged, was that he did not know that the Third Arbitration involved a challenge by Mr Palmer to the unreasonableness of the conditions: T428.25.
259 In the light of these matters, there is a limited foundation for Mr Palmer's submission that Mr McGowan knew that the statements made in the Sixth Matter were false; that is, he knew that the true cause of Mr Palmer's decision not to proceed was the existence of unreasonable conditions as opposed to, as Mr McGowan said in his Facebook post, Mr Palmer's decision not to accept them.
260 This means Mr Palmer is left to contend that Mr McGowan's failure to read the State Agreement and the arbitral awards, which may have informed him of the true position, is of the required degree of recklessness, either on its own, or in combination with other facts, sufficient to establish malice on his part. While I accept, as I have found above (at [196]), that a key integer in finding that it was not reasonable for Mr McGowan to publish the Sixth Matter was the fact that he did not acquaint himself with the arbitral awards and the State Agreement with a degree of specificity, it is quite another thing to say that such conduct rises to the level required to ground a finding of malice.
261 It is common ground that proof of ill-will, prejudice, bias, and recklessness is insufficient of itself to establish that malice actuated a publication: Roberts v Bass (at 30-41 [74]-[104] per Gaudron, McHugh and Gummow JJ); Fraser v Holmes [2009] NSWCA 36; (2009) 253 ALR 538 (at 551-554 [50]-[68] per Tobias JA, with whom McColl JA and Basten JA agreed at 559 [95] and 559 [96] respectively); Cush v Dillon (at 310-311 [27] per French CJ, Crennan and Kiefel JJ). But, as the plurality in Roberts v Bass made clear, there are at least two ways in which evidence of recklessness can be connected with a finding of malice to defeat the defence of qualified privilege. The first is that sheer recklessness may itself ground a finding of malice if, for example, it is so gross as to constitute wilful blindness: (at 35-36 [87] per Gaudron, McHugh and Gummow JJ). In this context the law views wilful blindness, that is, where a defendant deliberately refrained from making enquiries for fear that they would learn the truth, as equal with knowledge: Robert v Bass (at 34 [84] per Gaudron, McHugh and Gummow JJ). The second is that in less extreme cases, recklessness, when present with other factors, may be cogent evidence that the respondent used the occasion for some improper motive. In this event, recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias, or unreasoning prejudice: Roberts v Bass (at 35-36 [87] per Gaudron, McHugh and Gummow JJ). In Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 (at 444), Lord Esher MR said:
If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.
262 While I accept that Mr McGowan was the directly responsible Minister as well as the Premier, Mr McGowan was not wilfully blind to the details of the arbitral awards and State Agreement. He was briefed on the topic. Given his manifold responsibilities, it is not particularly remarkable that he lacked detailed knowledge of aspects of the documents. There is nothing to suggest that Mr McGowan deliberately did not read or acquaint himself with all aspects of the arbitral awards and State Agreement. I will return below to this aspect of the evidence when considering the submission that this conduct, in combination with other conduct, rises to the level of recklessness.
263 It is then convenient to consider the two improper motives alleged.
264 First, Mr Palmer relies on the Attack Plan as evidence of malice so as to defeat Mr McGowan's qualified privilege defence; that is, as it appears to me, an allegation that Mr McGowan and Mr Quigley acted maliciously to direct insults at Mr Palmer to cause him and his solicitors to become so distracted and preoccupied with preparing defamation proceedings, that they would forget to register an arbitral award having a value exceeding $30 billion.
265 The difficulty is that this allegation lacks a persuasive evidentiary foundation. The evidentiary centrepiece of Mr Palmer's argument is the interview given by Mr Quigley on 13 August on ABC Radio Perth. For ease of reference, it is worth repeating the critical aspect of the radio interview:
And as I said to you, it is like, it is like a fight. And like my near neighbour Danny Green says, you've just got to jab, jab, jab with your right, and move him over to the left, and then just knock him down with a right - a left hook. And what's happened here is that Mark McGowan has been jab, jabbing away with insults, his lawyers have been busying themselves, were sending us back reams of defamation writs, when they should have been looking at the main game, of file - of registering the arbitration. And we got through in time. We got that legislation into the Assembly on Tuesday night while all the courts were locked.
(Emphasis added).
266 Mr Quigley's words do not, without more, prove Mr McGowan's state of mind. This is particularly so in circumstances where Mr Quigley's evidence was, without intended disrespect, all over the place. While I accept that Mr McGowan revealed he was largely ad idem with Mr Quigley as to the outcome as conveyed in the radio interview, that is, to pass the legislation through Parliament as quickly as possible and that he was content to "wrongfoot" Mr Palmer in this regard, he disagreed that a conspiracy of the nature described above was an accurate account of what was occurring. Indeed, the evidence relied upon by Mr Palmer in cross-examination (T421.37-422.15) does not support such a finding. Rather, these passages simply acknowledge that the Amendment Act was prepared in secret and in a short timeframe: "the strategy of constructing the legislation and introducing it to Parliament" (T422.10-11) and "to get the legislation through as quickly as possible": T422.20-21. There was no concession as to delivering insults to distract Mr Palmer from registering the award. That is, apart from the confusing evidence of Mr Quigley, there is no evidence upon which to ground a connexion, in the mind of Mr McGowan, between insulting Mr Palmer and preventing him from registering the arbitral award. Indeed, his evidence was that the only relevant strategy was "[t]he strategy of constructing the legislation and introducing it to Parliament": T422.08-11. Without more, it is not possible for me to reach the level of satisfaction required to conclude that Mr McGowan was driven by the foreign motive alleged.
267 I am fortified in this view by reason of the fact that Mr Palmer can point to no documentary evidence in support of his allegation that Mr McGowan was aware of any Attack Plan despite the fact Mr McGowan and the State have provided extensive discovery, and Mr Quigley has produced documents pursuant to a subpoena, including private SMS exchanges.
268 The second improper motive is that Mr McGowan intended to denigrate Mr Palmer in order to persuade Mr Palmer, and by extension the Commonwealth, to drop the High Court Border Proceeding. To contextualise this argument, given that it only arose for the first time in cross-examination, it is necessary to set out the exchange that occurred at some length. After Mr McGowan accepted that he made various comments in relation to Mr Palmer in order to "denigrate" him (at T374.25-375.16), the following exchange occurred (at T375.35-376.43):
[MR GRAY]: And you thought that denigrating Mr Palmer would be to your political advantage, didn't you? --- It was more about the dispute and making sure that I put our case forcefully.
You thought that denigrating Mr Palmer would be to your political advantage? --- It wasn't about that.
Answer my question? --- The answer is no.
You thought that denigrating him would be to your political advantage? --- The - the answer to that is no.
You didn't think so? --- No, it wasn't … for political advantage. It was in order to try to get Mr Palmer to drop his High Court challenge, to withdraw his claim against us, all those sorts of things. That was what it was about.
By telling him to stop being a jerk? --- Yes …
You thought that might appeal to his higher sense of duty, did you? … No, I wouldn't say that.
No. It wasn't to do otherwise than to insult him, was it? … Just because you could? --- It was to try and achieve an outcome.
That's ridiculous, Mr McGowan, with all due respect? --- Well, it was a very, very heated and stressful time.
HIS HONOUR: Can I just understand that last question. When you said the outcome, the outcome was what, you would say these things in public in order for him to stop legal proceedings? --- It was … in the height of - the date there is 20 around 29 July, so it was at the height of the issues surrounding the border.
Yes? --- And trying to get him, as I recall at that point in time, to withdraw his legal challenge. Now, obviously, using that sort of language was probably unhelpful. I admit that. …
No, no. Don't worry about that. I'm just focusing on your motivation for making the comments publicly. It was in order to make comments to the public in order to, what, have the effect of Mr Palmer bringing legal proceedings which were then on foot to an end. Would that - is that the outcome you were seeking to pursue? --- It was to - at that point in time, it was to seek Mr Palmer to withdraw his action in the High Court around the borders and I also obviously had knowledge about the $30 billion claim that he had against us, which was obviously in the back of my mind and was aggravating me at that point in time. Now, obviously - - -
… I'm just focusing on your purpose. So it would be fair to conclude that your purpose in making these public comments of that type were to have the effect of Mr Palmer ceasing the legal proceedings that were on foot? --- It would be partly that. It also would be in response to the advertisements and the campaign that … he was running against me using free-to-air advertising and so forth, which was ongoing and at length.
(Emphasis added).
269 The following day, after being questioned in relation to comments Mr McGowan made at a press conference describing Mr Palmer as an "Olympic-scale narcissist" and an "ego centrist of the highest order", the following exchange occurred (at T396.30-397.26):
[MR GRAY]: Now, as his Honour asked you yesterday, were you saying those things in order to pressure Mr Palmer into dropping his High Court case? --- At this point in time, the Commonwealth had pulled out, which was a very good development. In terms of Mr Palmer, I don't recall at that point in time whether or not that we were - our strategy was to try and get him to pull out. We were certainly trying to get him to pull out before that, but the Commonwealth pulling out was a good thing. But it was more about this - this running set of statements he was continuing to make in advertisements, he was making that I was responding to.
But partly about trying to pressure him to pull out of his case? --- Certainly before the - the aim was - - -
Is that - no, please, you can - I am happy for you to go on, but is the answer to that, "yes"? --- Earlier on it was. I don't know. I - honestly, I don't know if at that day, on 2 August, the aim was to get him to pull out. We just achieved the outcome with the Commonwealth after a lot of effort, I might add. Now, at that point in time, it was part of a response to the extraordinary advertising and - and - and stuff that he had been engaging in for a considerable period of time and, I suppose, I was quite agitated by what he was doing.
Were you trying to pressure him to pull out of the case? --- Certainly before that. On that day, I don't know.
Well, you didn't change your approach at trying to pressure him to pull out of the case, did you? --- Prior to that - so part of the - I think part of the strategy was that pressuring the Commonwealth, the Prime Minister and the Attorney - then Attorney General and so forth out - to withdraw from the case, would have helped out - helped our cause and, frankly, help their cause. But it - it - and - and Mr Palmer becoming as - advertising the way that he was, and behaving the way he was, I don't think was helping the Commonwealth's cause him staying in the case, so therefore putting pressure on Mr Palmer assisted in the Commonwealth leaving. Now, by that date, the Commonwealth - - -
Sorry, just explain that. Putting pressure on Mr Palmer assisted the Commonwealth leaving, did you say? --- Well, they … they read the public mood and they read what the way that these things are being perceived, and they read his advertising and my response, and how it's being perceived. So - - -
So just that I'm following you there, are you saying that pressuring Mr Palmer to withdraw was also seen by you as helpful in pressuring the Commonwealth to withdraw? --- Yes.
And that was your - part of your strategy throughout this period? --- Yes.
(Emphasis added).
270 The point taken that this foreign motive was not pleaded is neither here nor there, given it only emerged for the first time in cross-examination. Senior counsel for Mr McGowan did not seek to re-examine Mr McGowan on this topic, and there was ample opportunity in closing submissions to address this submission.
271 In any event, and despite this issue causing me some disquiet, overall, I am not satisfied that the evidence rises to the level necessary to make out a finding of malice. There are two related reasons why I have reached this conclusion.
272 First, I accept as a general proposition that putting public pressure on a litigant to discontinue proceedings is prima facie improper, but this was no ordinary litigation and it is important not to decontextualise any pressure exerted from the political context in which it was being exerted. Further, even if the identified purpose was improper, I am not satisfied on the basis of the above exchange that such an improper purpose was the dominant or real purpose motivating the publication of the relevant matters. I accept that Mr McGowan volunteered the statement that his purpose was "to try to get Mr Palmer to drop his High Court challenge, to withdraw his claim against us, all those sorts of things". Importantly, however, he later clarified his position in response to a question from me as to whether it would be fair to conclude his purpose in making certain public comments was to have the effect of Mr Palmer ceasing the legal proceedings that were on foot, stating "[i]t would be partly that. It also would be in response to the advertisements and the campaign that … he was running against me using free-to-air advertising and so forth, which was ongoing and at length": T376.39-43. Indeed, the further cross-examination that ensued on this topic reveals he was only acceding to the proposition that asserting some sort of pressure on Mr Palmer to withdraw his High Court challenge was "part of [his] strategy throughout this period": T397.26.
273 Secondly, it is of note that the publications in respect of which this questioning took place, while published around the relevant period, were not those actually sued upon by Mr Palmer, but other comments made by Mr McGowan. Overall, given these factors, the exchange that ensued on this topic provides an insecure foundation upon which to make a finding of an improper purpose sufficient to evidence malice.
274 Finally, even viewing all the above matters cumulatively, I have not reached the level of satisfaction to conclude that any apparent recklessness on the part of Mr McGowan, combined with other factors, is sufficient to prove to the requisite standard an improper motive (taking into account the nature and seriousness of such a finding). Mr McGowan was antipathetic towards Mr Palmer. These men were, after all, not only political opponents but were very different personalities. Mr McGowan used extravagant language to describe his continuing political tussle with Mr Palmer and actively disliked him, but something more is required to make out a finding of malice.