Palmer v McGowan

Justice P Applegarth, "Distorting the Law of Defamation" (2011) 30(1) University of Queensland Law Journal 99 Bryson J P, "Common Law Pleadings in New South Wales and How They Got Here" (Lecture presented to the Francis Forbes Society and the Selden Society, 30 August 2011) Hall P, "Freeing speech: Protecting the modern media defendant through the defence of qualified privilege" (2019) 23 Media and Arts Law Review 201 Kenyon A T, Defamation: Comparative Law and Practice (University College London Press, 2006) Rolph D, Defamation Law (Thomson Reuters, 2015) Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007) Young I, Theodore: His Life and Times (Alpha Books, 1971) Weaver R L and Partlett D F, "Defamation, the Media, and Free Speech: Australia's Experiment with Expanded Qualified Privilege" (2004) 36(2) George Washington International Law Review 377

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 526

Date of last submissions: 22 April 2022

Date of hearing: 14-16 February, 7, 9, 24, 28 March, 7-8 April 2022

Counsel for the Applicant / Cross-Respondent: Mr P Gray SC with Mr B Dean, Ms G Rubagotti and Mr H Elachkar

Solicitor for the Applicant / Cross-Respondent: Sophocles Lawyers

Counsel for the Respondent / Cross-Claimant: Mr B W Walker SC with Ms C Amato and Mr N Bender

Solicitor for the Respondent / Cross-Claimant: Clayton Utz

Counsel for the State of Western Australia: Mr D Higgs SC

Solicitor for the State of Western Australia: State Solicitor's Office (WA)

BETWEEN: CLIVE FREDERICK PALMER Applicant / Cross-Respondent

AND: MARK MCGOWAN Respondent / Cross-Claimant

order made by: LEE J DATE OF ORDER: 2 august 2022

1. Judgment for the applicant against the respondent on the amended statement of claim in the sum of $5,000.
2. Judgment for the cross-claimant against the cross-respondent on the amended cross-claim in the sum of $20,000.
3. The applications for relief by way of an injunction enjoining the opposing party be dismissed.
4. The proceedings be adjourned to 10:15am on 11 August 2022 to deal with any issue as to the costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT A INTRODUCTORY REMARKS [1] B THE FACTUAL LANDSCAPE [5] B.1 The COVID-19 Pandemic and the "Hard Border" [7] B.2 The Amendment Act [12] The State Agreement [13] The Arbitrations [19] Third Arbitration Directions [24] The planning of the Amendment Act [26] The aftermath [33] C THE PLEADINGS AND PUBLICATIONS [37] C.1 The Primary Proceeding [38] C.2 The Cross-Claim [42] C.3 Republication [46] D THE IMPUTATIONS [47] D.1 The Pleaded Imputations [47] D.2 The Matters Identified [52] D.3 Were the Imputations Conveyed? [69] First Matter [73] Second Matter [79] Third Matter [81] Fourth Matter [84] Fifth Matter [87] Sixth Matter [90] First Cross-Claim Matter [95] Second Cross-Claim Matter [100] Third, Fourth, Fifth, Sixth and Seventh Cross-Claim Matters [106] Eighth Cross-Claim Matter [111] Ninth Cross-Claim Matter [117] E OBSERVATIONS AS TO THE WITNESSES [120] E.1 Mr Palmer [122] E.2 Mr McGowan [140] E.3 Mr Quigley [146] F DEFENCES TO MR PALMER'S CLAIM [159] F.1 Common Law Qualified Privilege [160] The relevant principles [161] A privileged occasion? [167] F.2 Statutory Qualified Privilege [181] Relevant principles [181] Reasonable in the circumstances? [185] F.3 Constitutionally Protected Privilege [200] F.4 Malice [225] Principles [227] The contentions of Mr Palmer [234] Consideration [251] G DEFENCES TO MR MCGOWAN'S CROSS-CLAIM [275] G.1 Justification [276] Principles [277] The evidence [279] Imposition of the hard border [281] Continuation of the hard border [285] Consideration [295] G.2 Contextual Truth [316] Relevant principles [317] Overview [324] Meaning and substance [325] First Cross-Claim Matter [325] Second Cross-Claim Matter [331] Third to Seventh Cross-Claim Matters [337] Eighth Cross-Claim Matter [344] Substantially true? [349] Reneging on the mediation agreement (Contextual Imputation 3) [350] Abuse of position (Contextual Imputations 4, 6, 10 and 17) [352] The short timeframe (Contextual Imputation 12) [359] State Agreements (Contextual Imputation 20) [364] Conclusion [372] G.3 Reply to Attack [373] Relevant principles [374] Consideration [380] The First Cross-Claim Matter [395] The Second Cross-Claim Matter [403] The Third to Seventh Cross-Claim Matters [406] The Eighth Cross-Claim Matter [407] Conclusion [411] G.4 Malice [412] H DAMAGES [424] H.1 Principles [425] H.2 Preliminary Observations [430] H.3 Mr Palmer [436] Imputations, seriousness and context [436] Damage to reputation [441] Hurt to feelings [450] The extent of publication [466] H.4 Mr McGowan [467] Damage to reputation [467] Hurt to feelings [471] The extent of publication [485] H.5 Aggravated Damages [486] Mr Palmer [487] Mr McGowan [489] Consideration [490] H.6 Quantum [494] The Primary Proceeding [495] The Cross-Claim [516] I INJUNCTION [518] J CONCLUSION AND ORDERS [522] ANNEXURE A ANNEXURE B - FIRST TO FIFTH MATTERS (DISPUTED) ANNEXURE C - SIXTH MATTER ANNEXURE D - FIRST CROSS-CLAIM MATTER ANNEXURE E - SECOND CROSS-CLAIM MATTER ANNEXURE F - THIRD TO SEVENTH CROSS-CLAIM MATTERS ANNEXURE G - EIGHTH CROSS-CLAIM MATTER ANNEXURE H - NINTH CROSS-CLAIM MATTER ANNEXURE I - REPUBLICATION OF MR PALMER'S MATTERS

A INTRODUCTORY REMARKS 1 Enoch Powell once remarked: "for a politician to complain about the press, is like a ship's captain complaining about the sea". As these proceedings demonstrate, a politician litigating about the barbs of a political adversary might be considered a similarly futile exercise. 2 Both the applicant, Mr Palmer, and the respondent, Mr McGowan, have chosen to be part of the hurly-burly of political life. Many members of the public will have instinctive views about them absent any personal interaction. These views are likely to align with their broader political beliefs. 3 In the United States, if defamatory publications are made concerning a "public figure", actual malice must be proved by clear and convincing evidence to obtain relief: New York Times Ltd v Sullivan 376 US 254 (1964) (at 279-280 per Brennan J delivering the opinion of the Court). But the law in Australia is different: it "rejects the extreme and semi-absolute protection of free speech and the free press that prevails, for constitutional reasons, in the United States": Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (at 95-96 [114] per Kirby J). Hence, the law of defamation in this country deals differently with the tension between two important rights it seeks to balance: the right to freedom of expression and the right to reputation. But this does not mean that the law in this country does not recognise the significance of political speech in a liberal democracy. Indeed, in relatively recent times, the recognition of the importance of political speech has led to a special qualified privilege defence being developed: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Similarly, in the United Kingdom, although it was considered unsound to distinguish political discussion from discussion of other matters of serious public concern, a "Reynolds public interest defence" expanded the scope of protections to publications disseminated widely: see Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (at 204 per Lord Nicholls); but now see s 4, Defamation Act 2013 (UK). 4 It will be necessary to consider Lange in some detail below, because together with two other qualified privilege defences, these are the only bases upon which Mr McGowan seeks to defend the claim made by Mr Palmer. Although Mr Palmer resisted his characterisation as a "political figure", in truth, these proceedings arise out of a prolonged and heated dispute between two political antagonists dealing, at least in large part, with matters best described as political. This reality presented a recurring challenge during all stages of these proceedings, including when dealing with both liability and damages.

B THE FACTUAL LANDSCAPE 5 Before moving to the substance of the claims, it is necessary to identify two contextual matters that dominate the background: first, the COVID-19 pandemic and the controversy as to the Western Australian "hard border"; and secondly, the enactment of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amendment Act). 6 The findings set out below as to these two topics are largely drawn from facts agreed by the parties for the purposes of s 191 of the Evidence Act 1995 (Cth).

B.1 The COVID-19 Pandemic and the "Hard Border" 7 The COVID-19 pandemic was declared in March 2020, and in April 2020, pursuant to the Emergency Management Act 2005 (WA) (Emergency Management Act), the Police Commissioner for Western Australia directed the closure of the Western Australian border save for exempt travellers, through the Quarantine (Closing the Border) Directions (WA) (Border Directions). 8 In May 2020, Mr and Mrs Palmer made applications to enter Western Australia. Both applications were refused. Mr Palmer, by his solicitor, sent a letter to Mr McGowan and the Police Commissioner, objecting to the refusal of the applications. Mr Palmer was invited by the State Solicitor's Office to apply for a general travel exemption, but no application was made. 9 In late May 2020, Mr Palmer and Mineralogy Pty Ltd (Mineralogy), a company controlled and beneficially owned by Mr Palmer, commenced proceedings in the High Court against Western Australia and the Police Commissioner, seeking a declaration that the Emergency Management Act and/or the Border Directions were invalid on the basis they contravened s 92 of the Constitution (High Court Border Proceeding). The High Court Border Proceeding was defended. 10 In June 2020, the Attorney-General of the Commonwealth filed a Notice of Intervention in the High Court Border Proceeding, supporting the position of Mr Palmer and Mineralogy. Also in June, the High Court Border Proceeding was remitted to the Federal Court for the determination of relevant facts (Federal Court Border Proceeding). Dr Andrew Robertson, Chief Health Officer for Western Australia, gave evidence. In August 2020, Mr McGowan was notified by the then Prime Minister that the Commonwealth intended to withdraw its Notice of Intervention. 11 In late August 2020, the Federal Court Border Proceeding was concluded and, in November 2020, the High Court Border Proceeding was dismissed.

B.2 The Amendment Act 12 The events concerning the Amendment Act relate to an entirely different subject matter. To understand the importance of the Amendment Act to the current dispute, it is necessary to wade into the relevant history leading up to enactment.

The State Agreement 13 Mineralogy holds a number of mining leases in the Pilbara district of Western Australia. In 1993, Western Australia commenced negotiations with Mineralogy to develop a State Agreement for industrial projects in the north of the State and, in December 2001, Mineralogy and other parties related to Mr Palmer, entered into an agreement with the then Premier, acting for and on behalf of the State and its instrumentalities (State Agreement). 14 The State Agreement was ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (Iron Ore Processing Act), which came into operation in September 2002. The State Agreement is Schedule 1 to the Act. The Minister responsible for the administration of the Iron Ore Processing Act is also responsible for the administration of the State Agreement. 15 The purpose of the State Agreement was to facilitate the development of projects by Mineralogy, by itself or in conjunction with others, "for the purpose of promoting employment opportunity and industrial development in Western Australia": Iron Ore Processing Act sch 1, r (d). 16 In August 2012, Mineralogy companies submitted a proposal to the Minister pursuant to the State Agreement, being the "Balmoral South Iron Ore Project Proposal" (BSIOP Proposal). 17 The State Agreement does not grant the Minister any power to reject, or to refuse outright to approve, a proposal submitted pursuant to the State Agreement: see Mineralogy Pty Ltd v The State of Western Australia [2005] WASCA 69 (at [4] per Roberts-Smith JA; [34], [58] per McLure JA with whom Steytler P agreed at [1]). 18 Notwithstanding these limitations, on September 2012, the then Minister notified Mineralogy of his refusal to consider the BSIOP Proposal, on the purported ground that it was not "a valid proposal".

The Arbitrations 19 The Minister's refusal to consider the BSIOP Proposal gave rise to a dispute to be resolved by arbitration. In 2013, a former High Court judge, the Hon Michael McHugh AC QC, was appointed as the arbitrator and an arbitration was subsequently conducted by him (First Arbitration). The First Arbitration resulted in an award being rendered in May 2014 (2014 Award). In the 2014 Award, Mr McHugh made findings and observations, which relevantly included the following: (1) "The Court of Appeal of the Supreme Court of Western Australia had held that the Minister has no power to reject a proposal. He must approve it, defer a Proposal until a further proposal is submitted or require the Proposal to comply with such conditions as he thinks are reasonable" (at [9]); (2) "It is difficult to escape the conclusion that the attempt to categorise the August 2012 submission as not being a proposal is an attempt to circumvent the Court of Appeal's ruling that the Minister has no power to reject a proposal: Mineralogy Pty Ltd v Western Australia [2005] WASCA 69 at [58]" (at [57]); (3) "It follows then that the August 2012 submission was a proposal for the purposes of the State Agreement. The Minister was required to deal with it under Clause 7 of [the State Agreement], which he has failed to do" (at [66]); and (4) "The failure of the Minister to give a decision within that time means that he is in breach of the State Agreement and is liable in damages for any damage that [Mineralogy companies] may have suffered as the result of the breach" (at [67]). 20 The 2014 Award contained the following declaration: Declare that the August 2012 Submission was a proposal submitted pursuant to clause 6 of the State Agreement with which the Minister was required to deal under clause 7(1) of the [State] Agreement. 21 The State did not legally challenge the 2014 Award, but subsequently asserted that it had exhausted the entitlement of Mineralogy and other Palmer-related parties to seek or obtain an award of damages, and that the parties could no longer pursue any such claim. The Minister also purported to impose some 46 "conditions precedent" on the BSIOP Proposal. 22 In October 2019, a second arbitral award (2019 Award) by Mr McHugh found that, contrary to the State's contentions, Mineralogy and the Palmer-related parties remained entitled to pursue their claims for damages. Those claims for damages were for loss said to flow from: (1) the 2012 refusal by the Minister to accept the BSIOP Proposal as a valid proposal; and (2) the Minister's purported imposition of 46 "conditions precedent" in 2014, which were alleged to be unreasonable and incapable of being imposed. 23 By late 2019, it had been agreed that Mr McHugh would hear and determine these claims for damages in a third arbitration (Third Arbitration).

Third Arbitration Directions 24 In December 2019, directions were made as to the exchange of a Statement of Issues, Facts and Contentions, written statements of witnesses of fact and expert witness reports. Mr McHugh foreshadowed the making of further directions. 25 In June 2020, Mr McHugh directed that the Third Arbitration would be heard for 15 business days commencing at the end of November 2020. Relevantly, direction 10.4 provided that "[t]he Arbitrator shall deliver his award in the Arbitration on or before 12 February 2021". The directions further provided that the parties attend a mediation by the end of October 2020 and "act in good faith towards each other" in respect of the mediation. In July 2020, an arbitration agreement was executed. Both the arbitration and the mediation were confidential.

The planning of the Amendment Act 26 Notwithstanding these events preparatory to and facilitating the Third Arbitration, Mr McGowan and Mr Quigley had already started work on what would become the Amendment Act. 27 Mr McGowan said that from about March 2020, he and Mr Quigley were discussing the prospect of legislation as a means of dealing with the problem represented by Mr Palmer's damages claim: T463.21-464.1. In late May, Mr Quigley and Mr McGowan had an SMS exchange in the following terms (reproduced in Annexure A): Mr Quigley: I must be a bit OCD! I have been awake since 4.15 thinking of ways to beat big fat Clive and his arbitration claim for 23.5 billion in damages remembering the turd has pulled off 2 big wins in arbitration … The solution is to be found in an amendment to legislation obstensibly [sic] to protect us Re [the possibility of an unrelated dispute] … which amendment for that purpose is merely a Trojan horse as within the very small legislative amendment will be a poison pill for the fat man … It's such a neat solution obstentially [sic] to solve one almost non existent problem but the side wind could drop drop the fat man on his big fat arse ! … Hey are you glad me single again … not making love in sweet hours before dawn instead worrying how to defeat Clive! 😂😂😂🤣 Mr McGowan: Let's discuss the $23 billion claim We need to really sort out what to do. I don't want to let Parker know or any journo before we r ready Mr Quigley: Absolutely secrecy of essence … 😂😂😂 28 In July, Mr McGowan sent Mr Quigley an SMS in which he asked: "How's our Bill Re legal action by Mr Palmer coming along[?]". By the end of July, they were discussing the precise timing of its introduction into Parliament. The work in relation to this proposed legislation continued until just before 5pm on 11 August, when the bill that became the Amendment Act (Bill) was introduced in the Legislative Assembly. 29 The Bill moved through the Parliamentary process with the speed of summer lightning. It reached the Legislative Council on the morning of 13 August; passed the Legislative Council at about 10:35pm on the same day; and the Governor provided Royal Assent approximately 40 minutes later. 30 Other than Mr McGowan and Mr Quigley, and possibly one or two other Ministers, no member of Cabinet had any inkling of the Bill's existence until a Cabinet meeting at 4:15pm on 11 August (45 minutes before the Bill was introduced). Backbenchers knew nothing of it until Mr Quigley rose to speak at 4:55pm on that day: T520.42-522.22. 31 It was common ground that the Amendment Act was extraordinary legislation. Among other things, it: (1) terminated the relevant arbitration agreements (ss 10(5), 10(7)); (2) nullified both the 2014 Award and 2019 Award (ss 10(4), 10(6)); (3) terminated the Third Arbitration (ss 10(1)-(2)); (4) terminated the mediation agreement (s 10(2)); (5) granted immunity from the criminal law to "the State" (defined pursuant to s 7 so as to include Mr McGowan and others) in relation to "protected matters" (defined pursuant to s 7 to include any conduct "connected with" the preparation or enactment of the Amendment Act); (6) extinguished freedom of information rights in relation to any document connected with any such "protected matter" (s 21(1)); and (7) provided that no document connected with a "protected matter" was admissible or discoverable in any proceedings against "the State" (ss 18(5)-(6)). 32 It is, of course, uncontroversial that Mr McGowan approved the preparation, and supported the enactment, of the Amendment Act. He was also the responsible Minister for the State Agreement and thus for the Third Arbitration: T472.38-39.

The aftermath 33 On the day after the Bill was introduced by Mr Quigley, Mr McGowan and Mr Quigley gave a press conference at which Mr McGowan said in relation to the decision concerning the BSIOP Proposal: I want to be clear on this. We believe Premier Colin Barnett took the right course of action to protect Western Australia at the time, as the proposal by Mr Palmer was flawed, and without appropriate detail. 34 Mr McGowan was no doubt making this statement for political effect, but it sits unhappily with the legal reality that what had been done in 2012 was impermissible and constituted a breach for which the State would be liable in damages. Mr McGowan's characterisation of his predecessor's actions as the "right course" was made notwithstanding the decision of Mineralogy v State of Western Australia (at [34], [58] per McLure JA, with whom Steytler P and Roberts-Smith JA agreed at [1] and [6] respectively), to which Mr McHugh referred in the 2014 Award. 35 On 13 August 2020, Mr Quigley gave a colourful radio interview on ABC Radio Perth, during which he purported to explain the tactics adopted in relation to the preparation of the Amendment Act: (1) "it is like a complicated game of chess, but in no way is it a game. I certainly, together with the Premier, feel the heavy weight of responsibility on behalf of all Western Australians to repel this rapacious claim by this … by this … Palmer man"; (2) "this is a game of tactics. Ah, Mr Palmer got … an Arbitrator's award back in 2014 and in the intervening six years has failed to register the award. We … identified this weakness … in his position. And so we prepared legislation that terminates the arbitration, terminates it, full stop … the crucial part was it had to be terminated prior to … the arbitration being registered in the Supreme Court."; (3) "we kept it so tight and then brought it in at 5:00pm on Tuesday, after every court in the land was closed, and the doors were locked"; (4) "Now, let me explain the legislation. The legislation in clause 10 and 11 terminates the arbitration, as of the time of introduction. So it terminates it as though the arbitration never happened. And the time … that termination begins, or becomes effective, is when I did my second reading speech on Tuesday evening. And it was too late for him to get to a court"; (5) "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"; (6) "This is crucial that this bill is introduced and passed. And the academics and the other people can write about it afterwards, can analyse it afterwards, all they like for months to come. And criticise us, whatever. I don't care. But we've got to unleash the left hook today. We've gotta knock [Mr Palmer] down, and knock him down today. There is too much at risk for all Western Australians, for namby pamby inquiries; "what does this word mean, what does that word mean?""; and (7) "This legislation has been crafted over the last six weeks in secret by the best legal minds in this city. The Solicitor General of Western Australia, Mr Joshua Thomson, SC, our incredible State Solicitor, Mr Nick Egan, and his legal team at the State Solicitor's Office. Mr Egan even left the office and worked at home to keep … the job secret, so that people in his own office wouldn't know". 36 With the background now explained, it is appropriate to turn to identifying the alleged defamatory publications.

C THE PLEADINGS AND PUBLICATIONS 37 Mr Palmer commenced these proceedings in August 2020. He sues Mr McGowan on six alleged defamatory publications, all made in a two-week period between 31 July and 14 August 2020 (Primary Proceeding). By way of response, in September 2020, Mr McGowan filed a cross-claim, by which he sues Mr Palmer in respect of nine alleged defamatory publications (Cross-Claim).

C.1 The Primary Proceeding 38 The six impugned publications by Mr McGowan are as follows: (1) words spoken by Mr McGowan in a media briefing on 31 July (First Matter), republished on YouTube and the Sydney Morning Herald (SMH) website; (2) words spoken by Mr McGowan at a different point in the same media briefing on 31 July (Second Matter), republished on the ABC website and substantially republished on the AAP website; (3) words spoken by Mr McGowan in a media briefing on 3 August (Third Matter), republished on the AAP and Perth Now websites and partially on the Channel Seven website; (4) words spoken by Mr McGowan in a media briefing on 5 August (Fourth Matter), republished on the WA Today Facebook page and substantially in the West Australian newspaper; (5) words spoken by Mr McGowan in a media briefing on 7 August (Fifth Matter), republished on the Canberra Times website; and (6) a Facebook post uploaded to the Mark McGowan Facebook page on 14 August (Sixth Matter). 39 Transcripts of the First to Fifth Matters are located in Annexure B to these reasons, and the Sixth Matter is located in Annexure C). 40 Mr McGowan, in his further amended defence, pleads as follows: (1) as to the first five matters, he admits that he spoke the pleaded words at the media briefings; (2) he admits that he knew that some or all of what he said at those media briefings could be republished, but says that he did not intend just for those words to be republished, and that he had no control over their republication; (3) for the most part he admits the specific republications pleaded in respect of the media briefings, but says that in some cases not all of the words appeared in the republication; (4) he admits that he is responsible for the publication of the Sixth Matter; (5) he denies that any of the matters were capable of conveying the pleaded imputations or that they were in fact conveyed, and initially denied that they were capable of carrying or in fact conveyed any meaning defamatory of Mr Palmer; (6) he does not plead any defence of truth, in respect of any of the imputations; and (7) his only substantive defence is to rely on three versions of qualified privilege: common law qualified privilege, statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) (Act), and the particular species of qualified privilege concerned with publication of government or political matters, being a Lange defence. 41 Mr Palmer, in his reply, alleges malice in defeasance of all the qualified privilege defences.

C.2 The Cross-Claim 42 The Cross-Claim relies upon nine publications by Mr Palmer in the year 2020, being: (1) statements by Mr Palmer on or about 1 August during the course of a press conference, republished in an AAP article and by other (unspecified) media (First Cross-Claim Matter); (2) statements by Mr Palmer on 12 August during the course of an interview on Sky News, alleged to have been republished by other (unspecified) media (Second Cross-Claim Matter); (3) a document published by Mr Palmer on and from 13 August, variously published on Google, the West Australian newspaper, Facebook, Twitter and by letterbox drop (Third, Fourth, Fifth, Sixth and Seventh Cross-Claim Matters); there are some differences between these five matters, but each of them is essentially in similar form; the document is also alleged to have been republished by other (unspecified) media; (4) statements made by Mr Palmer on 14 August during the course of an ABC interview, alleged to have been republished by other (unspecified) media (Eighth Cross-Claim Matter); and (5) statements made by Mr Palmer on 1 September during the course of an interview on the Sky News channel, alleged to have been republished by other (unspecified) media (Ninth Cross-Claim Matter). 43 A transcript of the First Cross-Claim Matter is Annexure D to these reasons; a transcript the Second Cross-Claim Matter is Annexure E to these reasons; the Third, Fourth, Fifth, Sixth and Seventh Cross-Claim Matters appear at Annexure F to these reasons, and transcripts of the Eighth and Ninth Cross-Claim Matters are Annexure G and Annexure H, respectively. 44 Mr Palmer, in his further amended defence to cross-claim, pleads, in summary, as follows: (1) in relation to the First Cross-Claim Matter, he admits that he spoke certain words at a press conference, and that it was a natural and probable consequence that those words would be republished; (2) in relation to the Second Cross-Claim Matter, he admits he spoke the pleaded words at a press conference and that it was a natural and probable consequence that those words would be republished; (3) in relation to the Third to Seventh Cross-Claim Matters, he admits that he authored and signed the document and is responsible for its publication in various media; (4) in relation to the Eighth and Ninth Cross-Claim Matters, he admits that he spoke the words attributed to him; (5) he denies the matters were capable of conveying the pleaded imputations or that they were in fact conveyed, and denies the matters were capable of carrying or in fact conveyed any meaning defamatory of Mr McGowan; (6) he pleads substantial truth to three of Mr McGowan's imputations (arising from the First and Second Cross-Claim Matters); (7) he relies on the defence of contextual truth in relation to all matters; and (8) he relies on the "reply to attack" species of common law qualified privilege for each of the First to Eighth Cross-Claim Matters. 45 Mr McGowan's reply also alleges malice in defeasance of the qualified privilege defence.

C.3 Republication 46 It is common ground that the First to Fifth Matters were, to greater or lesser extent, republished in the mass media. Various particular republications are in evidence: see Annexure I.

D.1 The Pleaded Imputations 47 In the Primary Proceeding, Mr Palmer's pleaded defamatory imputations, and my findings as to whether those meanings were conveyed (which I explain in detail below at Section D.3), are as follows: Matter Imputation Conveyed First Matter Imputation 3(a): Mr Palmer is a traitor to Australia No Imputation 3(b): Mr Palmer intends to harm the people of Western Australia No Imputation 3(c): Mr Palmer intends to harm the people of Australia No Imputation 3(d): Mr Palmer represents a threat to the people of Western Australia and is dangerous to them Yes Imputation 3(e): Mr Palmer represents a threat to the people of Australia and is dangerous to them Yes Second Matter Imputation 5(a): Mr Palmer intends to inflict harm on the health and wellbeing of the people of Western Australia for his own selfish gain No Imputation 5(b): Mr Palmer represents a threat to the people of Western Australia and is dangerous to them Yes Third Matter Imputation 7(a): Mr Palmer promotes a drug which all the evidence establishes is dangerous Yes Imputation 7(b): Mr Palmer is seeking to harm the people of Western Australia by providing them with a drug he knows is dangerous No Imputation 7(c): Mr Palmer is dishonestly promoting hydroxychloroquine as a cure for COVID-19 when he knows it is not a cure No Fourth Matter Imputation 9(a): Mr Palmer deliberately intends to damage the health of Western Australians for his own personal gain No Imputation 9(b): Mr Palmer selfishly uses money he has made in Western Australia to harm Western Australians Yes Fifth Matter Imputation 11(a): Mr Palmer intends to harm Australians No Imputation 11(b): Mr Palmer represents a threat to Australians and is dangerous to them Yes Sixth Matter Imputation 13(a): Mr Palmer intends to steal $12,000 from every man, woman and child in Western Australia No Imputation 13(b): Mr Palmer is prepared to bankrupt a state merely because he is unhappy with standard conditions set on a project by the State Government that apply to all mining projects Yes Imputation 13(c): Mr Palmer is so dangerous a person that legislation was required to stop him making a claim for damages against the State of Western Australia Yes

48 As to the Cross-Claim, Mr McGowan's pleaded imputations, and my findings, are as follows: Matter Imputation Conveyed First Cross-Claim Matter Cross-Claim Imputation 3(a): As Premier, Mr McGowan lied to the people of Western Australia when he said that he had acted upon the advice of the Chief Health Officer in closing the borders Yes Cross-Claim Imputation 3(b): As Premier, Mr McGowan lied to the people of Western Australia when he told them their health would be threatened if the borders did not remain closed Yes Second Cross-Claim Matter Cross-Claim Imputation 5(a): As Premier, Mr McGowan was abusing the parliamentary system by overseeing the passing of laws designed to protect him against criminal acts he intended to commit No Cross-Claim Imputation 5(b): As Premier, Mr McGowan lied to the people of Western Australia about his justification for imposing travel bans Yes Third to Seventh Cross-Claim Matters Cross-Claim Imputation 7(a): As Premier, Mr McGowan corruptly attempted to cover up the personal involvement of himself and others in criminal acts by overseeing the passing of laws designed to provide exemptions from the criminal law Yes Eighth Cross-Claim Matter Cross-Claim Imputation 9(a): As Premier, Mr McGowan behaved criminally, and was improperly seeking to confer upon himself immunity from the criminal law No Cross-Claim Imputation 9(b): As Premier, Mr McGowan was acting corruptly by seeking to confer upon himself immunity against his criminal acts No Cross-Claim Imputation 9(c): As Premier, Mr McGowan was acting corruptly by seeking to confer upon himself criminal immunity Yes Ninth Cross-Claim Matter Cross-Claim Imputation 11(a): As Premier, Mr McGowan was open to accepting multi-million dollar bribes from Chinese interests in return for permitting them access to valuable state natural resources No

49 As is evident from their terms, each of the imputations conveyed was defamatory. 50 At the conclusion of opening addresses, the parties agreed that it would be expedient for me to determine the issue of meaning before progressing further. This course was consistent with the overarching purpose of civil litigation in this Court reflected in Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and meant that the defence case and any final submissions, could be directed only to the meanings actually conveyed. In accordance with this common position, I made an order pursuant to s 37P(2) of the FCA Act and r 30.02 of the Federal Court Rules 2011 (Cth) that the Court determine separately and before any other issue in these proceedings, and on a final basis, the following issues: (1) whether any of the imputations pleaded by Mr Palmer were conveyed; and (2) whether any of the imputations pleaded by Mr McGowan were conveyed. 51 It is worth noting that the task upon which the Court was engaged in deciding this separate question was the final determination of whether the publications did in fact convey the meanings pleaded (not the legal issue as to whether the matters were reasonably capable of bearing the defamatory meaning or meanings alleged). My reasons for my conclusions as to meaning are set out in Section D.3 below. But before coming to those reasons, it is necessary to deal with an issue that took up far more time than its importance merited: that is, identifying the metes and bounds of each matter pleaded by Mr Palmer.

D.2 The Matters Identified 52 As would already be evident, Mr Palmer sues on five oral publications, being the First to Fifth Matters, which were certain words spoken by Mr McGowan at a series of press conferences. Unlike the Sixth Matter (a post published on Mr McGowan's Facebook page), there is a pleaded dispute as to whether Mr Palmer has established that the First to Fifth Matters were published in the form alleged. 53 Mr McGowan admits he spoke the words pleaded in each of the press conferences, but "says further he spoke other words on that occasion, a transcript of which will be relied upon at the trial of this proceeding". Following a somewhat distracting debate in opening, the parties refined their positions as to the extent to which any of the First to Fifth Matters must be augmented by additional words spoken by Mr McGowan, whether as forming part of the matter, or as context. At my request, the parties prepared and provided to the Court a document entitled Agreed and Disputed Matters, which is Annexure B to these reasons. 54 I should note from the outset that Mr Palmer did not object to the whole of the extracts identified by Mr McGowan being received into evidence. He submits (subject to the qualifications canvassed below) that the extracts should not be substituted for the pleaded matters, but accepts that it may be appropriate to know the questions preceding particular words spoken by Mr McGowan and the whole of the extracts might be relevant to other issues such as reasonableness or malice. 55 It is trite to observe that every passage that materially alters or qualifies the complexion of the relevant imputations should be pleaded. Beyond this requirement, it is generally a matter of forensic choice for an applicant to select the manner of pleading. Accordingly, an applicant cannot be required to include additional material unless: (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the applicant; and (2) the material relied upon may reasonably be regarded as part of a publication that includes the additional material: see Hayson v Nationwide News Pty Ltd [2019] FCA 81 (at [9] per Bromwich J); Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 (at 611 [26(a)], 621 [69] per Tobias JA, with whom Hodgson JA and Ipp JA agreed at 606 [1] and 607 [10] respectively). The requirement to plead more than has been forensically chosen will only arise if the selection did not provide the "whole of the context" from which the tribunal of fact, considering the matter from the perspective of an ordinary reasonable reader, would be concerned to determine the meaning of what was published: Obeid (at 621 [69] per Tobias JA). 56 Here I am not concerned with the adequacy of the pleadings, but the distinct issue of determining, on a final basis at trial, the objective question of what constitutes the "matter", as the first step of the enquiry into whether the pleaded meanings are conveyed. I accept that the approach taken to assessing the metes and bounds of a matter at the pleading stage has similarities to the relevant enquiry to be undertaken at trial. Although at the pleading stage it is open for the applicant to adopt their forensic course within the limits explained above, at trial the relevant task is identifying the matter. 57 But this whole dispute is a tempest in a teacup. None of the additional passages relied upon by Mr McGowan affected my views as to any question of meaning. Notwithstanding this, given the need to determine what constitutes the matter before identifying meaning, I will now record the conclusions I reached on this issue during the trial. 58 As to the First and Second Matters, from the outset it should be observed that these matters derive from the same radio interview (and the separate matters are pleaded in reverse order). As currently pleaded, the First Matter is located at lines 35-38 and the Second Matter at lines 3-6. 59 Putting to one side parts of the interview which are conceded or otherwise accepted as context, the dispute as to precise composition was as follows. Mr McGowan submitted the question of what might be motivating the then Prime Minister and the Commonwealth (lines 7-8), Mr McGowan's answer to that question (lines 9-27), questions about the Commonwealth having joined the Federal Court Border Proceeding in support of Mr Palmer (lines 40-49) and discussion about the advice of Dr Robertson and the motivations for and desirability of a hard border rather than a travel bubble (lines 50-94), contextualise either the First or Second Matter. It was said that once it is accepted that the whole of lines 1-94 are relevant, the First and Second Matters should be combined as one. 60 Mr Palmer resisted the inclusion of lines 7-27 on the basis that while Mr Palmer is mentioned, the focus is generally on relations between the Commonwealth and the State, the hard border and the Commonwealth's involvement in the High Court Border Proceeding. The same was said in respect of lines 40-49; that is, while Mr Palmer is mentioned, and Mr McGowan criticises Mr Palmer, these comments make no difference to the First and Second Matters as pleaded. Further, Mr Palmer resisted the inclusion of lines 50-94 on the basis that the introduction of Dr Robertson signals a shift in the subject matter to a discussion about the motivations for, and desirability of, a hard border rather than a travel bubble. 61 I was prepared to accept that lines 7-27 should be included as part of the First Matter. This is because the crux of what Mr McGowan is saying at lines 35-36 includes "[l]et Mr Palmer fight his own fights", is a reference to the involvement of the Commonwealth in the High Court Border Proceeding. The preceding question as to what may be motivating the Prime Minister and the Commonwealth and Mr McGowan's answer to that question (lines 7-27) are necessary to understand the question that follows. I was similarly prepared to accept that lines 40-49, which follow on this topic, fall within the same category. I was not satisfied, however, that these additional materials should form part of the Second Matter. While tangentially connected to the questions that follow, the Second Matter is a response to a general question as to Mr McGowan's reaction to Mr Palmer's call for unity of the nation, not the involvement of the Commonwealth in the High Court Border Proceeding. 62 Further, I rejected the contention that lines 50-94 should be included as part of the First or Second Matter. As Mr Palmer submitted, the introduction of Dr Robertson signals a shift in the subject matter, to a discussion about the motivations for and desirability of a hard border over a travel bubble. Finally, while I accepted that my findings therefore mean that the Second Matter finishes where the First Matter commences, there was no compelling reason to interfere with the pleader's choice and combine the two. The First Matter is therefore constituted by lines 7-49 and the Second Matter by lines 1-6. 63 Mr McGowan pressed for lines 1-48 to be treated as part of the Third Matter. Mr Palmer has sued on the material in bold type in lines 31-37, and agrees on, or otherwise did not oppose, the inclusion of line 30, the balance of line 31 and lines 38-48. The real dispute was whether lines 1-29 should form part of the "matter". Mr Palmer submits that lines 1-31 (up to "do it properly") refer to the incorrect filling out of a form by Mr Palmer's pilot, and cannot be said to be capable of affecting the three pleaded imputations, which are specifically linked to the topic of hydroxychloroquine. 64 I agreed. In lines 1-29, Mr McGowan was responding to questions concerning Mr Palmer's attempted entry into Western Australia and mocking the inability of Mr Palmer to fill out an exemption form. Then, at line 31, there is a break to the different topic about hydroxychloroquine, prefaced by Mr McGowan stating "[j]ust to pre-empt your question Peter". As such, the Third Matter comprises lines 30-48. 65 As to the Fourth Matter, Mr Palmer sues on the material at lines 29-33, which concern the topic of Mr Palmer allegedly using Western Australian money to try to damage the health of Western Australians. He did not resist the addition of lines 27-29. Mr McGowan submitted that the whole of lines 1-47 should constitute the Fourth Matter and that to construe the matter without these lines excludes relevant context, including the questions to which Mr McGowan was responding, such as the reporters' reference to Mr Palmer's tweets alleging that Mr McGowan was a dictator. 66 I disagreed. While it is true that the entirety of lines 1-26 are peripherally related to the High Court Border Proceeding, they are not necessary to understand what is pleaded as the Fourth Matter. Indeed, Mr McGowan specifically diverts the questioning to make note of Mr Palmer, stating: "Just on Mr Palmer, he's not listening." The extract then continues "I mean I was in Kalgoorlie yesterday, people there are very worried about the border coming down", making it clear that the comments that follow are related to the High Court Border Proceeding. The dialogue in lines 34-47 is in the same boat as lines 1-26. As such, the Fourth Matter is constituted by lines 27-33. 67 As to the Fifth Matter, Mr Palmer accepted that some of the material for which Mr McGowan contended might reasonably be regarded as providing relevant context. Mr Palmer accepted that the whole of lines 1-43 may be treated as constituting this matter: see T120.1-11. I was content to find that the Fifth Matter is constituted by lines 1-43. 68 I cannot pass from this section without observing that the need to determine these granular issues at trial was a distraction in this case. While I accept that Mr McGowan had flagged this as a potential issue in his defence, this issue should have either been the subject of agreement or brought to a head before the first day of the trial. In any event, as I have outlined, it does not matter to resolving any dispute as to meaning (or any other real issue).

D.3 Were the Imputations Conveyed? 69 It is now convenient to record my reasons as to meaning. 70 There is no need to set out the relevant principles attending the resolution of this question of fact. They are well known, were not in dispute, and do not require, yet again, extensive summary. It suffices to note that I have previously summarised them in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 (at [19]-[20]) and Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (at 127-128 [14]-[15]). For a recent reminder of the important point that the ordinary reasonable viewer, listener or reader is prone to a degree of loose thinking and draws implications much more freely than a lawyer, especially derogatory implications, see Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56 (at 63-65 [28]-[31] per Rares J; 115 [242] per Wigney J; and 125 [305] per Lee J). 71 The only additional point I would make, which is relevant to meaning, relates to the reference made in the submissions and authorities as to the "single meaning rule". In Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632, the Full Court, comprising Besanko, Bromwich and Wheelahan JJ, observed (at 646-647 [32]): [a]though different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning … [t]he issue at trial is the single meaning that an objective audience composed of ordinary decent persons should have collectively understood the matter to bear. 72 Obviously enough, I am bound to follow this regularly applied (albeit differently stated) approach and will do so, although it is not without criticism as serving no useful purpose and is stigmatised as anomalous, frequently otiose and sometimes unjust: see, for example, in the context of malicious falsehood, Ajinomoto Sweeteners v Asda Stores [2011] QB 497 (CA) (at [31] per Sedley LJ; [43] per Rimer LJ; and [45] per Sir Scott Baker); and more generally, Rolph D, Defamation Law (Thomson Reuters, 2015) (at 103), where it is suggested that this "principle" only serves "to heighten the artificiality of an already highly artificial area of law". But there is no need to dwell on this issue because in this case, even if I was to direct myself by simply asking the straightforward question as to whether the matters convey the substance of the pleaded imputation to an ordinary reasonable listener or reader, my answers as to meaning would be the same.

First Matter 73 With respect to the First Matter, Mr Palmer submitted that Imputations 3(a)-(c) arise from the words "He's the enemy of Western Australia. He is the enemy of the State. I think he's the enemy of Australia". An enemy, it was submitted, is equivalent to a traitor, and is a person who hates or intends to harm another. It was also submitted that the expressions are pregnant with historical significance, stemming from the notorious use of such language by authoritarian rulers. These submissions were reiterated in respect of Imputations 3(d) and 3(e). 74 Mr McGowan asserted that Imputations 3(a)-3(e) are not conveyed because the ordinary reasonable listener would understand a "traitor" to be a person who deliberately or intentionally betrays the interests of another. It was said that while the First and Second Matters refer to Mr Palmer as an "enemy of the state", "enemy of West Australia" and "enemy of Australia", in their context, those phrases would be understood as highly charged rhetoric. While the First and Second Matters are concerned specifically with the potential implications of the High Court Border Proceeding and the potential to undermine the State Government's efforts to protect citizens from the effects of COVID-19, it was said that Imputations 3(a)-3(e) are pleaded generally. Indeed, Mr McGowan submitted that his view on this matter does not, without more, charge Mr Palmer with the general condition of being a "threat" or "dangerous". 75 As with many disputes as to meaning, in the end it is about context. Mr McGowan was making a loaded political point against a political opponent. It is unrealistic to conclude that a hypothetical referee would take away from Mr McGowan's comment the same message as say, a reader of the Pravda newspaper in 1952, upon seeing the same words being directed by Marshal Stalin against a member of the Central Committee (who would no doubt be an ex-member - and possibly an ex-person - by the time the words were read). 76 I am not satisfied the ordinary reasonable listener would draw Imputations 3(a)-(c). The matter is an exchange between reporters and Mr McGowan concerning the implementation of a hard border and the effectiveness of that measure in safeguarding the health of Western Australians. The listener is told that the High Court Border Proceeding (at that stage supported by the Commonwealth) posed a threat to that hard border and "if we bring the border down chances are the infection will come back as has happened in New South Wales, in Queensland, and that would be a mistake". In such context, the use of terms such as "battle" and "fight" are plainly figurative and hyperbolic, and reflect those terms commonly used in the context of political (or indeed litigious) controversies involving adversaries contending for diametrically opposed positions. 77 Further, it would be silly to conclude that the term "enemy" in this context would be understood to be synonymous with "traitor". The ordinary reasonable listener would understand a "traitor" to be a person who deliberately or intentionally betrays interests to which the person owes allegiance. While the First Matter refers to Mr Palmer as an "enemy of the state", "enemy of West Australia" and "enemy of Australia", in context, those phrases would be understood as highly charged rhetoric to convey that Mr Palmer's actions are contrary to the interests of Western Australians and Australia. That is, they would not be understood to convey that Mr Palmer was deliberately or intentionally betraying the interests of Western Australia and Australia, or intends to harm people, which imputes wickedness. Rather, the listener is told that Mr Palmer "is not focussed on the health or the wellbeing of people in this state" - that is, his motives were elsewhere and skewed. Ultimately, the ordinary reasonable listener would understand Mr McGowan's remarks as those of a Premier who was exasperated about Mr Palmer's actions in challenging the border arrangements and considered them inimical to the interests of Western Australia and Australia more broadly, and was expressing that view forcefully. 78 Finally, with respect to Imputations 3(d) and 3(e), the term "enemy" does impute that Mr Palmer represents a threat and a danger. Indeed, Mr McGowan proclaimed his willingness to engage in "a blue" with "the enemy", Mr Palmer, emphasising the perceived threat represented by him to the community.

Second Matter 79 Imputation 5(a), that Mr Palmer intends to inflict harm on the health and wellbeing of the people of Western Australia for his own selfish gain, is said to arise from the allegation that Mr Palmer is "the enemy". The harm identified relates to the health and wellbeing of Western Australians, and the notion of selfish gain in relation to such harm arises from the reference to Mr Palmer being "only focused on himself" and, by contrast, not focused on the health or wellbeing of people in Western Australia. I am not satisfied that Imputation 5(a) is conveyed. The allegation that Mr Palmer is an "enemy" is not capable of imputing an intention on the part of Mr Palmer to inflict harm on citizens of Western Australia for his own gain. 80 Imputation 5(b), that Mr Palmer represents a threat to the people of Western Australia and is dangerous to them, is in a different category. Essentially, for the same reasons outlined above with respect to Imputations 3(d) and 3(e), the allegation that Mr Palmer is the "enemy" suggests that Mr Palmer represents a threat to the people of Western Australia and is dangerous to them. I am satisfied that Imputation 5(b) was conveyed by the Second Matter.

Third Matter 81 Mr Palmer submitted that Imputation 7(a), that Mr Palmer promotes a drug which all the evidence establishes is dangerous, is made out in terms by the Third Matter. Further, it was said Imputations 7(b) and 7(c) (that Mr Palmer is seeking to harm the people of Western Australia by providing them with a drug he knows is dangerous and is dishonestly promoting hydroxychloroquine as a cure for COVID-19 when he knows it is not a cure) are conveyed by the words "[a]ll the evidence is not only is it not a cure, it's actually dangerous" and from the claim that the police "rejected" Mr Palmer. These statements imply, it was submitted, that it is obvious the hydroxychloroquine is dangerous, that Mr Palmer would know as much, and therefore he must be seeking to harm others deliberately by promoting it. Mr Palmer submitted that the imputation of dishonesty flows inexorably from the gap between what must be Mr Palmer's actual state of mind, and his ignoble if not sinister objective. 82 I accept Mr Palmer's submission that Imputation 7(a) is conveyed. Mr McGowan states explicitly that "[a]ll the evidence is not only is [hydroxychloroquine] not a cure, it's actually dangerous. So, [Mr Palmer] 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." Counsel for Mr McGowan sought to contend that Imputation 7(a) cast the matter too broadly; that is, Mr McGowan was only denouncing the use of hydroxychloroquine specifically as a cure for COVID-19 as dangerous. This is unpersuasive. Mr McGowan is clearly stating that hydroxychloroquine is dangerous. 83 In contrast, I cannot accept Mr Palmer's submissions with respect to Imputations 7(b) and 7(c). Mr McGowan's words may indeed lead the ordinary and reasonable listener to conclude that Mr Palmer is gullible or foolish to accept what Mr McGowan described as "the Donald Trump view" of hydroxychloroquine, but this does not convey any knowledge of the danger of the drug on the part of Mr Palmer. Nor does it impute dishonesty or intent to harm to Mr Palmer. While I accept that Mr McGowan states, in definitive terms, that "[hydroxychloroquine] is not a cure", it is too much of a stretch to say that vehement disagreement with Mr Palmer's view conveys that Mr Palmer subjectively intended to cause harm or behaved dishonestly. I reach this conclusion notwithstanding I recognise that the ordinary reasonable is prone to a degree of loose thinking, and draws derogatory implications much more freely than a lawyer.

Fourth Matter 84 Imputation 9(a) is that Mr Palmer deliberately intends to damage the health of Western Australians for his own personal gain. The words relied upon to convey this imputation are as follows: Mr Palmer is very selfish to pursue this High Court action. He uses money generated in Western Australia through West Australian mining projects to try and bring down our borders and damage the health of West Australians. It's very, very selfish … 85 Once again, I am not satisfied that this imputes an intention on his part to try to damage or harm the Western Australian people. Rather, the intention of Mr Palmer, as conveyed, is to bring down the Western Australian border; a consequence of which is damaging the health of Western Australians. Selfishness is inward-looking and bespeaks of a lack of sufficient regard for others, whereas intentional or deliberate conduct is outward looking and imputes an element of deliberateness, which is not apparent from a contextual reading of the Fourth Matter. 86 By contrast, Imputation 9(b), that Mr Palmer selfishly uses money he has made in Western Australia to harm Western Australians, is conveyed in terms. In context, the proposition "to harm" does not, contrary to Mr McGowan's submissions, inject an element of intention. Rather, it is the consequences of the selfish actions of Mr Palmer in "[using] money generated in Western Australia through West Australian mining projects to try and bring down our borders". That is, the consequences of his actions in "try[ing] and bring down [the] borders" is to harm the health of Western Australians.

Fifth Matter 87 Mr Palmer contended that Imputation 11(a), that Mr Palmer intends to harm Australians, is conveyed in Mr McGowan's claim of being at "war" with Mr Palmer. Mr Palmer submitted that the use of the inclusive pronouns "we're" and "we" underscores that this is not merely a personal battle; rather, Mr McGowan is acting on behalf of the community against a common enemy, Mr Palmer. A state of war necessarily carries with it the contention that the enemy, against whom the "war" is to be prosecuted, intends to harm the people of the State. 88 Mr Palmer's characterisation of Imputation 11(a) cannot be accepted. Imputation 11(a) contains an elevated subjective state of intention to harm not conveyed by the terms of the Fifth Matter. In context, the fact that the interview questions are concerned with the High Court Border Proceeding means that the ordinary reasonable listener would understand the language of "war" and "battles" to be rhetorical flourishes referring to the adversarial position taken by Mr Palmer in the litigation. 89 Imputation 11(b) is that Mr Palmer represents a threat to Australians and is dangerous to them. Mr McGowan submitted that given that the ordinary reasonable listener would understand Mr McGowan was deploying the language of war to describe the High Court Border Proceeding, the matter does not convey the general charge that Mr Palmer is either a threat or dangerous to Australians. I disagree. The imputation that Mr Palmer represents a threat and a danger does not require any malign intention, and is made clear by the two successive references to a "war" waged by Mr Palmer against "the people of Western Australia, indeed Australia". I am fortified in this view by the fact that Mr McGowan urged Mr Palmer to "do the right thing" by Australians, implying he is currently taking actions inimical to their interests. Imputation 11(b) is conveyed.

Sixth Matter 90 Imputation 13(a) is that Mr Palmer intends to steal $12,000 from every man, woman and child in Western Australia. Mr Palmer submitted that the overall impression conveyed to the reader is that Mr Palmer was making a choice to "take" a huge sum of money, rather than to earn it legitimately. Mr Palmer submitted that the listener would understand he intends to take money to which he was not entitled. Indeed, it was said that Mr McGowan furthers this notion by reference to the fact that Mr Palmer pursuing this course "would destroy our State's finances" (at [15]), necessitating Mr McGowan to "put a stop to" such deplorable conduct: at [16]. Mr Palmer also submitted that Mr McGowan alleges moral turpitude on Mr Palmer's part: that is, Mr McGowan's "conscience is clear" (as Mr Palmer's cannot be), because (unlike Mr Palmer) Mr McGowan knows he has "done the right thing": at [17]. 91 I am not satisfied that Imputation 13(a) is conveyed. Mr McGowan notes that the Amendment Act is about "protecting WA from [Mr Palmer] claiming around $30 billion from us" (at [8]), that is, Western Australians, and that in doing so he is taking $12,000 from every many woman and child": at [11]. While I accept the notion of "taking" can be more forceful than "claiming", it is simply a graphic description bringing home the sheer scale of the claim. In context, "taking" is a quite different thing from Mr Palmer "stealing" (that is, dishonestly acquiring) $12,000 from every man, woman and child in Western Australia. 92 Imputation 13(b), that Mr Palmer is prepared to bankrupt a state merely because he is unhappy with standard conditions set on a project by the State Government that apply to all mining projects, is said to be conveyed in terms. This is true. Mr McGowan's words suggest that Mr Palmer's greedy choice, in refusing to comply with merely standard mining industry conditions, would bankrupt Western Australia, and that he was prepared to pursue this course. 93 Further, Imputation 13(c), that Mr Palmer is so dangerous a person that legislation was required to stop him making a claim for damages against the State, is said to be conveyed by the fact that the reader is being told that Mr Palmer represents an extraordinary threat. I am inclined to agree. The word "dangerous" is expressly used in relation to Mr Palmer's claim at [14], but that concept also flows from the entire matter, particularly [8], [11]-[13] and [15]. The reader is told that Mr Palmer represents an extraordinary threat - a dangerous threat that had to be fought and defeated. Mr McGowan seeks to draw a distinction between Mr Palmer being a threat, and the threat of Mr Palmer's claim, but they would be perceived as being the same. 94 Imputations 13(b) and 13(c) are conveyed.

First Cross-Claim Matter 95 Cross-Claim Imputations 3(a) and 3(b) are that (a) as Premier, Mr McGowan lied to the people of Western Australia when he said that he had acted upon the advice of the Chief Health Officer in closing the borders; and (b) that as Premier, Mr McGowan lied to the people of Western Australia when he told them their health would be threatened if the borders did not remain closed. 96 Mr Palmer did not oppose the finding that Imputation 3(a) is conveyed. As to Imputation 3(b), Mr Palmer submitted that the First Cross-Claim Matter does refer to the State Government having lied to its people about "threats that don't exist". However, even assuming that this lie in context relates to the justification for continuing the closure of the borders, it was said that the matter does not contain or convey any assertion that Mr McGowan had said that people's health would be threatened if the borders did not remain closed. Rather, the lie of which Mr McGowan is accused is different: he is accused of saying that he was acting on the advice of the Chief Health Officer (in maintaining a hard closure of the border), when he was not. 97 I reject these submissions. Both Cross-Claim Imputations 3(a) and 3(b) are conveyed. 98 In respect of Cross-Claim Imputation 3(a), Mr McGowan's alleged lie is that he relied on the advice of the Chief Health Officer in closing the borders. Mr Palmer purports to summarise what the Chief Health Officer's advice on border closures really was, and describes it as "courageous", creating the sense that Dr Robertson had broken ranks by speaking the truth. Indeed, Mr Palmer then squarely alleges: "Now, that's a lot different to the lies that Mark McGowan has told the people of Western Australia, that he's acting on the advice of the Chief Medical Officer." 99 In Cross-Claim Imputation 3(b), Mr McGowan's purported lie is that he has told the people of Western Australia that their health will be threatened if the borders do not remain closed. As Mr McGowan submitted, Imputation 3(b) is set up by the first line in which Mr Palmer first calls on the Government not to "lie to the Western Australian people about threats that don't exist" in order to maintain border closures: lines 6-8. The "threat" alleged not to exist is the risk of transmission of COVID-19 across borders. Mr Palmer then goes on to "reveal" what he says was the Chief Health Officer's advice (lines 10-18), exposing Mr McGowan as having told "lies … to the people of Western Australia" (lines 20-22) when he relied on that advice to keep the borders closed to protect the health of the people of the State.

Second Cross-Claim Matter 100 Cross-Claim Imputation 5(a) is that as Premier, Mr McGowan was abusing the parliamentary system by overseeing the passing of laws designed to protect him against criminal acts he intended to commit. This is conveyed, it was said, by the entire Second Cross-Claim Matter but in particular by lines 17-32. The focus of the Second Cross-Claim Matter is on the conduct of Mr McGowan and, to a lesser extent, Mr Quigley. 101 It was submitted that starting at lines 1-5, Mr Palmer outlines the approach he claims to have taken to the dispute. By way of contrast, beginning at line 6, Mr Palmer expresses his disappointment that "the Premier, Mark McGowan, has acted the way he has last night": lines 10-11. By this, it was said the listener is told that it is Mr McGowan who has instigated and is responsible for the conduct about which Mr Palmer complains. In that way, Mr McGowan and the Parliament are one and the same. Mr Palmer then describes that conduct. He complains of the apparent immunities from criminal liability: lines 14-16. Then, Mr Palmer asks rhetorically (at lines 17-18), "what are the criminal acts that the Government wants to do that they need an exemption from criminal liability"? Mr Palmer then contends that the right to "natural justice" and the "right to know" have been abolished by the Amendment Act (lines 19-21), the inference, it is said, being that this is a "wink and a nudge" that the public can never find out about the criminal acts and wrongdoings Mr McGowan is planning to commit. 102 This imputation is not so clear cut. Mr Palmer says that the Amendment Act "gave the Government an exemption [from] criminal liability". He goes on to say: "So you may well ask, what are the criminal acts that the Government wants to do that they need an exemption from criminal liability"? While it could be argued that in context any reference to "Government" and "Mr McGowan" are synonymous, and that the reference to "criminal acts that the Government wants to do" implies Mr McGowan intends to commit criminal acts, I think, on balance, this would be a strained reading of the matter to an ordinary listener. There is no mention of Mr McGowan personally in this context. Further, the Second Cross-Claim Matter goes on to note (at 27-31) that: … the press need to know, and the public need to have a right to know what it is that the West Australian Government has done that would invoke such a claim that they'd feel guilty of. What's happened in the last six or eight years, and what have they been up to and how does that affect Australia, and how does that affect our national security to be an independent nation … 103 As Mr Palmer submitted, notwithstanding the use of the terms "wants to" in line 17, the thrust of what was said is all about the past. I have not reached the state of satisfaction to conclude Cross-Claim Imputation 5(a) is conveyed. 104 Cross-Claim Imputation 5(b) is that as Premier, Mr McGowan lied to the people of Western Australia about his justification for imposing travel bans. Mr McGowan submitted that this is conveyed by the following remarks of Mr Palmer (at lines 33-40): There's been a particular demonising of me in relation to my challenge of the Western Australian borders and of course the Federal Court will soon come out with a judgment on the 24th of August. What we have seen in the Federal Court has been the Chief Medical Officer of Western Australia clearly state that the Premier was lying to the people of Western Australia, because he said that South Australia, Queensland, Tasmania, ACT and the Northern Territory were all further advanced in cleaning the virus than, than, than Western Australia, so there was no real reason for those travel bans. 105 Mr Palmer's only argument against this imputation being conveyed is that in August, Mr Palmer was not referring to Mr McGowan "imposing" travel bans (in early April) but to him maintaining those bans (months later) notwithstanding advice from the Chief Health Officer, and other States' advances in dealing with the virus. The ordinary reasonable listener would not appreciate these subtleties. After all, what Mr Palmer says is that "there was no real reason for those travel bans", that is, a blanket suggestion they were not necessary. Cross-Claim Imputation 5(b) is conveyed.

Third, Fourth, Fifth, Sixth and Seventh Cross-Claim Matters 106 Cross-Claim Imputation 7(a) is that as Premier, Mr McGowan had corruptly attempted to cover up the personal involvement of himself and others in criminal acts by overseeing the passing of laws designed to provide exemptions from the criminal law. 107 Mr Palmer submitted that this imputation is not conveyed because the matter does not refer to "corruption" or "criminal acts". Rather, it refers to "breaking the law": at [1]. "Corruption", it was said, is not a conclusion which the ordinary reasonable reader (as opposed perhaps to the ordinary reasonable lawyer) would draw, particularly when the subject of the matters is the passing of legislation, and when it is made expressly clear the High Court is yet to rule on the validity of the legislation: see [12]. 108 Cross-Claim Imputation 7(a) is clearly conveyed. An allegation is made that Mr McGowan used his position to obtain a personal benefit, namely, personal immunity from the criminal law. The ordinary reasonable reader would understand that if Mr McGowan, as Premier, has used his position and power to obtain a personal benefit, then he is corrupt. The headline, "Cover Up" is to the point. Mr Palmer submits that the ordinary reasonable listener would, given the political climate at the time (including the fact that it had come to light the Amendment Act had been drafted in secrecy and passed in haste), take any reference to a "cover up" as referring to the secret preparation of the Amendment Act, not that Mr McGowan had engaged in corruption or criminal conduct. I disagree. From the opening paragraph, Mr Palmer describes the legislation as designed to cover up "his personal involvement in breaking the law". 109 The balance of the matters asks what criminal act Mr McGowan had committed such that he needed to enact legislation to cover it up. Mr Palmer posits various theories: (1) "What did Mr McGowan do to cause, as the Attorney General said, 30 billion dollars of liability for the State of Western Australia." (at [2]); (2) Mr McGowan "destroy[ed] the livelihoods" of "5,000 Mum and Dad shareholders" in International Minerals (at [4]) and, "[t]he question must be asked did he do it to assist a foreign power? Is that why he must be exempted from the Criminal Law and freedom of information (FOI)?" (at [5]); and (3) "Was it a State Emergency or a Mark McGowan Emergency!" (at [6]). 110 Mr Palmer leaves the reader in no doubt that he is accusing Mr McGowan of corruption when he compares him to President Richard M Nixon, whom he alleges (in an inapt Watergate reference) "directed the greatest criminal cover up in history, but even he unlike McGowan was not supposedly exempted from the Criminal Law!": at [11]. Although it does not matter, as I noted during the hearing, this ahistorical reference seems to have overlooked the then controversial September 1974 pardon by President Gerald Ford of his predecessor (which incidentally, according to some, may have accounted for the 38th President losing a relatively close race to then Governor Jimmy Carter in 1976).

Eighth Cross-Claim Matter 111 Cross-Claim Imputation 9(a) is that as Premier, Mr McGowan had behaved criminally, and was improperly seeking to confer upon himself immunity from the criminal law. Mr McGowan alleged that this imputation has two elements: first, that Mr McGowan has engaged in criminal conduct; and secondly, that he has used his position as Premier to give himself immunity. This, it was said, is conveyed by the entire matter and, in particular, the following passages: (1) "… the High Court will strike down their legislation because the Premier Mark McGowan and the Attorney-General are the first law officers that have ever given themselves an indemnity under legislation from criminal prosecution" (lines 4-7); (2) "So the real question is what are the crimes? They haven't told us" (line 8); (3) in answer to a question to the effect that Mr McGowan was in fact attempting to protect the state from a $30 billion damages claim, Mr Palmer scoffs, describes the suggestion as "rubbish", and "bullshit", saying that "[Do] you think a court, or anyone in Australia, would award someone $30 billion" and "[I]t's just an excuse so Mark McGowan can cover up …" (lines 19-21); (4) "It's about the Premier of Western Australia giving himself immunity from criminal prosecution." (lines 33-34); (5) "Ask the Attorney General why he has to be immune from criminal prosecution. So you can go to Western Australia he can murder, shoot you, raid your house, and he's immune from the criminal law" (lines 34-37); (6) "… some of the things that the Premier has legislated against such as he's not liable criminally for what he's done. This Premier is not liable for breaching the criminal law. He's used his position as Premier in the Parliament to give himself and his Attorney-General immunity from the criminal law" (lines 44-48); (7) "This is an outlaw swinging his gun around to protect him and his Attorney-General from the criminal law" (lines 64-65); and (8) "… well what crime did you commit Mark, that you want to be immune from? That's the question" (lines 104-105). 112 Mr McGowan submitted that the ordinary reasonable reader is left with no doubt that Mr McGowan has committed crimes and while the nature of those crimes is unknown, whatever they are, they must be so serious as to warrant him using his position to confer immunity on himself (a course so extraordinary that Mr Palmer claims (at lines 4-7) it was unprecedented). 113 Cross-Claim Imputation 9(b) is that as Premier, Mr McGowan was acting corruptly by seeking to confer upon himself immunity against his criminal acts. 114 During the course of oral exchange on this topic, I formed the view that Imputations 9(a) and (b) did not differ in substance. This was because the reference to conferring "immunity against his criminal acts" limited Cross-Claim Imputation 9(b) to past acts (as did the effect of "had behaved criminally" in Cross-Claim Imputation 9(a)). This led Mr McGowan to seek leave to amend his statement of cross-claim to include a new Cross-Claim Imputation 9(c), that is, as Premier, Mr McGowan was acting corruptly by seeking to confer upon himself criminal immunity. This amendment was not opposed: T169.34. 115 Before turning to consider whether Cross-Claim Imputation 9(c) is conveyed, I should explain why, although not without some hesitation, I was satisfied Cross-Claim Imputations 9(a) and (b) were not. While I accept the high watermark is the statements of Mr Palmer, "Do you think a court, or anyone in Australia, would award someone $30 billion? It's just an excuse so Mark McGowan can cover up …" (lines 20-21) and "well what crime did you commit Mark, that you want to be immune from? (lines 104-105), these matters must be viewed contextually. When the totality of the matter is appreciated, it does not convey a positive assertion that Mr McGowan had actually behaved criminally. Rather, it asks rhetorically, in the context of Mr McGowan having given himself an indemnity from criminal prosecution, what are the crimes? What could it be that gave rise to the need for such an extraordinary indemnity? No accusation of actual past criminality is made. To the contrary, the message to the listener is that Mr McGowan should disclose why he regards himself as requiring such an indemnity. 116 In contrast, I am satisfied Cross-Claim Imputation 9(c) is conveyed. The ordinary reasonable reader would understand that a politician who uses their position and power to obtain a personal benefit, namely, immunity from the criminal law, is corrupt.

Ninth Cross-Claim Matter 117 Cross-Claim Imputation 11(a) is that as Premier, Mr McGowan was open to accepting multi-million dollar bribes from Chinese interests in return for granting them access to valuable state natural resources. Mr McGowan submitted that, in context, the ordinary reasonable listener would readily infer that what Mr Palmer is suggesting is that the Chinese Government will do anything to control resources and, given how close Mr McGowan is to the Chinese Government, he would be open to accepting vast sums of money from them in exchange for that control. This is said to be supported by the following aspects of the matter, and the reasonable ordinary listener "reading between the lines": (1) the reference to the Chinese wanting to "win at all costs" (line 9) and if it is not in their interests, "they're not interested" (line 13), coupled with the statement that "of course, China's totally dependent on Australia for its iron ore and resources" (lines 18-19) and that "So, the Chinese are about control because they want control of our resources in Western Australia" (lines 34-35); (2) the reference to Mr McGowan having "a former member of the Communist Party as his Chief Whip in the Upper House" (lines 35-36) and that "McGowan's very close to China and you see a lot of … I mean, I've heard stories of a lot of heads of state going up to China, being offered a passbook with the Bank of China with fifty or sixty million dollars in it and saying, 'well, it's available for you only through the Bank of China'" (lines 37-40); the reference to "heads of state", it was said, implicitly being a (mistaken) reference to heads of government, including Mr McGowan; and (3) the language "Well, I think Andrews and Mr McGowan are in the same mould [as China]. They … are in the Stalinist … communist mould … and this totalitarian government, I mean, there's no reason why you'd extend the State of Emergency for 18 months, unless you wanted to establish that form of government" (lines 45-48), indicating that Mr McGowan is acting is consistently with how the People's Republic of China acts, which is communist or totalitarian. 118 I am not satisfied this imputation is conveyed. Nowhere in the Ninth Cross-Claim Matter is it said or suggested that Mr McGowan "was open to accepting … bribes", let alone with the further ingredient that the reason why Mr McGowan was "open" to such bribes was in return for permitting "Chinese interests" to have "access to valuable state resources". The only passage referring to Mr McGowan vis-à-vis China is [6]. Mr Palmer's words are that Mr McGowan is "very close to China": line 37. Mr Palmer's remarks in [1]-[9] (apart from the flourish that Mr McGowan is in the Stalinist or Communist mould) are primarily a critique of China's conduct, not Mr McGowan's. For example, Mr Palmer is asked a question about "this Australia-China relationship" (lines 5-8), in the light of the fact that "[Australia] pushed very hard to get to the bottom of how the Wuhan virus actually originated": lines 6-7. In answering that question, Mr Palmer criticises the manner in which China attempts, generally, to cultivate and exert political and economic influence. He states among other things that "[t]he Chinese are mainly interested in control" (line 14), and employ a range of different strategies to achieve that end and to "protect their national interest", including bribery: lines 41-42. While I accept that Mr Palmer makes reference to "stories" about offers of bribery having been made by China to "a lot of heads of state" (lines 37-40) immediately following him stating Mr McGowan being "very close to China" (line 37), this does not rise to the level that Mr McGowan was open to accepting multi-million dollar bribes from Chinese interests in return for permitting them access to valuable state natural resources. Further, any allegation that Mr McGowan has totalitarian inclinations is distinct from an allegation Mr McGowan accepts bribes. 119 Cross-Claim Imputation 11(a) is not conveyed.

E OBSERVATIONS AS TO THE WITNESSES 120 It will be necessary to make specific findings as to the evidence when it comes to considering the defences in the Primary Proceeding and the Cross-Claim, as well as the question of damages, but it is well to commence by making some general findings about the credit of the three main witnesses: Mr Palmer, Mr McGowan and Mr Quigley. 121 In doing so, I am conscious that both parties have made extensive and lengthy submissions as to credit. I have considered these submissions, but it would add to an already lengthy judgment to set them out in detail.

E.1 Mr Palmer 122 Mr Palmer is an indefatigable litigant. This was evidently not his first experience in a witness box. His confidence and self-assuredness was evident. Indeed, he carried himself with the unmistakable aura of a man assured as to the correctness of his own opinions. 123 Although Mr Palmer displayed obvious intelligence and was across the relevant detail, he was generally a combative and evasive witness who, on more than one occasion, was unwilling to make obvious concessions. Further, in one important respect, he gave fantastic evidence (in the original but now secondary sense of that word). 124 Mr Palmer gave evidence-in-chief (not adduced directly by his highly experienced senior counsel) that upon first reading the Amendment Act, he had a genuine fear for his physical safety, the safety of his employees in Western Australia, and his family. I asked clarifying questions on this topic because I was unsure of what Mr Palmer meant. Was he really saying that he thought the Premier or other agents of the State may either initiate or authorise physical violence towards him or those associated with him? The unsettling spectre of Western Australian Government thugs or assassins needing immunity from the State to absolve them from the criminal consequences of physical violence had, I confess, not occurred to me. 125 To even his most rusted-on partisans, Mr McGowan would be unlikely to have been thought to resemble Ian Fleming's fictional MI6 character, James Bond. But Mr Palmer gave evidence that he thought Mr McGowan had a "licence to kill": T207.29-31. He swore he regarded the Amendment Act as "a statute that authorised Mark McGowan to kill Clive Palmer": see T207.30; T233.14-15; T233.38-39; T248.15-17. One does not need to dwell long on the principles explained by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 to form the view that this is an unsound construction of the relevant provisions of the Amendment Act. 126 But Mr Palmer is not a lawyer. He submits that any attempt to discredit him by reference to his fears upon reading the Amendment Act must be rejected. It is not to the point that Mr Palmer's approach to statutory construction does not accord with orthodox notions, but this assertion he was fearful was genuine. 127 This submission is fanciful. Although Mr Palmer may have subjectively believed that the Amendment Act was drafted in such broad terms so to absolve specified persons (including the Premier) from criminal liability for physically harming him, this is not to be equated with any belief of Mr Palmer that the Amendment Act was a legislative measure that meant that there was a real prospect that he or those associated with him would be attacked. 128 Mr Palmer explained why he perceived how various sections of the Amendment Act could be construed as authorising Mr McGowan to kill him. It is unnecessary to detail this evidence. But, at the risk of repetition, it is necessary to keep in mind that his subjective views as to the width of the drafting and his justification for his supposed fears of an actual physical threat are quite different things. I could not help but reach the conclusion that Mr Palmer was attempting to say anything and everything to justify his assertion of being apprehensive as to his physical safety. 129 Mr Palmer was angry and upset about the Amendment Act. That is hardly surprising. No doubt he thought he had wide scope in attacking its swingeing immunities. But his evidence that he was genuinely concerned about his health when he read the Bill (T241.31-32) and that reading the Bill "created a deal of fear inside of [him]" (T242.40-41) was so unbelievable that it had the effect of seriously undermining the persuasiveness of his evidence as to his subjective feelings generally. 130 Further, other aspects of his evidence were unsatisfactory. 131 First, there were numerous occasions on which Mr Palmer refused to make obvious concessions. For example, Mr Palmer repeatedly refused to accept that $30 billion was a reasonable approximation of the amount claimed in the arbitrations from the State by companies that he controlled: T220.08-231.10. On any view it was, and indeed he accepted (at T220.22-23) that he knew that "in the arbitration the figure was 27 billion, I think". 132 A further illustration was Mr Palmer's refusal to concede that it was his own views that were expressed in the advertisements referred to in the first line of the Sixth Matter, such as the advertisement titled "Cover Up" (Fourth to Seventh Cross-Claim Matters): see T212.7-214.10. While lengthy, it is an example of Mr Palmer's approach to his evidence and it is worth setting out the relevant exchange in full: [MR WALKER]: [These were] [a]dvertisements in which you had advanced your very adverse views about the amending Act and the government's conduct in relation to it; correct? --- From memory, I think it was the company's view that we were advancing, who were the parties to the arbitration. I wasn't a party to the arbitration. You are just playing with words, aren't you? --- No. I'm being precise. The company's view was supplied by what you think as its controlling mind; correct? --- No … it's based on legal advice we get at the time. But the lawyer's views are the company's views. The company's views are your views formed after consideration of all sorts of matters, including legal advice; is that right? --- I would have to think about it. … I don't think that's right, no. The company's views really reflect not just … me, but reflect the employees that were in Western Australia. You didn't have a plebiscite of your employees before you had prepared and authorised those ads to which Mr McGowan was referring, did you? --- I certainly spoke to every employee in Western Australia … during those three days before that while the ads were being prepared. You're not seriously suggesting, are you, that the corporate position was other than what you thought was proper? --- As I said, it was … a reflection of what our people in Western Australia thought was … the thing to do, and that was their recommendation, to put the ads in. Again, you're just playing with words? --- … I supported them. Can you respond to my question. Are you suggesting the company's ads represented any view other than those you thought were proper? --- I would have to look at the ad to give you an answer on that. It is absurd to suppose that what Mr McGowan described as "Mr Palmer's ads", because they were on behalf of as well of corporations, did not represent Mr Palmer's views, isn't it? --- Well, as I said, if you can show me the advertisement, I can answer that question. And you accept, don't you, that you are a person in control of those corporations? ---I'm the controlling shareholder. 133 And, in response to a question from me, as to whether Mr Palmer drew a distinction between those concepts, that is, the fact that he was a controlling shareholder, rather than a person who controls the company, Mr Palmer essentially responded "in anything of this nature, it would have been a consensus": T213.9-10. The following evidence was then given (at T213.15-43): [MR WALKER]: When you say "a consensus," you mean something you agreed with; is that right? --- Well, it would have been - - - Please, answer the question? --- No, that's not right. It would have - - - So you don't mean by consensus something you agreed with; is that right? --- Not absolutely. So you're seriously supposing there was a group of people not including you who achieved a consensus on what these ads should say … and the fact that you didn't agree wouldn't prevent the ads going out; is that what you seriously ask his Honour to accept? --- Well, what I'm saying is that there was a group of people, which I was part of - just to clarify it for you - and that all of the views that went out in the ad weren't solely from me. They were all your views, even if they were held by others as well; isn't that right? --- Well, I would have to look at the ad that you're referring to and I could answer that question. You are unsure, are you, about whether - - -? --- Well, I have - I can't recall the ad. … You're really seriously telling his Honour you can't now remember whether what Mr McGowan called Mr Palmer's ads were fairly so called; is that right? --- That's right. You thought, "No, they might be the ads of corporations I control, but they're not my ads." Is that what you seriously ask his Honour to believe? --- Well, unless I can see what they say, I can't confirm it with you, because they're quite old and … I can't recall them. 134 The unhelpful way in which Mr Palmer went about his evidence on this topic is accentuated when one appreciates that in his first affidavit, he gave evidence that "[t]he primary purpose of the "Cover Up" publication was to provide a detailed written response to the Amendment Act and to Mr McGowan's statements, seeking to justify the enactment of the Amendment Act". Importantly, he stated that he "believed in the truth of what [he] said and [he] believed it was a fair and proportionate response to the extraordinary legislation which [he] believed amounted to a person attack on [him]" (that is, Mr Palmer's affidavit evidence was that he prepared the "Cover Up" advertisement and it contained his views). 135 Secondly, Mr Palmer's oral evidence contradicted aspects of his sworn answers to interrogatories in respect of the material he relied upon in asserting that Mr McGowan had lied about the medical advice. In his answers to interrogatories, Mr Palmer listed the following as the documents relevant to the allegation: (1) Outline of Expert Evidence of Dr Andrew Robertson dated 24 June 2020 and filed in the High Court Border Proceeding; (2) Supplementary Report by Dr Andrew Robertson dated 3 July 2020; and (3) the transcript of the hearing in that proceeding on 27 July 2020. This position was confirmed in Mr Palmer's oral evidence: T251.30-32. 136 However, confronted in cross-examination with the proposition that none of the documents listed supported Mr Palmer's accusation that Mr McGowan had lied, Mr Palmer then claimed that there was (or at least might have been) something else. Mr Palmer asserted that other reports of the Chief Health Officer (which Mr Palmer suggested are referred to in the transcript of the High Court Border Proceeding) may have supported his accusation of lying (although he did not know whether he had received those documents, and had no recollection of whether he had seen them): T266.18-267.15. Mr Palmer subsequently insisted on leaving open the possibility that there was "a wider band of material" upon which he relied, despite having no recollection of any such material and despite that position being inconsistent with his answer to interrogatories: T268.4-17. The exchange was as follows (at T268.4-17): [MR WALKER] … it can never be responsible to make an accusation of something serious like a lie on the basis of material which you accept doesn't support it, could it? That would never be responsible? --- Well I think I may have made the allegation on a wider band of material which I haven't pleaded here. Okay. When you say "pleaded," I'm asking for what you've sworn in answers to interrogatories? --- What I've sworn here. So you're leaving open the possibility that your sworn answers to interrogatories are wrong, is that correct? --- That's a possibility. But it's a possibility which you're not prepared to grace the court with anything further than its theoretical existence because you have no recollection of any other material. Is that right? --- That's right. 137 I accept that Mr Palmer's inability to locate the passages in the pressure of the witness box should not be taken, in and of itself, as an indication of a lack of credit, but the shifting of his evidence of this topic reflected his attempt to throw every possibility in the mix to support his answers. This episode gave me the impression that he was making a concerted effort to avoid giving an unfavourable answer on a topic he perceived to be important. 138 Thirdly, a number of Mr Palmer's answers were often evasive and unresponsive and, at times, argumentative: see, for example, T214.45; T218.35-37; T232.22-34; T260.31-45; and T262.30-45. For example, in response to a question from counsel he responded, "Well, have a look at the transcript. Pull it up" (T216.33-34), and later remarked, "I said all the words in paragraph 3 and 2, if you listen": T261.18-36. 139 The evidence canvassed above is not the only part of Mr Palmer's evidence that I found unsatisfactory. Overall, my impression was that Mr Palmer was often willing to fashion his evidence to suit what he perceived to be best for his case. After reflecting upon his evidence generally, I reject the submission that Mr Palmer "maintained his equanimity" and made "concessions where appropriate". I do not consider it safe to place any significant reliance upon Mr Palmer's evidence.

E.2 Mr McGowan 140 Mr McGowan is often required to field questions from journalists. Superficially, such engagements might be perceived as being similar to exchanges between a witness and cross-examiner in a courtroom. But there are many differences, including one critical distinction: in the courtroom, a witness cannot (or at least should not) avoid a question with an indirect answer. The witness is there on the cross-examiner's terms. 141 Mr McGowan was generally an impressive witness, but sometimes when he was pressed on aspects of his evidence, he did exhibit what might be described as the muscle memory of a questioned politician in being non-responsive. It suffices to mention one example. 142 In his cross-examination, Mr McGowan accepted that what he was telling the public over an extended period was that the medical advice was that the hard border was "necessary". I will deal with this issue in further depth in the context of Mr Palmer's defences below (at [295]-[315]), but here it is sufficient to note one aspect of his evidence. This relates to the simple proposition as to whether the medical advice he received in an email on 29 March, approved by Dr Robertson and Dr Paul Armstrong, Director of Communicable Disease Control for the Western Australian Department of Health, in fact conveyed that the hard border was "necessary" (29 March Email). It was, relevantly, in the following terms: Dr Robertson and Dr Armstrong agree that closing the border will have the effect of slowing the spread of COVID-19. This measure may not reduce the risk significantly further than that which is achieved by measures already in place (i.e; finding cases and their close contacts and placing them into isolation; or telling people crossing the border to isolate themselves; or closing and restricting businesses and restricting mass gatherings) but may have a similar risk reduction to other measures, such as closures of further categories of retail outlets. Closing all of the WA borders will have an impact, but is a relatively small impact compared to the effect of the other measures taken to date (such as the examples listed above). They agree that closing the border will only be effective right now, rather than at a later date as it will only be effective when there is a differential risk across the country of developing the disease. In the event that WA develops a similar rate of spread in the community as seen in other states currently, having the border closed will have far less impact. 143 In response to question from senior counsel for Mr Palmer, Mr McGowan conceded only, and repeatedly, that the word "necessary" was not to be found in Dr Robertson's advice of 29 March, while skirting the substantive question as to whether, by any language at all, Dr Robertson had given advice to the effect that a hard border was necessary: T332.36-334.26. This approach did not assist. 144 As to the question of credit, much was made in Mr Palmer's submissions as to the use of taxpayers' money to fund the Cross-Claim (notwithstanding the public had been told it was the defence that was being funded). I do not think this was an issue of any real significance or impacted upon Mr McGowan's credit. It was Mr Palmer who commenced the litigation and the Cross-Claim was, in substance, "defensive" (and both claims were heard together). 145 Although I will address further aspects of Mr McGowan's evidence below, I consider that although Mr McGowan was sometimes non-responsive, he was otherwise generally candid in his evidence.

E.3 Mr Quigley 146 Mr Quigley is the Attorney-General of Western Australia. Prior to his election in 2001, he was a barrister and solicitor having been admitted in 1975. 147 Regrettably, his evidence was both confused and confusing. 148 Mr Quigley's evidence-in-chief was directed to one proposition: there had been no "Attack Plan" as alleged by Mr Palmer in his reply. Mr Quigley claimed that in his interview on ABC Radio Perth he had only been recounting in hindsight what had (apparently) happened, rather than explaining a pre-ordained plan. 149 During cross-examination, however, Mr Quigley gave contradictory evidence: T519.32-538.38. He accepted that what he had said in the interview was indeed to claim that he and Mr McGowan had engaged in a plan, but that the explanation he had given to the public on the radio about those tactics was "completely false": T524.13-21. 150 In particular, Mr Quigley debunked the claim made by him in the interview that he and Mr McGowan had "identified a weakness" in Mr Palmer's position, namely the non-registration of the arbitral awards, and that they had planned to exploit that weakness by preparing legislation to be enacted prior to Mr Palmer realising he should do so: T523.35-524.11. He said in his oral evidence that he did not even know about the topic of registering the awards, at all, at the time he gave the interview: see T524.24-30, 525.34-35, 527.44-46. He insisted that what he had said in the interview, namely that such a "weakness" had been identified, and what had led to the preparation of the legislation, was "completely and utterly false": T528.3-529.10. In doing so, he engagingly accepted that his version in the witness box was "truly spectacularly different" to what he had said at length and in detail in the interview with ABC Radio Perth (T524.13-18) and repeatedly stressed that his evidence should be preferred because he was under oath: see T523.36; T524.10; T524.14; T524.24; T529.12; T530.14; T530.31; T533.40; T534.36; T537.39; T538.2; T538.5; T538.9; T538.32; T538.35. 151 Then, on 8 April 2022, Mr Quigley was recalled. The background to this unusual development is detailed in Palmer v McGowan (No 4) [2022] FCA 292. Once recalled, Mr Quigley gave the following evidence in cross-examination (at T604.45-605.3): [On 9 March] I gave evidence that I first became aware of the risk of the registration of the arbitral award on the morning of Wednesday 12 August 2020. I'm now aware I first became aware of the risk of the registration of the arbitral award - and I can't give you the precise time, but some time before the cabinet meeting which was convened at approximately 4 pm on the previous evening, that is, on Tuesday the 11th. 152 With respect, Mr Quigley's second appearance in the witness box just added to the brume of his testimony. Even though his return was at his request, for the purpose of correcting "mistakes" (T547.40), Mr Quigley misstated his previous evidence he said he wanted to change. When he was first called, he did not give evidence that he first became aware of the risk of registration on the morning of 12 August. Rather, his evidence had been that he became aware "earlier than the evening - like, 3 in the afternoon, after Question Time or something like that" (T526.35-36) on "[e]ither the 12th or 13th": T527.27. 153 Mr Quigley was pressed in cross-examination as to just how long before 11 August he had become aware of the risk of Mr Palmer registering the awards. Mr Quigley repeatedly said he was unable to recall; indeed, he could not even say whether it was hours, days, weeks or months prior to the 11 August Cabinet meeting: T631.36-632.5. But despite this, he later agreed (at T640.40-42) that "one of the reasons why [he was] keeping it all secret in June, July, August 2020 or thereabouts was because if Mr Palmer heard about it, [he] might register the awards". In other words, he seemed to accept he was aware of it for months. 154 With a degree of understatement, this evidence sits unhappily with the evidence given on 9 March to the effect that "he hadn't even turned his mind to registration" and "didn't even think about registration" of the awards at the time he gave his interview with ABC Radio Perth: T636.21-44. Indeed, Mr Quigley was placed in the uncomfortable position of having to concede that part of the account he gave in the radio interview was not "completely and utterly false" - as he had asserted on 9 March - but was, in fact, "completely and utterly true": T639.4-13, see also T642. In other respects, Mr Quigley's evidence was that he had no recollection of various matters, even though they were the subject of his original affidavit, his oral evidence on 9 March and/or his further evidence on 8 April: see, for example, T635.11-32. 155 Mr Palmer submits that Mr Quigley's evidence was positively misleading and was intended as such; that is, on 9 March, while weaving his web of untruthfulness, he became entangled, and on 8 April in his attempt to extricate himself, became further entangled. 156 I do not accept this submission. 157 Counsel for Mr McGowan conceded that "[i]f one were to try logically to reconcile [Mr Quigley's evidence], you would be utterly defeated", labelling it as "outright silly": T677.18-21. To similar effect, my comment at the time was that I considered Mr Quigley's evidence was not dishonest, but was "all over the shop": T677.16. I adhere to this view. It is worth stressing that being a confused witness is a quite different thing from being a dishonest one. As anyone experienced in calling witnesses is aware, the unexpected sometimes happens. This is one of the vicissitudes of litigation. It appears Mr Quigley had limited time to prepare himself for the giving of evidence. But whatever the combination of reasons for Mr Quigley's confounding testimony, I do not think any are malign. It suffices to note that Mr Quigley was not a reliable historian of events. 158 It follows that I do not consider it is safe to place any reliance upon Mr Quigley's evidence.

F DEFENCES TO MR PALMER'S CLAIM 159 As noted above, Mr McGowan's only substantive defence to Mr Palmer's action for defamation is to rely on three versions of qualified privilege: (1) common law qualified privilege; (2) statutory qualified privilege under s 30 of the Act; and (3) the species of common law qualified privilege concerned with publication of government or political matters, being a Lange defence. I will consider each in turn.

F.1 Common Law Qualified Privilege 160 Mr McGowan's common law qualified privileged defence is hopeless. Publications reaching a wide audience, like those sued upon by Mr Palmer, are generally incapable of attracting the required element of reciprocity necessary to ground the defence. But the argument was persisted in (albeit faintly), and I am required to deal with it.

The relevant principles 161 The starting point for the common law defence of qualified privilege is the seminal passage of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-1050): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. 162 The principles on which such a defence will succeed, founded on this passage, have been stated on innumerable occasions. On the one hand, either a publisher must be under a legal or moral duty to disclose the information (usually to protect the interests of the recipient), or (in a case where a publisher seeks, as here, to rely not on a duty but on what are said to be reciprocal "interests") the disclosure must be necessary in the furtherance or protection of legitimate interests of the publisher. On the other hand, reciprocally, the interest of the recipient in having information on the subject matter "must be of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it": Stephen v West Australian Newspapers Ltd (1994) 182 CLR 211 (at 261 per McHugh J), citing with approval the remarks of O'Connor J in Howe & McColough v Lees (1910) 11 CLR 361 (at 398). 163 In contrast to the defence under s 30 of the Act, where the requirement of reasonableness is paramount, "[r]eciprocity of duty and interest, as giving rise to a privileged occasion … is the hallmark of the common law defence": Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 (at 305 [11] per French CJ, Crennan and Kiefel JJ). 164 It has often been remarked that the requirement of reciprocity precludes the applicability of the defence to large audiences, such as are reached by mass media publications. This is because the essential requirement of reciprocity is usually absent. Indeed, as was held in Lange (at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), at common law, except in limited circumstances, a claim of qualified privilege will fail where a publication is made to a large audience because the publisher will not be able to establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients. This was why, as will be explained in further detail below, it was held in Lange that there had to be a new defence of qualified privilege based on the implied constitutional freedom of communication on government and political matters: see Barilaro v Google LLC [2022] FCA 650 (at [364]-[366] per Rares J). 165 Summarising the authorities, it can be said that a successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96-97 [55]): first, that the communication was published on a privileged occasion; secondly, that the communication was related to the occasion; and thirdly, that there was no malice in the publication. 166 For reasons that will become evident, it is only necessary to address the first of these conditions.

A privileged occasion? 167 Each of the First to Fifth Matters are comments made by Mr McGowan at media briefings. It is common ground that the relevant publications are the words spoken to those physically present at the press conferences. In this regard, the facts agreed by the parties for each of the First to Fifth Matters include the words: "[a]t the [relevant date] press conference, Mr McGowan spoke words of and concerning Mr Palmer to representatives of the media who were in attendance, including the following …". It is also agreed that any republications are relied upon as to damages only. 168 Notwithstanding this common ground, a point of clarification should be noted. While Mr Palmer relies on the republications (that is, the fact of such later republications) only as to damages, the occasion on which each of the First to Fifth publications by Mr McGowan took place was where: (1) Mr McGowan intended, expected and authorised the wide republication of his words to the general public; (2) the press representatives were in attendance for that purpose; and (3) such republication was the natural and probable consequence of Mr McGowan speaking the words he did. Indeed, as Mr McGowan accepted, that was the point of calling the press conference: T324.1-19. 169 Hence, the actual audience that Mr McGowan intended to reach, and did reach, was an audience constituted by members of the public generally and the publications were disseminated to the public at large. In such circumstances, no occasion of qualified privilege founded on reciprocity of "interest" (or of "duty" and "interest") could, or did, arise. Indeed, by his defence, Mr McGowan does not assert that he was under any "duty" to publish, but rather he contends a reciprocity of "interest" existed between himself and "members of the public". That claim necessarily involves accepting that the assembled media personnel were merely conduits through which information passed to "the public" generally. 170 Perhaps in recognition of this, in opening, Mr McGowan sought to re-cast the requisite reciprocity requirement. It was submitted (at T45-46) that because only a relatively small audience was physically present when Mr McGowan was speaking, and because Mr Palmer relies upon republications only as to damages, Mr McGowan's publications are not to be treated in the same way as mass media publications but instead as publications only to those physically present at the media briefings. 171 Mr McGowan submits that given Mr Palmer accepts that the "interest" and "apparent interest" elements of the statutory defence are satisfied (see [182]), and that each of the matters involved discussion of "government and political matters" for the purposes of the Lange defence (see [192]-[224]), it is difficult to see how one can resist the proposition that there exists a reciprocity of duty and interest between the speaker and the assembled press contingent at a media briefing. It is said in circumstances where there is no dispute that the Western Australian borders were closed (subject to exempt travellers) from 5 April to at least August, it is far more likely than not that most if not all of those present at the press conferences were enrolled electors of, or resident in, Western Australia. 172 It is said that a response to a question asked by someone with a legitimate interest in knowing the answer will generally be privileged, and it is uncontroversial that a press conference is an occasion capable of attracting the defence of qualified privilege: Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 (at 292-293 [435] per Blue, Stanley and Nicholson JJ). It is also said that the fact that persons were in attendance other than the individual who asked the question is of no material consequence because those persons also had an interest in Mr McGowan's answers. Mr McGowan submits that if strict reciprocity were essential, society and its business could not be conducted, given those without a direct interest in the communication are regularly employed in helping to make a communication. In support of this proposition, reliance is placed on the decision of the Ontario High Court of Justice in Hopewell v Kennedy (1905) 9 OLR 43, which concerned oral statements made at a public meeting in the presence of reporters where the plaintiff had not made any communication or appeal to the wider public (but the remarks were nevertheless published). In that case, Teetzel J (at 47) did not suggest that the presence of those reporters detracted from the potential availability of the privilege. 173 These submissions must be rejected. 174 First, as I have already stated, the actual audience that was intended and expected by Mr McGowan was the public. The occasion was one where, at the time of his publishing to the press representatives and other persons present, Mr McGowan intended and authorised the wide dissemination of his words to a much larger audience. Indeed, any "interest" the reporters and technicians had in receiving the information was no more than such interest as any member of the public might have had. 175 Secondly, Mr McGowan's case is that the "members of the public" who had a "corresponding interest" in receiving the matters published by Mr McGowan were persons who were: (1) enrolled as electors in Western Australia; and (2) resident in Western Australia. But there is no evidence that any person present had either such characteristic and, in any event, many of those reached by the subsequent republications would not have had such characteristics. 176 Thirdly, in publishing the matters complained of by Mr Palmer, it is arguable that Mr McGowan was not "furthering or protecting" any relevant "interest" of his own. For example, to the extent that Mr McGowan might contend that he had an interest in acquainting the public with the up-to-date position concerning the High Court Border Proceeding and the Commonwealth's stance (an ostensible topic of the First, Fourth and Fifth Matters), that does not amount to him having an interest (much less one which needed to be "furthered" or "protected") in publishing attacks on one party to that proceeding. The same analysis applies, perhaps with even greater force, to the Second Matter, where a question about a call by Mr Palmer for national unity was met with Mr Palmer being called the "enemy of the state". Further, to the extent Mr McGowan had an interest in answering questions from reporters about the errors of Mr Palmer's pilot in relation to Mr Palmer's application to come to Western Australia (the topic on which some questions were asked preceding the Third Matter), still less did he have a relevant interest in "pre-empting" the next question, to make reference to hydroxychloroquine. 177 Fourthly, and relatedly, no member of the relevant audience (either the public generally or those physically present) had any corresponding or reciprocal "interest" in receiving such comments. It is not enough to attract common law qualified privilege that a question is asked by someone who might have an interest (in the sense of being interested) in the answer. That a topic may be "interesting", whether to the publisher, the recipient or both, does not establish the necessary "interest" on the part of either. Something more is required: Stephen (at 261 per McHugh J); Morosi v Mirror Newspapers [1977] 2 NSWLR 749 (at 778 per Moffitt P, Hope and Reynolds JJA); Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 (at 581 per Neaves J). 178 Fifthly, acceptance of Mr McGowan's contentions could lead to the Gilbertian result that statements made by a person to reporters and recording technicians at any press conference would be protected by common law qualified privilege, while any news service disseminating or reporting on the press conference (or any such radio or television station) would not have the benefit of the privilege. 179 As to the Sixth Matter, there can be no reciprocity of "interest" in the relevant sense, particularly given the publication was made on the Facebook page of a Premier: see, similarly, Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45; (2020) 380 ALR 145 (at 168 [113], 176-178 [147]-[161] per Gleeson J), where the defence of qualified privilege failed in relation to a Facebook page set up to expose wrongdoing in a Shire Council, for reasons including the extent of publication. 180 In short, none of the relevant matters were published on a privileged occasion and the defence of common law qualified privilege therefore fails.

Relevant principles 181 As at the relevant time, and prior to the coming into force of the Defamation Amendment Act 2020 (NSW) on 1 July 2021 (2020 Amendments), s 30 of the Act was, relevantly, in the following terms: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that - (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account - (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. 182 Mr Palmer accepts that the "interest" and "apparent interest" requirements in s 30(1)(a)-(b) are met. This leaves the question whether Mr McGowan can establish that his conduct in publishing the matters was "reasonable in the circumstances". 183 Section 30(3) provides a non-mandatory and non-exhaustive list of considerations, which may be considered in assessing whether a publisher's conduct was "reasonable". The relevance or weight to be given to any one or more of the factors will hinge on the particular facts of the case. 184 As to the meaning of reasonableness in this context, the principles emerging from the cases were recently summarised by Wigney J in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 (at [109]-[116]) and affirmed in Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48 (at [188]-[193] per Besanko, Bromwich and Wheelahan JJ). The following summary draws upon and supplements the principles canvassed by Wigney J: (1) in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure its conduct in relation to the publication was reasonable; (2) a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject; (3) the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In this regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed; (4) the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That generally involves making proper or reasonable inquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions follow logically, fairly and reasonably from the information. Where serious allegations of fact have been published about a person without the publisher having taken steps to check with the person concerned, it is the publisher (and not the person defamed) who takes the risk that the allegations cannot be justified; (5) a respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances and each imputation intended to be conveyed was relevant to the subject about which information was published; (6) the respondent must also usually establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation; and (7) the objective truth of the published statements is not relevant to the defence, and does not bear on the s 30(3) factors.

Reasonable in the circumstances? 185 Mr McGowan advances the following submissions in respect of reasonableness. 186 First, Mr McGowan places emphasis on the fact that both he and Mr Palmer are political and public figures. It is said that the publications sued upon relate to the performance of Mr McGowan's public functions, namely matters concerning the health of Western Australians during a global pandemic and claims against the State for amounts that would have serious financial consequences. This, and the "rough and tumble" of politics, are said to be of central importance in an assessment of reasonableness. 187 Secondly, save for the Sixth Matter, it is said that each matter was an immediate response to a question raised by a reporter at a press conference which had been called to discuss other matters. With the exception of the Third Matter, there is no evidence that Mr McGowan had prior notice that the questions would be asked. Dealing with each matter in turn: (1) The First and Second Matters arose during a press conference in July to announce major infrastructure and planning projects. Mr McGowan had not rehearsed the words (T380.44-45) and indicated that "a lot of what happens in press conferences springs to your mind at the time": T382.20-21. (2) The Third Matter arose during a press conference in August to announce that the State was investing in schools, including the building of new schools and school improvements. Mr McGowan indicated that "perhaps" he was told before the press conference that he was going to be asked why Mr Palmer had sought to come to Western Australia in May: T367.1; T367.17-20. (3) The Fourth Matter arose in response to questions asked during a press conference in August to announce a series of initiatives to boost local manufacturing opportunities and create jobs. (4) The Fifth Matter arose in response to questions asked at a press conference held in order to provide a COVID-19 update to Western Australians after a National Cabinet meeting. 188 As to the Sixth Matter, Mr McGowan submits that given the public interest in publishing that information expeditiously, and that Mr Palmer's views had already been expressed by Mr Palmer in his advertisements, it was neither reasonable nor necessary to seek his comment prior to publication of the Facebook post. 189 Thirdly, and related to the former point, it is said that in respect the First to Fifth Matters, Mr McGowan responded to questions posed during press conferences to him in his capacity as Premier and it was in the public interest for him to respond in a direct and expeditious fashion. Similarly, the Sixth Matter was in response to advertisements by Mr Palmer and concerned legislation that had just been passed, and it was similarly in the public interest that the information be published expeditiously. 190 Fourthly, it is said that the context of the COVID-19 pandemic and Mr Palmer's challenge to Western Australia's border closures are highly relevant to reasonableness. Mr McGowan considered that these were matters of paramount public interest to the people of Western Australia and Australians more broadly. He said repeatedly that "[i]t was pretty extraordinary times" and that "it was a very, very heated and stressful time: T375.1-2; T376.15-16. It is said that it is of importance that Mr McGowan also considered that Mr Palmer's challenge to the validity of Western Australia's strategy of closing its borders had potential ramifications for other States and Territories in that it may have resulted in the steps taken to close their borders also being invalidated. Indeed, Mr McGowan believed Mr Palmer's public challenge to Western Australia's position was a form of retribution against Mr McGowan and the Western Australian Government due to previous issues, including in relation to the CITIC Pacific Mining Project. He also believed that Mr Palmer likely had commercial imperatives for his position. 191 Fifthly, it is said that the fact Mr Palmer was pursuing a claim against the State seeking vast damages is also important context. Mr McGowan gave evidence that he became aware of the approximate quantum of the damages claim in March 2020. If the Mineralogy parties were to succeed in their damages claim anywhere close to the amount sought then this would have had catastrophic financial consequences for the State and its ability to fund services adequately. As a result, Mr McGowan considered it to be a matter of paramount concern. Indeed, as he saw it, there were essentially two options: to leave it in the hands of the arbitrator or take action (T464.6), stating that his concern "was to save the taxpayers of Western Australia from financial ruin": T474.18. He gave evidence that "ordinarily, you would never pass laws that are retrospective in nature apart from the most extraordinary of circumstances, and these were extraordinary circumstances": T499.39. 192 The Sixth Matter relates to hydroxychloroquine. Mr McGowan gave evidence 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 purported treatment or cure for COVID-19: T368.14-28; T369.17-19; T370.22-26; T398.12-19. Mr McGowan could not recall exactly when he spoke with the Chief Health Officer and the Director General of the Department of Health, other than it was some time prior to the 3 August press conference and it was at the time when the issue was current in the press: T368.25-27; T368.31-32; T370.11-31. Mr McGowan also gave evidence that he was aware of increasing numbers of negative media reports regarding hydroxychloroquine, including reports that it was harmful for COVID-19 patients: T365.24-26. 193 Finally, Mr McGowan submits that the imputations conveyed were not so serious as to render Mr McGowan's actions unreasonable (s 30(3)(c)) and that at times Mr McGowan was expressing an opinion or belief only (s 30(3)(d)). For example, it is said that on multiple occasions Mr McGowan was being asked by the media about his views, for example, "what's your reaction to that", and the reasonable listener would understand the nature of this exchange. On other occasions, he also expressly indicated that it was his opinion that was being expressed "I think he's the enemy of Australia" and "I don't think was a good thing for our State". 194 It is trite to observe that the publisher bears the onus of proving the reasonableness of his conduct in relation to the matters: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [30] per Handley JA, with whom Spigelman CJ agreed at [1] and McColl JA agreed at [54]). Notwithstanding the very lengthy submissions of Mr McGowan, and even accepting his evidence in respect of these submissions, this onus has not been discharged. 195 First, it is worth dealing with a factor that is of marginal significance. The Court must have regard to all of the circumstances leading up to and surrounding the publication: Austin v Mirror Newspapers Ltd [1986] AC 299 (at 313 per Lord Griffiths on behalf of the Privy Council). Submissions as to reasonableness in defamation cases, however, often seem to lose sight of the overriding importance of context and a consideration of all relevant circumstances, and revert to a form of "checklist" approach. Consistently with this usual approach, emphasis was placed by Mr Palmer on the fact that Mr McGowan took no steps prior to publication to contact Mr Palmer for comment, nor did he attempt to obtain or publish any response from Mr Palmer. But this was political discourse emerging during the course of political debate, and dwelling on what steps should have been taken to verify matters prior to publication is not as significant here as it is in other cases. The Act provides a non-exhaustive list of considerations. The failure to take any steps to verify material published in a mass media publication assumes a markedly different importance to a similar lack of enquiry prior to statements being made during the course of political discourse. 196 Secondly, and more importantly, as to the First, Second, Fifth and Sixth Matters, Mr McGowan's evidence was that one of the two reasons why he considered himself at "war", and regarded Mr Palmer as "the enemy of the State", was because Mr Palmer had made the claims that he had in the course of the arbitrations: see, for example, T409.29-39. But Mr McGowan's conduct in publishing those matters lacked a sufficient factual basis. For example, notwithstanding Mr McGowan's claim that, in the 14 August post, he was "clearing up the facts", Mr McGowan had little knowledge of key facts pertaining to the 2014 Award, the 2019 Award and the claim for damages; indeed, he had not read any of these documents: T428.41-43; T429.39-45. While I accept that the evidence shows Mr McGowan had been briefed (T427.23-428.21), and that it is entirely normal for a Premier to rely upon the information upon which he is briefed rather than reading all source documents in full, his evidence in cross-examination revealed a less than complete knowledge of critical aspects of the arbitration at the relevant time. For example, he was not aware that Mr McHugh had found that the Minister was in breach of the State Agreement (T435.8-19; T435.32-34; T460.28-32) or the State had been found liable to Mineralogy and the Palmer-related parties for damages: T460.34-35. Notwithstanding this, Mr McGowan published the First, Second, Fifth and Sixth Matters. 197 Thirdly, in all six matters, Mr McGowan's attacks on Mr Palmer were almost always couched as statements of fact and were expressed in harsh terms. For example, the First and Second Matters declare Mr Palmer variously to be "the enemy of Western Australia", "the enemy of the State" and "the enemy of Australia" in unqualified terms. The same may be said of the Third Matter which declared Mr Palmer wanted to "promote Hydroxychloroquine to the people of the State" when "all the evidence" established that hydroxychloroquine was "actually dangerous", and, similarly, the use of term "war" in the Fourth Matter. Similar considerations apply to the Sixth Matter, with its incorrect assertions including that the "conditions precedent" purportedly imposed on Mr Palmer's BSIOP Proposal were standard conditions applicable to all mining projects. These statements were either hyperbolic or inaccurate. They were not couched in reasonable terms, no doubt deliberately for maximum political effect. 198 Fourthly, and connected to the last point about the looseness of his language, Mr McGowan did not intend to convey Imputations 7(a), 13(b) and 13(c), nor did he give any consideration to the possibility that such imputations would be conveyed. He also had no belief in the truth of these imputations. But to my mind, the meanings conveyed were obvious and Mr McGowan took insufficient steps to prevent them being disseminated. In relation to Imputations 13(b) and 13(c), Mr McGowan's evidence is that he did not have any belief as to the truth or falsity of those imputations because he did not draft or see the matter before it was published. This falls short of the standard required to make out the defence. 199 In the end, I am not satisfied that Mr McGowan has discharged his onus of establishing that his conduct in publishing the relevant matters was "reasonable". It follows his defence of qualified privilege under s 30 must fail. Although this finding is determinative of the statutory defence, I will consider the question of malice below.

F.3 Constitutionally Protected Privilege 200 As touched upon in the introduction to these reasons, from 1994 onwards, the High Court developed a further protection for the publisher of false and defamatory material based on implications to be drawn from the notion of representative democracy: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephen v West Australian Newspapers Ltd (1994) 182 CLR 211. 201 The defence was settled by the unanimous decision of the High Court in Lange. There, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, and Kirby JJ observed (at 570) that, whereas occasions of qualified privilege as previously understood had, in all but exceptional circumstances, been confined to communications between a strictly limited number of people, the concept of representative democracy required the dissemination of information about government and political matters to the widest possible audience. 202 Each member of the Australian community has an interest in receiving information, opinions and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions and arguments. This interest and duty, although creating a new category of qualified privilege, was seen as an extension of the then existing categories. It was said (at 571) that: The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. 203 Importantly, the High Court went on to note (at 572) that "[t]he real question is as to the conditions upon which this extended category of common law qualified privilege should depend". Just as the protection afforded by the traditional categories of qualified privilege will be unavailable where a respondent was actuated by malice, the High Court noted (at 572) that "[a]s long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory". Further, in view of the much wider audience that has an interest in receiving discussion about government and political matters, it was held, by reference to the requirement of reasonableness in s 22 of the then Defamation Act 1974 (NSW) (repealed) (1974 Act), that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably. 204 Mr McGowan submits that there are three potential approaches to determining reasonableness under Lange in the present case. 205 The first is that the reasonableness criterion does not apply in circumstances where the breadth of the communication is such that it would satisfy the duty and interest correlative of common law qualified privilege. It is said that approach is consistent with and derives support from the High Court's reasoning in Lange (at 572-573), where it was said reasonableness was added as an extra requirement because a mass media publication is likely to do greater damage to reputation than a communication to "only a few recipients". In this regard, reliance is placed on the following passage of the High Court's judgment (at 573): [R]easonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege. (Emphasis added). 206 In the present case, Mr McGowan again seeks to emphasise that the First to Fifth matters were published to a small group of reporters and sound engineers, and the Sixth Matter, while it had a broader reach, was not a mass media publication in the relevant sense. It is said that while intermediate appellate courts have held that there is no established "category of qualified privilege … based on the public interest in the dissemination of opinions about governmental or political matters shorn of any condition of exercise of reasonableness" (Marshall v Megna [2013] NSWCA 30 (at [25] per Allsop P; see also [174] per Beazley JA)), Lange accommodates eschewing the reasonableness requirement on the facts of this case. 207 The second potential approach, it is said, is that the concept of "reasonableness" must be adapted, or the requirement more strictly construed, so as to ensure that an inappropriate burden is not imposed on the implied freedom. Mr McGowan submits it is regrettable that the criterion of "reasonableness" in Lange has been interpreted as picking up judicial interpretations of "reasonableness" under s 22 of the 1974 Act and, more recently, s 30 of the Act: see for example, John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports ¶81-789 (at 62,466 [83] per Giles JA; 67,480 [227], 67,487 [308] per Young CJ in Eq); see also Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111; (2019) 136 SASR 1 (at 109-110 [573] per Blue J); Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451 (at [346]-[349], [358]-[359] per Quinlan CJ). This has led to an often microscopic analysis of pre-publication conduct, which has become a considerable burden for litigants and decision makers. In this connexion, Mr McGowan correctly submits that the "reasonableness" requirement in Lange has been the subject of ongoing criticism and that the appropriate course is to approach the concept more flexibly, having regard to "all of the circumstances of the case": Lange (at 574). 208 The third potential advocated for by Mr McGowan is that if neither of the foregoing contentions commands support, it may be said the imposition of a "reasonableness" criterion as part of the Lange defence is inappropriate and should be revisited. 209 These submissions necessitated the issue of notices to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). Given I am bound to follow the law as it currently stands, it is unsurprising that no intervention occurred (it is worth noting in this regard that special leave to reopen Lange to remove the reasonableness requirement was refused in The Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180). 210 While counsel for Mr McGowan accepted the existence or principled scope of the reasonableness requirement in the Lange defence is beyond my ken, in deference to the written submissions, it is worth briefly dealing with the first and second potential approaches. 211 The first approach can be put to one side. The assertion that reasonableness was "added as an extra requirement" in Lange is not an entirely accurate summation of the position articulated by the High Court. The reasonableness requirement for this new "category" of qualified privilege was substituted for, not added to, the general common law requirement of reciprocity. This is because, as I have explained, the reciprocity requirement effectively excluded from the protection of the privilege publications reaching many people: Lange (at 572-573). The thrust of Mr McGowan's contention in this respect, that it is possible to derive from Lange a category of qualified privilege to protect the publication of defamatory statements concerning government or political matters to "only a few recipients", in circumstances where the publisher can demonstrate neither reasonableness nor reciprocity of interest, would not constitute a form of qualified privilege at all. It would be a carte blanche exemption for statements of this type. 212 As to the second approach, even if I did harbour doubts as to whether the notion of reasonableness referred to in Lange should be equated with that in s 30 of the Act, I am bound to follow the intermediate appellate court authority on this point. As Allsop CJ, Besanko and Middleton JJ observed in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2021) 396 ALR 193 (at 209-210 [45]), quoting with approval the observations of Lord Simon of Glaisdale in Miliangos v George French (Textiles) Ltd [1976] AC 443 (at 478): It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court. 213 In saying this, speaking for my own part, and with respect to those that have taken a different view, there is much to be said for a distinction to be drawn between the concept of reasonableness under the Act and pursuant to the defence in Lange. 214 When Lange was decided (and between 1974 and 2005), s 22 of the 1974 Act contained the statutory defence of qualified privilege. The central requirement of the defence, at s 22(1)(c), was that the defendant show that his conduct in publishing was "reasonable in the circumstances". Until 2002, there was no statutory "checklist" within s 22, such as the one now found in ss 29A and 30(3) of the Act (following the 2020 Amendments). 215 The "checklist" approach had its apparent origins in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (at 387-8), where Hunt AJA identified a series of non-exhaustive propositions as to what was meant by "reasonable in the circumstances" in s 22 of the 1974 Act. But that highly experienced defamation judge made plain that these propositions were not exhaustive and cautioned it would be both impossible and unwise to attempt to give any comprehensive definition of what conduct would be "reasonable in the circumstances" in any given case. By an amendment in 2002, s 22(2A) was inserted into the 1974 Act, setting out a list of eight factors - essentially drawn from the Morgan principles - which the court may consider in determining the issue of reasonableness. For completeness, it may be noted that s 30(3) of the Act, in the form (set out above at [181]) in which it appeared as at July-August 2020, was in substantially the same terms as its predecessor s 22(2A) (although eight factors had expanded to ten). 216 Although non-exhaustive statutory checklists are not supposed to be limiting, and despite the caution expressed in Morgan, the reality is that a checklist often has this effect, and diverts attention away from the need to make a broad and bespoke evaluative assessment grounded in all of the circumstances of a case. As anyone reading statutory qualified privilege submissions discovers, lore, as much as law, dominates this area. 217 As to the requirement of reasonableness, the Court in Lange observed (at 574): Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond [Stephenson's Case (1994) 182 CLR 211 at 252-253]. (Emphasis added). 218 Under s 30 of the Act, publishers must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation, which they did not intend to convey, but which was in fact conveyed. They must also generally establish that they made any reasonable enquiries, and that their conclusions of fact or opinion followed logically, fairly and reasonably from the information revealed by those enquiries. 219 As the cases (and there are many of them) demonstrate, these requirements have proved, in practice, to be onerous. 220 One aspect of the defence the High Court apparently left open in Lange (at 574, as extracted and emphasised above) is whether a publisher must establish their belief in a publication's truth, or merely reasonable grounds for belief in its truth. Indeed, it is arguable that what the High Court was in truth exposing by stating that a respondent will generally be required to provide that they had "reasonable grounds" for publishing the defamatory matter was an objective test with elements of subjective contextualisation, as opposed to a more heavily weighted subjective test as expounded in Morgan: see, analogously, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133; (2021) 285 FCR 540 (at 563-566 [90]-[99] per Lee and Wheelahan JJ). This position might be said to derive support from the fact that the High Court's analysis in Lange made no mention of, and therefore should not be taken as an express endorsement of, the principles explained in Morgan. 221 Notwithstanding subtleties like these, as I have stated, the general approach taken by courts has been to equate the reasonableness requirement in Lange to that in s 30 of the Act: Obeid (at 164 [61]); O'Shane (at 67,487 [308] per Young CJ in Eq). But the reality is that this has denuded the defence in Lange of any real utility. Many commentators have remarked that the defence is "ill-defined" and "about as hopeless as you can get", and some have gone so far as to label it a "disaster": see, respectively, Justice P Applegarth, "Distorting the Law of Defamation" (2011) 30(1) University of Queensland Law Journal 99 (at 99); Weaver R L and Partlett D F, "Defamation, the Media, and Free Speech: Australia's Experiment with Expanded Qualified Privilege" (2004) 36(2) George Washington International Law Review 377 (at 431) and Kenyon A T, Defamation: Comparative Law and Practice (University College London Press, 2006) (at 235). Indeed, in a recent and informative article, Mr P Hall identifies the requirement of reasonableness as one of the "three limitations [which] continue to plague the defence": "Freeing speech: Protecting the modern media defendant through the defence of qualified privilege" (2019) 23 Media and Arts Law Review 201 (at 217). 222 One might consider it is important, a quarter century on from the decision in Lange, to step back from the body of law that has developed and consider the underlying principle the High Court was articulating. That is, the need to strike a balance between freedom of discussion of government and politics and reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics: Lange (at 566-567). In circumstances where the Lange defence is almost never made out, principally because of the stringent reasonableness requirement, how can it be said that a proper "balance" is being struck? If a requirement of reasonableness is an appropriate attenuation of free speech in striking this balance in the present context, there is something to be said for an evaluative approach to reasonableness not encrusted by, and viewed through the prism of, the authorities that have so constrained the utility of the statutory defence. 223 Notwithstanding these remarks, for reasons I have explained, I proceed on the basis that the requirements for reasonableness under Lange are essentially those required under s 30 of the Act. As Mr Palmer correctly points out, the arguments canvassed above are academic at this trial. Reasonableness remains an essential component of the Lange defence, as it has for twenty-five years. 224 As I have explained, Mr McGowan's conduct in publishing the matters was not reasonable (as that concept has been explained in the authorities) and therefore any Lange defence of qualified privilege must fail.

F.4 Malice 225 Given the findings I have made in respect of reasonableness, it is strictly unnecessary to deal with the question of malice. However, given the length of time dedicated to this issue in cross-examination and in the submissions of the parties, it is appropriate to record the findings I would have made if it was necessary to determine the issue of defeasance. 226 Mr Palmer alleges that Mr McGowan was actuated by express malice in publishing the matters he did: that is, by a sustained course of conduct, including in the lead-up to and enactment of the Amendment Act, Mr McGowan acted to harm Mr Palmer and his business and damage Mr Palmer's reputation, while bolstering his own.

Principles 227 Of course, the defence of qualified privilege, in all its forms, will be lost if malice is shown. 228 Where a publisher uses an occasion of qualified privilege for a purpose or motive foreign to the duty or interest that protects the making of the statement and that purpose actuates the making of the statement, the publisher is said to be actuated by express malice: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 (at 30-31 [75] per Gaudron, McHugh and Gummow JJ); Lindholdt v Heyer [2008] NSWCA 264; (2008) 251 ALR 514 (at 543 [136] per McColl JA). In Roberts v Bass (at 31 [76]), Gaudron, McHugh and Gummow JJ said the following about states of mind relevant to the presence of malice: Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. … [E]ven if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. (Emphasis added; footnotes omitted). 229 Relevantly, two streams of what may be termed "abuse of privilege" can be drawn from the High Court's reasoning in Roberts, and the common law more generally. 230 The first is knowledge of falsity of the statement. As is well-established, proof of knowledge of falsity is a means by which malice may be established, usually conclusively: Roberts v Bass (at 31-32 [76]-[77] per Gaudron, McHugh and Gummow JJ). In circumstances where knowledge of falsity alone is relied on, it is generally not necessary to identify the improper motive as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter: Gross v Weston [2007] NSWCA 1; (2007) 69 NSWLR 279 (at 297 [52(6)] per Hunt AJA, with whom Handley and McColl JJA agreed at 280 [1] and 280 [2] respectively). Short of knowledge of falsity, reckless indifference may be sufficient to prove improper motive in exceptional circumstances or in combination with other factors. As Gaudron, McHugh and Gummow JJ stated in Roberts v Bass (at 34 [84]): In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. See also Lindholdt (at 545 [141] per McColl JA); Gross v Weston (at 295 [43] per Hunt AJA, with whom Handley and McColl JJA agreed at 280 [1] and 280 [2] respectively). 231 The second is the connected, although perhaps broader, concept of a malicious or improper purpose. That is, even in circumstances where the defendant believed the statement to be true or was indifferent to its truth, if it is found that the dominant motive in making the defamatory statement was an improper one, the protection is forfeited: see Horrocks v Lowe [1975] AC 135 (at 149 per Lord Diplock). Alternatively stated, the applicant's task is to demonstrate that the respondent was actuated by motives of spite or ill-will independent of the occasion on which the communication was made, and that motive was a causative factor in the respondent publishing the defamation: Wright v Woodgate (1935) 2 Cr M & R 537; (1935) 150 ER 244 (at 246 per Parke B), cited in Adam v Ward [1917] AC 309 (at 349 per Lord Shaw). By way of analogy, the relevant inquiry in seeking to ascertain an improper purpose is much like that required to make out the tort of collateral abuse of process: see Martin v Norton Rose Fulbright Australia [2021] FCAFC 216; (2021) 395 ALR 413 (at 457 [202] per Jagot, Katzmann and Banks-Smith JJ). 232 A good example of an improper motive sufficient to make out a finding of malice to defeat the defence of qualified privilege is evident in the New South Wales Court of Appeal decision in Howell v Haines (1997) Aust Torts Reports ¶81-409. There, the appellant, an aspiring politician, had written to members of his party alleging that the respondent was guilty of corruption. Although the appellant honestly believed the truth of this assertion, he had forfeited his privilege because his dominant motive for airing the allegation was to hurt an opposing wing of his party and the respondent. If the respondent, by contrast, was using the occasion for its proper purpose, but incidentally had feelings of resentment towards to applicant, he would not be deprived of the privilege. That is, the protection is not lost if the ill-will is not the primary purpose behind the respondent making the statement. 233 In both contexts, an applicant claiming malice on the part of the respondent must overcome the presumption that the publisher acted honestly, that is, with a proper purpose: Roberts v Bass (at 38 [96] per Gaudron, McHugh and Gummow JJ).

The contentions of Mr Palmer 234 Mr Palmer submits that Mr McGowan either knew of the falsity, or had no belief in the truth, of what he said in the six matters upon which Mr Palmer sues. He also contends that Mr Palmer was motivated by various improper purposes. I will deal with each of these contentions before turning to consider some miscellaneous aspects of the evidence said to support a finding of malice. 235 The following contentions are advanced in support of the proposition that Mr McGowan either knew of the falsity, or had no belief in the truth, of what he said in the First to Sixth Matters. 236 As to the First, Second and Fifth Matters, the imputations found to have been conveyed (Imputations 3(a) and 3(b), 5(b) and 11(b)) are in almost identical terms, namely that Mr Palmer represents a threat to the people of Western Australia and Australia and is dangerous to them. 237 It is said that such incendiary charges, against one individual, that he personally constitutes a threat and a danger to a whole state or a whole country, could only be made honestly against a very few of the most infamous people in history. The term "enemy of the state", repeatedly used by Mr McGowan, it is said, is heavy with dark historical resonance, and the ratcheting up of the rhetoric from "battle" to "war" in the Fifth Matter, cannot be seen as anything other than pre-planned and deliberate. It is said that, revealingly, Mr McGowan accepted in cross-examination that the term "enemy of the state" was associated in his mind with espionage and warfare: T381.10-11. 238 Mr Palmer submits that the two things that he had done, which according to Mr McGowan justified such wild charges, were: first, commencing proceedings in the High Court to test the validity of state legislation; and secondly, being successful in lawful arbitration proceedings. To say that a citizen, in exercising his rights within the bounds of the law, is a threat and a danger to the entirety of the people whom the law protects, is such a grotesque exaggeration as to be knowingly false. 239 Indeed, it is said that the matters must be found to be nothing other than mere excuses for Mr McGowan to stigmatise Mr Palmer in the most virulent terms as, in effect, persona non grata, and thus to garner for himself public support. Mr Palmer submits that Mr McGowan must have known these accusations and imputations to be false at the time he conveyed them, as he makes no attempt to prove these imputations are substantially true. 240 As to the Third Matter, the imputation found to have been conveyed is that Mr Palmer "promotes a drug which all the evidence establishes is dangerous": Imputation 7(a). It is said that this imputation is false in several respects, all of them known to Mr McGowan at the time he spoke the words in question. Three submissions are advanced in support of this proposition: (1) Mr McGowan distorted and conflated two separate timeframes. In mid-May, not only was hydroxychloroquine not considered dangerous, but clinical trials both in Australia and around the world were "promising" in relation to it having a part to play in the prevention of COVID-19, and the Federal Government was endeavoring to acquire "a significant supply" of the drug. In that context, in April, Mr Palmer spent millions of dollars to acquire 32 million doses of hydroxychloroquine, in order to donate them to the Federal Government: T199.13-23. Mr Palmer's application to travel to Western Australia was made in early May. He gave evidence that one of the purposes of his proposed visit to Western Australia was to progress the arrangement referred to in the previous paragraph. Mr Palmer's application was refused on 20 May. These matters were all brought to Mr McGowan's attention soon thereafter. Subsequently, in late May, June and July, reports began to emerge to the effect that hydroxychloroquine was not recommended for treating COVID-19. It is said that Mr McGowan has not adduced any evidence to suggest that, as at 20 May 2020, he had any idea the drug was dangerous. Rather, what Mr McGowan said on 3 August was that when Mr Palmer was trying to come to Western Australia (which was in early May, as Mr McGowan knew) to "promote" hydroxychloroquine as a cure for COVID, notwithstanding that "all the evidence" was that it was not a cure - that is, he was coming to Western Australia in May "to promote a dangerous drug"; (2) Mr Palmer was not "promoting" hydroxychloroquine, but rather he had bought large quantities of the drug to donate it to the Commonwealth. Mr Palmer gave evidence that he "was never an advocate one way or the other in relation to" hydroxychloroquine, but "was responding to what we thought was a national crisis": T199.20-21. At the time he undertook these activities, it is said that there was no indication hydroxychloroquine was not a cure, much less that "all the evidence" was that it was not a cure, or that "all the evidence" was that it was "dangerous". Further, on 20 May, the same day that his application to travel was refused, Mr Palmer's solicitor explained Mr Palmer's purpose in acquiring hydroxychloroquine was to donate it to the medical stockpile. Mr McGowan was aware of this at the time this letter arrived: T359.4-6. Accordingly, by no later than 20 May, Mr McGowan knew Mr Palmer was donating the drug, not promoting it, and Mr McGowan's attempts in cross-examination to assert the contrary defy credulity: see T362.34-363.6; T363.43-364.12; and (3) Even as at 3 August, it is said it was false to say that "all the evidence" established that hydroxychloroquine was dangerous. By early August, evidence was emerging to suggest that hydroxychloroquine was ineffective in treating COVID-19, but even then it was still the subject of clinical trials. 241 Having regard to the foregoing, it is said that Mr McGowan must have known, at the time he conveyed the imputation "Mr Palmer promotes a drug which all the evidence establishes is dangerous", that it was false. At the least, it is said that he could have had no belief in its truth. 242 As to the Fourth Matter, it is said that the imputation found to have been conveyed by this matter, that Mr Palmer "selfishly uses money he has made in Western Australia to harm West Australians" (Imputation 9(b)) is related to those conveyed by the First, Second and Fifth Matters. Mr Palmer submits that it may be uncontroversial that he makes money from the development of iron ore reserves located in Western Australia, but notes that it is another thing altogether to allege that he selfishly uses this money "to harm" Western Australians. 243 The imputations found to have been conveyed by the Sixth Matter are that "Mr Palmer is prepared to bankrupt a state merely because he is unhappy with standard conditions set on a project by the [S]tate [G]overnment that apply to all mining projects", and Mr Palmer "is so dangerous a person that legislation was required to stop him making a claim for damages against the State of Western Australia" (Imputations 13(b) and (c)). It is said that the Sixth Matter commenced by promising to "clear up the facts", but, in reality, it proceeded to paint a deceptive picture. What Mr McGowan said included that: These laws are not about stopping [Mr Palmer] from proceeding with a project. The iron ore at Balmoral South is still there. Mr Palmer still has his right to make a proposal to dig it up or to sell that right to someone else. … [Mr Palmer] CHOSE not to proceed with the project [the subject of the BSIOP Proposal] because of the conditions he was required to operate under. All mining projects in Western Australia have conditions that are … fundamental to the operation of our mining industry. The only difference here is that Mr Palmer decided that adhering to those conditions was too hard and he wouldn't proceed with the project. So instead of choosing to make his profits by establishing a potential job-creating project at Balmoral South - as is his right - he decided to just make his profits by taking $12,000 from every man, woman and child in Western Australia. … It would be unthinkable to allow a precedent that anyone could bankrupt a State just because they weren't happy with conditions set by the State government. (Emphasis added). 244 It is contended that virtually every one of these statements is false, either in whole or in part. Mr Palmer submits that the passing of the Amendment Act, with its extraordinary features, was obviously "about" stopping Mr Palmer from proceeding with a project. Further, it is said that Mr Palmer did not "choose" not to proceed with the project, and he did not "choose to make his profits by taking $12,000 from every man, woman and child in WA". 245 It is said that Mr McGowan either knew the falsity of what he was saying, or, at the very least, should have known, given was not only the Premier, but was also the Minister directly responsible for the State Agreement. In respect of the latter, it is said it is telling that Mr McGowan said that he had never read either the State Agreement (T459.3), the two arbitral awards (T428.41-43), or Mr Palmer's actual claim for damages: T429.39-43. 246 Further, two improper motives are said to evidence Mr McGowan being actuated by malice. 247 The first is centered upon the Attack Plan, including the Amendment Act. It is submitted that Mr Quigley's description in his interview with ABC Radio Perth (see [35] above) of the tactics behind the conception, drafting and enactment of the Amendment Act captures the "brazen" nature of what was done, all to deprive Mr Palmer of the mere possibility of a favourable arbitral award. Mr Palmer submits that Mr McGowan coupled his preparedness to undermine the rule of law by rejecting proper judicial and administrative review processes (which he deprecated as "namby-pamby inquiries": T24.20-23; T418.15-29), and by making a mockery of the State's model litigant obligations, with a deliberate and sustained course of public attacks on Mr Palmer designed to "wrongfoot" him: T421.37-422.15. The First to Fifth Matters were some of those attacks, and the Sixth was an ex post facto defence of the indefensible. These attacks were extraneous to any occasion that might be said to have arisen and constitute clear evidence of malice. 248 The second is an alleged improper motive that came to light during cross-examination. Mr McGowan admitted that he wanted to "denigrate" Mr Palmer: T375.16. At various points in his cross-examination (see, for example, T375.35-376.43; T396.30-397.26), he asserted that, by so denigrating him, his aim was to persuade Mr Palmer to drop the High Court Border Proceeding. He added that in turn, by pressuring Mr Palmer, he also aimed to pressure the Commonwealth to withdraw: T397.22-26. Indeed, this was part of Mr McGowan's admitted "strategy throughout this period": T397.26. It is said that if there was a privileged occasion, and if this was actually Mr McGowan's motive (as he claimed), then the publications were actuated by motives foreign to the occasion and thus the occasion is defeated by malice. 249 Finally, in addition to the above two streams of submissions, the following miscellaneous matters are relied upon to support a finding of malice: (1) failure to inquire: Mr McGowan took no steps to check any of his allegations with Mr Palmer. Mr McGowan received Mr Palmer's concerns letter of 4 August, after his publication of the First to Third Matters. Mr McGowan made no contact with Mr Palmer before his press conference on 5 August, proceeding to publish the Fourth Matter that day, and the Fifth Matter two days later. After Mr Palmer's second concerns letter dated 10 August, Mr McGowan published the Sixth Matter; (2) refusal to apologise: Mr McGowan refused to apologise to Mr Palmer, notwithstanding Mr Palmer's concerns notices. In cross-examination, Mr McGowan stated he believed he could ignore these notices (T406.38-39), did not apologise (T406.41-42), continued to attack Mr Palmer with "some hostility" and "frankly" was "not that worried about Mr Palmer's feelings"; (3) premeditated: Mr McGowan's attacks on Mr Palmer were not the result of a rush of blood in the heat of the moment. Rather, they were carefully planned, stage-managed and widely disseminated for maximum effect: T409.41-411.5; T324.1-19; (4) no consideration as to the possibility some imputations would be carried: Mr McGowan, according to his answers to interrogatories, not only did not intend to convey Imputations 7(a), 13(b) and 13(c), but gave no consideration to the possibility that such imputations would be carried; (5) extreme language: Words like "enemy" and "war", and phrases such as "very very selfish", "the enemy of the State", "the enemy of Western Australia", "the enemy of Australia", "he decided to just make his profits by taking $12,000 from every man, woman and child in Western Australia" and "too dangerous for our state", were utterly disproportionate to the occasion. It is said that Mr McGowan must have known the power and the influence of his words, yet he chose to deploy that power in a sustained and intemperate attack on Mr Palmer, his business and his reputation. That choice is thus "explicable only by reference to the existence of ill will": Calwell v Ipec Australia Ltd (1975) 135 CLR 321 (at 332 per Mason J); and (6) spite and ill-will: Mr McGowan manifests his spite and ill-will towards Mr Palmer not only by the extreme and sensational language of the First to Sixth Matters, but in many of his other communications concerning Mr Palmer. This is a feature of his mindset which he seems unable to contain. Some examples are: (a) The SMS exchange between Mr McGowan and Mr Quigley extracted at [27] above. There, Mr Quigley refers to Mr Palmer as "big fat Clive", "the turd", and hopes to "drop the fat man on his big fat arse!". Mr McGowan's response proceeds on the apparent footing that this is a suitable way for an Attorney-General and a Premier to discuss a citizen and discloses a preparedness to do whatever might be necessary "to really sort out" Mr Palmer's claim against the State; (b) on numerous occasions, Mr McGowan referred to Mr Palmer as: "a menace to Australia … playing with people's lives"; "the biggest loser"; "Australia's greatest egomaniac", "an Olympic scale narcissist" and an "ego centrist of the highest order"; "absolutely obscene", a person who is "trying to take our money" and "trying … to bankrupt Western Australia"; and "he's really quite a piece of work" whose "whole strategy" involves "costing people their lives"; (c) in an SMS exchange with Mr Kerry Stokes, Mr Stokes refers to the "insect heads". Mr McGowan thanks Mr Stokes for "those marvellous front pages" (in which Mr Palmer had been depicted as Dr Evil, a cane toad, and a cockroach), and then goes on to say: "All the meally mouth [sic] tut tutting by some people about Mr Palmer's 'rights' makes me sick. The reality is 99% of people want Mr Palmer stopped"; (d) in another SMS exchange with Mr Quigley, Mr McGowan described Mr Palmer as "the worst Australian whose [sic] not in [gaol]", which he accepted in cross-examination was "a pretty severe, damning indictment": T444.32; (e) in numerous of their SMS exchanges, Mr Quigley refers to Mr Palmer as a "fat liar", "big fat liar" or "BFL". Mr McGowan applauded such a shorthand to describe Mr Palmer "brilliant"; and (f) Mr McGowan conceded that, even though he has never met Mr Palmer, he "dislikes" him, "can't stand what he does" (T443.26-35, 444.26-36) and chose to use language to describe him that he "wouldn't ordinarily use", "because he wanted to denigrate him": T375.16. He refused to accept that such language was apt to foment a vicious public reaction against Mr Palmer (T379.10-380.12), and insisted that his language was "quite reasonable": T379.25-46. 250 All of the above factors, especially taken cumulatively, are said to support a finding of malice against Mr McGowan.

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.

G DEFENCES TO MR MCGOWAN'S CROSS-CLAIM 275 Mr Palmer advances three defences against the Cross-Claim. These are the defences of substantial truth, contextual truth and the reply to attack aspect of common law qualified privilege. I will consider each of these in turn.

G.1 Justification 276 Mr Palmer alleges the following three imputations are substantially true: (1) as Premier, Mr McGowan lied when he said that he had acted upon the advice of the Chief Health Officer in closing the borders (Imputation 3(a)); (2) as Premier, Mr McGowan lied when he told them their health would be threatened if the borders did not remain closed (Imputation 3(b)); and (3) as Premier, Mr McGowan lied about his justification for imposing travel bans (Imputation 5(b)).

Principles 277 To succeed on a defence of justification both under s 25 of the Act and at common law, it is necessary to prove the substantial truth of each of the imputations conveyed. Section 25 of the Act provides: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 278 "[S]ubstantially true" is defined in s 4 as "true in substance or not materially different from the truth". It is not necessary to establish that every part of an imputation is literally true; it is sufficient if the "sting" or gravamen of an imputation is true: see Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 (at 179 [86] per McColl JA, with whom Beazley JA and Giles JA agreed at 159 [1] and 159 [2] respectively).

The evidence 279 It will be recalled that Cross-Claim Imputations 3(a) and 3(b) were conveyed by the First Cross-Claim Matter, a press conference given by Mr Palmer in July. Mr Palmer's remarks followed Dr Robertson's evidence in the Federal Court Border Proceeding. Cross-Claim Imputation 5(b) was conveyed by the Second Cross-Claim Matter, an interview given by Mr Palmer on Sky News on 12 August. In the interview, Mr Palmer largely addressed the enactment of the Amendment Act but also commented upon the hard border. 280 In considering whether the substantial truth of these imputations is made out, it is useful to identify two periods: first, late March-early April, when the hard border was imposed; and secondly, June-July, when questions arose as to whether the hard border should be continued or modified.

Imposition of the hard border 281 Mr McGowan announced the hard border closure on 2 April. He held a press conference at which he stated, as to that topic: Some might think it's over the top and unnecessary. I can assure them it's not. Based on the medical advice, we will move to introduce a hard border closure effective from midnight or 11:59 p.m, on Sunday night. 282 On 2 April, the press conference was followed by a media statement released by Mr McGowan which stated, inter alia: The McGowan Government has taken the extraordinary, but necessary step to place a hard border closure on the State of Western Australia, to further protect the community from the COVID-19 pandemic. Based on the best medical advice, effective from midnight, or 11.59pm, on Sunday, April 5, people will no longer be able to enter Western Australia without an exemption. 283 In cross-examination, Mr McGowan accepted that what he was telling the public, by his announcements, was that the hard border was necessary (T328.39-41); it was necessary because of the medical advice he had received (T329.1-2); and that the medical advice was that the hard border was necessary: T329.27-36. It is the last of these propositions that has been the subject of controversy. 284 On 29 March, Dr Robertson and Dr Paul Armstrong approved the 29 March Email, which is extracted above at [142]. In his oral evidence, Mr McGowan stated that he was "confident" that he saw the email at about the "point in time" it was sent: T330.20-21. He agreed that it was the only written medical advice upon which he relied in announcing the hard border, and accepted that, insofar as he claimed to have received oral medical advice, the oral advice was consistent with the written advice set out in the 29 March Email: T330.23-42; T333.1-9; T333.36-41.

Continuation of the hard border 285 By June-July, there was public debate about whether the Western Australian hard border needed to be maintained. On 24 June, Dr Robertson provided advice to the State Government, including stating: Proposals to open the borders to jurisdictions with no community spread, such as South Australia and the Northern Territory, if legally viable, could be considered on public health grounds, as the risk of re-introduction from these jurisdictions remains very low. This would, however, place increased reliance by WA on the effectiveness of their border controls, particularly for travelers [sic] passing through those jurisdictions to WA. Given the different approaches these jurisdictions have taken to implementing the border controls, and that they may be lifted at different times to the WA borders, consideration of the risk posed would require further assessment. 286 On 24 July, Dr Robertson repeated that advice. Indeed, Mr McGowan accepted that, from 24 June to 24 July, Dr Robertson's advice did not change: T349.20-23. 287 On 27 July, Dr Robertson gave evidence in the Federal Court Border Proceeding that, after he had informed the State Government that an intermediate position could properly be considered from a public health perspective, he was not asked to provide any further advice concerning that possibility. He also gave evidence that at that time, a number of the states and territories met "the medical definition for elimination" of COVID-19. In respect of those places, Dr Robertson confirmed that, in his 24 June letter, he was expressing the view that "there would be grounds to open [the border]". He later reiterated that position, stating that opening the border "could certainly be considered on public health grounds". 288 Mr McGowan accepted that he had not conveyed to the public that such an intermediate position could be considered: T352.32-33. 289 On 31 July, Mr McGowan said the following at his press conference that day: Reporter: Should we be concerned though that you've said that a travel bubble wouldn't be available due to health advice but our Chief Health Officer is saying it's OK? Mr McGowan: No he's not. He has been very clear, that the arrangement that we have in place is the right arrangement. It's the advice he has given us. (Emphasis added). 290 Again, on 7 August, Mr McGowan stated: We will continue our battle, in fact, our war, with Clive Palmer to protect our State. This is a pandemic, we won't be rushed into anything that is against our health advice. Our position has been clear and consistent, and it won't be changing. For as long as our health advice recommends the hard border stay in place, it will remain. (Emphasis added). 291 Mr McGowan's Facebook post of 8 August was to similar effect. 292 On 1 October, NCA NewsWire reported Mr McGowan saying: Honestly, the benefit to opening to the Northern Territory or South Australia for Western Australia is not there … All we'll do is lose jobs were we to open to those states. The other states want us to open the border so that West Australian tourists will flood east, not so that people from the east will come here. They're only saying all this for very self-interested reasons because we have higher incomes, we have people that are more used to travelling and therefore we'll have more tourists going from WA to the east. They're not advocating it for any other reason than that they want to see WA incomes spent in Sydney or Brisbane or wherever it might be. 293 As is evident from the above extract, at least at this time, economic reasons were also being called in aid for refusing to open the border. Later that same day, Mr McGowan in a second press conference is recorded stating "[e]verything we have done has been on the grounds of health". 294 On 14 October, WA Today reported that in his evidence to an Education and Health Standing Committee inquiry, Dr Robertson said that his medical advice to ease the border policy "had not been taken up" and further that the "'all-or-nothing' approach to reopening the border was not based on health advice".

Consideration 295 Mr Palmer submits the above evidence, properly construed, demonstrates the truth of Cross-Claim Imputations 3(a), 3(b) and 5(b). 296 As to Cross-Claim Imputation 3(a), it is said that Mr McGowan plainly did not "act upon the advice" of the Chief Health Officer when he closed the borders on 2 April. Mr McGowan gave evidence that what he was telling the public on 2 April was: (1) the hard border was necessary; and (2) it was necessary because of the medical advice he had received. But Mr Palmer submits that the medical advice said no such thing. It is contended that although Mr McGowan stated he was "confident" he saw the 29 March Email at about the "point in time" it was sent, and that to the extent he received oral advice, it was consistent with the written advice, in truth, this advice merely compared various available options and, as Mr McGowan agreed, left the decision to him: T335.31-38. That is, it did not express a view, one way or the other, as to whether the option of closing the border should or ought to be taken, nor that closing the border was necessary; in fact, Dr Robertson had said that other measures might have a similar impact on reducing the risk of COVID-19. In telling the people of Western Australia that in closing the border he was acting upon the medical advice, it is said that Mr McGowan lied. 297 As to Cross-Claim Imputation 3(b), which relates to the maintenance and continuation of the hard border in June-July, it is said that Dr Robertson's written advice of 24 June and 24 July reiterated and confirmed in his evidence given to this Court on 27 July, was that consideration could properly be given, so far as public health grounds were concerned, to opening the borders, at least to those states and territories that had eliminated COVID-19. In telling the people of Western Australia that their health would be threatened if the borders did not remain closed, it is asserted that Mr McGowan knew that the medical advice was to quite different effect. The necessary conclusion follows that he lied. It is contended this is supported by the public statements made by Dr Robertson on 14 October, and the fact that Mr McGowan had told the press on 1 October that the hard border was driven by economic and political reasons: T353.26-46. 298 As to Cross-Claim Imputation 5(b), it is said that given this imputation is couched in terms referring to Mr McGowan's "justification for imposing travel bans", it therefore relates to the imposition of the hard border in early April, rather than to its continuation in June-July. Either way, it is said, for the reasons outlined above, Mr McGowan lied about his justification for both imposing and maintaining the hard border. 299 As would be apparent, in each case, the imputation conveyed was that Mr McGowan lied; that is, that he knowingly misled the people of Western Australia by communicating to them facts that he did not believe to be true. For Mr Palmer's truth defence to succeed, Mr Palmer must therefore establish actual dishonesty on the part of Mr McGowan. 300 Mr McGowan rejects the allegation that he knew any of his statements were actually false. I am inclined to agree. While it is correct to say the Premier certainly pitched his public comments in emphatic terms and in terms of necessity based on medical advice, I have little doubt he was concerned to emphasise that what he was doing was required on health grounds. Naturally, in hindsight, it might be said that different words could have been chosen which would have conveyed a fuller and more nuanced message. But this was discourse by a head of government requiring communication as to matters of important public policy in simple terms that could be easily understood by a wide audience. Indeed, there is a degree of artificiality in reflecting on public statements of this type with a fine-tooth comb and searching for specificity in circumstances where it is generally non-existent. I had the benefit of closely observing Mr McGowan's evidence and his manner of giving it. After considering it closely, I have not reached the level of satisfaction required to conclude that Mr Palmer has discharged his onus in proving that Mr McGowan did not subjectively believe that: (1) he had acted upon the advice of the Chief Health Officer in closing the borders and that closing the borders was necessary, in the sense that it needed to be done; (2) the health of the people of Western Australia would be threatened if the borders did not remain closed; and (3) his justification for the closure of the borders was true. 301 An overarching difficulty that exists for Mr Palmer is that in respect of Cross-Claim Imputations 3(a) and 3(b), the evidence is insufficient for me to be affirmatively persuaded that Mr McGowan did not believe that he had acted on the advice of the Chief Health Officer in closing the border in early April and keeping it closed in July, or that he did not believe that the health of the Western Australian population would be threatened if the border did not remain closed. In relation to Cross-Claim Imputation 5(b), Mr Palmer's truth defence would require him to establish that Mr McGowan did not believe the justifications he gave publicly for the closure of the border. Mr Palmer's attack on Mr McGowan's stated justifications relate to the medical advice received by Mr McGowan. 302 Stepping out this reasoning, the following points should be made. 303 First, Mr Palmer's submissions focus primarily on the advice received from Dr Robertson in the 29 March Email, notwithstanding that the matters by which Cross-Claim Imputations 3(a), 3(b) and 5(b) were conveyed occurred on 31 July and 12 August, by which time Mr McGowan had also received advice from Dr Robertson: (1) on 20 May that "until community spread is eliminated in the two affected jurisdictions (New South Wales and Victoria), which would require at least a month to confirm (two 14-day incubation periods), opening of the interstate borders was not recommended"; and (2) on 24 June (repeated on 24 July) that: (a) the decision to close the border had "remained highly effective in reducing interstate cases and eliminating community spread"; (b) "[w]ith continued COVID-19 outbreaks and community spread in two jurisdictions primarily in Victoria, the risk of introduction across an interstate border remains and, at least from Victoria, has increased"; (c) "[p]roposals to open the borders to jurisdictions with no community spread, such as South Australia and Northern Territory, if legally viable, could be considered on public health grounds, as the risk of re-introduction from these jurisdictions remains very low. This would, however, place increased reliance by WA on the effectiveness of their border controls, particularly for travelers [sic] passing through those jurisdictions to WA. Given the different approaches these jurisdictions have taken to implementing the border controls, and that they may be lifted at different times to the WA borders, consideration of the risk posed would require further assessment"; and (d) "[u]ntil community spread is eliminated in the affected jurisdictions, which will require at least a month to confirm (two 14-day incubation periods), or reduced to such low levels as to pose a minimal risk, such as in New South Wales, where rapid containment measures have prevented further spread, opening of the interstate borders is not recommended …". 304 It is worth emphasising in respect of the last extract that Dr Robertson's conclusion was that it was not recommended to open the interstate borders at all for so long as community spread was present in New South Wales and Victoria. 305 Mr Palmer submits that Mr McGowan chooses to blur Cross-Claim Imputations 3(a), 3(b) and 5(b) together, notwithstanding the fact that they are couched very differently. He contends that only Cross-Claim Imputation 3(b) relates to the decision to maintain the border closures (as opposed to implementing the border closures in early April) and thereby seeks to direct the focus of the truth of Cross-Claim Imputations 3(a) and 5(b) on the 29 March Email as opposed to the later advice. Indeed, it is said that whether or not Mr McGowan lied in April depends upon what he knew then and is not affected by what he may have been told later, meaning Dr Robertson's advice in May, June and July 2020 is not relevant to the truth of Cross-Claim Imputations 3(a) and 5(b). 306 While, for reasons I will explain, it is unnecessary to express a concluded view on this issue, there is a degree of artificiality in the approach contended for by Mr Palmer. This is because it fails to appreciate the context in which the alleged defamatory statements were made by Mr Palmer. The First Cross-Claim Matter was published on 31 July and was directed at the decision that had recently been made to maintain the hard border in its entirety as opposed to "only in relation to hot spots in Australia". The alleged "lie … about threats that don't exist" referred to the threat arising from opening the borders to jurisdictions where there was no community spread. That is reinforced by the reference to Dr Robertson's advice as to the possibility of a "travel bubble" between "Western Australia and [the] Northern Territory, for example". The possibility of opening the border to those States and Territories free from community transmission was not raised by Dr Robertson until 24 June. 307 Similarly, the Second Cross-Claim Matter was published on 12 August. Relevantly, Cross-Claim Imputation 5(b) was conveyed by the statement by Mr Palmer that Dr Robertson had said that Mr McGowan "was lying to the people of Western Australia, because [Dr Robertson] said that South Australia, Queensland, Tasmania, ACT and the Northern Territory were all further advanced in cleaning the virus … than Western Australia, so there was no real reason for those travel bans". While I accept that crafting the imputations is the choice of the pleader, when one appreciates the context in which these imputations arise, there seems to me to be a certain superficiality in excluding from consideration Mr McGowan's state of mind in June and July when he decided that the border should remained closed in its entirety and the advice he had received up to that time. 308 As to the advice given by Dr Robertson in June and July, it was that: (1) he considered that the risk of COVID-19 spreading across an open border had increased; (2) the border closure had been effective; (3) while it was possible partially to re-open the border to States and Territories where there was no community transmission, the consequences for Western Australia in doing so would depend on the border controls of those other States and Territories; and (4) therefore a general reopening of the interstate borders was not recommended. 309 The fact that the advice admitted of a possibility, requiring further consideration, of a partial re-opening of the border, is somewhat overstated by Mr Palmer. As the advice set out, the consequences for Western Australia of a partial re-opening would depend on the border controls of those States and Territories whose border with Western Australia was open. The fact that this possibility was not dealt with conclusively by Dr Robertson does not diminish the import of his advice that the risk of transmission from New South Wales and Victoria had increased, the border closure had been effective and that re-opening the border was not recommended. The possibility of a partial re-opening was one factor to be taken into account by Mr McGowan having regard to the competing considerations that informed the determination of appropriate border controls to control the spread of COVID-19. 310 Moreover, the references to the evidence of Dr Robertson in the other proceedings and in WA Today as to what he intended the letters to mean is really neither here nor there. These cannot be used to draw conclusions as to Mr McGowan's subjective state of mind. Finally, I do not accept that Mr McGowan's remarks on 1 October were some sort of "smoking gun". The tenor of Mr McGowan's evidence was that the decisions were generally made for health reasons: see, for example, T355.14-18. It is understandable that subsidiary economic considerations, while not the dominant consideration, would have been playing on his mind. 311 Hence, whatever may remain unclear at this point in respect of Cross-Claim Imputations 3(a) and 5(b), what is clear is that Mr Palmer has failed to discharge his onus in respect of proving the truth of Cross-Claim Imputation 3(b); that is, that Mr McGowan lied to the people of Western Australia when he told them that their health would be threatened if the border did not remain closed. 312 Secondly, as I foreshowed above, even if one is to adopt Mr Palmer's proposed approach of considering the decision to close the border in early April in isolation insofar as Cross-Claim Imputations 3(a) and 5(b) are concerned (a contention which, for reasons I have explained, is itself problematic), I am still not satisfied that these imputations are substantially true. Mr Palmer's submissions on this topic do not squarely address the terms of the relevant imputations, but rather proceed largely on the basis that Mr Palmer's truth defence must succeed if he can establish that the medical advice obtained by Mr McGowan on 29 March did not convey in terms (or terms to the effect) that it was "necessary" to close the border. As has been stressed, this overlooks the critical issue of Mr McGowan's subjective belief as to the import of the medical advice. 313 As I have discussed above (at [143]), Mr McGowan accepted that the 29 March Email did not include the word "necessary", but skirted the substantive question as to whether, by any language at all, Dr Robertson had given advice to the effect that a hard border was necessary. I accept that Mr McGowan should have been more forthcoming in acceding to the proposition that he was the Premier and, based on the medical advice he had received from Dr Robertson (which laid out a series of options and potential outcomes), he formed the view that closing the border was necessary. But Mr McGowan's somewhat unhelpful evidence in respect of the terms of the medical advice does not translate into a finding that he lied when he said he had acted upon the advice of the Chief Health Officer in closing the borders or about his justification for imposing travel bans. Whatever the terms of the 29 March Email, I have little doubt that Mr McGowan subjectively believed that closing the borders was required on health grounds. In any event, what is important is that I am not satisfied of the contrary. 314 To the extent necessary, I am fortified in this view by reason of the fact that while Mr McGowan received the written advice on 29 March, he also received oral advice. While I accept that Mr McGowan agreed that the oral advice was in substantially the same terms as the advice recorded in the email, this further confirms that the approach taken by Mr McGowan was to consider a range of information and he subjectively concluded on the basis of that information that closing the border was necessary. 315 Mr Palmer has failed to discharge the onus of establishing the substantial truth of Imputations 3(a), 3(b) and 5(b).

G.2 Contextual Truth 316 Mr Palmer relies upon the defence of contextual truth under s 26 of the Act in respect of all of the Cross-Claim Matters.

Relevant principles 317 The Cross-Claim Matters were published in July-August, before the 2020 Amendments came into effect on 1 July 2021. Accordingly, s 26 applies to these proceedings in the following form: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 318 There are four elements to the defence of contextual truth: first, the matter carried one or more other imputations; secondly, those other imputations are conveyed in addition to the applicant's defamatory imputations; thirdly, the contextual imputations are substantially true; and fourthly, the applicant's defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations. 319 The principles relevant to determining meaning with respect to the first element are canvassed above at [69]-[118]. As to the second element, it is well-established that a matter may convey a contextual imputation of a general nature, which differs in substance from one or more specific imputations of which the applicant complains: Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 (at [62] per Gleeson JA with whom McColl JA and Macfarlan JA agreed at [1] and [2] respectively). Indeed, in some cases, "a single alleged instance of misconduct will be so serious that it may, at the same time, convey a general charge": Cornwell (at [60] per Gleeson JA). The question of whether a particular charge of wrongdoing carries a general charge "may depend on the context in which the words are used" and the "gravity of the misconduct imputed in the particular charge": Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 (at [39] per McColl JA) citing with approval State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports ¶81-502. 320 As to the third element, a contextual imputation will be substantially true if it is true in substance or not materially different from the truth: s 4 of the Act. 321 As to the fourth element, for the purposes of the balancing exercise set out in s 26(2), the Court does not merely compare the terms of Mr McGowan's imputations with the terms of Mr Palmer's contextual imputations. Rather, the focus must be on the facts, matters and circumstances relied upon as evidence to establish the truth of the contextual imputations: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 (at 543 [5] per Spigelman CJ, with whom Rolfe AJA agreed at 558 [70]); Abou-Lokmeh (at [29] per McColl JA); McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 (at [19] per McCallum J). The question is whether the truth, as so established by that evidence, of the contextual imputations (not the language in which they are expressed), is such that Mr McGowan's reputation is "not further harmed" by any of his imputations which are not defensible. 322 Summarising the above, the issues to be determined in the present case are whether: (1) Mr Palmer's contextual imputations are conveyed; (2) the contextual imputations differ in substance from Mr McGowan's imputations; (3) the contextual imputations are substantially true; and (4) publication of the contextual imputations did not further harm Mr McGowan. 323 I will initially consider the questions of meaning and substance, before turning to the issue of truth. As will be seen, no contextual imputation passes through to the fourth requirement.

Overview 324 The table below summarises my findings as to the elements of the defence of contextual truth. Matter Contextual Imputation Conveyed Differ in Substance True Further Harm First Cross-Claim Matter Contextual Imputation 1: Mr McGowan is a liar No N/A N/A N/A Contextual Imputation 2: Mr McGowan deliberately misrepresented the nature of the medical advice which his government had received concerning COVID-19 and the appropriate response to it Yes No N/A N/A Second Cross-Claim Matter Contextual Imputation 3: Yes Yes No N/A Mr McGowan caused the State of Western Australia to renege on a mediation agreement made between it, a former Chief Justice of Western Australia and Mr Palmer Contextual Imputation 4: Yes Yes No N/A Mr McGowan abused his position as Premier by overseeing the passing of laws designed to protect his government from criminal liability Contextual Imputation 6: Yes Yes No N/A Mr McGowan abused his position as Premier by overseeing the passing of laws designed to abolish the right of the media to obtain information by way of Freedom of Information (FOI) applications Third to Seventh Cross-Claim Matters Contextual Imputation 9: Mr McGowan behaved disgracefully as Premier by overseeing the passing of laws which gave Mr McGowan and others an exemption from the criminal law Yes No N/A N/A Contextual Imputation 10: Mr McGowan behaved disgracefully as Premier by overseeing the passing of laws which abolished the right of the media, or any member of the Western Australian public, to make FOI applications to find out what had been done by McGowan Yes Yes No N/A Contextual Imputation 12: Mr McGowan behaved disgracefully as Premier by overseeing the passing of important legislation in an absurdly short time Yes Yes No N/A Contextual Imputation 14: Mr McGowan is a dishonourable man No N/A N/A N/A Eighth Cross-Claim Matter Contextual Imputation 17: Mr Yes Yes No N/A McGowan behaved disgracefully as Premier by overseeing the passing of laws which abolished the right of the media to make FOI applications, so that the press could not find out what Mr McGowan and his government had done Contextual Imputation 20: Mr Yes Yes No N/A McGowan has overseen the passing of legislation which has destroyed the reputation, and long-standing value to the State, of State Agreements entered into by the State of Western Australia. Contextual Imputation 24: Mr No N/A N/A N/A McGowan is a dishonourable man

First Cross-Claim Matter 325 Contextual Imputation 1 is that Mr McGowan is a liar. It is said that this general imputation is supported by lines 6-8, 15-22 and 33-38. There, Mr McGowan is charged with having told "lies" (plural); he is said to have lied about "threats that don't exist" (that is, opening the border with States and Territories that have eliminated COVID-19), and "acting on the advice of the Chief Medical Officer", given what Dr Robertson had said in his evidence in the Federal Court Border Proceeding. It is said that a general imputation of this kind differs in substance from specific imputations such as Cross-Claim Imputations 3(a), 3(b) and 5(b), namely that Mr McGowan lied on one or other discrete occasion. 326 I disagree. Contextual Imputation 1 is a general imputation as to Mr McGowan's character and is not conveyed by the First Cross-Claim Matter. The high watermark of the publication is the following: I'd call upon the Western Australian government to maintain, um, border closures in relation to hot spots in Australia, but not to lie to the Western Australian people about threats that don't exist. …. Now, that's a lot different to the lies that Mark McGowan has told the people of Western Australia, that he's acting on the advice of the Chief Medical Officer. 327 Properly considered, the First Cross-Claim Matter conveys that Mr McGowan has lied in relation to border closures, either by conveying to the people of Western Australia that there would be some sort of threat to their health, or that he had relied on the Chief Health Officer's advice. The specificity with which the accusation of liar is directed is important - it locates the act of lying in a defined realm. Hence, the First Cross-Claim Matter is insufficient to convey the general character trait of Mr McGowan being a "liar", other than in relation to these matters. It is not necessary to determine whether Contextual Imputation 1 differs in substance from those found to be conveyed by the matter. 328 Contextual Imputation 2 is that Mr McGowan deliberately misrepresented the nature of the medical advice that the State Government had received concerning COVID-19. The listener is told that the Chief Health Officer had testified in the Federal Court Border Proceeding that he had given advice to the State Government that travel bubbles with low-risk jurisdictions such as the Northern Territory could work but had received no response, and that testimony was different from Mr McGowan's claim that he had acted on the Chief Health Officer's advice in keeping the hard border: lines 6-8, 15-22, 33-38. It is said that Contextual Imputation 2 differs in substance from Cross-Claim Imputation 3(a), given it is specific in its terms: whereas Cross-Claim Imputation 3(a) focusses on whether or not Mr McGowan had acted on the Chief Health Officer's advice, Contextual Imputation 2 focusses on Mr McGowan's misrepresentation of what that advice was. 329 I am inclined to agree that Contextual Imputation 2 is conveyed by the First Cross-Claim Matter. Mr McGowan submits that the matter refers to a lie or lies in specific respects, namely, in relation to the border closures and medical advice, whereas Contextual Imputation 2 is vague and imprecise - it simply refers to Mr McGowan having deliberately misrepresented the nature of the medical advice he had received and the appropriate response to it. This imprecision is overstated. In context, Contextual Imputation 2 clearly relates to how the medical advice was informing the Government's response to the pandemic, that is, in respect of the border restrictions and health concerns. The combination of labelling Dr Robertson's testimony as courageous, and the assertion that this (that is, Dr Robertson's testimony) is "a lot different to the lies Mark McGowan has told the people of Western Australia, that he is acting on the advice of the Chief Medical Officer", would convey to the ordinary reasonable listener that Mr McGowan deliberately misrepresented the nature of the medical advice and the appropriate response to it. 330 In saying this, I am not satisfied that Contextual Imputation 2 differs in substance from Cross-Claim Imputations 3(a) and 3(b). Lying about something and deliberately misrepresenting something are indistinguishable in the case of a positive statement: they both convey an intention to falsify the truth. Contextual Imputation 2 is conveyed, but it is not "in addition" to Cross-Claim Imputations 3(a) and 3(b).

Second Cross-Claim Matter 331 Contextual Imputation 3, that Mr McGowan caused the State of Western Australia to renege on a mediation agreement made between it, a former Chief Justice (the Hon Wayne Martin AC QC) and Mr Palmer, is said to arise from the Second Cross-Claim Matter. Mr McGowan submits that Contextual Imputation 3 is not conveyed, given the matter only asserts that he "disregarded" the mediation agreement. It is said that the ordinary reasonable viewer would not take from this that Mr McGowan "caused" the State to renege on the mediation agreement: the word "renege" (directly rescind or dishonour) carries a substantially different meaning to "disregard" (proceed without regard to) and entails a more deliberate and higher order of inconsistent action. 332 I am unconvinced by this distinction. The listener is told that a mediation agreement had been entered into between the State, a former Chief Justice and Mr Palmer. Then, the listener is told that, "disappointingly", by acting the way he had the previous night, when the Amendment Act was introduced, Mr McGowan had "disregarded" that agreement and "sought to enter yet again in a confrontational approach". Although I accept that the term "disregard" may not be as forceful as "renege", in context, I am satisfied that Contextual Imputation 3 is conveyed. The combination of the "disregard" of Mr McGowan, and the consequence of that disregard being the need to "enter" into a confrontational approach, imputes that there has been some sort of dishonouring on his part. Further, the first line of the matter, "I signed an agreement with the former [C]hief [J]ustice of Western Australia Wayne Martin and the State of Western Australia" connects the actions of Mr McGowan to those of the State. 333 Mr McGowan accepts that, if this imputation is found to be carried, it is in addition to the imputations relied on by him in his Cross-Claim. 334 Contextual Imputations 4 and 6 are best dealt with together. To preface the argument, it is convenient to set out an extract of the Second Cross-Claim Matter: So, we have to consider what's before us. The Bill that was enacted last night was extremely disappointing for all Australians. It gave the Government an exemption of criminal liability. So you may well ask, what are the criminal acts that the Government wants to do that they need an exemption from criminal liability. It also abolished natural justice where you have a right to a hearing and a right to know who you are, so there's no requirement for natural justice for anything they do under their Act. But most important for the media, it abolished the right of the media to have an FOI application to find out what's all this about. You must ask the question, when John Quigley said there's a $30 billion claim, there isn't any $30 billion claim against the Western Australian government, it's his assessment of what the damages for what they've done. And the press need to know, and the public need to have a right to know what it is that the West Australian Government has done that would invoke such a claim that they'd feel guilty of. What's happened in the last six or eight years, and what have they been up to and how does that affect Australia, and how does that affect our national security to be an independent nation, so that all Australians can be free and independent. 335 Contextual Imputation 4 is that Mr McGowan abused his position as Premier by overseeing the passing of laws designed to protect his government from criminal liability. Contextual Imputation 6 is that Mr McGowan abused his position as Premier by overseeing the passing of laws designed to abolish the right of the media to obtain information by way of FOI applications. 336 Mr McGowan submits that while it is clear that Second Cross-Claim Matter conveys Mr Palmer's strong opinions about the content of the Amendment Act, they do not amount to allegations of "abuse". I disagree. A Premier orchestrating criminal immunity for his own government, in respect of past or future conduct the nature of which is not disclosed, would readily be regarded by the ordinary reasonable viewer as an abuse of position. Further, Contextual Imputation 6 arises from the reference to the abolition of the "right of the media to have an FOI application to find out what's all this about", and the subsequent reference to the press "need[ing] to know, and the public need[ing] to have a right to know what it is that the West Australian Government has done that would invoke such a claim that they'd feel guilty of". This suggests that by passing a law which abolishes FOI applications, Mr McGowan has somehow abused his position. Plainly, these imputations differ in substance from Cross-Claim Imputation 5(b), which concerns lying about the "travel bans".

Third to Seventh Cross-Claim Matters 337 Mr Palmer submits that the sting that the Third to Seventh Cross-Claim matters carry about Mr McGowan is the overarching one that it was disgraceful and dishonourable to oversee the passing of legislation which had all the various extraordinary features already described, three of which are specifically the subject of these Contextual Imputations. It is said that Mr McGowan has chosen to select just one of those features (as to exemption from the criminal law) to sue on: Cross-Claim Imputation 7(a). Mr Palmer submits that the following Contextual Imputations are carried by the Third to Seventh Cross-Claim Matters and they differ in substance from Mr McGowan's sole imputation. 338 Contextual Imputations 9 to 12 are as follows: (1) Contextual Imputation 9: Mr McGowan behaved disgracefully as Premier by overseeing the passing of laws which gave Mr McGowan and others an exemption from the criminal law; (2) Contextual Imputation 10: Mr McGowan behaved disgracefully as Premier by overseeing the passing of laws which abolished the right of the media, or any member of the Western Australian public, to make FOI applications to find out what had been done by Mr McGowan; and (3) Contextual Imputation 12: Mr McGowan behaved disgracefully as Premier by overseeing the passing of important legislation in an absurdly short time. 339 Each is said to arise from the entirety of each matter and, in particular, the express references to: (1) exemptions from the criminal law; (2) the abolition of the right to make FOI applications; and (3) the timing of the passage of the Amendment Act. For a Premier to orchestrate criminal immunity of this character, and to do it in such a rushed timeframe allowing no genuine opportunity for parliamentary consideration or review, it is said, would be regarded by the ordinary reasonable viewer as disgraceful behaviour, regardless of whether the legislation in question survived constitutional or other legal challenge. 340 Finally, Contextual Imputation 14, that Mr McGowan is a dishonourable man, is said to arise from the entirety of each of these matters. The combination of all the "outrageous features" of the legislation, and of Mr McGowan's conduct in overseeing the speedy passage of legislation having those features, it is said, conveys the general charge that Mr McGowan is dishonourable. 341 Mr McGowan concedes that each of Contextual Imputations 9, 10 and 12 is carried by the Third to Seventh Cross-Claim Matters. Further, he concedes that Contextual Imputations 10 and 12 are "in addition" to the imputation relied on by Mr McGowan: Cross-Claim Imputation 7(a). 342 Mr McGowan disputes that Contextual Imputation 9 is "in addition" to Cross-Claim Imputation 7(a). I am inclined to agree. Mr Palmer's submission that Contextual Imputation 9 is conveyed because "[f]or a Premier to orchestrate criminal immunity for himself and others, in respect of prior illegal conduct … would be regarded by the ordinary reasonable reader as disgraceful behaviour" illustrates this point. That submission is, in effect, one of corrupt conduct and Cross-Claim Imputation 7(a) is that "Mr McGowan had corruptly attempted to cover up the personal involvement of himself and others in criminal acts …" by engaging in effectively the same behaviour as is suggested by Contextual Imputation 9; that is, overseeing the passing of laws which give exemptions from the criminal law. Contextual Imputation 9 does not differ in substance from Cross-Claim Imputation 7(a). 343 As to Contextual Imputation 14, Mr McGowan submits that this is a general imputation as to Mr McGowan's character, which is not conveyed by the Third to Seventh Cross-Claim Matters. I agree. Properly considered, in context, the subject of the Third to Seventh Cross-Claim Matters is the passing of a law with specific features, and not a general charge as to Mr McGowan's character divorced from the passing of the Amendment Act.

Eighth Cross-Claim Matter 344 Contextual Imputation 17, that Mr McGowan behaved disgracefully as Premier by overseeing the passing of laws which abolished the right of the media to make FOI applications, it is said, arises from the entirety of the Eighth Cross-Claim Matter, and, in particular, the express references to the abolition of FOI rights in lines 8-10, 44-51 and 94-105. Mr McGowan correctly accepts that Contextual Imputation 17 is conveyed, and differs in substance from the imputations relied on by Mr McGowan in relation to the Eighth Cross-Claim Matter. 345 Contextual Imputation 20, that Mr McGowan has overseen the passing of legislation which has destroyed the reputation, and long-standing value of state agreements entered into by the State, is said to arise in particular from lines 58-65, which are in the following terms: So what Mark McGowan's done is destroyed state agreements which have provided investment for Western Australia and made it prosperous over the years, he's opened up sovereign risk for the State and he's increased the amount of interest that's going to be charged on the State's debt because of this sort of legislation. It's invalid, it won't take the High Court long to throw it out because that's not what the separation of powers is all about, that's not what Kable told us in the High Court. This is an outlaw swinging his gun around to protect him and his Attorney-General from the criminal law. 346 Mr McGowan submits that the assertion that he "destroyed state agreements which have provided investment for Western Australia and made it prosperous over the years" is the only part of the matter in which state agreements are mentioned, and no reasonable listener would understand from those words that the legislation has destroyed the "reputation" of state agreements. While it is difficult to understand how a state agreement can have a reputation, I am inclined to disagree. The reference to "state agreements" in the above extract is to state agreements generally and their effectiveness in securing rights or their value generally. Despite the awkward use of language, this would be taken by the ordinary reasonable reader as undermining their "reputation". Mr McGowan accepts that Contextual Imputation 20 differs in substance from Cross-Claim Imputations 9(a) and 9(c). 347 Contextual Imputation 24, that Mr McGowan is a dishonourable man, is said to arise from the entirety of the Eighth Cross-Claim Matter. The combination of all the "outrageous features" of the legislation, and of Mr McGowan's conduct in overseeing its secret preparation and rushed passage, it is said, gives rise to a general charge that Mr McGowan is dishonourable. I am unconvinced. Contextual Imputation 24 is a general imputation as to Mr McGowan's character, not reasonably conveyed by the Eighth Cross-Claim Matter. In context, the subject of the Eighth Cross-Claim Matter is the passing of a law with specific features, and not a general charge as to Mr McGowan's character, divorced from the passing of the Amendment Act. 348 As one stands back to assess where the dominos have fallen, only a number of Contextual Imputations see it through to the next stage of the enquiry: they are Contextual Imputations 3; 4, 6, 10, 12, 17 and 20.

Substantially true? 349 It is convenient to analyse the question of the substantive truth of the remaining imputations by reference to their subject matter.

Reneging on the mediation agreement (Contextual Imputation 3) 350 As has been established, in August, the State executed a counterpart of a mediation agreement between it, Mr Palmer (on behalf of Mineralogy companies) and the mediator. Mr Palmer submits that notwithstanding this, Mr McGowan and Mr Quigley had no intention that the mediation would proceed, given that the termination of the mediation, and of the mediation agreement entered into only days earlier on 6 August, was expressly provided for in the Bill (which was introduced on 11 August): cl 10(2). This, it is contended, supports a finding that Contextual Imputation 3 is substantially true. 351 It necessary to recall that the charge is that Mr McGowan caused the State to renege on the mediation agreement. One difficulty is that the evidence does not actually establish that Mr McGowan knew anything of the execution or signing of the mediation agreement (T488.10-38), or that he intended for the State not to participate in the mediation: T488.34-45. Reneging suggests some conscious action in order to avoid a known obligation. To the extent his subjective intention is relevant to the question of substantial truth of "reneging", I am satisfied that the only relevant thing in Mr McGowan's mind was the spectre of financial catastrophe if the damages claim came home to roost, not the stage any mediation of the dispute had reached. Further, any discharge (or "reneging") of the mediation agreement was caused by operation of law (the passage of the Amendment Act by the Parliament), not by Mr McGowan's fiat. In any event, even if it could be said that this imputation was substantially true, I am satisfied that the imputation which is found to be conveyed by the Second Cross-Claim Matter, that Mr McGowan lied to the people of Western Australia about his justification for imposing travel bans (Imputation 5(b)), does cause further harm to Mr McGowan's reputation. Thus, Contextual Imputation 3 fails the balancing mandated by s 26(2) of the Act.

Abuse of position (Contextual Imputations 4, 6, 10 and 17) 352 It will be recalled that Contextual Imputations 4 and 6 are that Mr McGowan abused his position as Premier by overseeing the passing of laws designed to protect his government from criminal liability and abolish the right of the media to obtain information by way of FOI application. Further, Contextual Imputations 10 and 17 relate to Mr McGowan behaving disgracefully as Premier by overseeing the passing of laws that abolished the right of the media, or any member of the Western Australian public, to make FOI applications. 353 Mr Palmer submits that the provisions of the Amendment Act placing Mr McGowan and others beyond the reach of the criminal law constitute an abuse of power, antithetical to the precepts and traditions of a parliamentary democracy. The same argument is deployed in respect of Contextual Imputations 4, 6, 10 and 17. In addition, Mr Palmer submits Mr McGowan has provided no explanation as to why such a long-established and well-understood FOI regime, with all its attendant qualifications and exemptions, has been overridden in this context. It is said that by overseeing the enactment of the Amendment Act with these features, Mr McGowan behaved disgracefully and abused his position. 354 These submissions must be rejected. 355 It is not the role of this Court to form a judgment on these issues, which are essentially political. While features of the Amendment Act are self-evidently remarkable, the Amendment Act is the law of Western Australia. It may be accepted that a member of the Executive introduced the legislation, and this was done with Mr McGowan's approval and encouragement. But assuming this amounts to "overseeing the passing" of the Amendment Act, any such action must be seen in its proper Constitutional context. The law was passed by the Parliament of Western Australia and the Parliament is not Mr McGowan; it consists of the Queen, the Legislative Council and the Legislative Assembly. The members of the Legislative Council and Legislative Assembly, elected by the people, are responsible for making laws for the "peace, order and good government" of the State: s 2(1) Constitution Act 1889 (WA). Those members, including members of the Opposition, considered it was consistent with their duty to pass the legislation and it became law when the Governor assented to it, by or in the name of the Queen: s 2(3) Constitution Act. 356 The prudence or merits of the Amendment Act, or certain of its features, could be the subject of political debate, but determining the substantial truth of these imputations necessarily involves evaluating and passing judgment upon the actions of one member of the Executive and member of the Legislative Assembly (the Premier), because a law enacted by the Parliament had certain identified features. This task requires the Court to stray into political questions it has no business passing judgment upon. 357 To the extent I can legitimately stray into this area, it is sufficient for me to note that whatever the underlying merits of the Amendment Act, rightly or wrongly, it is evident a sufficient political consensus emerged that extraordinary circumstances necessitated extraordinary measures. Mr Palmer has not established that it is substantially true that Mr McGowan abused his position as Premier by overseeing the passing of laws with the features identified. Further, to the extent it matters, contrary to the assertion of Mr Palmer, Mr McGowan had no particular "duty" to explain or justify the features of the legislation, including the fact that it contains exemptions from the FOI regime. No doubt it was in his political interests to justify the legislation to the electorate generally, and such a course would be expected, but this is a different thing. 358 I am not satisfied that Contextual Imputations 4, 6, 10 and 17 are substantially true.

The short timeframe (Contextual Imputation 12) 359 Contextual Imputation 12 relates to Mr McGowan behaving disgracefully as Premier by overseeing the passing of important legislation in an absurdly short time. 360 Mr Palmer submits that because the Amendment Act was passed very quickly there was insufficient time for members to absorb, consider, take advice and deliberate on its appropriateness, scope and ramifications. It is said that many of the members who spoke on 12 and 13 August made reference to this reality. Mr Palmer also highlights that the Law Society of Western Australia pointed out in a statement on 19 August that this was the type of legislation in respect of which time was needed for extra-parliamentary bodies to make submissions and representations to the elected representatives about its potential consequences. Given these factors, it is said that Mr McGowan's conduct in overseeing the passing of the Amendment Act was disgraceful. 361 These arguments suffer from the same vice as those deployed in respect of Contextual Imputations 4, 6, 10 and 17. 362 To the extent it is proper for me to form a judgment, I am not satisfied that there is sufficient evidence to substantiate the assertion that Mr McGowan behaved disgracefully or abused his position. It can hardly be said that his involvement in the enactment by Parliament of legislation, even if remarkable, and which commanded the necessary support required to become law, involves disgrace or an abuse of position by an individual in the sense alleged (even if the individual is the head of the Executive Government). Again, it is open in a democracy for people to form the political judgment the Amendment Act is unwise or even disgraceful, and criticise those responsible for its passage accordingly, but this is different. 363 Mr Palmer has failed to establish the substantial truth of Contextual Imputation 12.

State Agreements (Contextual Imputation 20) 364 Contextual Imputation 20 concerns an allegation that Mr McGowan oversaw the passing of legislation which has destroyed the reputation, and long-standing value to the State, of state agreements entered into by the State of Western Australia. 365 Mr Palmer submits that for decades preceding the Amendment Act, it was accepted in Western Australia that state agreements were an important vehicle by which the State might attract investment and ensure prosperity for its people. Fundamental to the strength and stature of those agreements, it is said, was the certainty and stability which was understood to be guaranteed by them. That fundamental feature was stressed, for example, in the article published in the Australian Mining and Petroleum Law Association Yearbook 1996 by the then Premier and responsible Minister, Mr Colin Barnett, entitled "State Agreements": Whereas other statutes are able to be changed at will, the provisions of State Agreements are only able to be changed by mutual agreement in writing between the parties to each State Agreement. State Agreements therefore provide certainty that ground rules for the life of each agreement project cannot be changed unilaterally … Unlike other statutes of Western Australia that can be changed by Parliament, State Agreement provisions can only be amended by mutual agreement by the parties thereto. 366 Similar statements were made in documents published on the Department of State Development website, including that: [r]atification of the Agreement through an Act, and the fact that State Agreement provisions can only subsequently be changed by mutual consent, provide certainty with regards to the project itself, security of tenure and reduction of sovereign risk. 367 Mr Palmer submits that the Amendment Act undermined that certainty for which state agreements were renowned and raised the spectre of sovereign risk, an obvious consequence that was pointed out by various members of Parliament. The only rejoinder offered by Mr McGowan and Mr Quigley was to the effect that a number of prominent figures in the Western Australian mining industry had indicated a lack of concern about the effect of the Amendment Act on Mr Palmer: T495.29-31. 368 Mr Palmer draws attention to an array of public commentary in the days and weeks following the passing of the Amendment Act to the effect that it had inflicted terrible damage upon the reputation and reliability of state agreements: (1) on 19 August, the Law Society of Western Australia issued a statement in which it said, inter alia, that "[d]amaging the State's reputation for negligible sovereign risk" is not "for the peace, order and good government of Western Australia"; (2) on 19 August, lawyer and businesswomen Caroline Di Russo wrote: In his speech in the legislative assembly, Quigley said that the bill didn't create sovereign risk because no other company has sought to challenge the Minister's decision or take the state to arbitration and that the change only applies very narrowly to this dispute and not to the broader Mineralogy state agreement. Actually, the bill is the archetypal definition of sovereign risk. Any unilateral change to a contract with a private party by a government on the wrong end of a commercial dispute smacks of wrangling with an African backwater despot. It might be a narrow change, but it sets a precedent: challenge this government, and if you get the upper hand, it will pull the rug out from underneath you. Given Mineralogy is the first company to challenge a state agreement, means we now have [sic] 100% strike rate of the Government moving to expropriate the rights of a private company who exercises the dispute resolution provisions prescribed in a state agreement. Regardless of the rhetoric, this will make prospective investors think twice before committing big money to projects in WA. (Emphasis added). (3) on 22 August, Tom Switzer and Robert Carling wrote in the SMH: To reiterate: the WA government has rushed through legislation to tear up the contract, deny Palmer natural justice, exempt the matter from freedom-of information rules and grant criminal immunity to the state and its agents. The government is saying it can do as it wishes, rewrite the rules to its advantage and thumb its nose at the rule of law. All this should be a warning light to anyone contemplating investment in WA. Indeed, the government's action is a perfect example of sovereign risk, which drives away capital. (Emphasis added). (4) on about 27 August, Morgan Begg wrote in The Spectator Australia: The WA government's excessively petty response is incredibly dangerous. The confirmation that the government is prepared to legislate away its liabilities presents a very real risk to any business who is considering investing in the state. This is the definition of sovereign risk. (Emphasis added). 369 Mr Palmer accepts that Contextual Imputation 20 can only be a matter of opinion. But it is said that the weight of opinions such as those in the examples noted above resoundingly align with Mr Palmer's case and while it may not be known not with certainty for many years whether these opinions are correct, on the balance of probabilities, Contextual Imputation 20 has been shown to be substantially true. 370 A conclusion that it is substantially true that a law of Western Australia has "destroyed the reputation, and long-standing value" of state agreements is not a question which seems readily susceptible to judicial determination. It is not a valuation exercise. It is, in effect, a question that requires an opinion to be formed as to a political matter. But even if this issue is properly justiciable, on the state of the evidence, I have no idea whether the opinions expressed by the commentators referred to above are likely to prove correct, or that persons who have contracted (or are considering contracting) with the State would conceptualise what occurred with the Amendment Act as being a unique response to a unique problem of no enduring relevance. They may, or they may not. 371 There would be many examples, but one need only read the chapter of Irwin Young's seminal biography of E G Theodore, Theodore: His Life and Times (Alpha Books, 1971), titled "Theodore versus the English Financiers", to see how some contemporary judgments about financial ruination of a state caused by political decisions can later seem very overblown. Time will tell, but it is sufficient to note that the evidence does not allow me to conclude that Contextual Imputation 20 is substantially true, something which Mr Palmer accepts may not be known with certainty for many years.

Conclusion 372 In the light of my reasons above, it is unnecessary to descend further into the detail of the balancing required by s 26(2) of the Act. Mr Palmer's defence of contextual truth fails.

G.3 Reply to Attack 373 The final defence is a species of common law qualified privilege, commonly known as "reply to attack".

Relevant Principles 374 Where an applicant makes a public attack upon the reputation or conduct of the respondent (or upon some interest which the respondent is entitled to protect), the resultant privilege of the occasion enables a response to that attack. 375 The essence of the "reply to attack" species of qualified privilege is the presence of a sufficient connexion between the defamatory matter and the privileged occasion: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 (at 378 [27] per Gleeson CJ, Hayne and Heydon JJ). At a general level, the privilege exists because of the interest of the public in hearing the response of the target to public criticisms: Gould v Jordan (No 2) [2021] FCA 1289 (at [50] per White J). The factors which give rise to a sufficient connexion may involve "any one of several considerations", in relation to which "[q]uestions of degree inevitably will be presented": Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31 (at 46 [27], 49 [35] per Gummow, Hayne and Bell JJ). 376 For the defence to operate, there must have first been an attack (but the attack need not necessarily have been made by the applicant): Gould v Jordan (at [73], [100] per White J). 377 The recipients of the publication must, as with any species of qualified privilege, share an interest in the publication. However, the concept of the corresponding interest on the part of the recipient is widely interpreted: Gould v Jordan (at [74] per White J). While the response must be commensurate with the attack, the law gives a defendant some latitude. In Penton v Calwell (1945) 70 CLR 219, Dixon J said (at 233-234): … the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion… (Emphasis added). 378 The point was also memorably expressed by Lord Oaksey in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 (at 470-1) as follows: There is, it seems to me, an analogy between the criminal law of self-defence and a man's right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence. That is to say, the circumstances in which he defends himself, either by acts or by words, negative the malice which the law draws from violent acts or defamatory words. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensbury rules in your defence. 379 Any question of proportionality arises, not on the issue of whether an occasion of privilege exists, but rather at a later stage of enquiry, namely whether the defendant was actuated by malice: see Penton v Caldwell (at 243 per Latham CJ and Williams J); Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 (at 515-516 per Starke J).

Consideration 380 Various "attacks" by Mr McGowan are identified by Mr Palmer. These attacks include the First, Second and Sixth matters in the Primary Proceeding, numerous other publications during press conferences in July and August and various Facebook and Twitter posts. Mr Palmer also relies on many other public attacks which are in evidence, namely the public statements by Mr McGowan on 29 July, 2 August, 3 August, 5 August and 7 August. 381 Mr Palmer submits that Mr Quigley also publicly attacked him, in hostile and sensationalised language, in his ABC Radio Perth interview on the morning of 13 August. It is said that the attacks culminated in a further attack, being the Amendment Act itself. 382 Further, in undertaking the attacks, Mr Palmer asserts that Mr McGowan co-opted the media to his cause, thanking Mr Stokes for "marvellous front pages" in the West Australian in July and August describing Mr Palmer as a "menace"; depicting him as Dr Evil, a cane toad, a cockroach and a chicken; and characterising him as vermin to be "repel[led]" by the application of "McGowan's Pest Spray", so that the people of Western Australia might be kept "out of Palm's way". 383 Mr Palmer submits that all of the publications upon which Mr McGowan sues post-date some or all of Mr McGowan's many attacks, and the responses are directly connected to the subject matters of such attacks so as to enliven the operation of the defence. Indeed, Mr Palmer gave evidence that he felt he had to respond and retaliate: T209.26-35; 242.39-45. Finally, it is submitted that even if it could be said that in some respects parts of Mr Palmer's responses were by way of counter-attack or "riposte" rather than strictly defensive, each of the occasions remains privileged and each publication protected. 384 Two points of contest can be dealt with from the outset. First, Mr McGowan submits that a number of matters relied upon in closing submissions, including the Sixth Matter, the statements of Mr Quigley, the "co-opted attacks of the media", and a number of statements were not pleaded. This may be so, but I am not satisfied that there is any prejudice to Mr McGowan in allowing Mr Palmer to rely on these statements. The attacks relied upon have remained substantially the same since first filed and served on 1 February 2022, and have been in the court book since its inception. No procedural unfairness is occasioned in allowing Mr Palmer to rely on the attacks advanced in his submissions. 385 Secondly, I do not see how the Amendment Act itself can be considered an "attack". How the passage of a law by the Parliament amounted to an "attack" on Mr Palmer is not explained in his submissions. An "attack", as Mr Palmer accepts, requires "something in the nature of a charge against, or an assault on, the integrity, good faith or reputation" of a person: Gould v Jordan (at [73] per White J). 386 Turning to the substantive contentions, Mr McGowan mounts two arguments. 387 First, Mr McGowan asserts that in each instance, the matters sought to be characterised by Mr Palmer as legally relevant replies to alleged attacks by Mr McGowan: (1) occurred after a prior reply to the relevant alleged attack had been made by Mr Palmer, which in each case was at least proportionate to the statement to which it responded; (2) were therefore insufficiently connected to any attack by Mr McGowan and/or disproportionate to it in light of the replies that had already been made; and (3) in truth amounted to separate and renewed attacks by Mr Palmer as an aggressor that do not attract the operation of qualified privilege. 388 The second substantive submission is that some of Mr Palmer's attacks were in reality ripostes, that is, responses to allegedly defamatory retorts which themselves were made in response to earlier alleged defamatory attacks. It is said that Mr Palmer's replies are too far down the line, as it were, to attract the defence. Mr McGowan submits that to the extent that any of the matters complained of were ripostes, they do not attract the privilege. 389 It is convenient here to pause to clarify the law in respect of so-called ripostes. 390 In Kennett v Farmer [1988] VR 991, Nathan J held (at 1003) that "a riposte to an alleged defamatory retort, itself made in response to a source defamation, is not protected by qualified privilege". The reasons for this are fundamental. To grant an initial defamer a right of reply would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. It would allow a defamer to benefit from his initial tortious act, granting him "two strikes" against his victim: Kennett (at 1004 per Nathan J). 391 The metes and bounds of the principle are somewhat unclear. In Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 (at [78]-[85]), Hodgson JA (with whom Mason P and McColl JA agreed at [1] and [141] respectively) observed that in at least some cases, a riposte to a response will not have the benefit of qualified privilege: The rationale of this aspect of qualified privilege is that the person allegedly defamed has, by attacking the alleged defamer in the media, invited or provoked a reply and thus implicitly consented to its publication to the audience to whom the initial attack was addressed; and this rationale is substantially undercut if it was the alleged defamer who began it all by attacking the person allegedly defamed, so that the latter's "attack" was itself a response having the benefit of qualified privilege. The limits of this doctrine have not yet been clearly established. In Kennett, Nathan J talks about a "source defamation" and an "initial defamer", suggesting that the doctrine applies only if the person seeking to rely on qualified privilege of the kind in issue here had initially defamed the plaintiff. If that is correct, it would seem that a plaintiff seeking to defeat a defence of qualified privilege on this basis should put on a reply alleging the initial defamation, so that the question whether there was an initial defamation could be properly considered. Presumably issues of publication and defamatory imputation would arise, and the defendant could presumably put on a rejoinder raising issues such as absolute and qualified privilege. Whether or not the initial publication was a defamation, a question could arise whether the plaintiff's response was not a defamation of the defendant because it had the protection of the same kind of qualified privilege as the defendant is seeking to rely on. It seems unlikely to me that a plaintiff could defeat a defendant's defence of qualified privilege on the basis of the Kennett doctrine unless its publication, in so far as it was defamatory of the defendant, was such as would itself have the protection of this same kind of qualified privilege. 392 Mr Palmer asserts that Mr McGowan has not filed a reply alleging any "initial defamation", and he has not identified any "retort" publication by him that would itself attract "reply to attack" qualified privilege. This may be so, but these pleading points are of little moment. 393 It is necessary to survey closely the publications made by Mr Palmer upon which Mr McGowan relies as countering the defence. 394 In brief, the defence is ultimately unavailable to Mr Palmer for three reasons. First, all but one of the matters he characterises as alleged attacks by Mr McGowan had already been responded to before the relevant Cross-Claim Matters occurred. Secondly, and as a result, the Cross-Claim Matters were not sufficiently connected to any attack by Mr McGowan. Thirdly, it follows that the Cross-Claim Matters were, in essence, separate attacks not protected by qualified privilege.

The First Cross-Claim Matter 395 In relation to the First Cross-Claim Matter, Mr Palmer identifies the following four "attacks": (1) 26 July: Mr McGowan attacking Mr Palmer by publicly describing him as "a menace to Australia", and by stating that Mr Palmer's conduct in bringing a case before the High Court was "irresponsible" and "playing with people's lives"; (2) 28 July: Mr McGowan publicly insulting and ridiculing Mr Palmer in the course of a television appearance, in which Mr McGowan described Mr Palmer as "the biggest loser"; (3) 29 July: that Mr Palmer is "a very, very selfish and self-centred person" who was "prepared to risk everyone's health for his own travel arrangements" and needs to "stop being a jerk"; and (4) 31 July: Mr McGowan publicly attacking Mr Palmer in the course of a media briefing calling him "the enemy of Western Australia", "the enemy of the State" and "the enemy of Australia". 396 The fourth "attack" is easily dismissed: Mr McGowan's 31 July press conference was held after the First Cross-Claim Matter. The assertion that the press conference was an attack to which Mr Palmer replied in the First Cross-Claim Matter is untenable, at least as far as the present state of the law is concerned. 397 With respect to the first three "attacks", Mr Palmer had already replied to the substance of each prior to the occurrence of the First Cross-Claim Matter as follows: (1) on 27 July, in three Twitter posts: the first referring to Mr McGowan as a "menace"; the second referring to Mr McGowan as "Mark 'The Menace' McGowan" and accusing Mr McGowan of "political grand [sic] standing"; and the third once again describing Mr McGowan as a "menace" and "the real menace". In his written submissions, Mr Palmer admits that his repeated use of the word "menace" was in direct response to the first alleged attack; and (2) on 30 July, in a lengthy Facebook post again accusing Mr McGowan of "political grandstanding" and ignoring expert advice by "unconstitutional[ly]" keeping the border closed, as well as three Twitter posts asserting the same in fewer words. 398 These responses were sufficiently and reasonably connected with the alleged "attacks" by Mr McGowan, drawing upon Mr McGowan's language, his credibility and the essence of his statements: Trad (at 49 [35] per Gummow, Hayne and Bell JJ). 399 Mr Palmer submits that these responses cannot be classified as "replies" because they were published to a different, smaller audience of Mr Palmer's followers on social media, while Mr McGowan's publications were "always destined for" and disseminated in the mass media. This submission cannot be accepted. It is inconsistent with the reality of social media, where one need not "follow" a public figure to access their publications quickly and easily, and where mass media outlets closely follow and heavily report upon occurrences on social media. Any real distinction between publicly available Twitter and Facebook posts and media appearances is contrived. 400 As such, the First Cross-Claim Matter is no more than a restatement of earlier replies, to which no privilege attaches. To extend the defence to retorts of this kind, not least in circumstances involving two political adversaries, is inimical to the purposes of the defence. Such an approach also has no logical end, like pleadings in New South Wales prior to 1972, where one could have replication followed by rejoinder, a surrejoinder, a rebutter and a surrebutter and so on: see Bryson J P, "Common Law Pleadings in New South Wales and How They Got Here" (Lecture presented to the Francis Forbes Society and the Selden Society, 30 August 2011). 401 Figures like Mr Palmer and Mr McGowan would, in effect, be licensed to engage in extended skirmishes through the press and on social media. As Nathan J reflected in Kennett (at 1004): It would be churlish of this Court not to recognise the current and provocative way in which public affairs are now conducted. The electronic media now permits almost instant reply and comment upon purported defamations. Whether such a comment or reply is carried by the electronic media is not determined by the alleged defamer or the victim, but is decided upon by editors and sub-editors who publish or broadcast that which they deemed to be newsworthy. It is in the nature of journalism, whether in the print or electronic media, to elicit a response to any given comment. Thus if the concept of qualified privilege is extended beyond the right of self defence to a riposte and then a rejoinder and then a surrejoinder, the participants could be enticed into a mutually satisfying exchange of defamations which would neither educate or inform the public. 402 This passage is of even greater force now than at the time of writing. To permit the defence to operate in cases of this kind would make an applicant once defamed liable to being defamed further on every occasion upon a defence was made: French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155; (2010) 27 VR 171 (at 192 [77] per Beach J).

The Second Cross-Claim Matter 403 Mr Palmer asserts five preceding "attacks", the first being Mr McGowan's comments in the course of a media briefing on 31 July calling Mr Palmer "the enemy of Western Australia" and "the enemy of the state"; the second the introduction of the proposed legislation on 11 August; and three on 12 August, namely comments in the course of a media briefing and two posts on Mr McGowan's Facebook page justifying the proposed legislation as, among other things, a protective measure against the risk of "selling Western Australia down the drain to Clive Palmer". 404 I have addressed how the Amendment Act cannot be considered an "attack". With respect to the other alleged attacks, Mr Palmer had, by the time of the Second Cross-Claim Matter, replied as follows: (1) on 3 August: in a Facebook post titled "WA Attorney General and Premier must respect legal system" and two Twitter posts restating sections of the Facebook post; (2) on 4 August in a Facebook post stating "[t]o take actions which restrict a person's political liberty is a serious matter for any elected Australian Government official", "I understand the [sic] Premier McGowan has a great admiration for countries that have heads of state for life with dictatorial powers" and a Twitter post restating the former statement; (3) on 10 August, in two Facebook posts alleging "Labor put us in the swamp", accusing Mr McGowan of contempt of court, "respond[ing] to the declaration of war made against [Mr Palmer] by Premier Mark McGowan" and claiming Mr McGowan's actions were akin to "actions normally taken by dictatorships who have no regard for the rule of law". On the same date Mr Palmer made two Twitter posts repeating elements of the Facebook posts; and (4) on 12 August, in a Facebook post calling the legislation "an act of intimidation" and a "declaration of war", and a Twitter post repeating the same. 405 Hence, as with the First Cross-Claim Matter, the Second Cross-Claim Matter is not protected by the defence.

The Third to Seventh Cross-Claim Matters 406 With respect to the Third to Seventh Cross-Claim Matters, Mr Palmer asserts the same "attacks" as agitated with respect to the Second Cross-Claim Matter. Again, by the time of the Third to Seventh Cross-Claim Matters, Mr Palmer had already replied on 13 August, in a Facebook post titled "Mark McGowan cover-up" and six Twitter posts, repeating the contentions in the Facebook post including by asking, "did [Mr McGowan] do it to assist a foreign power?", "Why should McGowan or anyone else be exempt from the criminal law?"

The Eighth Cross-Claim Matter 407 Finally, Mr Palmer asserts that the Eighth Cross-Claim Matter was a legally acceptable reply to two "attacks" by Mr McGowan late in the evening of 13 August and in the early hours of 14 August: a Facebook post detailing the "BREAKING" news that "[o]ur emergency legislation to protect Western Australia from Clive Palmer's $30 billion claim just passed Parliament", and a Tweet providing "[t]his law shows that Western Australians will not be bullied. We will never give in. We will never give up." 408 The Eighth Cross-Claim Matter falls within the class of cases which strays beyond defence into offence: Turner v Metro-Goldwyn-Mayer (at 470-471 per Lord Oaksey). 409 It is true that "no nice scales" are available when assessing whether a response is reasonably commensurate with an attack (see Adam v Ward (at 330 per Lord Dunedin); Trad (at 49 [35] per Gummow, Hayne and Bell JJ)). But this does not confer limitless licence on the responder to say whatever they please. The law accepts a reply to an attack which is bona fide for the purpose of the defence, in order to prevent the charges operating: Penton v Calwell (at 233-234 per Dixon J). It may be conceded that it is necessary to impugn the truth of the charges contained in an attack, or even the truthfulness of the attacker, in exercising the privilege: Penton v Calwell (at 234 per Dixon J). However, the disjunct between Mr McGowan's comments on 13 and 14 August and the Eighth Cross-Claim Matter is too stark. Mr Palmer asserted that Mr McGowan had conferred upon himself immunity from criminal prosecution; that if "you go to Western Australia he can murder, shoot you, raid your house, and he's immune from criminal law", that Mr McGowan is "an outlaw swinging his gun around to protect him and his Attorney-General from the criminal law". To classify such statements as reasonable "reply" and self-defence or even counter-attack is to take the defence further than is warranted. 410 In his further amended defence to cross-claim, Mr Palmer admits that he published the Eighth Cross-Claim Matter "pursuant to a social or moral duty to do so". Be that as it may, the Eighth Cross-Claim Matter is not commensurate with the occasion.

Conclusion 411 Mr Palmer is not protected by the "reply to attack" species of qualified privilege with respect to any of the First to Eighth Cross-Claim Matters.

G.4 Malice 412 Mr McGowan alleges that Mr Palmer was actuated by malice in publishing the Cross-Claim Matters. Once again, given the findings I have made in respect of Mr Palmer's defences, it is unnecessary to deal with the question of malice. But given that full argument was heard on this issue, I will record my relevant findings. 413 Mr McGowan submits that Mr Palmer published each of the First to Eighth Cross-Claim Matters for the improper purpose of hurting and harming Mr McGowan, damaging his reputation and discrediting him politically and personally. At the risk of repetition, this purpose is said to be inferred from the following matters. 414 First, Mr Palmer's knowledge of, or alternatively, reckless indifference to the falsity of the allegations contained within each of the matters giving rise to each of the imputations, such as: (1) licence to kill: When Mr Palmer said that the purpose of the Amendment Act was to give Mr McGowan and Mr Quigley some kind of general "immunity from criminal prosecution", including the allegation that "he can murder, shoot you, raid your house and he's immune from the criminal law", it is asserted that he knew that was false. This is said to be supported by the unsatisfactory way in which Mr Palmer attempted to explain what part of the Bill led him to this apparent conclusion; (2) damages claim: As to the Amendment Act, it is said that on and from 12 August, Mr Palmer publicly claimed that there was no claim seeking approximately $30 billion in the arbitrations with the State of Western Australia, when he knew that statement was false: T229.20-25; and (3) the medical advice: It is said that in the First and Second Cross-Claim Matters, the assertions that Mr McGowan lied when he said he was relying on the advice of the Chief Health Officer in implementing a hard border and enforcing travel bans, are assertions which Mr Palmer knew or must have known were false given he had read the transcript of evidence given by Dr Robertson and his expert reports in Federal Court Border Proceeding. Further, Mr McGowan points to the fact that Mr Palmer was unable to identify, within the documents he said he relied upon (or otherwise) any substantial basis for the proposition that Mr McGowan lied about the medical advice: see T250.1-268.21; T258.18-22; T289.37; T260.41 and T267.25-35. 415 Secondly, and connected to the former point, it is said that the extreme and sensational nature of the words adopted by Mr Palmer, including, for example, the use of the words "lies" and "criminal", evinces malice. 416 Thirdly, Mr McGowan relies on the failure of Mr Palmer to put any of the allegations to Mr McGowan, or give him any opportunity to respond to any of the allegations. 417 Fourthly, reliance is placed on Mr Palmer's conduct in persisting in making further insulting and derogatory statements of and concerning Mr McGowan, of a kind calculated to lead to further damage and increased hurt. This includes multiple radio advertisements by Mr Palmer airing on 6PR Perth on 14 August and various Facebook posts on Mr Palmer's Facebook page. Some of those Facebook posts include: (1) a post titled "Politicians protect themselves" on 20 August, in which the following statement is attributed to Mr Palmer: "The Act against me and my companies [sic] are unconstitutional and are against the ethics of freedom that so many Australians before us have died for in two world wars. We don't need a Chinese or Soviet model of government where governments rule over the courts"; (2) a post on 23 August which attributes to Mr Palmer the hyperbolic statement that Mr McGowan "instigated the people of Western Australia to hate me so he could bring into law the greatest abrogation of human rights ever encountered in the history of Australia"; and that Mr McGowan and Mr Quigley are "nothing more than Keystone Cops who have given themselves exemption from criminal laws and civil liability"; (3) a post titled "Western Australian Parliament attacks the Rule of Law - North Korea Laws in Australia" on 28 August, which includes the following words: "The Act gives the Premier the power to make laws without reference to Parliament. In essence, the Act allows the Premier to rule by decree. North Korea in an Australian setting", and that "[o]ur way of life and the Australian Constitution is all we have. We cannot allow Mark McGowan and John Quigley to destroy it. Don't believe their cover-up. First they have come for me. What will you do when they come for you?"; and (4) a post on 1 September containing a video recording of Mr Palmer's Sky News interview with Alan Jones in which Mr Palmer makes the following statements: (a) "To be exempt from the Criminal Code means that you can kill someone, you can break into their house … This Act also has the Premier having the power and authority to make legislation, make acts, without references to Parliament. It's very similar to what happened in Germany in the 1930s and this is an Act that takes away all human rights from all people in relation to these things"; and (b) "The Nuremburg [T]rials in 1947 [sic] in Germany said quite clearly that what happened in Germany happened because lawyers and the courts didn't stand up to the Nazi Government. And of course it's not an extreme thing when they're exempt from the criminal law that means they've got a licence virtually to kill you, to rob from you, to steal from you, they can't be prosecuted, all public servants are exempt so these sort of principles are un-Australian". 418 Such posts, it is said, were clearly calculated to harm and damage Mr McGowan's reputation, and demonstrate a history of hatred towards Mr McGowan. 419 Notwithstanding the robustness of, and exaggerations in, some of Mr Palmer's comments, in the end I have not reached the level of persuasion necessary to make a finding of malice. 420 First, I have canvassed above the evidence as to the licence to kill (at ([125]) when dealing with Mr Palmer's credit generally. There I concluded that any assertion that Mr Palmer feared for his own safety and those of others was fanciful. But while I reject this evidence, I am not satisfied that Mr Palmer had actual knowledge as to the wrongheadedness of his construction of the Amendment Act. With justification, Mr Palmer believed the Amendment Act was drafted in extraordinary and sweeping terms. He could not resist "over egging" the pudding by suggesting that he feared for his life and health (and those of others) but I think he was likely convinced of his assessment of what the Amendment Act authorised. Such a belief was misguided, but I do not think it (or the additional step of asserting he was fearful) equates to malice. 421 Secondly, I accept that Mr Palmer's evidence with respect to the quantum of the damages claim was less than candid. It will be recalled that in the Eighth Cross-Claim Matter, Mr Palmer described the suggestion that there was a $30 billion damages claim against the State as "rubbish" and "bullshit", saying "do you think a court, or anyone in Australia, would award someone $30 billion … it's just an excuse so Mark McGowan can cover up" (lines 19-21). In cross-examination, Mr Palmer accepted that the claim was in fact for around $27.5 million, but maintained that his comments were justified because he was seeking to be precise. This evidence was unsatisfactory, but I am not persuaded that Mr Palmer was acting with an improper purpose. 422 Thirdly, in relation to the medical advice and the foundation which Mr Palmer had for the allegation that Mr McGowan lied in respect of it, as I have explained above (at [122]-[138]), Mr Palmer's evidence was non-responsive and unsatisfactory. But notwithstanding this, I am not satisfied a finding of malice is appropriate. There is no positive evidence to suggest Mr Palmer had knowledge of the falsity of such an assertion. 423 Finally, I am not of the view that Mr Palmer's failure to put any of the allegations to Mr McGowan for comment or his language in the Cross-Claim Matters and elsewhere is enough to tip the balance. All of these comments were made in the course of a politicised debate between two prominent figures, in which both were engaging in hyperbolic and robust attacks on the other.

H DAMAGES 424 The defences having failed, it is then necessary to turn to the question of relief. In both the Primary Proceeding and the Cross-Claim, damages are sought for non-economic loss. In this section I will first summarise briefly the relevant principles before considering the evidence.

H.1 Principles 425 The award of damages is governed by the provisions of Pt 4 Div 3 of the Act. By s 34 of the Act, the Court is required "to ensure that there is an appropriate and rational relationship" between the harm sustained and the amount of damages awarded. As I noted in Stead v Fairfax (at 171 [236]) this section provides "an ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries". 426 Further, by reason of the operation of s 35(1) of the Act, and by declaration of the Minister pursuant to s 35(3), the maximum amount of damages for non-economic loss that may be awarded is limited - the so-called "cap". 427 The cap was increased from 1 July 2022 in accordance with s 35(3) of the Act, to the sum of $443,000, with the applicable cap being that in force at the time of judgment. Two further matters should be noted about the cap: first, the cap is not to be treated as establishing an award for a worst-case scenario and then mandating the scaling of damages downward from that range; and secondly, if the Court determines that an award of aggravated damages is warranted, the cap is not applicable. 428 Unsurprisingly, as to the more general principles applied when calculating damages, including when aggravated damages may be awarded, there was common ground. A very brief summary suffices. The three purposes of an award are: first, consolation for the personal distress and hurt caused by the publication; secondly, reparation for the harm done to the person's reputation; and thirdly, vindication of reputation. The assessment is an intuitive, evaluative process conducted "at large", but subject to the provisions of Pt 4 Div 3 of the Act. 429 It will be necessary to return to aggravated damages in more detail below, but it suffices for the purposes of this introduction to note they may be awarded by way of compensation for injury resulting from the circumstances and manner of a respondent publisher's wrongdoing; and a respondent's conduct after publication may relevantly be taken into account as improperly aggravating injury done to the applicant, but only if that conduct meets the threshold of being unjustified, improper or lacking bona fides.

H.2 Preliminary Observations 430 Before turning to consider the relevant evidence in respect of both the Primary Proceeding and the Cross-Claim, it is necessary to make three preliminary observations. 431 The first is in respect of the environment in which the publications were made. Mr Palmer submits that it is incorrect to characterise the exchanges between the parties in July and August as taking place "between two political combatants", and that any characterisation of him as "an active political figure" needs to be approached with care. This is because at the time of Mr McGowan's publications, Mr Palmer was a former Australian politician, having retired from Parliament in 2016. Rather, it is said that at the time of the relevant publications, Mr Palmer was involved in actively pursuing his business and philanthropic interests, such as: (1) commercial matters arising from the two previous arbitral awards in favour of Mineralogy; (2) the work he was doing in his capacity as the Chairman of the Palmer Foundation; and (3) litigation in the High Court, including the High Court Border Proceeding. 432 These facts may be accepted, but it would be jejune to suggest that Mr Palmer was not a pervasive figure within Australian politics at the relevant time. No-one picking up a newspaper in Australia in 2020 could be in any doubt as to the political profile of Mr Palmer. Although he was not running for office in 2020, he was the Chairman of the United Australia Party, and was one of the most well-known figures operating in the sphere of Australian politics generally. It is wholly unrealistic not to see him as a high-profile political figure. Further, to the extent it could be said he was making statements or pursuing action to further his personal and business interests, this is not inconsistent with those actions being perceived as being those of a political figure. For example, although at the relevant time he was taking action in the High Court seeking to challenge controversial decisions of the State Government that had financial consequences for his business, he was also taking a position that would have been perceived as being in prominent opposition to the Premier. The contention that the exchanges between the parties in July and August were not taking place between two political combatants is unpersuasive and superficial. 433 Secondly, and relatedly, a consequence of the protagonists in this case being political figures is that many have well-entrenched perceptions as to their character and reputation. Indeed, people will likely fall on a continuum between admiration and resentment, with some who are neutral or open-minded in the middle. The parties recognised that those on the admiration end of the continuum will tend to support the political figure no matter what material is published, while those who resent the political figure will tend to disbelieve and criticise. Some in the middle, in an ideal world, will be influenced by reason, independent judgment and scrutiny of the facts. Mr Palmer submits it is necessary to put aside those persons who have views about either Mr Palmer or Mr McGowan, which are so prejudiced or stubborn that they are impervious to the impacts of defamatory statements. That is said to be because such a person is not an ordinary, reasonable listener, viewer or reader. But this puts the matter too highly. As White J explained in Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 (at [78] and repeated in Dutton v Bazzi [2021] FCA 1474; (2021) Aust Torts Reports ¶82-713 (at 63,437 [186])), many ordinary, reasonable people will not be influenced, positively or negatively, by statements concerning a politician about whom they have already formed a view. This accords with ordinary experience and I agree. 434 Thirdly, this is a case where Mr McGowan and Mr Palmer have taken advantage of the opportunities created by publication of the impugned matters to respond forcefully in public and (particularly in the case of Mr McGowan) to advance themselves politically. I am inclined to think that because there must be an appropriate and rational relationship between the harm sustained and the amount of damages awarded, if a person defamed is able to avoid some of the damage to reputation by use of media and public statements to reduce, to an appreciable extent, some of the harm to reputation which would otherwise have resulted, this is necessary to take into account in an assessment. This was the approach adopted by White J in Hanson-Young v Leyonhjelm (No 4) (at [324]-[326]). 435 With these preliminary observations in mind, it is convenient to consider and make findings in respect of the evidence relevant to general damages. I will do so by making reference to the following topics in respect of both Mr Palmer and Mr McGowan: (1) the seriousness of the imputations; (2) damage to reputation; (3) hurt to feelings; and (4) the extent of publication.

Imputations, seriousness and context 436 Imputations 3(a), 3(b), 5(b) and 11(b) (which relate to Mr Palmer representing a threat and danger to the people of Western Australia and Australia) position Mr Palmer as acting contrary to the interests of the broader community. Imputations 7(a), 9(a) and 13(c) (that Mr Palmer promotes a drug which all the evidence establishes is dangerous, selfishly uses money he has made in Western Australia to harm Western Australians, and is so dangerous a person that legislation was required to stop him making a claim for damages against Western Australia) are pointed criticisms of Mr Palmer. 437 One cannot dismiss these imputations as being trivial, but any evaluative assessment as to seriousness must take into account context. 438 In this regard, it is well to recall a remark made during the course of the tortuous and long-running litigation that followed a number of defamatory publications about the prominent Labor identity Tom Uren (as being one of a "divided, warring rag-tag and bob-tail outfit" which "would have difficulty running a raffle for a duck in a hotel on Saturday afternoon, let alone running a country"; as someone who "still stubbornly adhered to the line that Moscow and Peking controlled Communist Parties in non-Communist countries assiduously peddle mainly through peace movements"; and as being duped because a "SPY USED LABOR MEN AS 'PAWNS'?"): see Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 (at 186-188). 439 Justice Windeyer observed in Australian Consolidated Press Ltd v Uren (at 210) that political discourse "extends to the use of language that is vigorous, and sarcastic, as well as that which is reasoned, restrained and elevated. Invective is not banned". Further, and importantly, his Honour remarked (at 210) that "a man who chooses to enter the arena of politics must expect to suffer hard words at times". 440 Mr McGowan had a bully pulpit. He was a highly popular Premier who had an opportunity to speak out to a wide audience. The tone of political discourse in this country is not usually characterised as being milquetoast (or to adapt Mr Quigley's term, used in a different context, namby-pamby). Mr McGowan was speaking to an audience including reasonable people used to receiving forcefully expressed criticisms by politicians, and often couched in hyperbolic terms. Mr McGowan used hard words, but Mr Palmer's submission that the publication of these defamatory imputations amounted to a serious libel pitches his case too highly.

Damage to reputation 441 It was not, of course, necessary for Mr Palmer to prove good reputation as it is assumed in his favour; but notwithstanding Mr McGowan did not put reputation in issue, extensive evidence was adduced. 442 Mr Palmer has been involved in business for more than 40 years. Mr Palmer has, through the projects he has initiated or controlled, contributed to the creation of jobs and investment activity in the Australian economy. Further, from 2013 to 2016, Mr Palmer served as a Member of the House of Representatives and he is currently the Chairman of the United Australia Party. He has also served as an Adjunct Professor at both Deakin and Bond Universities, is a former Director of the John F Kennedy Library, is currently the Chairman of the Palmer Foundation (a philanthropic entity owned by his family) and has received accolades for his philanthropic and business contributions to Australia. While a Member of Parliament, Mr Palmer donated his Parliamentary salary to charitable organisations in his electorate of Fairfax. 443 In support of his good reputation, Mr Palmer adduced evidence of Mr Domenic Martino and Mrs Palmer. These witnesses were not required for cross-examination and their evidence as to Mr Palmer's reputation and hurt to feelings was unchallenged. 444 Mr Martino is a chartered accountant and former Managing Partner of Deloitte Touche Tohmatsu. He has also served as a chairman and director of numerous public and private companies. Mr Martino deposed that he knows Mr Palmer well through being a director of several of Mr Palmer's associated companies, advising him on business transactions, and generally socialising with him. On Mr Martino's assessment, Mr Palmer is "a strong family man and strong Australian patriot who considers it his duty to make a significant contribution to Australia" and who, through great tenacity, business ingenuity and risk taking, has achieved extraordinary success in business. These are views Mr Martino says he has held since he first met Mr Palmer in 2005 or 2006. Mr Martino also gave evidence that he regularly mixes in the business and mining communities, both socially and professionally, and that in July and August 2020, Mr Palmer had a reputation in these circles as a dedicated family man, a substantial philanthropist, someone who goes out of his way to help those in need, and a very successful businessman. 445 Mrs Palmer gave evidence as to Mr Palmer's "substantial public profile and standing, both in Australia and overseas". Her evidence notes, among other matters, that Mr Palmer was an official delegate representing Australia at various international conferences and summits. Mrs Palmer also gave evidence in respect of Mr Palmer's philanthropic activities, including his donation of $1 million to medical research conducted by the University of Queensland into the effectiveness of hydroxychloroquine as a COVID-19 treatment. Relatedly, Mrs Palmer gave evidence of Mr Palmer having purchased and donated to the national medical stockpile, through the Palmer Foundation, medicine under research for the treatment on COVID-19 in sufficient quantities to make it free for all in Australia, were it to be approved for use by the Australian Government. 446 There is nothing incredible about the evidence of Mr Martino and Mrs Palmer, and I generally accept it, but having said this, it would be wrong to perceive Mr Palmer as anything other than a polarising figure in 2020. He is someone who was often in the spotlight, and was (and is) willing to throw himself into political fights. Thus, while the evidence of Mr Martino and Mrs Palmer is supportive of a finding that Mr Palmer has a generally good personal and business reputation, it is evident he is also a contentious figure who provokes differing and often strong responses (like most high-profile political figures). 447 Assessing how the defamatory matters had the effect of damaging Mr Palmer's reputation is not easy. While damage to reputation is presumed, there is limited to no evidence that the publications actually had any practical, real-world effect or changed the way people interacted with him. There is also no persuasive evidence indicating Mr Palmer in fact suffered damage to his professional reputation. Indeed, Mr Palmer gave evidence of what caused the greatest effect on his reputation and this was the fact of the Amendment Act itself: T203.42-47. It was this legislation passed by the Parliament that Mr Palmer regarded "sort of like a sayonara for me and my companies in Western Australia": T204.6-8. 448 Linking or demonstrating any causal connexion between the defamatory publications and any actual damage to reputation cannot ignore the reality that for many, views as to Mr Palmer's reputation were already "baked in". Further, as I note below, Mr Palmer also had a public platform by which he could put across his position as to the appropriateness of his actions. Having said this, it is too simplistic to say that Mr Palmer's position as a polarising figure means that perceptions of him would not have shifted by reason of the defamatory publications. Although the views of most would not have shifted, this does not mean that the estimation of some may not have diminished, or that the adverse views held by some may not have become more entrenched: Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33 (at 119 [481] per White J). 449 While neither the presumption nor White J's important observations in Hockey can be ignored, identifying any real or material damage to reputation in the present context is difficult. While damage to reputation is presumed, I conclude there was very little damage to Mr Palmer's reputation caused by reason of the defamatory publications.

Hurt to feelings 450 Mr Palmer gave evidence about his hurt feelings. He stated that the imputations conveyed by Mr McGowan cruelly took aim at his patriotism and commitment to Australia, which Mr Palmer sees as a fundamental and defining facet of his character, and proceeded to say (at T199.42-46): I was just very embarrassed and, you know, I was worried about what my family thought of me, that they thought this could be true. I guess we all have some form of self-image and I always thought that, you know, being an Australian, I mean, in public service really has no reward but you don't expect people to question your loyalty to the country or to … the people. 451 As to the First and Second Matters, which include the potent expressions "enemy of the State", "enemy of West Australia" and "enemy of Australia", Mr Palmer's immediate reaction was one of dismay: T198.24-199.23. He said that he could not understand why the word "enemy" was used given its meaning, asserting that he "didn't think it was called for". When asked whether the use of the phrase "enemy of the state" had any particular significance to his mind when he read it, he responded (at T198.45-199.23): Well, it did. If we … look at the trials that Stalin had … in the Soviet Union, I guess, in the thirties, I always read about them in school as being show trials. And in the German experience with Hitler, they had the People's Court where they regularly used the term "enemy of the state" and they would have trials within one day of people and then string them up, so it correlated with me the fact that I had become more or less the rock bottom of my own country. I - I was also upset that the comment was made by someone in such high office as a premier of a state. … I thought, well, I had done the best I could, you know, the Federal Government had asked because they couldn't get supplies of hydroxychloroquine, I think it would have been in April or May that they need to compete in international auctions and the TGA - of course, the bureaucracy of Australia had requested we do something about it and authorised us to go to auctions and to spend my own money. I think I spent about $30 million or something to acquire 37 million doses of hydroxychloroquine and donated it to the government stockpile. I was never an advocate one way or the other in relation to that. I was responding to what we thought was a national crisis. And I couldn't understand - you mightn't get any accolades for that, but I couldn't understand how they would say you didn't care about people. 452 Mr Palmer gave evidence that he felt that Mr McGowan had crossed a line and was seeking to "destroy" him, and that he was "very worried about what the future might bring": T200.8-10. At one point he said he was made physically sick. 453 When asked about the Third Matter, concerning his "promotion" of hydroxychloroquine, Mr Palmer stated (at T200.31-43): I thought it wasn't true what he said. I think he said this in August. We had actually had the authority and request from the Federal Government to acquire the hydroxychloroquine earlier that year, at a time when they thought that was the only hope for Australians. What we agreed to do - I had no control over the drugs or use or any financial interest in it. I merely provided the money and people and bought them and donated them to the stockpile. I didn't have a view promoting them or having a business or anything. I thought this was sort of gutter politics. It was very concerning because it was suggesting I was equivalent to a drug dealer or someone like that that would have disregard for the law when, in actual fact, I had all the authorities from the Prime Minister and the cabinet to do all I could to protect that option of treatment for Australians which was the only option to save the country at that time. So I thought it was unfair to say these things in August. 454 At the time of the publication of the Third Matter, it seemed to Mr Palmer that, quite unjustly, "the Western Australian government had embarked upon a political campaign to win the next election and [Mr McGowan] used me as a scapegoat": T201.19-21. Mr Palmer gave evidence that his hurt was amplified by the status of his attacker as the Premier, who was capable of marshalling behind him the support of "the whole government": T201.25. Indeed, he stated that he thought that people would take "a lot of notice of what the [P]remier says". T201.24-28. Again, Mr Palmer was "worried about what might happen": T201.27-29. 455 Mr Palmer also gave evidence about the fact that he subsequently became aware of a website disgracefully encouraging people to spit on him when he came to Western Australia or attack his family: T201.28-32. He stated that these were things that he envisaged at the time may happen, and he was concerned about his personal safety: T201.29-32. Mr Palmer gave evidence that in an endeavour to stop Mr McGowan's persistent and unwarranted attacks, he asked his solicitors to write to him, to no avail. Indeed, he points to the fact that the Fourth Matter was published the day after a concerns notice had been sent. Mr Palmer found this offensive given he had spent millions of dollars to acquire medicine that then seemed to be a potentially promising treatment for COVID-19. 456 As to the Fourth Matter, Mr Palmer gave evidence that he was particularly concerned that Mr McGowan would seek to portray him as a person who would wish intentionally to damage the health of Western Australians: T202.33-35. Mr Palmer felt he was "unfairly dealt with", as Mr McGowan's statements were contrary to what he was trying to achieve all year, stating he "just didn't know why [Mr McGowan] would say things like that": T202.42-44. In closing submissions, it was submitted that this evidence was given in an "understated way indicating bemusement and sadness". 457 Further, Mr Palmer gave evidence that he was embarrassed by the Fifth Matter, stating it is "very dangerous for Australia if people can be threatened or coerced from going to court for a determination": T203.10-11. As to the Sixth Matter, Mr Palmer said he "just couldn't believe" that Mr McGowan would make the various statements in his Facebook post when they were "just not true": T203.40-204.1; 204.23-30. 458 In support of Mr Palmer's hurt to feelings, Mr Martino gave evidence that Mr Palmer told him that he was "deeply hurt" by Mr McGowan's comments, noting that they not only dismissed and ignored the contribution Mr Palmer had made to Western Australia over the years, but falsely portrayed him as a predator working against Western Australia's interests. Mrs Palmer also gave evidence that Mr Palmer expressed to her the distress and hurt which Mr McGowan's attacks caused him, especially those that portrayed him as an "enemy" of the people in Australia, at "war" with Australians, and as someone who would take legal action with a motivation to "destroy the livelihoods" or "damage the health" of, or otherwise harm, Western Australians. 459 Despite this evidence of Mr Martino and Mrs Palmer, having had the advantage of seeing the evidence of Mr Palmer being given, I did not consider the evidence as to hurt to feelings relating to the defamatory publications to be persuasive. 460 While I accept that Mr Palmer was upset with the course that the State was taking as to the hard border and the arbitration, it seems to me that his real frustration and anger, unsurprisingly, was directed to the passage of the Amendment Act. Although standard hurt to feelings evidence on the publications was carefully adduced, this case reinforced my view that it is best to receive such evidence in person and viva voce. In general it was unpersuasive, peppered with defensive comments as to why Mr Palmer was in the right and Mr McGowan was in the wrong, and consistent with Mr Palmer not suffering great vexation but rather forming the view that he "didn't think [the comments] were called for" or were "unfair". 461 Three matters should be specifically mentioned. 462 First, in forming my assessment I have specifically taken into account that the evidence as to hurt feelings was not cross-examined upon. It is often remarked that unchallenged evidence that is not inherently incredible ought generally to be accepted by the tribunal of fact (although such evidence may be rejected if it is contradicted by established facts or the particular circumstances point to its rejection): Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 (at 370-371 per Gibbs J); Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 347 [77] per Mansfield and Gilmour JJ). This is not a case where this aspect of Mr Palmer's evidence is relevantly contradicted or undermined by established facts, but this is not the end of the matter. As I recently noted in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at [284]-[288]), when the law requires proof of any fact, the tribunal of fact must feel actual persuasion as to its occurrence or existence before it can be found. A party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue. In this way, the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied: Jones v Dunkel (1959) 101 CLR 298 (at 305). Despite the criticisms referred to in Transport Workers' Union of Australia v Qantas (at [286]), this approach is well entrenched and unquestionably represents the current state of the law. Hence it is appropriate I pose the relevant question in this part of the case as being whether, on the whole of the evidence, including the unchallenged evidence, I have reached a state of actual persuasion or reasonable satisfaction that Mr Palmer suffered hurt to feelings by reason of the defamatory publications. 463 Secondly, in answering this question, the most important factor influencing my lack of persuasion as to the evidence as to Mr Palmer's subjective feelings comes from the manner of the giving of his evidence on this topic. I specifically reject the submission that Mr Palmer's evidence as to subjective hurt was "given in an understated way indicating bemusement and sadness". That is not an accurate reflection of the evidence at all. 464 Thirdly, a further factor undermining reaching a state of reasonable satisfaction that Mr Palmer suffered any real hurt to feelings was what I consider to be the not unrelated but risible evidence, discussed above, that he feared for his "personal safety" or was "worried about what might [physically] happen" because of the passage of the Amendment Act. 465 Mr McGowan was angry with Mr Palmer for actions of the State and its Parliament that Mr Palmer perceived as being inimical to his business interests. But notwithstanding this anger, and the unchallenged evidence of Mr Martino and Mrs Palmer, and the evidence of Mr Palmer on his subjective feelings, I have not reached a state of actual persuasion or reasonable satisfaction that Mr Palmer suffered any real or genuine hurt to feelings by reason of the defamatory publications.

The extent of publication 466 The extent of publication is largely agreed. In short, republication was extensive. All or part of each of the first five matters was republished on mass media outlets or platforms, such as on YouTube, the SMH website, the ABC website, the AAP website, the Perth Now website, the Channel Seven website, the WA Today Facebook page, the West Australian print newspaper, and the Canberra Times website, while it is apparent that the Sixth Matter was also read widely.

Damage to reputation 467 Mr McGowan's case as to damage to reputation collided head on with the objective facts. 468 Reputation evidence sometimes has some real shortcomings. To those familiar with defamation cases in New South Wales in times past, it was surprising how often plaintiffs gave evidence of stumbling across strangers in the street who could not be called and yet had reacted adversely to impugned publications. Unusually, in this defamation case involving a public figure, whose "approval" was regularly the subject of assessment, there is some apparently cogent, objective material in evidence upon which one can base conclusions as to reputation. 469 It is not in dispute that at the time of the First Cross-Claim Matter, in July 2020, the West Australian celebrated Mr McGowan as "Mr 89%". As at March 2021, some seven months later, Mr McGowan's personal approval rating was still at the stratospheric level of 88% or 89%: T450.44-451. Indeed, a little later, at the state election in March 2021, the Australian Labor Party won 53 out of 59 seats in the Legislative Assembly. This victory made the "Wranslides" of 1978 and 1981 look close run things. Further, Mr McGowan increased the margin in his own seat of Rockingham to 37.7%, achieving a swing that made it the safest seat in Western Australia: T450.42; T450.3-5. 470 In the light of these factors, I accept the submission of Mr Palmer that, notwithstanding any presumption that might arise from the extent of publication and the seriousness of the imputations carried, the evidence establishes the inconsequential impact of the publications upon Mr McGowan's reputation. Indeed, it is more likely that Mr McGowan's reputation was enhanced. As the coverage Mr McGowan celebrated with Mr Stokes revealed, and as his language in the Cross-Claim Matters made plain, they provided a common foe against which Mr McGowan could unite Western Australians. As Mr McGowan accepted, Mr Palmer was someone with whom Mr McGowan was "happy to have a blue with".

Hurt to feelings 471 Mr McGowan gave evidence as to his subjective hurt. It is convenient to summarise this evidence before considering its cogency. 472 In relation to the imputations conveyed by the First Matter, that he had lied to the people of Western Australia when he said he had acted upon the advice of the Chief Health Officer in closing the borders and the justifications for such border closures, Mr McGowan's evidence was that he was angry, hurt, offended and exasperated. He stated that the advice he had received was that vaccines were a long way away and all he was attempting to do was to protect people's lives and people's health: T299.4-6. In this context, Mr McGowan viewed the comments of Mr Palmer as a deeply offensive, particularly when up until this point he was of the view that the restrictions in place were working: T299.9-15; T299.33-34; T300.10-16. Mr McGowan was further angered by the fact that Mr Palmer is a person who has national standing with a "band of followers" who believe what he says: T299.34-39. 473 Mr McGowan's evidence was that for Mr Palmer to use the words "as Premier" in the First and Second Matters was "extremely offensive": T299.39-300.5; T300.29-36. He said: [S]o I've been a Premier for five years. I've had to - at that point in time, I think it was three and a half years, but I've had to go through an enormous amount in order to get to this position, and by that, I mean enormous amount of striving and struggle and strain and pressure and upheaval in order to get to this position, and then for - and then over the course of the four or so months up to 31 July dealing with COVID, which is a highly stressful thing to deal with, and it's hard to recreate now, but highly stressful at that point in time, with some dramatic decisions that I never imagined in my life I would have to make, and - and round-the-clock issues to be considered, the meetings, and Cabinet meetings, State Disaster Council meetings and emergency management team meetings and consultations and National Cabinet meetings and advice and decisions you have to make that were very, very stressful and subject to lots of analysis. And for him to make those statements and put in the words 'as Premier' is extremely offensive. 474 In relation to "the call by Mr Palmer for the Western Australian Government not to lie to the Western Australian people about threats that don't exist", Mr McGowan's evidence was he felt deeply exasperated: T300.36-301.1. He said that it was a "very frightening period" during which he was aware of events in Victoria of "shutting down apartment blocks" and around the world such as "the graves they were building on some island off New York": T301.1-14. He also gave evidence that "I literally had people coming to my house in Rockingham yelling at my wife and children about, at that point in time, how we had to, you know, take action, people in a state of quite heightened anxiety in the community": T301.16-19. In this context, Mr McGowan said that for Mr Palmer to say that "it wasn't a threat and I was lying about the threat is just blatantly false, and obviously exacerbated the stress under which I was labouring at that point in time": T301.19-21. Mr McGowan also asserted that at that point in time he had a lot of sleepless nights worrying about everything that was going on, and Mr Palmer's behaviour only added to the stress: T301.22-25. 475 In relation to the Second Matter, which conveyed the imputation that as Premier, Mr McGowan lied to the people of Western Australia about his justification for imposing travel bans, Mr McGowan's evidence was that he felt angry, frustrated and outraged: T303.17-18. He referred to his 25-year political career and stated that he had never been through anything like dealing with the pandemic: T301.22-44. He gave evidence that making decisions throughout this period caused him a great deal of angst. He said: I adopted the approach the whole way through that caution was the right approach, that I would be cautious about what we were confronting in order to protect the State and use the advantages that … but isolate it … and that was the advice that we received, that those measures around using a border for Western Australia, both internationally actually, but also interstate would be effective. And, so, for someone in that context, particularly someone with standing, like Mr Palmer, to suggest that I was a liar on basically what was the biggest decision of my life was an offensive and hurtful and deeply aggrieving statement for him to make that, in effect, cuts to the core of what I stand for and what I had do in the most difficult of circumstances. 476 Further, in respect of the Third to Seventh Cross-Claim Matters, Mr McGowan's evidence was that he felt extremely angry about any suggestion that he was corrupt or trying to provide an exemption for myself from the criminal law, viewing such a statement as deeply offensive, rude and hurtful. He stated that he was the Premier, sworn to act with the highest propriety and standards in my public duties, and any such suggestion cuts to the core of what he was about in public life: T304.15-35. 477 Mr McGowan's evidence was that people like Mr Palmer create bands of angry people in the community who become so wound up that they do crazy things in relation to him and his family: T304.36-38. Examples of threats Mr McGowan said have occurred in respect of his family include (T304.38-44): … things like threaten to kill me and my family, threaten to kill my children, things like ram their cars into power poles outside my home, things like - and you may think I'm joking, but drive armoured cars to my office with fake machine guns on the top, things like send packages to my wife with white powder in it with threats to behead my children, things like leave multiple messages on my phone threatening to kill me, my family, to sniper attack us, to hunt us down when I'm out of office. 478 In relation to the Eighth Cross-Claim Matter which conveyed the imputation that, as Premier, Mr McGowan had behaved criminally and was improperly seeking to confer upon himself immunity from the criminal law, Mr McGowan's evidence was that he felt infuriated, angry, frustrated and, to a degree, hurt: T306.30-31. This was particularly so, he said, given he was trying to defend the State from what he saw as a terrible threat to the State's finances and its capacity to fund important services: T306.38-41. To use the Amendment Act as a platform to say that it conferred on Mr McGowan an immunity to murder and steal from people, Mr McGowan considered deeply offensive: T307.4-7. In Mr McGowan's view this (T307.27-38): … implies that you are there for yourself and you're prepared to use your position to acquire - acquire wealth or, you know - or property or whatever it might be on the basis of advancing yourself, as opposed to advancing the interests and the wellbeing of the people that you're elected to represent, and so - and also has an undertone of being somehow sinister and - and underhanded and completely self-centred, and also an undertone that somehow you're sort of part of some sort of conspiracy that exists in other countries that we - you know, we pride ourselves in not being like, and so his - his suggestion or imputation or implication that I'm corrupt is a hurtful, offensive and - and certainly from my point of view, and considering the history of both Western Australia and Australia in these matters, a very, very nasty, hurtful and demeaning and outrageous statement. 479 I generally accept Mr McGowan's evidence that he was hurt and offended by the publications, albeit I am somewhat unsure as to the extent of that hurt. 480 But one aspect of the evidence had an unmistakable ring of clarity. This was as to Mr McGowan's reaction to matters containing allegations of corruption (see Cross-Claim Imputations 7(a) and 9(a)). Mr McGowan said the following in response to a question as to how allegations of corruption made him feel: Extremely angry. Extremely angry that I've got this person out there suggesting I'm corrupt and trying to provide an exemption for myself from the criminal law. I mean, I'm the Premier of Western Australia sworn to uphold the laws of the State and sworn to act … with the highest propriety and standards in my public duties, and here I have this person out there suggesting that I am corruptly trying to provide an exemption from the criminal law for myself so that I can commit some sort of crimes. Now, that cuts to the core of what you're about when you're in public life, certainly if you're in a senior position in public life … 481 This evidence not only accords with common sense, but was forcefully and persuasively given. I accept it. 482 The other matters, being those that conveyed Cross-Claim Imputations 3(a), 3(b) and 5(a), centre on Mr McGowan allegedly lying to the people of Western Australia about his response to the COVID-19 pandemic and the justifications for imposing and maintaining the Western Australian hard border. Although an allegation of dishonesty is serious, I consider Mr McGowan considered these matters represented an essentially political attack. 483 There are some factors that also might be thought to tell against the extent of subjective hurt suffered by Mr McGowan. First, the evidence as to Mr McGowan's hurt to feelings and the impact of the publications is essentially limited to his testimony. Secondly, Mr McGowan accepted his motivation for commencing his proceeding in defamation, by the Cross-Claim, was that it would enable him to hedge against the prospect that Mr Palmer might have success in the Primary Proceeding: T321.1-11; 322.26-323.15. Thirdly, it is also of significance that Mr McGowan took no steps prior to the institution of this proceeding, unlike Mr Palmer, to raise any issue with the publications upon which he now sues. These factors do not negate Mr McGowan's evidence as to his hurt to feelings, but they do indicate some contextual matters relevant to the assessment of the extent of his hurt. 484 Overall, I am satisfied that Mr McGowan suffered some degree of subjective hurt by reason of the publications, but primarily related to the allegations of corruption.

The extent of publication 485 The extent of publication of the Cross-Claim Matters was similarly extensive. The Fourth to Seventh Matters in particular reached a wide audience through and in print, with the Seventh Matter, for example, being delivered to approximately 711,929 letterboxes in Western Australia.

H.5 Aggravated Damages 486 Both parties advanced lengthy submissions as to aggravated damages, which largely mirror those arguments deployed in respect of the two malice aspects of the case. It is convenient to summarise those submissions briefly, before turning to consider whether an award of aggravated damages in either the Primary Proceeding or the Cross-Claim is appropriate.

Mr Palmer 487 Mr Palmer submits that the hurt and distress that Mr McGowan caused to him by his publication of the First to Sixth matters has been aggravated by the following factors: (1) the stature of Mr McGowan, as Premier, and the wide publicity received by, and the additional gravity that attaches to, his words by reason of his office; (2) the impact of the deliberate and intended dissemination in the mass media of the various matters; (3) the extent to which the public took heed of Mr McGowan's aggressive attack on Mr Palmer, including that websites were set up to hate him in Western Australia and, in one instance, a video was published online, which showed "people in a nightclub singing they wanted to kill" him. Mr Palmer gave evidence that this too caused him to "lie low": T209.43-45; (4) the fact that the matters were part of a relentless, repetitive and wide-ranging series of attacks by Mr McGowan which he relished launching with disturbing frequency; (5) Mr McGowan's refusal to apologise and publication of defamatory material after a letter of demand; and (6) the extent to which the publications were part of a larger scheme by which Mr McGowan and Mr Quigley secretly connived to deceive him and to destroy his legal rights, as boasted about by Mr Quigley in his ABC Radio Perth interview on 13 August. Mr Palmer gave evidence as to his reaction to Mr Quigley's radio interview as one of disbelief (T205-206), and that Mr Palmer's dawning awareness of Mr McGowan's role in all of this had a particular impact upon him (T206.21-25): Well I thought Mr McGowan was fully informed, that he was the head of the government and from some of the things [he] said in Parliament I believed he did. And I think, you know, this was all happening very fast - this interview and all of this came together - and suffice to say that it got too much for me and I ended up vomiting what I thought about all of this and just wondering what we could do. 488 All of these factors demonstrate, it is said, that Mr McGowan's conduct, taken as a whole, both exacerbated the damage to Mr Palmer's reputation and increased the hurt to his feelings.

Mr McGowan 489 Mr McGowan submits that he is entitled to an award of aggravated damages by reason of a number of matters: (1) Mr Palmer could have had no reasonable belief in the truth of the defamatory meanings pleaded, or was recklessly indifferent to the truth or falsity of them; (2) each publication was made with the intention of causing political harm to Mr McGowan, so that he would make decisions in relation to the closure of borders and his dispute with the Western Australian Government that were favourable to Mr Palmer; (3) Mr Palmer's conduct in persisting with the allegations made in his contextual truth defence (Contextual Imputations 4, 6 and 26) that Mr McGowan "abused his position as Premier" notwithstanding the High Court's decision about the Amendment Act, and the fact that the passage of the Amendment Act was not a personal act, but an act of Parliament. Indeed, Mr McGowan considered the maintenance of all the contextual imputations as offensive, causing him to feel a great deal of hurt and anger, particularly because they perpetuated an image of him and his government as lacking in integrity. In relation to persisting with claims that Mr McGowan is a liar (Contextual Imputation 1), Mr McGowan's evidence as to how this made him feel was as follows (T310.28-35): Well, as I said before, in your political life, allegations like corruption or that you're a liar are … a very hurtful and deeply offensive statement because it feeds into a perception in the community, certainly amongst some people, that - that that is the natural truth surrounding people in political life. So for someone of means and with great capacity to attract media coverage and to attract followers and to get - get advertisements - multiple advertisements suggesting such things is deeply offensive and hurtful and gets some currency and coverage amongst some people in the community who believe these things. (4) After the publications Mr McGowan sued upon, Mr Palmer has continued to make allegations about him: T313.45-46; T314.1-2. As to how this made Mr McGowan feel, Mr McGowan said (at T315.24-42): It's an ongoing campaign … to denigrate my character and to undermine what I do and to suggest criminality and to suggest I'm some sort of - comparable to - I note there's - - I'm comparable, and I note there's references to Nazi Germany and the Soviet Union and so forth. Comparable to some of the worst dictators in history, murderous - mass murderers, and a - a set of advertisements which appeared, and that was - they were - they were running constantly in response to our legislation that suggested I'm criminal, corrupt, akin to a dictator, someone who can undermine the criminal law and commit whatever sort of crime I want to do whenever I feel like it, literally kill people. A whole bunch of Facebook and other posts that - that are just simply outrageous. Outrageous slurs on my character. How does it make me feel? It makes me feel angry and quite exasperated, frustrated, hurt, unhappy, because it was an ongoing campaign that continues, by the way, that does not let up, and so it's a - it's a round-the-clock thing because Mr Palmer has billions of dollars - he does - in order to undermine people who make decisions in the public interest against his interests in order to try and achieve other commercial outcomes for himself. It's a shocking thing that he does.

Consideration 490 As I stated in Murphy v Nationwide News Pty Ltd [2021] FCA 381 (at [100]-[101]), despite the focus on seeking aggravated damages in defamation practice, they do not form a separate head of damage and can only be awarded where the relevant conduct meets the threshold of being unjustified, improper or lacking in bona fides and does, in truth, aggravate the damage. 491 Aggravated damages should not be awarded in either case. 492 In respect of Mr Palmer's case, I have reservations about accepting the evidence as to aggravation, essentially for the reasons I have canvassed in relation to hurt to feelings in considering ordinary compensatory damages. Further, a number of the factors called in aid either relate to parts of evidence I have rejected or otherwise have not been satisfied are made out. This applies to factors such as the subjective hurt caused to Mr Palmer, and the so-called "Attack Plan" recounted in Mr Quigley's interview with ABC Radio Perth. Further, the fact that Mr McGowan was the Premier, and his refusal to make an expansive apology when requested, are not factors which, in themselves, ground a finding of aggravated damages. Moreover, the submission that the matters were part of a relentless, repetitive and wide-ranging series of attacks by Mr McGowan which he relished launching puts the matter too highly. Again, one cannot forget that we are dealing with two political opponents during a period when they were clashing. 493 As to Mr McGowan, much the same considerations apply. For the reasons I have explained in respect of the malice, I have not reached the level of satisfaction to conclude that Mr Palmer was motivated by an improper purpose, had no belief in the truth of the defamatory meanings, or was wilfully blind to the truth or falsity of them. I am not satisfied that the maintenance of the justification and contextual truth defences were unjustifiable, improper or lacking in bona fides.

H.6 Quantum 494 It is then necessary to turn to the question of quantum.

The Primary Proceeding 495 Mr Palmer submits that he is entitled to significant damages. It is far from a situation, it is said, where nominal damages might be appropriate. Mr Palmer submits that Mr McGowan has never made an attempt to plead or prove that any of his defamatory imputations were true, nor has he sought to advance any defence based on partial justification, Burstein facts (see Burstein v Times Newspapers Ltd [2001] WLR 579), contextual truth, or honest opinion. He contends that the presumption of damage to reputation is in part to overcome the forensic disadvantage that an applicant who presents unchallenged evidence of high reputation may suffer when the respondent does not attempt to justify the truth of any part of the defamation. The achievement of vindication for such an applicant, it is said, necessitates not just that the applicant's case be upheld, but that the size of the verdict make that vindication plain. 496 Indeed, Mr Palmer submits that even if the Court considers that there is no damage to reputation, vindication is still necessary and the judgment should still reflect the baselessness of the charges, relying on the reasoning of White J in Hockey (at 122-123 [498]-[501]). 497 I have already considered and rejected the substance of Mr Palmer's submissions as to damage to reputation and hurt to feelings. While I accept that vindication is a separate consideration that must be given weight in assessing any award of damages, the relationship between the three purposes of damage, particularly damage to reputation and vindication, ought not to be forgotten. As Windeyer J explained in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (at 150): It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. 498 Chief Justice Mason and Justices Deane, Dawson and Gaudron echoed this feature of damages in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (at 60), when their Honours said that the purposes of an award of damages "overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'". Justice Brennan put it as follows (at 71): The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages. (Citations omitted; emphasis added). 499 While I accept that damages awarded in defamation must demonstrate that the applicant has been vindicated in his reputation, contrary to Mr Palmer's submission, if there is no real damage to reputation, there is little to vindicate. That is, to use language drawn from the speech of Lord Hailsham LC in Broome v Cassell & Co Ltd [1972] AC 1027 (at 1071), there is little need for an award of damages to convince the ordinary bystander of the baselessness of the charge if it has not been demonstrated that the charge has materially affected the opinion of the ordinary bystander. 500 Further, Mr Palmer's reliance on White J's reasoning in Hockey is largely misplaced. There White J (at 122-123 [498]-[501]) was directing his Honour's focus to the submission that publicity of a judgment in favour of Mr Hockey itself would mean that the award of damages did not need to vindicate the applicant, not that vindication itself stood apart from a consideration of damage to reputation. 501 The aspect of White J's reasoning which does need to be kept in mind is his Honour's observation (at 52 [78]) that the fact that many ordinary reasonable people have their own political views and convictions and are not influenced, positively or negatively, by statements concerning a high-profile political figure about whom they have already formed a view, is not a matter which should diminish the compensation to which the applicant is entitled for proven distress or which is necessary to be awarded for the vindication of his character. 502 But in the end it comes back to what has been proven. Given the minor damage to reputation found, the appeal to vindication is overstated. Hence, taking into account the three purposes of an award of compensatory damages, I am satisfied that no substantial damages should be awarded. So what should Mr Palmer get? 503 At common law, once an applicant has proved the publication of a libel, and in the absence of a successful defence, an entitlement arises as to an award of nominal damages. The best statement as to the meaning and incidence of nominal damages is given by Lord Halsbury LC in The Mediana [1900] AC 113 (at 116): "Nominal damages" is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. 504 "Nominal damages", remarked Maule J in Beaumont v Greathead (1846) 135 ER 1039 (at 1041), "means a sum of money that may be spoken of, but that has no existence in point of quantity". The authorities reveal that after an early period in which the amount could be miniscule, such as a farthing in Mostyn v Coles (1862) 7 H & N 872; (1862) 158 All ER 723, in England, the amount eventually crystallised at the figure of £2, although £1 was sometimes awarded. In the last half the twentieth century, the amount buffered between £2 and £5, but the new century has seen a reversion to £2, which amount has said to be "the traditional sum": Village Investigations Ltd v Gardner [2005] EWHC 3300 (QB) (at [77] per Seymour J). Although, again, £1 has sometimes been awarded. 505 A distinction has sometimes been drawn between "nominal damages" and "contemptuous damages" or "derisory damages", connoting damages in the amount of the lowest coin of the realm. Two key points of distinction between nominal damages and contemptuous damages appear to be: first, that contemptuous damages may be awarded in respect of any tort, whether actionable per se or not, and secondly, contemptuous damages are tantamount to an expression of disapproval of, or contempt for, the plaintiff: see Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 (at [45] per Hodgson, Tobias and McColl JJA). 506 In Australia, some awards of nominal damages have been somewhat higher than the equivalent of £2. For example, in Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43 (at 104 [186]), Jessup J awarded nominal damages of $50 in an action for defamation in which no harm was found. In a number of cases in non-Superior courts, damages purportedly labelled "nominal" have reached $1,000. Given the way nominal damages have been awarded in some cases in recent times, the precise line between what is nominal award and what is a modest award can be blurred. It seems to me, with respect, that awards of thousands of dollars are inconsistent with the fundamental nature of a nominal award. 507 In defamation cases, the traditional award of a nominal sum might be best seen as an anachronism harking back to the common law of libel and slander. The need to award a nominal amount where no compensatory damages are awarded in a defamation case often seems to be assumed. But this is an award of damages now regulated by statute. As McCallum J (as her Honour then was) explained in the course of awarding a plaintiff $0 in Dank v Nationwide News Pty Ltd [2016] NSWSC 295 (at [75]): The need to nominate a nominal sum in this jurisdiction may be doubted. The Defamation Act 2005 [s 22] expressly contemplates the possibility that, even where no defence to a defamatory publication has been established, the judicial officer may determine that no amount of damages should be awarded. So much is explicit in the requirement to determine "the amount of damages (if any) that should be awarded to the plaintiff". 508 Even assuming that in defined circumstances a nominal award is necessary (as it was historically), while it is often said that nominal damages range from $1 to $100, this overcomplicates a simple process that is intended to be entirely unconcerned with the monetary amount awarded, but with the court denouncing the interference of a legal right: see, similarly, Beattie Passive Norse v Canham Consulting Ltd [2021] EWHC 1116 (TCC) (at [138] per Fraser J). A nominal sum, after all, is just that - nominal. 509 But not only should some damages be awarded, I should go further than awarding a purely nominal sum. Mr Palmer is entitled to say he was awarded more than nominal damages. 510 I should say something briefly about other cases. Although an object of the Act is to promote consistency of awards, true comparability is elusive. It is seldom useful to refer in any detail to other cases, each of which turns on its facts, but it is worth illustrating the difficulty of comparisons and the unusual circumstances of this case, by reference to three examples involving public figures. 511 First, returning to Hockey, although damages were awarded in the total sum of $200,000 (at 125 [520]), the defamatory allegation was of corruption and was "serious"; evidence was accepted of immense subjective hurt and upset, of "complete surprise, shock, anger, disbelief, disappointment and concern", and of belief the publications suggested Mr Hockey was "on the take", and that they were a form of "payback": (at 116 [458]-[461] per White J). 512 Secondly, in Hanson-Young v Leyonhjelm, $120,000 total damages were awarded, but the evidence as to subjective hurt "was plausible and supported by a number of other witnesses" (at [276]); among other things, it also reflected aggravating factors and the relative seriousness of the defamation (at [353]). 513 Thirdly, in Dutton v Bazzi, the primary judge awarded damages of $35,000 for a defamatory publication that was held to convey the imputation that the politician "excuses rape" and although the politician was used to the "rough-and-tumble of politics", it was found he was "deeply offended" by the publication and expressed "distress" (at [193], [198]). This judgment was subject to a successful liability appeal, but this is not relevant for present comparative purposes: see Bazzi v Dutton [2022] FCAFC 84. 514 Each of these cases is readily distinguishable from the present circumstances. 515 In the end, I am required to ensure that there is an appropriate and rational relationship between the harm I have found sustained (which is very minor) and the amount of damages awarded (which should, as a consequence, be very minor). Taking all matters into account, including my findings as to the extent of harm, and the matters I referred to in Sections H.1 and H.2, I assess damages in the amount of $5,000.

The Cross-Claim 516 Although his damage to reputation was non-existent. Mr McGowan's evidence as to an aspect of the subjective hurt he suffered was compelling. But he is the Premier of Western Australia. Robust criticism is, and should be, part and parcel of the job. It is, again, difficult to identify comparables, but in considering the appropriate and rational relationship between the harm and the amount, I have had regard to the general tenor of awards as part of the process of synthesis of the relevant matters to which I have referred. Weighing up all the factors, I have concluded that the appropriate amount for non-economic loss comprising general damages is an award of $20,000. 517 As a general proposition, interest in defamation matters is generally awarded in the range of 3-3.5%. The principles are usefully set out by White J in Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 (at [7]-[16]), and interest is awarded unless good cause to the contrary is shown: see s 51A of the FCA Act. But, ultimately, the award is discretionary, and given the size of both awards, I do not propose to exercise my discretion to award interest in either case.

I INJUNCTION 518 Mr Palmer presses for permanent injunctive relief alongside damages. Mr McGowan submits that any question as to injunctive relief should be determined following the delivery of judgment. 519 The relevant principles as to the grant of permanent injunctions were set out comprehensively by Wigney J in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 (at [4]-[46]). At the very least, I must be satisfied that there is a real apprehension that there will be a republication of the imputations that have been found to be defamatory. I do not consider that this has been established either way. 520 More fundamentally, this is a part of the case where context matters. The right of free speech is essential to the proper functioning of a representative democracy, and subject to certain statutory and other exceptions, should generally not be interfered with or restricted: Rush (No 9) (at [11] per Wigney J); Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 (at [13] per McCallum J). 521 No injunction should run.

J CONCLUSION AND ORDERS 522 The game has not been worth the candle. 523 These proceedings have not only involved considerable expenditure by Mr Palmer and the taxpayers of Western Australia, 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. 524 Political figures occupy a special place in our system of representative and responsible government. Insofar as a subset of political figures (serving members of Parliament) are concerned, this special place carries with it protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. Political figures more generally have a position which allows them to further their agenda, and potentially influence the course of economic and social policy and current events. But balanced against these considerable privileges are the costs or downsides of a political profile, including the reality that such figures must expect a degree of public criticism, fair or unfair, not usually visited upon other members of the public. 525 Article 17 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) relevantly provides that no-one shall be subjected to "unlawful attacks on his honour and reputation" and that "[e]veryone has the right to the protection of the law against such interference or attacks". This important human right 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. 526 I will hear the parties on the appropriate award of costs. A relevant consideration will be the glaring disproportion between the damages awarded and the extent of legal expense. I certify that the preceding five hundred and twenty-six (526) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

ANNEXURE B - FIRST TO FIFTH MATTERS (DISPUTED) KEY Bold text: those parts of the transcripts that, on the Applicant's Amended Statement of Claim filed 28 May 2021, constitute the matters Underlined text: those parts of the transcripts that the Applicant agrees are the matters, or provide relevant context to the matters Struck though text: those parts of the transcripts that the Respondent concedes do not form part of the matters or context Plain text: those parts of the transcripts that the Respondent contends constitute matter or context, in addition to the underlined text Dotted text those parts of the transcript that the Respondent is content to have considered as context only

ANNEXURE I - REPUBLICATION OF MR PALMER'S MATTERS First Matter

1. Some of the words spoken by Mr McGowan at the relevant 31 July 2020 press conference were republished by the following Sydney Morning Herald online article (31 July 2020 SMH Article): .
2. The 31 July 2020 SMH Article has had 1,268 page views.
3. The 31 July 2020 SMH Article republished the following words in the First Matter: a. "Let Mr Palmer fight his own fights" (line 35); b. "I'm happy to have a blue with Mr Palmer" (line 36); c. "I think he's the enemy of Australia." (lines 37-38); and d. "the enemy of the state" (line 37).
4. The 31 July 2020 SMH Article paraphrased words spoken by Mr McGowan during the 31 July press conference in the following passage: a. "He labelled Mr Palmer "the enemy of the state" and the country as a whole, while calling on the federal government to back away from the battle over his hard border policy." (lines 37-39).
5. The First Matter (lines 28-39) was republished on a Sky News television broadcast called "Afternoon Agenda", which ran in three consecutive 60 minute segments on 31 July 2020. The audience data for that television broadcast was as follows: a. an average audience of 26,500 and total reach of 73,900 for the 2:00 p.m. segment; b. an average audience of 16,800 and total reach of 48,700 for the 3:00 p.m. segment; and c. an average audience of 15,500 and total reach of 65,600 for the 4:00 p.m. segment.
6. Additionally, the Sky News television broadcast republished lines 25-27 and 40-82 of the interview including the First and Second Matters. Second Matter
7. Some of the words spoken by Mr McGowan at the relevant 31 July 2020 press conference were republished by a video embedded in the following ABC online article (the 31 July 2020 ABC Video): /.
8. The 31 July 2020 ABC Video republished the following words in the Second Matter: a. "Mr Palmer is the enemy of the State. He is the enemy of Western Australia. He has shown over his time that he is only focused on himself. He is not focused on the health or the wellbeing of people in this state. I'd urge people to take no notice of whatever letters he might publish." (lines 3-6).
9. Additionally, the 31 July 2020 ABC Video republished lines 9-27 of the more extensive and combined form of the First and Second Matters, as contended by Mr McGowan.
10. In the period 31 July 2020 to 7 December 2021 inclusive: a. there were 1,860 stream starts of the 31 July 2020 ABC Video via the ABC website; b. there were 376 stream starts of the 31 July 2020 ABC Video via the ABC News App; c. there were 95,227 page views of an ABC online article containing the 31 July 2020 ABC Video via the ABC website; and d. there were 21,192 screen views of an ABC online article containing the 31 July 2020 ABC Video via the ABC News App. Third Matter
11. Some of the words spoken by Mr McGowan at the relevant 3 August 2020 press conference were republished in the following online article on the PerthNow website (First PerthNow Online Article): .
12. The First PerthNow Online Article republished the following words in the Third Matter: a. "He wanted to come to Western Australia to promote hydroxychloroquine to the people of the State as some sort of cure for COVID" (lines 32-34); and b. "(Mr Palmer) coming to Western Australia to promote a dangerous drug. I don't think was a good thing for our state and I'm pleased that (WA Police) rejected him" (lines 35-37).
13. The First PerthNow Online Article paraphrased words spoken by Mr McGowan at the 3 August 2020 press conference in the following passage: a. "The Premier said evidence showed the product is "not a cure" and potentially dangerous" (line 34).
14. In the period 1 August 2020 to 8 December 2021, the number of page views of the First PerthNow Online Article was 78,524 and the number of unique browsers was 71,884.
15. Some of the words spoken by Mr McGowan at the 3 August 2020 press conference were republished in the following 7News online article dated 3 August 2020 (7News Online Article): .
16. The 7News Online Article republished the following words in the Third Matter: a. "He wanted to come to Western Australia to promote hydroxychloroquine to the people of the state as some sort of cure for COVID" (lines 32-34); b. "All the evidence is not only is it not a cure, it's actually dangerous." (line 34); and c. "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 that (WA Police) rejected him." (lines 35-37).
17. In the period 1 August 2020 to 8 December 2021, the number of page views of the 7News Online Article was 14,922 and the number of unique browsers was 13,868.
18. A video embedded on the 7News Online Article republished the following words in the Third Matter: a. "he wanted to come to Western Australia to promote Hydroxychloroquine to the people of the State as some sort of cure for COVID. All the evidence is not only is it not a cure, it's actually dangerous" (lines 32-34).
19. In the period 3 August 2020 to 9 December 2021, the number of video views was 6,007.
20. An article similar to the 7News Online Article (which republished the same words from the third matter set out in paragraph 19) was published by the West Australian online (the West Australian Online Article).
21. In the period 1 August 2020 to 8 December 2021, the West Australian Online Article had 1,131 page views and 1,057 unique browsers.
22. An article similar to the 7News Online Article (which republished the same words from the Third Matter set out in paragraph 19) was published in the following online article on the PerthNow website (Second PerthNow Online Article): .
23. In the period 1 August 2020 to 8 December 2021, the number of page views for the Second PerthNow Online Article was 1,941 and the number of unique browsers was 1,718. Fourth Matter
24. Some of the words spoken by Mr McGowan at the relevant 5 August 2020 press conference were republished as part of a Facebook post, which has been available for viewing since 5 August 2020 and is located at the following URL (WA Today Facebook Video): .
25. The WA Today Facebook Video republished the Fourth Matter.
26. In the period 5 August 2020 to 3 March 2022, the WA Today Facebook Video has received a total of 14,000 views.
27. Some of the words spoken by Mr McGowan at the 5 August 2020 press conference were republished in the print edition of the West Australian newspaper on 6 August 2020 in an article "Law and Border" (on the front page) and "It's trial and error" (on pages 4 and 5), written by Peter Law and Josh Zimmerman. The West Australian newspaper republished in that article the following words in the Fourth Matter: a. "He uses money generated in Western Australia, through Western Australian mining projects, to try and bring down our borders and damage the health of West Australians" (lines 30-32). b. That Mr Palmer's persistence with the border challenge was "very, very selfish" (line 33).
28. In addition, the West Australian newspaper republished the following words: a. "He was going to build the Titanic, so I wouldn't go on any boat with Mr Palmer in light of his ambitions" (lines 11-12); b. "Considering the Commonwealth has withdrawn their witness evidence, I think should be withdrawn and it should go back to the drawing board" (lines 25-26); c. "It's before the courts and there will be a legal argument...but certainly the Commonwealth's evidence should be struck out" (lines 38-39; lines 45-46); and d. "If they're not part of the case, their evidence should be struck out" (lines 46-47).
29. For the year ending September 2020, the daily readership of the West Australian was 314,000. Fifth matter
30. Some of the words spoken by Mr McGowan at the relevant 7 August 2020 press conference were republished in the following online article on the Canberra Times website (Canberra Times online article): .
31. The Canberra Times Online Article republished the following words in the Fifth Matter: a. "We believe a fresh trial is the only way forward" (lines 12-13); b. "With or without the support of the commonwealth government, WA will keep fighting for what is our right and that is to protect the citizens of our state" (lines 15-17); and c. "We're in a war with Clive Palmer and it's a war we intend to win" (lines 41-42).
32. The Canberra Times Online Article paraphrased some of the words spoken by Mr McGowan at the 7 August 2020 press conference in the following passage: a. "Mr McGowan said it would have been far more preferable if the Commonwealth had actively supported WA's position." (lines 7-8).
33. In the period 1 August 2020 to 7 December 2021, the total number of page views of the Canberra Times Online Article on the Canberra Times website, and on other websites owned by Rural Press Pty Ltd (trading as Australian Community Media) was 2,313 and the number of unique browsers was 2,240).
34. The following newspapers published a print version of the Canberra Times Online Article on 8 August 2020 and, for the 12 months ending September 2020, had the following daily readerships: a. the Saturday edition of the Canberra Times (daily readership of 57,510); b. the Saturday edition of the Newcastle Herald (daily readership of 64,944); c. the Saturday edition of The Advocate (Burnie) (daily readership of 32,394); and d. the Saturday edition of The Examiner (Launceston) (daily readership of 42,616).
35. The Fifth Matter was republished as part of a Facebook post, containing a video (available for live streaming), which has been available on the Facebook page of ABC Perth since 7 August 2020 (the ABC Perth Facebook Video).
36. In the period 7 August 2022 to 22 February 2022, the ABC Perth Facebook Video had received a total of 31,574 total views.