Mark McGowan vs Clive Palmer live blog: WA Premier takes stand for second day in defamation trial

Mark McGowan and John Quigley have taken the stand for a second day in the high-stakes defamation trial between the WA Premier and mining billionaire Clive Palmer.

Mr McGowan first appeared at the Federal Court in Sydney on Monday, testifying that Mr Palmer contributed to a “madness” in the WA community that saw him and his family become the target of death threats.

“I now have, outside my home, a police car parked 24 hours a day, I have police that accompany me virtually anywhere I go,” he said.

“My entire family is under threat because of all this madness that people like Mr Palmer stir up that results in me having to close my electoral office because my staff are under threat.

“This sort of crazed language and behaviour promotes and gives some people licence in order to let loose the darker angels of their nature to hold someone, namely me and therefore my family, responsible for whatever conspiracy they then get into their heads.

“This sort of stuff that he does is false, it’s offensive and it causes and contributes to great pain to me and my family.”

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1.58pm WST - ‘I SWEAR ON MY OATH’

Mr Gray says Mr Quigley’s assertion that the late tabling of the bill was not designed to prevent Mr Palmer registering the arbitration was “spectacularly” different to what he told the ABC

“On oath - what I’ve said in the witness box this afternoon is the truth,” Mr Quigley said.

“Prior to notification by my chief of staff of this email or fax that had just come through I did not know about the possibility of the registration of the award - and that was after the tabling of the bill.”

Mr Gray then accuses Mr Quigley — the highest law officer in WA — that his evidence, on oath in a court is false

“On my oath, I am telling the court the truth,” he says. “I didn’t know about the registration of the awards.

“I’ve been the AG for five years, I’m 73 years of age -- I understand my duty to the court to give evidence the court on my oath.”

Justice Lee then says he finds it “bizarre” that Mr Quigley’s first thought would be that Mr Palmer would try and launch litigation to stop a parliamentary bill passing - rather than just lodge the arbitration award.

He also points out that possibility was also mentioned in Mr Quigley’s affidavit to the trial.

Mr Gray is now asking about the introduction of the bill, and whether it needed to be honourable and free of deceit.

“I didn’t deceive anyone about the bill,” Mr Quigley said.

The evidence of the AG is now complete, late in the day in Sydney. And we are done - the next significant court date is April 8, when final submissions from both sides will be made.

Cheers for tuning in.

1.19pm WST - BANTER

Mr Quigley is now being asked about his referring to Mr Palmer as Big Fat Liar - or BFL. He said he did use that phrase in “banter” with colleagues.

Another text sent by Mr Quigley to the Premier in July 2020 where he queried whether the Queenslander was even allowed into WA because he was “on bail”

“I suspected he was, I wanted the solicitor general to check it out,” Mr Quigley told the court.

Mr Quigley goes on to say believed an ASIC investigation into Mr Palmer might have involved indictable offences “that would involve bail”

“That was a genuine serious inquiry in your mind?,” Justice Lee asked. Mr Quigley said it was.

Then he is asked about his ABC interview on August 13, where he explained about the drafting of the ‘Palmer Act’ being like a game of chess — and the extraordinary secrecy surrounding the bill.

Mr Quigley reveals that the majority of the WA cabinet first heard about the bill at 4pm on Tuesday — just an hour before it was tabled in parliament.

Before then, Mr Quigley said, only himself, the Premier and perhaps two others including leader of the house David Templeman knew what was planned.

Back to the interview, where Mr Quigley described the “jab, jab, jab” of insults towards Mr Palmer — Mr Gray suggests those “tactics” were pre-planned, and part of a government strategy.

But Mr Quigley claims that explanation was pure rhetoric — and swears on oath that trying to stop Mr Palmer registering the arbitration in a court somewhere had not crossed his mind before tabling the bill late on a Tuesday evening.

“Tiredness, excitement — I can’t give you the exact reason (why I used that explanation),” Mr Quigley said. “I thought Mr Palmer might initiate some sort of litigation to restrain the executive.”

12.55pm WST - SLIPPERY ATTORNEY?

Mr Gray says that intention to not pay a dollar to Mr Palmer was “flatly contrary to the good faith requirement”. And he also raises the confidentiality clauses surrounding the mediation, including the amount being sought.

“You did disclose it, didn’t you?” Mr Gray said.

“In parliament I did - almost $30 billion were my words, I believe,” Mr Quigley replied.

In a later press conference after the reference was made, Mr Quigley told reporters he wouldn’t breach the law bvy discussing the arbitration - but pointed to the speech which referred to the figure.

“By that simple device ... it meant you were able outside parliament to bring about confidential matters. Was that behaviour honest and in accordance with the highest ethical standards? Was it slippery or dishonest?

“I don’t believe so sir,” Mr Quigley replied.

12.31pm - JOHN QUIGLEY IS CALLED

The Attorney General of WA has now been called to give evidence - straight to cross examination after his affidavit is read in to evidence.

Mr Gray begins by asking him about upholding highest standards of decency and honesty in office, and the principles of being a “model litigant”.

When asked, Mr Quigley says he only learned about the infamous litigation with the Palmer companies in 2020 - after the two arbitration decisions against the WA government.

And he said he was then made aware that a mediation about the potential damages was on the cards - which was instructed to be conducted “in good faith”

“To participate in good faith would have required the state to consider any proposals the other side might make ... and make reasonable settlement proposals itself ... and to attempt to reach a consensus resolution to bring the whole dispute to an end,” Mr Gray suggests.

Mr Quigley said he had no idea what the state’s position in the mediation was going to be. But he knew what the government’s position was.

“The position was that we weren’t going to pay any money to Mr Palmer,” Mr Quigley.

12.07pm WST - ‘THERE IS ONLY ONE MR PALMER’

Mr Gray is now asking about the purpose of naming Mr Palmer personally in the Amending Act.

At a August 12, 2020 press conference by the Premier, he told reporters at the time that was a “drafting issue”

Asked today, Mr McGowan said it was drafted that way because it needed “layers of protection because he was so litigious”.

Mr Gray said his original answer was untrue, and other statements from Mr Quigley were also untrue.

And he also asks whether from now, investors would now know other state agreements in WA would not be inviable and “could be changed unilaterally”.

Mr McGowan says it was wrong when said by commentators at the time, and is still wrong now.

“There is only one Mr Palmer,” Mr McGowan said. “No-one has ever taken arbitration over a state agreement in 80 years.

“I think there was broad cheering from the business community at what we did.”

Mr Gray is now turning to some comments made by the Law Society of WA at the time of the act passing, which said the act “offends the rule of law” and the potential to “affect the foundation of our democracy”.

Mr McGowan said he felt the Law Society was also wrong, and also said the state’s Bar Association criticism was also out of line.

“For you to oversee the passing of this law -- was disgraceful, dishonourable and an abuse of your position as Premier,” Mr Gray said.

Mr McGowan, unsurprisingly disagrees.

And that is the end of his evidence.

11.53am WST - MEDIATION OR DECEPTION

Mr Gray is pointing out that documents were signed which said the WA government would take part in mediation with Mr Palmer — while the government was planning the Palmer Act.

Therefore, he says, at that point in early August, the promise to mediate was disingenuous.

But Mr McGowan said government process operate independently of each other

“When the state ... represented to the mediator and the other parties that the state was going to participate ... that was knowingly untrue, and you were misleading ... and deceiving all of them,” Mr Gray said.

“That was a sneaky and underhand way to behave. It was dishonourable.”

“The ends justified the means in this case - yes,” Mr McGowan replied.

The Premier also said to call him dishonourable was a “ridiculous” statement.

11.30am WST - A MOCKERY OF THE PARLIAMENTARY PROCESS

Mr Gray persists in his line of questioning despite rulings against Justice Lee, saying that to “rush a bill through in 48 hours … was a mockery of the parliamentary process”.

He is pulled up again on cross-examining Mr McGowan about what the entire parliament did in voting the bill through so quickly.

So he eventually moves on to a McGowan 2017 election promise to uphold a “gold standard of transparency” - and compares that to the secret planning of the Palmer Act.

“It was necessary,” Mr McGowan retorts. “Gold standard transparency does not apply to every singe thing that you do.

He says if the bill had become public prior to its rapid introduction would have been “catastrophic”.

“The confidentiality we deployed were necessary because the circumstances were extraordinary,” Mr McGowan said.

Mr Gray is now contending that the secrecy of the Palmer Act also deceived the arbitrator Michael McHugh SC and the appointed mediator, former Supreme Court Chief Justice Wayne Martin.

11.20am WST - ‘SNEAKY, UNDERHANDED AND DISHONOURABLE”

A brief technical hitch meant the live feed from the Sydney court went down — but we are back now, and Mr McGowan is being asked about Mr Palmer’s political leanings - and the approach his government took to defeating Mr Palmer’s damages claim.

“You thought you might lose in a fair fight and that loss would come at a bad time, and so you decided to torpedo,” Mr Gray said.

“Your state treasurer and cabinet didn’t know about until the last minute. Backbenchers were kept in the dark even longer.

“The bill was drafted in such a way that once it was introduced it was immediately too late for Mr Palmer to go before any court in Australia.

“Plus — for good measure, by 5pm Perth time — every court in Australia would be closed and the doors locked.

“I suggest your approach to things were sneaky, underhand and dishonourable,” Mr Gray says.

“No, no and no,” Mr McGowan replies.

Mr Gray says the bill was “rammed through ... in a ludicrously short time” — which prompts an objection for lawyers on the opposite of the bar table.

10.40am WST - ‘A POISON PILL FOR THE FAT MAN’

Mr Gray is going through the history of Mr Palmer’s claim, which he said the WA government “had lost every step along the way at this point.”

Two arbitrations and a Supreme Court appeal had gone against the government by 2019, Mr Gray said and a third arbitration on the damage questions - whether they had suffered loss and how much - was due.

Mr McGowan is asked when he and Mr Quigley first discussed the possibility of legislation to block that damages claim.

He said “when we learned of the $30 billion bill” which would have been in March last year. “Up until then it was not front and centre in my thinking,” Mr McGowan.

Mr Gray now takes the Premier to some more texts between him and John Quigley, in particular at 7.02am on 23rd May.

“I’ve been awake since 4.15am thinking of ways to beat Big Fat Clive ... the turd,” Mr Q says.

“The solution is to be found in the amendment in the legislation (ostensibly) to protect us.

“Which amendment for that purpose is the trojan horse — in which there will be a poison pill for the fat man.”

“Did you ever say to him we shouldn’t do anything as slinky as that?,” Mr Gray asks.

Mr Gray continues to detail the texts from Mr Quigley.

He can’t wait for daylight so he can discuss this with “your brainiac Solicitor General” a solution that “could drop the fat man on his big fat arse.”

“Was Mr Quigley obsessive in his desire to defeat Mr Palmer,” Mr Gray asks rhetorically.

The basis for that question is then revealed with this text from Mr Quigley, Mr Gray says.

“Hey are you glad me single again - not making love in sweet hours before dawn instead worrying how to defeat Clive,” Mr Quigley wrote to the Premier of the state.

“That’s what he wrote - I think it is Mr Quigley having a joke,” Mr McGowan responds.

“What I find with the Attorney General is that he is very determined to achieve outcomes. I was very determined on achieving an outcome - I was very focused.”

They Premier and the AG then discuss not letting journalists know about the plan to amend existing law or introduce new laws to thwart Mr Palmer.

“Absolutely — secrecy is of the essence,” Mr Quigley wrote.

10.30am WST - STUNNING ELECTION SUCCESS.

In his parting shots for the morning session, Mr Gray appears to change his tune towards Mr McGowan, referencing his historic election win in March 2021 and his ‘’stratospherically high” personal approval ratings.

“That stunning election success – occurred after all the publications by Mr Palmer that you are suing him on,” Mr Gray points out.

Mr McGowan agrees it did.

“So anything Mr Palmer said about you had caused no damage to your reputation at all?,” Mr Gray postulates.

Resuming after lunch, Mr Gray is returning to the details of the arbitration findings in 2014 and 2019 which fell in favour of Mr Palmer and his proposed Balmoral South project.

8.58am WST - BFL

Asked about the ‘destruction’ of Mr Palmer’s rights, the Premier said what had made him ‘sick’ was the commentary about the Palmer Act — and the thought of paying him $30 billion

“Because they were from quite extreme political commentators. Some commentators on programs on Sky News and the like saying his rights to get $30 billion were more important than the rights of 2.6 million West Australians

“If we had to pay him $30 billion, I would be more than sick.”

And Mr Gray — after insisting that Mr McGowan “can’t stand” Mr Palmer, and hates him — then reveals private texts sent by Mr McGowan around the same time.

“He is a fat liar”, Mr McGowan wrote to Mr Quigley.

“He’s the worst Australian who is not in jail.”

“I was probably exaggerating a little bit - I don’t have a high opinion of him, and don’t like him,” Mr McGowan says in response.

In other texts, Mr Quigley referred to Mr Palmer as a “big fat liar”, and shortened that to ‘BFL’ several times.

“Get between the BFL and a stack of money and anything goes,” Quigley said in another text.

“Just tell the BFL that Q is not going to fold to intimidation,” Mr Quigley wrote.

“BFL - brilliant,” was Mr McGowan’s response.

In court, Mr McGowan said that was “a piece of humour with a colleague.”

“That reflects the way that I thought it was a funny play on the Roald Dahl character - the Big Friendly Giant - the BFG,” he says.

We’ve broken for lunch - back at 10.30am WST.

8.31am WST - FRONT PAGE NEWS

Mr Gray is now honing in on some of the front pages run by The West Australian around that time.

29 July, 2020 - Mr 89 per cent vs The Menace

12 August, 2020 - depicting as Mr Palmer as ‘Dr Evil’

“You are familiar with movies I take it, Mr McGowan,” Mr Gray said.

13 August, 2020 - “We get Mr Palmer as a pest -- specifically a toxic cane toad,” Mr Gray said.

14 August, 2020 - “Another huge cartoon of Mr Palmer, this time as a cockroach,” Mr Gray says.

“All three of these ... were mocking and ridiculing Mr Palmer very obviously,” Mr Gray said.

And now Mr Gray reveals Mr McGowan sent a text to proprietor of The West Australian Kerry Stokes around the same time as the second reading speech about the ‘Palmer Act’ was commencing in parliament.

Sent on 4.59pm on August 11 -- a minute before the reading speech was due to begin -- it revealed to Mr Stokes what the Act was about and what Mr McGowan said what it was intended to achieve.

“Barnett rejected the proposal” Mr McGowan wrote. “I will call to discuss.”

Three days later after the Act had passed through parliament, Mr Gray says, Mr Stokes responded in “very congratulatory” terms.

“Mark, Well done ... people are with you,” he wrote.

“Thanks Kerry, I was asked about those marvellous front pages today and I said: ‘I think The West has gone a bit soft,’” Mr McGowan replied.

“I appreciate the support enormously. All the mealy-mouthed tut-tutting about Palmer’s rights makes me sick”

8.12am WST - HISTORY LESSON

Mr Gray is now addressing a Facebook post placed on behalf of Mr McGowan the day after the ‘Palmer Act’ was passed through parliament.

That post said amongst other things that Mr Palmer was still entitled to mine ore at the Balmoral site the subject of the $30 billion claim.

And that he chose not to proceed with the project because of the conditions he was asked to adhere to.

“That’s not correct is it,” Mr Gray says.

He is now delving into the history of the damages claim, dating back to arbitrations in 2014 with the previous Barnett government - and asks Mr McGowan whether he had read the arbitration agreements or the damages claim.

He said he hadn’t - but Mr McGowan said it was still reasonable to comment on them.

7.44am WST - ‘JAB, JAB, JAB’

Mr Gray is now probing how many WA cabinet members knew about the Amending Act before it was introduced to parliament - but it is causing some consternation about a claim of ‘public interest immunity’, which protects Cabinet discussions from being made public.

Mr Gray says he just wants to flesh out the secrecy surrounding the planning and drafting the bill - but Justice Lee says it is already established in evidence that it was done in secret.

Turning to a radio interview of AG John Quigley on ABC radio on the morning of August 13, Mr Gray points to him saying: “(The act) was like a complicated game of chess, a game of tactics.”

“It is like a fight ... you have got to jab, jab, jab,” Mr Quigley said.

Asked whether he thought Quigley’s account was accurate, Mr McGowan said he thought “he is using some extravagant language.”

The Premier is then asked whether he was “employing tactics like Danny Green” - jabbing with insults to Mr Palmer on a daily basis so to distract him from the mediation process surrounding the $30m damages claim.

And he’s also asked how long it took for them to draft the so-called ‘Palmer Act’.

He agrees it was only a matter of weeks.

And he is then asked whether Mr Quigley was ‘boasting’ about “how clever he and you had been to distract Mr Palmer in this way.”

“I don’t know if the word distract is correct -- he was indicating he and I were somehow quite clever in regards to this, that would be the implication,” Mr McGowan said.

“We had two choices -- allow arbitration to proceed and the risks that came with that. We decided to act.”

7.36am WST - ‘AT WAR WITH CLIVE PALMER’

Mr Gray is now focusing on Mr McGowan’s statement that WA and he were “at war” with Clive Palmer.

“Such a dangerous individual that the state had to put themselves on a war footing -- what you were telling your audience that he was so dangerous and threatening.

“All because he had asked the High Court to rule on your border legislation. And it was not off the cuff.”

Mr McGowan says at that time he was aware of the $30 billion damages claim, even though it was not public yet.

Mr Gray is now referring to an internal email referring to the Premier’s ‘TP’s’ - or talking points for the day.

He suggests those points, and the Premier’s statement, were verbatim - showing they had been thought about and brainstormed.

“You fight a war against an enemy don’t you?,” Mr Gray said.

“You did not mean just an opponent in a court case do you. That evidence in your affidavit was false. You meant an enemy in a seriously dangerous threat.”

7.24am WST - ‘A COUGHING FEST’

The day after that hydroxychloroquine press conference, on August 3, it is now being revealed that Mr Palmer’s very busy solicitor’s sent a letter to the office of the Premier.

It referred to the “enemy of the state” -- Mr Palmer saying that language was “indefensible”, and had generated events such as a Facebook page urging people to cough at Clive Palmer at Perth airport.

“You were aware your comments were creating this type of consequence,” Mr Gray said.

“Developing plans to have a coughing fest.”

“I don’t think I was particularly concerned,” Mr McGowan said. “I considered it was satirical ... and he wasn’t coming here because he refused to put in a G2G application.”

“There was hostility in the community, but I saw it as a result of his own behaviour. I don’t believe I should be constrained in defending the interests of the state.

“I did not (apologise).”

On August 4, the day after the letter arrived, Mr McGowan called Mr Palmer “selfish”, and using his money to bring down borders and damage WA’s health.

“A gratuitous attack - accusing him of deliberately trying to damage the health of West Australians,” Mr Gray says.

7.07am WST - TOTAL RECOIL

Mr McGowan’s is again recounting how the health experts he consulted ‘recoiled’ at mention of hydroxychloroquine treating COVID.

Mr Gray is drilling down into what the drug can be used for, other than malaria -- producing a document from the TGA section of the Federal Department of Health website, which says it can treat arthritis, and lupus.

Mr Gray states that Mr McGowan’s statement of the dangers of hydroxychloroquine.

“When you said the drug was dangerous you knew - in appropriate contexts -- it wasn’t dangerous at all,” Mr Gray said.

Justice Lee steps in and says he believes that Mr McGowan was talking about the dangers in the context of COVID, and rejects Mr Gray’s question.

He tries again.

“I was referring to the treatment of COVID,” Mr McGowan says.

6.55am WST - CRIMINAL IMMUNITY

Mr McGowan is now being asked about another of his answers on Monday, where he was asked how he felt about Mr Palmer saying he had given himself criminal immunity via the laws passed blocking the millionaire’s $30 billion damages claim against the state.

In that answer, he pointed out Mr Palmer had lost his High Court challenge of that law.

“Our position was upheld by the High Court,” Mr McGowan said on Monday.

Mr Gray says the High Court made no finding — one way or the other about the criminal immunity element of the bill.

We now turn to an August 2, 2020 press conference, where he described Mr Palmer as Australia’s “greatest egomaniac” and an “Olympic-scale narcissist”.

Mr Gray asks whether he was saying those things to pressure him to dropping the High Court case.

“The Commonwealth had pulled out which was a very good development,” Mr McGowan told the court.

“It was more about this running set of statements that he was continuing to make -- that I was responding to. It was part of a response to the extraordinary advertising that he had been engaging in.

“I was supposed I was quite agitated by what I was doing. Putting pressure on Mr Palmer assisted the Commonwealth leaving.

“They read the public mood.”

At a press conference the next day, on August 3, where Mr Palmer is accused of promoting a ‘dangerous drug’ in hydroxychloroquine.

6.38am WST - SOME RECAP

Mr Gray is going back to one of the Premier’s answers on Monday, when he said Mr Palmer creates an “angry band of people in the community” before giving a list of the “crazy things” - including the ramming of a car into a power pole outside his home.

“I’m saying what Mr Palmer contributes to the attitudes,” Mr McGowan says today.

Mr Gray asks what basis he has for that assertion.

“A contribution to it,” Mr McGowan said. “The context of what I said indicates that he contributes.”

Mr Gray is now focusing in on the power pole incident, which Mr McGowan claimed publicly was the deliberate act of anti-vaxxer.

He says that assertion was based “on the advice I received” - and what happened on the evening.

He says his children went to help the woman and she “screamed anti-vax sentiments at them and then ran off into the darkness”.

Mr Gray is pointing out the WA police later stated that the incident was a drunk driver -- and not connected to Mr McGowan at all, and points to media reports stating the same.

“When you gave that evidence (about the power pole incident), you were lying,” Mr Gray asserts.

6.31am WST - REDACTIONS

Mr Palmer’s lawyer Peter Gray SC is raising an issue around redactions in an email from March 2020 which gave Dr Andy Robertson’s health advice on which the original decision to impose a hard border was based.

He says his side want an unredacted copy of the email. Mr McGowan’s side says there is a form of privilege which means parts of the email should not be handed over.

Mr McGowan is now being called back to the witness stand.

6.24am WST - THE PREMIER, THE BILLIONAIRE AND THE FEDERAL COURT

Welcome back to the second day of evidence from Premier Mark McGowan, in his attempt to sue Clive Palmer for defamation, while at the same time defending claims that he defamed the mining magnate.

The cross-examination of the Premier is due to resume shortly.

Outside court today, Mark McGowan told reporters outside court he had “no regrets” about the hard border which has been a focus of the case.

The WA Premier decline to take questions on the case itself, but did defend his decision to enact the hard border which has been a key focus of the case so far.

“I have no regrets about. What we’ve done is we’ve saved hundreds if not thousands of lives, which saved thousands of jobs. We’ve avoided the full difficulty so other states have endured during this time,” he said.

He said he was hopeful WA would be able to ease restrictions by the end of March.

“We haven’t been through the full horror that other states have with COVID. We’re currently got growing case numbers, we have on Omicron in the community...But we want to get through this as quickly as we can,” he said.

“We know what’s very, very disruptive, particularly for business, and we want to get through it as soon as we can. So I’m very hopeful that by the end of March, we’ll be out of these restrictions.”