A lot of us are becoming aware that Justice Michael Lee has an interesting writing style. We probably all remember Mr Lehrman’s hat and the coining of the word “omnishambles”. While defamation law is definitely not my thing, there were definitely some interesting comments about the witnesses made by him in Palmer v McGowan (No 5) [2022] FCA 893.
That case arose against the background of the COVID-19 pandemic and the controversy as to the Western Australian “hard border” and the WA government enactment of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (Amendment Act).
The judgment commences with (at [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.” It gets interesting when he turns to the witnesses.
The witnesses – 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”…. He swore he regarded the Amendment Act as “a statute that authorised Mark McGowan to kill Clive Palmer”:…. 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.
The witnesses – the Premier & AG
[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.
….and there is some sage advice for all litigators in assessing the evidence of the then Attorney General:
[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”. 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”. 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. [Tell me about it!] 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.
Creative commons acknowledgment for the photograph
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