Federal Court of Australia

Palmer v McGowan [2021] FCA 430

ORDERS

THE COURT ORDERS THAT:

1.    The Contextual Imputations 11, 15, 16, 19, 21, 27 and 29 pleaded in the Cross-Respondent’s defence are struck out.

2.    The remaining applications in the interlocutory application of the Cross-Claimant filed on 9 November 2020 are dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The applicant, Mr Palmer, sues the Premier of Western Australia, Mr McGowan, for defamation. His claim concerns six different statements made by Mr McGowan in the period between 30 July and 14 August 2020.

2    Mr McGowan cross-claims against Mr Palmer, alleging that he has been defamed by nine different statements of Mr Palmer. His cross-claim concerns statements made by Mr Palmer in the period between 1 August and 1 September 2020.

3    The respective statements arose out of, and related to, the conduct of Mr Palmer and Mr McGowan in relation to the steps taken by the State of Western Australia (the State) in response to COVID-19, in particular, its border closures and the conduct of the State in relation to litigation brought by companies controlled by Mr Palmer against the State.

4    By his Defence to Mr McGowan’s Amended Statement of Cross-Claim (the ASCC), Mr Palmer denies that the statements impugned by Mr McGowan were defamatory and raises the substantive defences of justification (s 25 of the Defamation Act 2005 (NSW) and its Uniform Defamation Act counterparts (collectively “the UDA”)), contextual truth (s 26 of the UDA), and qualified privilege, both at common law and under s 30 of the UDA.

5    By an interlocutory application filed on 9 November 2020, Mr McGowan applies to have Mr Palmer’s pleas of contextual truth in relation to each of the nine statements struck out under r 16.21 of the Federal Court Rules 2011 (Cth) (the FCR), on the basis that they “fail to disclose a reasonable cause of action” (sic) or are likely to cause prejudice, embarrassment or delay in the proceeding. This judgment concerns only that interlocutory application. It is accordingly unnecessary to outline more generally the issues between the parties.

Strike out principles

6    The principles concerning the striking out of pleadings pursuant to r 16.21 of the FCR are settled. It is convenient to repeat verbatim some passages from my judgment in Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781, to which both parties referred.

7    The discretionary power to strike out a pleading is exercised sparingly and only in clear cases. The Court is careful to ensure that it does not, by striking out a pleading, prevent a party from making a case which it is entitled to make. The Court accedes to applications for the striking out of a pleading on the basis that it discloses no reasonable cause of action or no defence only in plain and obvious cases and when it is apparent that no reasonable amendments can cure the alleged defects.

8    These principles are equally applicable in defamation proceedings, including those cases in which a party seeks a striking out on the basis that pleaded imputations do not arise from the publication of which complaint is made. Thus, in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, the plurality at [6] approved the following statement of principle by McPherson JA:

[6]    Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:

“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.”

9    In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134], McColl JA (with whom Gleeson JA agreed) referred to this passage in Favell and continued:

[135]    Accordingly, the capacity determination is “an exercise in generosity not parsimony”; while it involves a “matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant”: Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is “what a jury could sensibly think [the words] meant” to the ordinary reasonable reader.

[136]    One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be ‘perverse’ for any jury to do so” …

[137]    Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised … The significance of the jury’s role warrants the application of a “high threshold of exclusion” …

(Citations omitted)

10    The authorities indicate that the evaluation of whether an impugned publication is capable of conveying a defamatory imputation is often one on which reasonable minds may differ: Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [30].

11    In this Court, all issues in defamation proceedings are generally determined by a Judge sitting without a jury: Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61 at [37]-[45] and, as is the case in the conduct of civil litigation in Australia generally, the Court has a strong emphasis on the quick, efficient and inexpensive disposition of defamation proceedings.

12    These matters mean that it will often be the case that issues concerning the capacity of an impugned statement to convey the defamatory meaning pleaded, or whether a pleaded meaning is capable of being defamatory, are regarded in this Court as inappropriate for interlocutory decision. Issues of that kind are instead subsumed in the issues to be determined at trial. Paragraph [4.10] of this Court’s Defamation Practice Note (DEF-1) reflects that understanding. The Court does not encourage interlocutory activity about these matters. That does not preclude there being cases in which interlocutory determination of issues of this kind will be appropriate. However, any party seeking the strike out of a defamation pleading on the ground of lack of capacity or lack of defamatory meaning should understand that applications of this kind are likely to be granted by the Court only in clear cases and when the advantages of determination of the issue at interlocutory level are very apparent.

The defence of contextual truth – general

13    Section 26 of the UDA provides:

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.

14    The background to the introduction of s 26 of the UDA was explained by McColl JA with whom Beazley and Giles JJA agreed, in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [31] et seq. Her Honour set out relevant parts of the Explanatory Memoranda relating to its introduction:

[Clause 26] provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them. In that circumstance, the defendant may have a defence of contextual truth if the defendant proves: [the relevant provision dealing with the defence of contextual truth was set out]

…

At general law, the truth of each defamatory imputation carried by the matter published that is pleaded by the plaintiff must be proved to make out the defence of justification unless it can be established that the imputations were not separate and distinct but, as a whole, carried a "common sting". In that case, the defence of justification is made out if the defendant can show that the "common sting" is true. See Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The defence of contextual truth created by the proposed Act, unlike the general law, will apply even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains."

15    In Crosby v Kelly [2013] FCA 1343 at [16], Rares J said of the counterpart of s 26 in the Civil Law (Wrongs) Act 2002 (ACT) that, in order for the defence of contextual truth to be established, the respondent must prove:

•    the matter complained of carried one or more other defamatory imputations, in addition to those of which the plaintiff complains;

•    the contextual imputation(s) is or are substantially true; and

•    because of the substantial truth of the contextual imputation(s), the imputation(s) on which the plaintiff relies did not further harm his or her reputation.

(Emphasis in the original)

16    The first of these elements is important. A defence of contextual truth requires a respondent to establish that the impugned matter conveyed other defamatory imputations in addition to those pleaded by the applicant. This requires a respondent to show that the impugned matter conveyed imputations which differ in substance from those pleaded by the applicant.

17    While the imputations in a defence of contextual truth must differ in substance from the imputations pleaded by the applicant, they need not differ in kind: Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341 at [42], [70]-[74], [112], [114].

18    In Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204, Nicholas J said of the “differ in substance” requirement:

[28]    The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish "... just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations" … The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations … Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.

(Citations omitted)

19    This passage was quoted with approval by McColl JA in Abou-Lokmeh v Habour Radio Pty Ltd [2016] NSWCA 228 at [30].

20    In Abou-Lokmeh, McColl JA said that one way by which the question of whether a contextual imputation differs in substance from the plaintiff’s imputation may be determined is to identify what the defendant must prove in order to justify the contextual imputation, or to ask “what may be proved by way of justification to each such imputation”. However, as the authorities to which her Honour referred in support of these propositions (including her own judgment in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 at [188]) indicate, these tests are not the only way by which the issue may be determined.

21    Another way by which a respondent may establish a contextual imputation different in substance from that pleaded by an applicant is to show that the impugned matter conveyed a general imputation in addition to a particular imputation pleaded by the applicant. Provided that such a general imputation is different in substance, it may be pleaded even though it relates to the same subject matter: Zeccola at [49]-[50]; Abou-Lokmeh at [32]-[34], [43]-[44]; and Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [59]-[63]. As was noted by Gleeson JA in Cornwell at [60], in some cases a single alleged instance of misconduct may be so serious that it may, at the same time, convey a general charge against the applicant and there may be cases in which the collection of instances of misconduct in the impugned matter will be capable of conveying a general imputation in addition to specific imputations, at [62].

22    Nevertheless, the question of whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, so as to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of the action: Abou-Lokmeh at [47] (McColl JA); Cornwell at [50] (Gleeson JA).

23    Counsel for Mr McGowan referred the Court to three authorities with a view to illustrating, as I understood it, the way in which courts have distinguished between specific and general imputations in contexts like the present. The first was State of New South Wales v Deren [1999] NSWCA 22 in which Priestley JA held, at [84], in relation to the application of s 16 of the Defamation Act 1974 (NSW) (the predecessor of s 26 of the UDA) that the impugned matter was capable of conveying to the reasonable reader two imputations, “one being that the first plaintiff had committed five indecent assaults on very young children from a Sydney kindergarten in the last 10 months and the other that such a man must be a habitual molester of children”. His Honour accepted that the two imputations had much in common but nevertheless were distinct imputations generated by the same matter.

24    The second authority was Hyndes v Nationwide News Pty Ltd [2011] NSWSC 633 in which the plaintiff had pleaded that the impugned article conveyed (relevantly) the imputation that “he had assisted officials of the Thai government to deal in illegal drugs by helping to lend them money”. The defendant sought leave to amend the defence to plead the contextual imputation that “the plaintiff was willing to lend money to persons whom he believed to be drug dealers”. McCallum J refused the amendment, saying:

[34]    The difficulty with the proposed contextual imputation … is that it cannot arise at the same time as and in addition to the plaintiff's imputations. I accept that, as a matter of logic, it is possible for words to convey an act and, separately, a condition. In the present case, however, the condition in question (willingness to lend money to persons the plaintiff believed to be drug dealers) is necessarily implicit in the act identified in the plaintiff's imputations, and so is not a different meaning that arises from paragraph 14 of the matter complained of at the same time as those imputations.

[35]    … [T]o say that a person helped to lend money to drug dealers and to say that he was willing to do so amounts essentially to the same thing. The proposed contextual imputation does no more than to identify a necessary or implicit element of the charge encapsulated in the plaintiff's imputations.

(Emphasis added)

25    The third authority was Bookbinder v Tebbit (1989) 1 WLR 640 in which the plaintiff (the leader of the majority party controlling a County Council) had complained of a statement by the defendant said to convey the imputation that he “had acted irresponsibly in squandering £50,000 of public money on printing statements supportive of nuclear free zones” on [the Council] stationery. In support of a defence of justification and fair comment on a matter of public interest, the defendant pleaded that his statements conveyed the meaning that the plaintiff had been guilty of irresponsible squandering of public funds. He supported this plea with particulars of other occasions of alleged squandering of public money by the Council under the leadership of the plaintiff. The Court of Appeal held that this plea should have been struck out on the basis that an imputation of unjustified expenditure of public funds on previous occasions did not arise from the impugned matter, at 651.

26    As is evident from these authorities and the others to which counsel referred, each case will turn on its own facts.

27    The third of the elements of the defence stated in Crosby v Kelly has also been the subject of consideration in the authorities. McColl JA explained in Fairfax Media v Kermode at [79] that:

[W]hen the tribunal of fact comes to the weighing exercise the contextual truth defence entails … it must be able to conclude that because of the substantial truth of the contextual imputations "the defamatory imputations" - that is to say the plaintiff's cause of action - do not further harm the plaintiff's reputation … [T]he focus is on comparing the defendant's contextual imputations with the plaintiff's cause of action.

28    This means that the “sting” in the pleaded imputations of contextual truth should exceed the “sting” of those imputations pleaded by the applicant: McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 in which McCallum J said at [19]:

… It may be accepted that the premise of the defence is the existence of some additional defamatory sting not sued on by the plaintiff. However, the defence does not compare imputation with imputation. The essence of the defence is to permit the defendants to put the plaintiff's imputations in their factual context according to the content of the whole of the article. The essence of the defence is that if, viewed in its factual context, the defamatory publication was true enough that no further harm to reputation was done by the particular imputations selected by the plaintiff, no remedy should lie.

29    In Abou-Lokmeh, McColl JA said at [29] that a “defence of contextual truth must defeat the whole defamatory matter of which the plaintiff complains, that is to say, all the plaintiff’s stings or imputations. The tribunal of fact must be able to conclude that, because of the substantial truth of the contextual imputations, the defamatory imputations which constitute the plaintiff’s cause of action do not further harm the plaintiff’s reputation”.

30    The authorities establish that, in making the assessment of whether, by reason of the substantial truth of the contextual imputations, the applicant did not suffer further harm by reason of his or her pleaded imputations, it is the combined effect of all of the established contextual imputations which is to be considered: Fairfax Media v Kermode at [79]. That is to say, the Court does not engage in a comparison of individual imputation against individual imputation: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434, (2001) 53 NSWLR 541 at [4]-[6] per Spigelman CJ with whom Rolfe AJA agreed at [70]. In Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 at [25], McCallum J referred to Blake and said that the Court is to consider whether, in the circumstances established by the evidence, the imputations on which the applicant has sued has not further injured his or her reputation. The pleaded particulars will give some indication of the matters which may be proved at trial, but the circumstance that the ultimate determination will depend on such an assessment indicates the appropriateness of the Court being particularly circumspect before striking out contextual imputations whose combined effect will have to be considered.

31    It has been said that the formulation of a contextual imputation requires some care to ensure the “facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff”: Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [42].

32    Finally, it is pertinent for present purposes to note the statement of McCallum J in McMahon at [22] that, because of the lack of certainty on a strike out application that the plaintiff will be able to establish that all of the pleaded defamatory meanings had been conveyed, the Court should take the defendant’s case at its highest. This means that the Court should compare the pleaded imputations of contextual truth with the least serious of the plaintiff’s pleaded imputations. See also Abou-Lokmeh at [28].

Overview of Mr Palmer’s filed Defence

33    Subject to some qualifications which it is not necessary to mention, Mr Palmer admits that he made the statements, or published the matters, which Mr McGowan impugns in the ASCC. Generally, he denies that the statements or publications were capable of conveying, and did convey, the defamatory imputations pleaded by Mr McGowan. In relation to the three of the pleaded imputations (those pleaded in [3(a)] and [3(b)] of the ASCC concerning the first impugned matter and that pleaded in [5(b)] of the ASCC concerning the second impugned matter), Mr Palmer pleads a defence of substantial truth.

34    Mr Palmer raises the defences of contextual truth and qualified privilege in relation to each of the publications on which Mr McGowan sues. His Defence pleads a total of 29 contextual imputations: Contextual Imputations 1 and 2 in relation to the first matter on which Mr McGowan sues; Contextual Imputations 3-7 in relation to the second matter; Contextual Imputations 8-14 in relation to the third to seventh matters; Contextual Imputations 15-24 in relation to the eighth matter; and Contextual Imputations 25-29 in relation to the ninth matter.

35    As will be seen, several of the pleaded Contextual Imputations are substantially similar and three sets (Imputations 8 and 19, Imputations 14 and 24, and Imputations 23 and 25) are identical or differ only in a ways which are immaterial. Nevertheless, as they are pleaded in relation to separate publications, they must be considered separately.

36    At the hearing of Mr McGowan’s interlocutory application, counsel for Mr Palmer said that Contextual Imputations 7 and 22 were not pressed, and he was granted leave to amend the form of Contextual Imputations 20, 21 and 26. He has not yet exercised that leave.

37    The Contextual Imputations are supported by substantial particulars which, in some instances are based on statements said to have been made by Mr McGowan on diverse occasions extending back to 2 April 2020. They raise matters relating to Western Australia’s border closures, the claim brought by Mineralogy Pty Ltd (a company said to be controlled and ultimately beneficially by Mr Palmer), a mediation in relation to that claim, and the enactment by the Parliament of Western Australia of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA). It is evident that the pleaded contextual imputations involve a significant reshaping of the issues raised by the ASCC.

38    Counsel for Mr Palmer submitted that the pleaded contextual imputations are appropriate because the publications which Mr McGowan impugns contained “a raft of different criticisms” by Mr Palmer of Mr McGowan but Mr McGowan has elected to sue only on some. He submitted that what Mr Palmer has done in his defence to the ASCC is to “identify and distil other defamatory meanings which are also conveyed, but not sued upon, the truth of which [he alleges] has the effect that [Mr] McGowan’s reputation is not “further damaged” by any of [the] imputations” pleaded by Mr McGowan.

Overview of Mr McGowan’s contentions on the strike out application

39    Mr McGowan contends that four principal matters warrant the striking out of the pleas of contextual truth. The first three are that Mr Palmer pleads meanings which:

(a)    are incapable of arising;

(b)    do not differ in substance from his pleaded meanings, or which, on the particulars relied upon, are not capable of being proved substantially true; and

(c)    even if they do arise, do not support a plea of contextual truth as they do not exceed the sting in his pleaded meanings.

40    Mr McGowan contends, fourthly, that the form in which several of the Contextual Imputations are pleaded is deficient.

41    As is apparent, the second of the matters concerning Mr Palmer’s pleaded meanings contains an internal alternative directed to the capacity of the pleaded particulars, if established, to prove the substantial truth of the pleaded imputations. However, counsel for Mr McGowan did not advance any submission in support of this internal alternative, and it is not necessary to address it in these reasons.

The first impugned matter

42    In [3] of the ASCC, Mr McGowan pleads that statements made by Mr Palmer in an article published by Australian Associated Press (AAP) on 1 August 2020 conveyed the imputations that, as Premier of Western Australia, he had:

3(a)    lied to the people of Western Australia when he said that he had acted upon the advice of the Chief Medical Officer in closing Western Australia’s borders; and

3(b)    lied to the people of Western Australia when he told them [that] their health would be threatened if the borders did not remain closed.

43    Mr Palmer’s plea of contextual truth to this pleading contains two contextual imputations:

Contextual Imputation 1:

Mr McGowan is a liar.

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.

Contextual Imputation 1

44    Mr McGowan contends that Contextual Imputation 1 should be struck out because the statements made by Mr Palmer and published by AAP on 1 August 2020 were a “single specific and detailed allegation … about lying”. It was accordingly of the kind considered in Bookbinder and could not support, counsel submitted, “a general meaning of lying additional to the specific meaning”. Secondly, Mr McGowan contends that Mr Palmer’s plea of contextual truth “is really just a cloak” for an allegation to the same effect as that which he has pleaded. Mr McGowan sought to illustrate this by noting that Mr Palmer relies upon the same particulars for his defence of substantive truth as he does for his pleas of contextual truth.

45    The first of these points raises an issue concerning the capacity of the impugned statements to convey the meaning alleged in Contextual Imputation 1. The AAP article of 1 August 2020 attributed the following statements to Mr Palmer concerning Mr McGowan:

[10]    The businessman labelled Mr McGowan a liar, citing WA’s Chief Health Officer Andy Robertson’s testimony that he had advised the state government that travel bubbles with low-risk jurisdictions could work, but had received no response.

[11]    “Now that’s a lot different to the lies that Mark McGowan has told the people of Western Australia, that he’s acted on the advice of the Chief Medical Officer”, Mr Palmer said.

[12]    The United Australia Party leader said WA should keep its border closed to hot spots “but not lie to the West Australian people about threats that don’t exist”.

[13]    “There is no threat to Western Australia certainly here in Queensland, in South Australia, the Northern Territory, the ACT and Tasmania”.

46    There was a difference between counsel as to whether regard should be had to the contents of [10] for present purposes. Counsel for Mr McGowan submitted that [10] should not be considered because it was expressed in the words of the journalist and not those of Mr McGowan and because Mr McGowan had not, in effect, sued upon those words. I see no reason to exclude [10] from consideration merely because it is expressed in the third person and in the past tense. Plainly, it is attributing a statement to Mr Palmer. The question of whether Mr McGowan has sued on [10] is not determinative of Mr Palmer’s ability to rely on the statement of his plea of a contextual imputation.

47    Read as a whole, [10]-[13] belie Mr McGowan’s submissions that Mr Palmer’s statement contained a “single specific and detailed allegation … about lying”. They suggest that Mr Palmer was making more than one assertion of lying by Mr McGowan.

48    In any event, the capacity or otherwise of the impugned statements to convey Mr Palmer’s Contextual Imputation 1 is not so clear as to make it appropriate for that plea to be struck out by interlocutory decision.

49    Mr McGowan sought to derive support for his attack on Contextual Imputation 1 from Mr Palmer’s abandonment of the identically worded Contextual Imputation 7. The material differences between the content of the first and second impugned matters means that support is not available to him.

50    With respect to Mr McGowan’s second objection, Mr Palmer’s plea on its face raises a contextual imputation of a more general nature than the specific imputation pleaded by Mr McGowan. It is reasonably arguable that a more general imputation of lying is conveyed by Mr Palmer’s statements.

51    Contrary to Mr McGowan’s submission, it is not apparent that Mr Palmer will be relying on the same facts to prove the truth of Mr McGowan’s imputations. Instead, he will be seeking to prove that Mr McGowan lied with respect to the advice he said he had received from the State’s Chief Health Officer, lied when he said that he had acted on the advice provided by the Chief Health Officer, and lied to the people of the State about the threats the State faced.

52    For these reasons, I decline to strike out Mr Palmer’s Contextual Imputation 1.

Contextual Imputation 2

53    Mr McGowan seeks the striking out of this imputation on the basis that Mr Palmer’s plea is not different in substance from the imputation he has pleaded to be conveyed, namely, that, in closing Western Australia’s borders, he had lied about acting on the advice of the Chief Medical Officer (CMO), and, secondly, because it is not more serious than the imputation he has pleaded.

54    I accept the submission of counsel for Mr Palmer that there is a difference in substance between the two pleaded imputations. Whereas the subject of Mr McGowan’s plea is the imputation that he had lied when saying that he had acted upon the advice of the CMO, Mr Palmer’s pleaded contextual imputation is that Mr McGowan had deliberately misrepresented the nature of the advice which he had received concerning COVID-19 and the appropriate response to it.

55    For the reasons given earlier, the comparative seriousness of the respective imputations considered in combination is a matter appropriate to be determined at trial when regard may be had to all the proven facts and circumstances.

56    As Mr Palmer pleads in support of Contextual Imputations 1 and 2 the same particulars as he relies upon for his defence of substantive truth of the imputations pleaded in [3(a)] and [3(b)] of the ASCC, it is doubtful that his pursuit of these contextual imputations will add, in a significant way, to the length or complexity of the trial.

57    Accordingly, I decline to order to the striking out of Contextual Imputation 2.

The second impugned matter

58    Mr McGowan pleads that statements made by Mr Palmer in an interview on Sky News on 12 August 2020 conveyed the imputations that, as Premier of Western Australia, he:

5(a)    [was] abusing the Parliamentary system by overseeing the passing of laws designed to protect him [Mr McGowan] against criminal acts which he intended to commit; and

5(b)    [had] lied to the people of Western Australia about his justification for imposing travel bans.

59    The five contextual imputations which Mr Palmer’s Defence raises in relation to the second imputed matter are:

Contextual Imputation 3:

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 the Applicant [Mr Palmer].

Contextual Imputation 4:

Mr McGowan abused his position as Premier by overseeing the passing of laws designed to protect his Government from criminal liability.

Contextual Imputation 5:

Mr McGowan abused his position as Premier by overseeing the passing of laws designed to abolish natural justice.

Contextual Imputation 6:

Mr McGowan abused his position as Premier by overseeing the passing of laws designed to abolish the right of media to obtain information by way of Freedom of Information Applications.

Contextual Imputation 7:

Mr McGowan is a liar.

60    As already noted, Mr Palmer does not press Contextual Imputation 7.

Contextual Imputation 3

61    Mr McGowan contends that Contextual Imputation 3 is vague and embarrassing as it fails to plead “any act or condition” of his, with the consequence that he does not know the case he has to meet. In support, he referred to Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [14], [16]-[17], [71]-[72]. In [14], Rares J noted that s 26 of the UDA requires each party to formulate meanings about the matter, being an act or condition, asserted or attributed to the applicant. In [16]-[17], his Honour noted the importance of a pleaded imputation embodying or distilling the defamatory meaning which the applicant alleges is conveyed by the imputed publication but noted that it is often a matter of impression as to whether the impugned matter conveys one or more particular imputations specifically relating to one or more acts or conditions or conveys, in addition or separately, a general act or condition encapsulating a character trait. Paragraphs [71] and [72] contained the rulings of Rares J that the pleaded contextual imputations in that case had not been pleaded with a sufficient degree of specificity related to the nature and conduct which was the subject of the impugned matter. His Honour noted again that the pleading should specify “an act or condition with appropriate clarity or precision”. I did not understand counsel for Mr Palmer to contest the applicability of these principles.

62    Counsel elaborated the submission that Contextual Imputation 3 is vague or embarrassing by submitting that the word “causing” in the expression “causing the State of Western Australia” to renege on a mediation agreement does not indicate the act of Mr McGowan leading to the asserted conclusion that he had caused the State to renege on the mediation agreement.

63    The difficulty for this submission is that Mr Palmer’s defence contains detailed particulars in [8]-[48] of the matters on which he relies for his plea that Mr McGowan caused the State to renege on the mediation agreement. Mr McGowan cannot reasonably be in doubt as to the matters which Mr Palmer pleads constituted conduct by him “causing” the State to renege on the mediation agreement.

64    Mr McGowan’s next submission (put in the form of a rhetorical question) was that a statement that he caused the State to renege on the mediation agreement was not defamatory. In my view, an imputation that one person caused another not to honour a binding agreement is, at least reasonably arguably, defamatory. Accordingly, this is an issue properly addressed at trial.

65    Mr McGowan’s final submission in relation to Contextual Imputation 3 was that it did not exceed the sting of his own pleaded imputations. This seemed to be a submission that the Court should engage in a comparison of the effect of individual imputations. For the reasons given earlier, that is an inappropriate approach.

66    Contextual Imputation 3 should not be struck out.

Contextual Imputations 4, 5 and 6

67    Counsel made submissions with respect to these three Contextual Imputations as a group. They are essentially a plea that Mr McGowan abused his position as Premier by his actions in overseeing the passing of laws designed to achieve three different effects: protecting his Government from criminal liability; abolishing natural justice; and abolishing the right of the media to obtain information by way of Freedom of Information (FOI) applications.

68    Counsel for Mr McGowan characterised these differences in the actions of Mr McGowan as “nuanced” and submitted that they do not differ in substance between themselves. That submission cannot be accepted as there is an obvious difference between the three alleged designs.

69    Next, Mr McGowan submitted that Contextual Imputations 4, 5 and 6 do not differ in substance from the imputation he has pleaded in [5(a)]. In particular, he submitted that the lack of difference in substance is particularly evident when one compares his imputation [5(a)] and Mr Palmer’s Contextual Imputation 4. He also submitted that there is no difference of substance between an imputation of abuse of “the Parliamentary system”, on the one hand, and abuse of “his position as Premier”, on the other.

70    Mr McGowan also submitted that Imputations 5 and 6 are not more serious than those pleaded by him in relation to the second impugned matter.

71    Counsel for Mr Palmer emphasised that Contextual Imputation 4 refers to “criminal liability” and not to “criminal acts”, as does Mr McGowan’s pleaded imputation. He also noted that Contextual Imputation 4 was not limited to “criminal acts which [Mr McGowan] intended to commit”.

72    Although there are some close similarities between Mr McGowan’s imputation [5(a)] and Contextual Imputation 4, I consider that the two imputations are different in substance. The latter alleges conduct constituting an abuse of an important political and governmental office, whereas the former alleges abuse of the Parliamentary system. The latter alleges that the laws in question were directed to protecting Mr McGowan’s government from criminal liability generally, whereas the former alleges that it was the protection of Mr McGowan personally from criminal acts he intended to commit.

73    These matters are sufficient to indicate that Contextual Imputation 4 is different in substance from imputation [5(a)].

74    Contrary to Mr McGowan’s submissions, it is plain that Contextual Imputations 5 and 6 are different in substance from his [5(a)] and [5(b)] imputations.

75    Finally, I consider, for the reasons given earlier, that Mr McGowan’s submission that Contextual Imputations 4, 5 and 6 do not raise a sting going beyond those of his own imputations should not be upheld. That is especially so as it will be the combined effect of those imputations (if established) which will have to be considered. This is an issue appropriate for determination at trial.

The third to seventh impugned matters

76    Mr McGowan pleads that, commencing on or about 13 August 2020, Mr Palmer caused statements in almost identical form and with identical content to be published by Google, in the West Australian Newspaper, by Facebook, by Twitter, and by printed copies delivered to letterboxes. The statement published in the West Australian Newspaper had the heading the “Cover Up” and was described as an advertisement.

77    Mr McGowan pleads that these statements conveyed the defamatory imputation that:

7(a)    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 [for] them from the criminal law.

78    Mr Palmer pleads that the five publications conveyed seven contextual imputations:

Contextual Imputation 8

Mr McGowan has acted unlawfully.

Contextual Imputation 9

Mr McGowan acted as Premier in a manner contrary to rule of law by overseeing the passing of laws which gave Mr McGowan and others an exemption from the criminal law.

Contextual Imputation 10

Mr McGowan abused his position as Premier by overseeing the passing of laws which abolished the right of the media, or any member of the West Australian public, to make FOI applications to find out what had been done by Mr McGowan.

Contextual Imputation 11

Mr McGowan acted as Premier in a manner contrary to rule of law by overseeing the passing of laws which destroyed the lawful rights of individuals including natural justice rights.

Contextual Imputation 12

Mr McGowan abused his position as Premier by overseeing the passing of laws which were not only unlawful but constituted a personal attack upon Mr Palmer.

Contextual Imputation 13

Mr McGowan acted as Premier in a manner contrary to the rule of law by overseeing the passing of laws which destroyed two arbitral awards made against the West Australian government by a distinguished former High Court Justice, the Hon. Michael McHugh AC QC.

Contextual Imputation 14

Mr McGowan is a dishonourable man.

Contextual Imputation 8

79    Mr McGowan submitted that Contextual Imputation 8 is vague and embarrassing because the term “unlawful”, having degrees of defamatory meaning, “is the most general of charges”.

80    Mr Palmer submitted that Contextual Imputation 8 should be understood as referrable to [1] in the impugned statements. In that paragraph, Mr Palmer stated:

Mark McGowan’s actions in the past two months have been a concerted effort to cover up his personal involvement in breaking the Law and people must question why his Government has passed an Act which provided him and others with an exemption from the Criminal Law!

81    Counsel submitted that this paragraph should be read in conjunction with [9], [10] and [12] of the impugned statements. He also referred to the particulars to Contextual Imputation 8 pleaded by Mr Palmer.

82    If Mr Palmer’s plea of Contextual Imputation 8 had stood by itself, there would be some force in Mr McGowan’s submission concerning its lack of specificity. However, in [67] of the Defence to the ASCC, Mr Palmer pleads the matters said to make Mr McGowan’s conduct unlawful and further particularises those matters in [68]-[106]. Mr McGowan cannot be in any doubt as to the basis on which it is said that he has acted unlawfully. Whether or not the matters pleaded by Mr Palmer will have the effect for which he contends does not have to be determined presently.

83    Counsel’s next submission was that Contextual Imputations 8-14, even considered in combination (as counsel accepted they should), could not exceed the very serious sting of Mr McGowan’s pleaded imputation. He emphasised that Mr McGowan’s plea is that the third to seventh impugned matters contained an imputation of a very serious kind, namely, an allegation that, as Premier, Mr McGowan had corruptly attempted to cover up the involvement of himself and others in criminal acts and had done so by overseeing the passing of laws designed to provide exemptions for them from the criminal law. That allegation is so serious, counsel submitted, that it could not be swamped by Contextual Imputations 8-14, even if it is found that they were all conveyed.

84    In effect, Mr McGowan asked the Court to engage at this stage in the balancing exercise involved in the determination of a defence of contextual truth. For the reasons given earlier, the Court should be particularly circumspect before doing so. It is particularly difficult for the Court to do so presently given that Mr Palmer has pleaded eight contextual imputations said to have been conveyed by the third to seventh impugned matters and the particulars pleaded in support of each are extensive. It is pertinent that Mr McGowan does not seek the striking out of any of Mr Palmer’s pleaded contextual imputations on the basis that they were not reasonably conveyed by the third to seventh impugned matters. Instead, he sought to diminish their significance by a submission that Contextual Imputations 9-14 are “merely … a subset or particulars” of Contextual Imputation 8. I do not accept that submission as Contextual Imputations 9, 11 and 13 comprise distinct pleas of Mr McGowan having acted contrary to the rule of law and Contextual Imputations 10 and 12 do not in terms plead unlawfulness.

85    Next, Mr McGowan submitted that the particulars pleaded by Mr Palmer to support Contextual Imputation 8 indicate that he relies on “the same factual matrix” to support Contextual Imputations 9-14. He contended that this demonstrates that Contextual Imputation 8 is a general imputation which is “merely repetitive of Imputations 9-13 and serves no individual purpose”. Counsel is correct in submitting that there is substantial commonality in Mr Palmer’s particulars supporting these contextual imputations. However, there is no exact correspondence between the particulars relied upon for each of Contextual Imputations 8-14. Moreover, as noted, Contextual Imputations 9, 11 and 13 are to the effect that Mr McGowan acted as Premier in a manner contrary to the rule of law by overseeing the passing of laws having different effects, whereas Contextual Imputations 10 and 12 raise a different matter, namely, abuse by Mr McGowan of his position as Premier. Having regard to these matters, I do not consider Mr McGowan’s submission to be a correct characterisation of Contextual Imputations 9-14. Even if it be otherwise, I would not strike out Contextual Imputation 8 as it raises a matter which is different in substance from the other Contextual Imputations.

Contextual Imputation 9, 11 and 13

86    Mr McGowan contended that Contextual Imputations 9, 11 and 13 are imprecise and do not plead the final distillation of the sting. I do not accept that submission in relation to Contextual Imputations 9 and 13 as they are sufficiently specific and are supported by particulars. However, I uphold Mr McGowan’s submission in relation to Contextual Imputation 11, as it is a vague and imprecise plea, in particular because of its lack of particularisation of the term “lawful rights”.

Contextual Imputation 10

87    Mr McGowan submitted that Contextual Imputation 10 “is not more serious than [Mr McGowan’s] imputation at [7(a)]”. This submissions seemed to rest on a comparison of individual imputations. For the reasons given above, that is not the correct approach and the challenge to Contextual Imputation 10 should be rejected.

Contextual Imputation 12

88    Mr McGowan contended that Contextual Imputation 12 contains a rolled up plea: an imputation of unlawfulness already pleaded as Contextual Imputation 8 and an imputation of abuse of office by passing laws constituting a personal attack on Mr Palmer. He also contended that it is not more serious than Mr McGowan’s imputation [7(a)]. Counsel did not develop the former submission. In my view, it should not be accepted. Conduct may constitute an abuse of office because it has two or more characteristics considered in combination. An imputation of conduct of that kind is not impermissible: Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 at [18]-[20].

89    As to the submission that Contextual Imputation 12 is not more serious than Mr McGowan’s imputation [7(a)], I note again that a comparison of individual imputations is inappropriate. It is the combined effect of the established contextual imputations which is to be considered. That is an evaluation appropriate for trial.

Contextual Imputation 14

90    Mr McGowan submitted that Contextual Imputation 14 is not capable of being conveyed, given the specific nature of the allegations in the impugned matter and, in any event, is not more serious than his imputation [7(a)]. Neither of these submissions can be sustained. As to the first, by a series of rhetorical questions in the impugned matters, Mr Palmer made accusations about Mr McGowan breaking the law ([1]), covering up his own conduct ([1] and [11]), enacting legislation which took away the rights of the Press, the rights of the people of the State to make FOI requests so as to find out what Mr McGowan had done, and the rights to natural justice and access to legal process, betraying the rule of law ([1], [2], [7] and [10]), and enacting legislation to subvert the effect of two arbitral awards ([8]). It cannot reasonably be concluded that these statements are not capable of conveying the general Contextual Imputation 14.

91    Mr McGowan’s submission as to the second matter again invites the Court to engage, inappropriately, in comparison of the effect of individual imputations.

The eighth impugned matter

92    Mr McGowan pleads that statements made by Mr Palmer in an radio interview broadcast on ABC radio on 14 August 2020 conveyed imputations that, as Premier, he:

(a)    had behaved criminally, and was improperly seeking to confer upon himself immunity from the criminal law; and

(b)    was acting corruptly by seeking to confer upon himself immunity against his criminal acts.

93    Mr Palmer’s plea of contextual truth in relation to this impugned matter alleges that 10 contextual imputations were conveyed:

Contextual Imputation 15

Mr McGowan abused his position as Premier by overseeing the passing of laws which gave Mr McGowan and his Attorney-General an immunity from criminal prosecution.

Contextual Imputation 16

Mr McGowan acted corruptly by abusing his position as Premier to confer upon himself and his Attorney-General immunity from the criminal law.

Contextual Imputation 17

Mr McGowan abused his position as Premier by overseeing the passing of laws which abolished the right of the media to make FOI applications, so that that the press could not find out what Mr McGowan and his government had done.

Contextual Imputation 18

Mr McGowan abused his position as Premier by overseeing the passing of laws abolishing natural justice rights including rights of appeal.

Contextual Imputation 19

Mr McGowan has acted unlawfully.

Contextual Imputation 20

Mr 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 21

Mr McGowan acted dishonestly by authorising the State of Western Australia to sign a mediation agreement with the former Chief Justice (and Mr Palmer) in circumstances where Mr McGowan had no intention that the State would participate in that mediation.

Contextual Imputation 22

Mr McGowan caused the State of Western Australia to renege on its obligations to attend a mediation with the former Chief Justice of Western Australian and the Applicant.

Contextual Imputation 23

Mr McGowan oversaw the passing of legislation which is contrary to the rule of law in that it gives the government power to adjudicate disputes, rather than the Courts, contrary to the principle of the separation of powers.

Contextual Imputation 24

Mr McGowan is a dishonourable man.

94    At the hearing, Mr Palmer said that he did not press Contextual Imputation 22 and was granted leave to amend Contextual Imputations 20 and 21 to the form set out above. The submissions at the hearing proceeded on the basis that Contextual Imputations 20 and 21 would be amended in the manner indicated in counsel’s submissions.

Contextual Imputation 15

95    Mr McGowan submits that this contextual imputation should be struck out because of vagueness and the imputation appearing not to be the final distillation of the sting being put forward by Mr Palmer. In addition he submits that the imputation does not differ in substance from, and is not more serious than, his own pleaded imputations [9(a)] or [9(b)]. The principal submission made in relation to Contextual Imputation 15 (also made with respect to Contextual Imputations 16-24) is that their sting, even considered cumulatively, could not exceed the sting of Mr McGowan’s pleaded imputations. For the reasons previously given, this is a difficult submission to sustain on a strike out application. The Court cannot speculate as to all the evidence it will receive in relation to each of these pleaded contextual imputations or as to its effect relative to the imputations pleaded by Mr McGowan, if established. This is not an appropriate basis for strike out.

96    However, I accept the difference between Contextual Imputation 15 and Mr McGowan’s own pleaded imputation appears minor. Counsel for Mr Palmer noted that Contextual Imputation 15 does not include the elements that Mr McGowan had “behaved criminally” or had been “acting corruptly”; that the immunity of the Attorney-General is not mentioned in Mr McGowan’s pleaded imputation; and that Mr McGowan’s pleaded imputation was only that Mr McGowan had been “improperly seeking” to confer upon himself a benefit whereas Contextual Imputation 15 was that the passing of the laws had in fact had that effect.

97    With the possible exception of the reference to the Attorney-General, these matters are hardly matters of substance. The difference between an assertion that Mr McGowan had abused his position of Premier, on the one hand, and had acted corruptly, on the other, in seeking to confer upon himself immunity from criminal prosecution or immunity from the criminal law, is so slight as not to be material. The same may be said with respect to the distinction which counsel for Mr Palmer sought to draw between the concepts of “seeking” on the one hand, and “giving”, on the other, an immunity from criminal prosecution. In my view, the inclusion of the reference to the Attorney-General in Contextual Imputation 15 is not a change of substance.

98    For these reasons, I consider that Mr McGowan’s attack on Contextual Imputation 15 succeeds.

Contextual Imputation 16

99    Counsel for Mr McGowan submitted that Contextual Imputation 16 should be struck out because it is not different in substance from Mr McGowan’s own pleaded imputations [9(a)] and [9(b)]. He accepted that Contextual Imputation 16 includes the words “and his Attorney-General” but submitted that the inclusion of those words did not have the effect of making Mr Palmer’s contextual imputation different in substance from that of Mr McGowan. I agree. The sting of imputation [9(b)]) and Contextual Imputation 16 is that Mr McGowan acted corruptly by abusing his position as Premier to confer upon himself immunity for criminal acts. Mr Palmer’s use of the term “criminal law” in Contextual Imputation 16 as opposed to Mr McGowan’s use of the term “criminal acts” does not warrant a different conclusion. There is no material difference in substance for present purposes between “immunity from the criminal law”, on the one hand, and “immunity against his criminal acts”, on the other.

100    Contextual Imputation 16 will be struck out.

Contextual Imputations 17 and 18

101    Mr McGowan’s principal submission in relation to the remaining contextual imputations pleaded in relation to the eighth impugned matters was that the effect of these imputations, even if considered in combination, could not exceed the sting conveyed by imputations 9(a) and (b). I do not accept that submission, for reasons similar to those given in relation to Contextual Imputations 8-14.

102    In relation to Contextual Imputations 17 and 18, Mr McGowan complains that the term “abused his position” is vague as it does not identify the act said to constitute the abuse. However, counsel did not submit that the plea lacked appropriate particularisation and, on its face, such a submission may have been difficult to sustain given the substantial particulars pleaded by Mr Palmer. On my present understanding, Mr Palmer has sufficiently indicated the nature of the abuse he alleges and has provided particulars of his allegations.

Contextual Imputation 19

103    Mr McGowan submitted that Contextual Imputation 19 should be struck out because the eighth impugned matter is not capable of conveying a general imputation of unlawfulness. He submitted that the words attributed to Mr Palmer in the eighth impugned publication contain assertions of criminal wrongdoing, and not of unlawfulness more generally. This had the consequence, he submitted, that it is not open to Mr Palmer to plead a general contextual imputation that he has acted unlawfully, as Mr Palmer does by Contextual Imputation 19.

104    There is force in this submission. The transcript of Mr Palmer’s interview on ABC radio on 14 August 2020 (which it was accepted the Court could rely on for present purposes) is replete with references by Mr Palmer to “criminal prosecution”, “other crimes”, “criminal prosecution”, “the criminal law”, “liable criminally”, “immunity from the criminal law”, “exempt from the criminal law”, and “immunity from criminal prosecution”. Mr Palmer described Mr McGowan as “an outlaw”. It is apparent that Mr Palmer was attributing to Mr McGowan a distinct form of unlawfulness, namely, contraventions of the criminal law. He was not making allegations of unlawfulness more generally. For this reason, Contextual Imputation 19 cannot reasonably be held to arise from the eighth impugned publication and should be struck out.

Contextual Imputation 20

105    Mr McGowan made three submissions about Contextual Imputation 20: first, that it vague and embarrassing because it fails to plead any act or condition so that he may know the case he has to meet; secondly, it is more in the nature of a conclusion and not in a form to which he can respond; and, thirdly, the allegations are not more serious than the imputations he has pleaded.

106    Given the extensive particulars provided by Mr Palmer, the complaint that the contextual imputation is vague and embarrassing cannot be upheld. As counsel for Mr Palmer submitted, it is evident that Contextual Imputation 20 has its basis in [18] of the statements of Mr Palmer impugned by Mr McGowan:

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.

107    These matters also indicate that the second complaint made by Mr McGowan about Contextual Imputation 20 should not be accepted. The third objection fails for the reasons previously given.

108    I decline to strike out Contextual Imputation 20.

Contextual Imputation 21

109    Mr McGowan submitted that Contextual Imputation 21 should be struck out because it is an imputation of dishonesty which the words spoken by Mr Palmer in the radio interview on 14 August 2020 are not capable of conveying. The only statements of Mr Palmer in the radio interview concerning the mediation agreement are:

[34]    No, look, seven days ago, well just start believing, seven days ago the former Chief Justice of Western Australia, Wayne Martin, signed a mediation agreement with me and with Mark McGowan, State of Western Australia, that this matter wouldn’t go to arbitration, that we can mediate a sensible solution, and what did he do? As soon as he signed the agreement, paid no respect to the Chief Justice, he brought in legislation which is unconstitutional and goes to the very rights and freedoms that our journalists should have in society for freedom of information. That’s what he did, he took away your right to know what this is all about. He took away the public’s right to know. That’s a pretty serious thing in a democracy.

110    Mr Palmer’s particulars of Contextual Imputation 21 contains allegations concerning the execution on 5 and 6 August 2020 of a mediation agreement between himself on behalf of Mineralogy Pty Ltd and International Minerals Pty Ltd, the State of Western Australia and the Hon Wayne Martin AC QC. Mr Palmer then pleads [40]:

In fact, Mr McGowan’s government had no intention of attending any mediation and must by 6 August 2020 have prepared or substantially prepared the Amendment Bill tabled on the evening of 11 August 2020 which included a provision which would have the effect of destroying any mediation agreement. Mr McGowan’s government thereby engaged in a dishonest charade, which misled Mr Palmer and the former Chief Justice of Western Australia, and which was intended to keep the intentions of Mr McGowan’s government secret until the proposed legislation could be introduced on the evening of 11 August 2020. Mr McGowan knew and intended that the mediation agreement would be breached.

111    In my view, Mr McGowan is correct in submitting that Mr Palmer’s statements in the radio broadcast on 14 August 2020 did not convey an imputation of dishonesty by Mr McGowan at the time he signed the mediation agreement. Instead, he referred to the conduct of Mr McGowan occurring subsequently and to the character of that conduct. He did not suggest that Mr McGowan had been acting dishonestly in his act of entering into the mediation agreement. For this reason, Contextual Imputation 21 will be struck out.

Contextual Imputation 23

112    Counsel submitted that Contextual Imputation 23 did not plead an act or condition of Mr McGowan and therefore cannot be sustained as a contextual imputation.

113    This submission cannot be sustained. It is clear enough that Contextual Imputation 23 does allege conduct by Mr McGowan.

114    Mr McGowan’s submission that Contextual Imputation 23 is not more serious than his own imputations [9(a)] and [9(b)] fails for the same reasons given in respect of the like submissions made in respect of earlier imputations.

Contextual Imputation 24

115    Counsel for Mr McGowan submitted that Contextual Imputation 24 is not capable of arising from the eighth impugned matter. I do not accept that submission as it is at least arguable that the imputation that Mr McGowan is a dishonourable man was conveyed by Mr Palmer’s statements in [2]-[3], [11], [15], [18] and [34] of the eighth impugned matter.

116    Mr McGowan’s complaint that Contextual Imputation 24 is no more serious than his own pleaded imputations [9(a)] and [9(b)] fails for the same reasons given in respect of the earlier imputations.

The ninth imputed matter

117    Mr McGowan pleads that statements made by Mr Palmer in an interview broadcast on Sky News on 1 September 2020 conveyed the 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.

118    Mr Palmer’s plea of contextual truth in relation to this allegation alleges five contextual imputations:

Contextual Imputation 25

Mr McGowan oversaw the passing of legislation which is contrary to the rule of law in that it gives the government power to adjudicate disputes, rather than the Courts, contrary to the principle of the separation of powers.

Contextual Imputation 26

Mr McGowan acted as Premier in a manner contrary to the rule of law by overseeing the passing of laws which gave Mr McGowan and members of his government an exemption from the criminal law.

Contextual Imputation 27

Mr McGowan has lied about the risk of COVID-19 for political purposes.

Contextual Imputation 28

Mr McGowan oversaw the passing of legislation which is contrary to the rule of law in that it constituted an attack on Mr Palmer personally.

Contextual Imputation 29

Mr McGowan is a dishonourable man.

119    Contextual Imputation 26 is in the form of the amendment for which Mr Palmer was given leave.

Contextual Imputation 25

120    Mr McGowan made a two-fold attack on Contextual Imputation 25: first, that it did not plead any act or condition of him and, secondly, was not more serious than his own pleaded imputation [11].

121    The second of these objections fails for the reasons already given. The first also fails because Mr Palmer does plead conduct by Mr McGowan, namely, his conduct in overseeing the passing of legislation. That plea is supported by extensive particulars.

Contextual Imputation 26

122    Mr McGowan submitted that Contextual Imputation 26 is imprecise and does not plead the final distillation of the sting. He also submits that the imputation is not more serious than his own pleaded imputation that he was open to accepting multi-million dollars bribes from Chinese interests.

123    I do not accept the first of these matters. The plea is supported by adequate particulars. As to the invitation to engage in an assessment of the relative stings of each imputation on an imputation by imputation basis, I decline to do so for the reasons given above.

Contextual Imputation 27

124    Mr McGowan submits that Contextual Imputation 27 is not reasonably capable of arising from the ninth impugned matter. In particular, he submitted that the ninth impugned matter was not capable of conveying an imputation of lying.

125    Counsel for Mr Palmer sought to sustain this Imputation by reference to the following passages in Mr Palmer’s interview on Sky News on 1 September 2020:

126    Counsel for Mr McGowan submitted that these statements of Mr Palmer did not convey any imputation that Mr McGowan had been lying. On that basis, he submitted that Contextual Imputation 27 could not arise from the impugned matters. I agree. Mr Palmer may have been impugning the merit of Mr McGowan’s conduct in relation to the border closures but he does not impute that Mr McGowan was lying. Contextual Imputation 27 will be struck out.

Contextual Imputation 28

127    Mr McGowan’s first complaint about Contextual Imputation 28 is that it does not make sense. I do not accept that that is so as I understand Mr Palmer to have been saying in the ninth impugned matter that the legislation whose passage Mr McGowan had overseen was ad hominem. Legislation of that kind is sometimes held invalid: Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at [16], [33], [43], [100], [196] and [223].

128    Next Mr McGowan submitted that Contextual Imputation 28 comprised a rolled up plea which left uncertain what was being pleaded. That submission cannot be accepted because the effect of the second limb in Contextual Imputation 28 is to particularise the imputation that the legislation is contrary to the rule of law.

129    I decline therefore to strike out Contextual Imputation 28.

Contextual Imputation 29

130    Counsel for Mr McGowan made two challenges to Contextual Imputation 29: first, that it is not capable of arising from the ninth impugned matter and, secondly, that it is not more serious than Mr McGowan’s pleaded imputation [11].

131    The ninth impugned matter, in the form presented to the Court, comprises 30 paragraphs of statements by Mr Palmer. They are too long to repeat in these reasons. Counsel for Mr Palmer submitted that the cumulative effect of Mr Palmer’s statements, especially [6], [9], [21] and [22], were capable of conveying Contextual Imputation 29. I have read, and reread, the ninth impugned matter but have not been able to discern on even an arguable basis that an imputation that Mr McGowan was a dishonourable man was being conveyed. Accordingly, Contextual Imputation 29 will be struck out.

Conclusion

132    In summary, for the reasons given above, Contextual Imputations 11, 15, 16, 19, 21, 27 and 29 are struck out. In addition, as noted, Contextual Imputations 7 and 22 are not pursued.

133    The remaining applications in the interlocutory application of 9 November 2020 are dismissed.

134    I will hear from the parties with respect to costs.

Associate:

Dated:    27 April 2021