Palmer v McGowan (No 5) [2022] FCA 893

Palmer v McGowan (No 5) [2022] FCA 893

The court found that the relevant imputations pleaded by both Mr Palmer and Mr McGowan were conveyed by the impugned publications. However, Mr McGowan's defences of common law, statutory, and Lange qualified privilege all failed because he could not establish that his conduct in publishing was reasonable in the circumstances, and the common law defence failed for lack of reciprocity. Malice was not established against either party. Mr Palmer's defences to the cross-claim of justification, contextual truth, and reply to attack all failed as he could not prove the substantial truth of the imputations nor meet the requirements for contextual truth or reply to attack privilege. Both parties...

Parties
Applicant / Cross Respondent: Clive Frederick Palmer; Respondent / Cross Claimant: Mark McGowan
Jurisdiction
Australia
Judgment Date
02 August 2022
Procedural Posture
Defamation Principal Claim and Cross Claim / Final Judgment and Orders After Contested Trial
Outcome
Judgment for each party on their respective claims with modest damages; injunctions refused.
Legal Topics
Qualified Privilege, Contextual Truth, Justification, Malice, Damages in Defamation, Political Communication
Defamation Constitutional Law Qualified Privilege Contextual Truth Justification Malice Damages in Defamation Political Communication

Case Brief

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Parties

Clive Frederick Palmer

Applicant / Cross Respondent

Mark McGowan

Respondent / Cross Claimant

Procedural Posture

Defamation Principal Claim and Cross Claim / Final Judgment and Orders After Contested Trial

Legal Issues

  1. 1 Whether the impugned statements conveyed defamatory imputations
  2. 2 Whether any defence of qualified privilege (common law, statutory or Lange) was available to Mr McGowan
  3. 3 Whether Mr Palmer established malice to defeat privilege

Ratio Decidendi

The court found that the relevant imputations pleaded by both Mr Palmer and Mr McGowan were conveyed by the impugned publications. However, Mr McGowan's defences of common law, statutory, and Lange qualified privilege all failed because he could not establish that his conduct in publishing was reasonable in the circumstances, and the common law defence failed for lack of reciprocity. Malice was not established against either party. Mr Palmer's defences to the cross-claim of justification, contextual truth, and reply to attack all failed as he could not prove the substantial truth of the imputations nor meet the requirements for contextual truth or reply to attack privilege. Both parties...

Court Disposition

Judgment for each party on their respective claims with modest damages; injunctions refused.

Orders

  • Judgment for applicant (Palmer) against respondent (McGowan) on statement of claim in the sum of $5,000.
  • Judgment for cross-claimant (McGowan) against cross-respondent (Palmer) on cross-claim in the sum of $20,000.