Indemnity costs for egregiousness

Defamatorium ... Clive Palmer's lessons in how not to wage a defamation action ... Acting for himself, then switching back to lawyers ... Failure to comply with case management rules ... Delays ... Last minute attempt to reactivate his case ... Submission for judge to recuse herself ... The kitchen sink ... Indemnity costs 

BIG, bustling Clive Palmer, the whale who swept-up on the beach of federal politics, has been lumbered with an order for indemnity costs after effectively thumbing his snout at the Queensland Supreme Court. 

If his chaotic litigation style is an indication of his approach to politics, then we're in for an interesting time. 

Two years ago Clivey commenced defamation proceedings against the Gold Coast Bulletin, one of Rupert's nest of Queensland organs, and Shaun Edwards McCarthy. 

The fleshy wheeler-dealer wanted $250,000 compensatory damages and $9,750,000 aggravated damages for each of his two actions - i.e. near enough to a modest $20,000,000 all up. 

Clive loves defamation cases. He's commenced proceedings against Mal Brough and Anna Bligh as well as threatening to sue Rupert Murdoch. 

The claim against the GCB arose from an article by Mark Pangallo under the headlines, Palmer's Penalty and Palmer Slammed Over Dishonourable Dealings. 

The well-padded plaintiff also complained that his photograph in the paper appeared directly above another headline, Jail for Love Rat. 

McCarthy, in his capacity as an arbitrator with the grievance committee of the Football Federation of Australia, had prepared a report into the "dishonourable dealings" of Palmer's Gold Coast United football club and its sacking of the German midfielder Peter Perchtold. 

You can read his report here. 

Among other things the newspaper reported: 

"The language used by Mr McCarthy is a damning reflection of the club and Mr Palmer, who is accused of bullying Perchtold into signing a one year contract by attempting to 'flex superior bargaining muscle' so as to make the German succumb to 'unconscionable pressure'." 

McCarthy's findings included: 

"I accept the player's submission that the conduct of the club was 'particularly egregious'. The club, or specifically, the person responsible for this decision, clearly acted dishonourably, showing utter contempt for the principles underpinning the law of contract." 

Palmer had no regard for the court's wretched case flow management timetables. Normally, it is expected that a case will be ready for trial or resolved within 180 days of filing of the defence. 

Here's what happened: 

December 13, 2012: Order for case flow review. Date by which a trial date be filed was set at July 26, 2013. 

February 26, 2013: Palmer files notices that he was now acting in person in both proceedings. 

February 22, 2013: Proceedings listed for case flow review. Palmer is represented by Shirley Morgan, who said she is an in-house lawyer for the plaintiff. New dates set for compliance with the orders made on December 13, 2012. 

February 27, 2013: Ms Morgan, describing herself as Legal Counsel on the letterhead of Mineralogy Pty Ltd, writes to the associate of Justice Roslyn Atkinson saying that the judge as a junior barrister had previously acted for Palmer and his companies. Apparently this related to a period in about 1990. The letter was not copied to the other parties. 

March 25, 2013: Lawyers for the defendants write to say they have no objection to Justice Atkinson's continued involvement with the case. 

May 31, 2013: Proceedings listed for further case flow review following the failure of Palmer to comply with directions made on February 22, 2013. Defendants still wanting plaintiff to answer request for further and better particulars. Answers were supposed to be served on April 26, 2013. 

May 31, 2013: There was no appearance by the plaintiff at the case flow review. Proceedings were deemed to be resolved by virtue of the self-executing order of February 22, 2013 and the failure of the plaintiff to to file a request for a trial date. 

June 13, 2013: Palmer filed a notice of appointment of HopgoodGanim as his solicitors. He also indicated that he wanted to reactivate the proceedings. There was an order that the plaintiff serve an application by June 28. 

July 1, 2013: Applications to reactive both proceedings were filed. 

July 16, 2013: Applications came on for hearing. They were strongly contested and were not able to be determined on that day. Adjourned part-heard to December 2, 2013. 

September 17, 2013: Associate to Justice Atkinson receives a letter from HopgoodGanim saying the judge had acted for Palmer and his companies when she was a barrister and that she should recuse herself from sitting on further proceedings in the Supreme court to which Palmer or related companies are a party. 

In an unrelated matter in which Atkinson was the judge, and HopgoodGanim acted for one of Palmer's companies, Atkinson was asked to made consent orders. Palmer advised the judge's associate that he had no objection to her making the orders. 

November 22, 2013: The judge's associate and the defendants were advised that the plaintiff does not intend to proceed further with the applications to reactivate the proceedings. 

November 29, 2013: Defendants' lawyers wrote to the plaintiff saying they would be seeking formal orders that the proceedings be dismissed. 

Dismissed they were on December 20 last year, along with an order that Palmer pay indemnity costs for the long-winded folly. 

Memories of Kerry Packer withdrawing his Malcolm Turnbull inspired defamation action against Doug Meagher. All Hunt J could do was award indemnity costs.  

Justice Atkinson took into account the lengthy delays in the litigation attributable to Clivey's inaction.

(Well, he was trying to save the nation by running attractive Palmer United Party candidates in as many seats as possible - Ed.) 

The judge was also disturbed by his noncompliance with court orders, the abandonment of his claims without explanation and without letting the defendants in on the secret. 

Like Mr McCarthy, Atkinson also used to word "egregious" to describe poor Clive's behaviour. 

Earlier on the proceedings the defendants made an offer to Clive to withdraw, with everyone paying their own costs. The top-heavy tycoon rejected the offer. 

"The blameworthy conduct of this litigation makes an order for indemnity costs against the plaintiff the appropriate order." 

Case dismissed. 

See: Palmer v Gold Coast Publications Pty Ltd and Palmer v Shaun McCarthy 

See also: Recusal perusal