A defamation battle between Clive Palmer and Mark McGowan is set to drag into next year, with domestic border closures having prevented mediation.
The Federal Court on Friday rejected the West Australian premier’s bid to have the matter pushed back until the second half of 2022.
Barrister Lyndelle Barnett, representing Mr McGowan, said there was no real certainty whether the premier would be available for a proposed February trial in Sydney.
She said the parliamentary sitting calendar for next year had not been released and “there was a risk” border closures could still be in place.
“I appreciate that my client has a degree of control over that but he has implemented those border controls for a reason,” Ms Barnett told the remote court hearing.
“For all of those reasons … we would be seeking to have a hearing in the later part of 2022.”
Justice Michael Lee said such an outcome would be “unsatisfactory” and such cases should, by their nature, be resolved promptly.
The judge flagged he would look to set aside dates in January and February with the trial expected to last up to three weeks.
He indicated it could be shifted from Sydney to Perth to accommodate the premier’s commitments.
Ms Barnett said an order for in-person mediation to take place before the end of September had not been possible to fulfil because of continued border closures.
She sought a variation to the order made by Justice Richard White that would permit mediation to be carried out virtually, adding that former WA Chief Justice Wayne Martin had been nominated as a potential mediator.
But counsel for Mr Palmer, Peter Gray SC, said an in-person hearing remained preferable.
He said while his client had been open to mediation, Mr McGowan had publicly dismissed the idea as “pointless”.
“In this particular case involving these two particular litigants, who I’m instructed have never actually met, it would be the sort of case where mediation in person is desirable if there’s to be any true likelihood of mediation working in the way that it can,” Mr Gray said.
Noting the “emotional baggage” between the pair, Justice Lee agreed that in-person mediation would be preferable and likely be held in Perth.
Mr Palmer last year filed a lawsuit against the premier, claiming his public comments, including labelling him the “enemy of West Australia”, had damaged his reputation.
Mr McGowan lodged his own defamation counter-claim a month later.
A separate High Court matter between Mr Palmer and the state of Western Australia is awaiting judgment.
It relates to extraordinary legislation passed in WA’s parliament in August to amend a 2002 state agreement with Mr Palmer’s Mineralogy company and terminate arbitration between the two parties.
The bill is designed to block Mr Palmer from claiming up to $30 billion in damages from the state.