Premier Mark McGowan claims Barnett Government missed chance to avoid Clive Palmer’s $30 billion damages claim

Former Premier Colin Barnett ignored advice to appeal one of Clive Palmer’s early wins in the long-running legal dispute that the McGowan Government now claims puts WA at danger of a damages payout of up to $30 billion. A memo tabled to Parliament by Premier Mark McGowan this afternoon revealed the State Solicitor’s Office recommended Mr Barnett appeal against an arbitral award handed down in 2014, which is now a key plank of the Queensland billionaire’s claim against WA. Mr McGowan said he backed Mr Barnett’s decision to first knock back (in 2012) and then attach 46 conditions to a proposal to develop Mr Palmer’s Pilbara iron ore tenement (in 2014). “But it's come to our attention this morning that there was advice given to the government in 2014 that could have potentially put a stop to this whole sorry saga then and there,” the Premier said. The memo, authored by current State Solicitor Nicholas Egan, said the advice was provided by Robert Mitchell SC, who is now a WA Court of Appeal judge, following the handing down of the arbitral award in May 2014. “Whilst I am not in a position to provide you with a copy of the advice (as it was provided under a former Government) I take this opportunity to confirm that the advice was to appeal,” Mr Egan wrote. “Given there was no appeal of the award then self-evidently the advice was not followed.” Mr McGowan claimed the Barnett Government had missed an opportunity to protect the taxpayers of WA. “What is done is done. I cannot undo the inaction of the past but we can do our best to rectify the situation we now face,” the Premier said. Mr Barnett said he could not recall the reason his government chose not to appeal the 2014 award but said it may have related to the difficulties in attempting to deal with the mining magnate. “There was probably a view that Palmer was not going to negotiate in good faith,” Mr Barnett said. “The guy is so litigious and difficult in negotiations … every other State Agreement I dealt with, such as Gorgon and Wheatstone, involved credible proponents who would work to reach an agreement. “Palmer was just in a different world.” The former Premier said Mr Palmer was never interested in developing an iron ore mine on the Balmoral South site — only selling an approved project to a Chinese-backed entity — and in 2012 submitted a “so-called proposal” that fell well short of the usual level of detail. “In the first instance (in 2012) it was not the sort of proposal you would need to go ahead with a major project — it was just totally inadequate,” Mr Barnett said. He said the Department of State Development had nonetheless worked with Mr Palmer to refine the project so that it could be “taken more seriously”, which had resulted in the application of 46 conditions to the proposal in 2014. “Those conditions were typical of any large project like that and addressed environmental concerns, safety issues, water quality and things of that nature,” Mr Barnett said. “But Palmer did nothing, he didn’t address them.” Revelations about the missed opportunity to appeal the 2014 arbitral award come as Parliament’s Upper House continues to debate unprecedented legislation designed to kill of Mr Palmer’s damages claim. An attempt by crossbencher Aaron Stonehouse MLC to refer the Bill to a committee for further scrutiny — backed by the WA Liberals — was earlier defeated. It is now expected the legislation will pass by the end of what looms as a long sitting day.