Palmer vs Australia: Solicitor General Stephen Donaghue KC labels Clive’s $300bn claim weak, uncorroborated

Clive Palmer’s gargantuan claim for $300 billion in damages from his own country — stemming from his bitter battle with Western Australia over his iron ore interests — has been lambasted as weak and uncorroborated by the country’s solicitor general Stephen Donaghue KC.

A league of legally trained ladies and gentlemen gathered at the Hague in Holland on Monday, as the largest investor-state claim ever brought began — by Mr Palmer, against his own country.

The “investor-state” being used in the multi-billion dollar showdown is Singapore, where Mr Palmer’s company Zeph Investments is based.

Mr Donaghue said Australia intended to show that Zeph was only ever incorporated for one reason — to potentially sue either state or country as the arguments over the WA state agreement turned toxic.

The tribunal was told that one of the very first clues Mr Palmer was given that WA intended to change laws to torpedo his long-standing agreement was in November 2018, in the pages of The West Australian.

In late 2020 — after two arbitrations had gone Mr Palmer’s way — the McGowan government introduced the secretly drafted Amendment Act, which prevented any avenue for him to make a $30 billion claim against WA.

Instead, Mr Palmer now seeks US $198,202,414,285 against Australia, due to alleged loss of a contractual entitlement, “sovereign risk” to other projects — and $10b in “moral damages”.

“That is an incredible figure — the sheer size of the claim makes this proceeding one of great significance to Australia,” Mr Donaghue said.

“But it is a claim with weak jurisdictional foundations.”

The tribunal was told the genesis of Zeph developed from an email on a Saturday night to a new company the following Monday. And an expert witness is set to be called to show that the company made or received any investments at any stage.

Mr Donaghue said Australia intended to call five experts and one witness to debunk Mr Palmer’s claim – including an investigator from Singapore who has been digging into Zeph’s business activities.

And he revealed that Mr Palmer’s huge legal team — which included his wife Anna — had chosen not to cross-examine any of those witnesses.

“That choice has the significant consequence — that Australia’s evidential case is in substance, unchallenged,” Mr Donaghue said.

“The very clear inference is the claimant had no answer to that case.”

The tribunal was also told that along with a “complete absence” of contemporaneous documents about Zeph’s creation, four of Mr Palmer’s eight proposed witnesses had also been withdrawn.

Just days after Australia flagged that they intended to call them all for cross-examination.

“That 11th-hour decision is we say remarkable — it leaves large parts of the claimant’s written pleadings unsupported,” Mr Donoghue said.

“It leaves the claimant almost entirely reliant on the uncorroborated evidence Mr Palmer himself — that is really all you have.

“The tribunal should take a very dim view of the claimant’s attempt to curate the facts so that Mr Palmer himself can completely control the factual narrative he contends the tribunal should accept.”

In his response, Mr Palmer spoke for himself — while also showing video footage of his mining interests.

“(My) position is that the case theory of the (government) is absolutely wrong and has no basis in fact or law. (My) position is the (government’s) case is a fantasy and a hypothesis created for the sole purpose of delaying this arbitration,” Mr Palmer said.

And the billionaire also gave the tribunal his own view — about himself.

“I tend to want to approach these matters directly so that I’m available ... to answer any questions they have. I take control of these matters and make decisions based on my own judgement,” he said.

“I take decisions in good faith which I accept are often unconventional, but they’re always taking the view of resolving issues swiftly and fairly.

“I’m the only person with a full and direct knowledge of the relevant facts in this case, and ... I’m dismayed by the ongoing attacks of my credibility.”

The Permanent Court of Arbitration is due to sit for three days to hear from both sides on Australia’s objections to Mr Palmer’s claim.