Clive Palmer’s bid to prise open Western Australia’s hard border is scheduled to return to the Federal Court today, and WA government lawyers are poised to use the opportunity to ask for a retrial.
Mr Palmer brought the action against the WA government after his application to fly into the state amid the coronavirus pandemic was rejected.
He said the state’s hard border closure was likely unconstitutional.
The Commonwealth initially joined the case in “support” of Mr Palmer’s position but withdrew from the action on the weekend acknowledging the “high level of concern regarding public health in the Western Australian community”.
Today’s hearing before Justice Darryl Rangiah in Brisbane has been described as a “case management hearing”.
It has been organised in response to the Commonwealth’s withdrawal from the case.
The WA government now wants any evidence presented by the Commonwealth struck from the record, revealing on Thursday it would ask for a retrial at today’s hearing.
‘Let’s just start from scratch’: McGowan
The Commonwealth provided a number of expert witnesses to the court, and WA Premier Mark McGowan believes WA’s case would be stronger without the federal government’s contributions.
“When we were fighting Mr Palmer and the Commonwealth government, it was not as good as just fighting Mr Palmer,” he said on Thursday.
He also acknowledged his push to strike Commonwealth evidence from the record would delay the trial.
“Let’s just start from scratch, let’s have a blank sheet of paper, start again without the evidence that was already there,” he said.
“That delays any trial of course but that’s naturally going to occur … we’re trying to save lives.”
On commercial radio on Thursday, Prime Minister Scott Morrison said he had “no issue” with the case being “redone” or “restarted”.
But it was unclear whether the Commonwealth would say as much in court.
‘His quarrel is elsewhere’: Morrison
Earlier on Thursday, Mr Morrison said he had received a letter from Mr McGowan about the issue.
“I’ll be writing back to him in a way that I believe will assist the WA government with what they’re seeking to achieve,” he said.
“The WA government asked us to withdraw from the case, with no other requests.
“We did that on Monday and we did that fulsomely and comprehensively.
“The WA Premier — he has a quarrel not with me on this at all.
“His quarrel is elsewhere.”
A retrial would increase the cost WA is bearing to defend the case, which WA Treasurer Ben Wyatt expected had already amounted to several hundred thousand dollars.