Transcript
Hello and welcome back to the
Australian Law Student Podcast.
I'm your host, Oliver Hammond,
and today I had the privilege of
speaking with none other than
Federal Court Justice Michael
Lee.
Justice Lee has a notable career
in law, serving with distinction
on the Federal Court of
Australia.
In our conversation, we discuss
his path to becoming a Federal
Court judge, the intricacies of
federal litigation, and his
perspectives on the evolving
landscape of Australian law.
This episode provides valuable
insights from one of Australia's
most esteemed legal minds.
So sit back, relax and enjoy the
podcast.
Hello everyone and welcome to
the Australian Law Student
Podcast.
I'm your host, Oliver Hammond,
and on today's episode a very
special guest with me, His
Honour Justice Michael Lee of
the Federal Court of Australia.
Thank you so much for joining
with me today.
Not at all.
I just had my first question.
It's often my first question.
You've been involved in a number
of high profile cases throughout
your distinguished career, both
as a barrister representing
notable clients and as a judge
presiding over significant
cases.
Many lawyers speak of formative
experiences in their early years
that have shaped their careers.
Could you share some and
anecdotes or insights into your
journey as a barrister and then
as a judge?
Oliver, I think it's probably
best to start as to when I first
became a young solicitor, I had
no experience whatsoever of the
law.
I came from a non legal family
and my lack of knowledge of the
law was profound and the way in
which it operated in practice.
I went to the firm that I went
to which is a firm that rejoiced
in the name with Scott Baldy
because they offered you a free
lunch every day.
I got a job offer working for a
judge and I recall it was being
paid $17,250 a year and the job
as a young solicitor was being
paid I think 27,500 plus you had
free health insurance and you
had free lunch every day.
And so I thought well what moron
would actually work for a judge
when you can when you can earn
$10,000 more and get free lunch.
If I had of known anything about
the law, no doubt I would have
taken the former path and worked
for, I won't mention the judge,
but a very very highly respected
judge.
But if I had done that I would
not have had the great blessing
which I had on my first day of
work and that is meeting my wife
I've been happily married to for
30 odd years.
So I I started fairly green and
the great benefit of starting in
the 80s was before the rise of
the megaphirm.
And so I had a great fortune to
go to a firm which had one of
the best litigation practices in
Sydney.
But it would still do country
work, it would still do agency
work, it would still do work in
the local court and the District
Court.
And there was a bitterly to do
matters, start them, plead them,
run a huge range of
interlocutory type disputes, go
to a hearing and they were
manageable pieces of litigation.
The difficulty and the contrast
that you see today is that if
you go into a firm with one of
the best litigation practices in
Sydney now, you're just as
likely to end up working on a
case where you do discovery for
two years with the biggest
forensic decision you make as to
whether to use a yellow or a
blue highlighter.
I was constantly thrown into
circumstances completely beyond
my depth and it was really sink
and swim.
So I had a lot of experience
very young.
I worked for a solicitor who had
a visceral hatred of the bar and
insisted that I go up and I and
she didn't like appearing in
court herself.
She was the only, the only
female partner in the firm.
She didn't like to appear
herself and so I was constantly
appearing in front of judges
when really frankly my my
ability or not, I really she
shudder thinking back at some of
the appalling solecisms I no
doubt created for most of the
judges were quite nice.
There were a few terrifying
judges.
I mean judicial bullying was
looked at very differently then
as it was now.
I remember I was in fact
talking.
I was talking to someone over
lunch today remembering a
District Court motions list.
This would have been circa 1989,
where the judge was so incensed
with a back sheet being
improperly affixed.
He was he threw a stapler at the
the person appearing.
That sort of things used to
happen a lot more commonly than
they did in later years.
My Seminole experiences are
really doing a lot of a lot of
cases, a lot of manageable cases
where I was constantly put in
the circuit, put in the
situations which challenged me
and.
Were there any specific
memorable ones perhaps?
Well.
Lots.
I think when I look back, as you
say, I've done quite a lot of
high profile cases.
Most of those cases came a
little bit later in my career,
but the cases that really matter
to me looking back are ones when
I was perhaps say, very junior
barrister, where I was briefed
by suburban firms.
In particular.
I had the benefit of of having a
couple of small firms who used
to brief me in everything and
acting for people whose cases
may not have been well run
unless there was someone
conscientious to doing them.
I remember 1 case.
I won't mention the fellow's
name for obvious reasons, but
he'd signed a guarantee and the
National Australia Bank was
suing him and I was crossing
something a National Australia
Bank manager and I'm actually a
customer with nanny and I
remember I had to sign, remember
I had to sign some document in
all the case of my bank manager
came to court to meet me at
lunchtime and I signed a
mortgage during the course of
the case.
In any event, I remember that
case, I remember crossing
something, the bank manager and
I got some good admissions and
eventually it was a very good
District Court judge, Judge
Rolf, who heard the case and we
won.
And I remember the moment that
we won, this fellow just
collapsed in these feet of tears
and relief because it was the
difference between him spending
his the rest of his life in a
comfortable retirement or
alternatively losing everything.
And for the rest of his life, he
would send me a letter every
Christmas explaining what a
difference it made.
And I did, I think about three
or four of those cases where
acting for people against either
insurance companies or banks.
I mean, I did a lot of work for
banks.
But those cases where you think
because of whatever skills you
have, you want a case that
perhaps might not have been run,
well, they're actually the
things that that I've I've found
most memorable and and
irrespective which I've gained
the most satisfaction.
Yeah.
But look, I, I mean, I did some,
you know, high profile murder
case, defamation cases and
various other things.
And they're all fun and
interesting in different ways.
But any case, when you can make
a real difference to someone's
life, and particularly where you
think your skill set and your
ability to Marshall whatever
talents you have can make a
difference, They're the things
that are really the most
satisfying.
And often that's lost when part
of a big team in a huge middle
of the guys because you don't
really feel that direct, that
direct relationship between your
effort and and your your
intellectual effort or your
forensic decision on your skill
set and an outcome.
Yes, in smaller cases you do.
You're right, You're right.
Yeah, I suppose in relation to
that though, I mean during the
case if there is, if it is
relating to someone's, you know,
life savings or or or retirement
or something like that, do you
find that psychologically taxing
or is that something that you
can sort of switch off?
Absolutely.
Days done.
Well, look, I've never been.
I've never been someone who's
particularly affected by stress
because I think if you do your
best in I, I don't really worry
about it.
But I must say one of the
interesting things about
becoming a judge and something I
didn't really appreciate, I
didn't appreciate before I
became a judge is the difference
between levels of stress.
There's no stress in this job.
Anyone who tells you a judge's
life is stressful.
I don't quite get it because if
you had a busy, a busy and
demanding career at the bar and
running big cases at the bar and
the the level of vexation and
the level of stress that that
involves is in my view far more
than being a judge.
I, I as a judge, I only have to
worry about one thing and one
thing alone, not expectations of
clients, not expectations of
solicitors, not expectations of
the judge before you're for him,
you're appearing.
There's only one thing you have
to worry about and that is being
faithful in judicial life.
And that's an incredibly
liberating experience.
And and so instead of waking up
on the 1st morning the trial
with a knot in your stomach,
having worked hard over the
weekend, working out what your
opening is and then how you're
going to cross examine when the
other side's witnesses go in the
witness box, you can effectively
get a wash over you a bit.
And we have to do is focus on
trying yes, as you're given the
light to understand what the
right thing is to do the right
thing.
I suppose moving on now to a bit
of a change of topic.
In your time as a judge, I'm
sure you've sat in front of many
good advocates and probably some
not so good ones.
But for students and young
lawyers who are aspiring to
become barristers, what are some
key skills that they should
develop?
I was very lucky as a young
solicitor in that our firm
briefed extremely good
barristers when they were very
young.
And so I would brief people who
are now the leaders of the bar
in Australia when they were
young barristers who appearing
the District Court or the local
Court or, you know, the racing
tribunal or whatever.
And so through a process of
observation I was able to
understand how they went about
their jobs.
The older I get, the more I see
the most important role of an
advocate and the one which
separates the truly great
advocates from the good
advocates and the mediocre
advocates.
And it's not very novel, but it,
and it's much harder than it
sounds, but it is making
complexity reduced to simple
propositions.
And I recall I was briefed in a
case of a large, and this is
just a representative example.
And I use the example because
the person who was leading me is
now the Chief Justice, Steven
Geigler.
And it was a very comp.
It was a case.
It was one of the last who I
think was the first securities
class section ever go to really
a trial.
And he and I were brought into
it.
There are other barristers
originally doing it, but the
firm decided to get us involved.
And superficially it was very
complex, even though boiled down
the legal propositions weren't
that difficult.
And I remember him saying that
effectively you should be able
to reduce a case, however
complex to at least one sheet of
paper or 1 1/2 sheets of paper.
Which he then proceeded to do 1,
which he handed out hand it to
the judge during the course of
his opening and essentially flow
card charted.
Thanks.
Now that's one example, but I
saw it so often where good
advocates would not run
subsidiary points would get to
the point.
And, and one of the things that
you see with nervous young
advocates is the fact they have
to throw everything in,
including the kitchen sink.
But the great skill of advocacy,
you're never going to, you're
very, you're not going to win on
your, your second best point if
you don't win on your best
point.
So if there are five different
courses of action you may be
able to run, but one is the
best.
For example, it often occurs in
cases where you might be able to
see somebody nuisance city
negligence, but for misleading
deceptive conduct and there
might be all sorts of duty
issues that arise in relation to
negligence claims.
Well, why run it?
Yes, you've got a statutory
duty.
It's much more straightforward.
So I, I, I would just encourage
those people, if they
particularly want to become a
barrister, that try, as you get
more confident in your, in your
craft to ditch the unessential
and concentrate on the essential
and try to simplify complex
things.
I mean, they often say that the
sign of true mastery is being
able to simplify complex
matters.
And I think that that's, I
suppose law is no exception to
that.
Absolutely.
And so thanks you.
Thank you so much.
I now move on to some
standardized questions that we
ask all of our guests just to
get to know them a little bit
better.
What was your favorite subject
in law school and and why?
Equity.
And the lectures were Ma, Gamo
and Lehane.
And it was an 85% closed book
exam, which I think is a
wonderful idea because there's
nowhere to hide.
And I remember sweating blood
over that exam.
And I did extreme.
I did very well in it, thank you
very much.
But he just stayed with me.
Yes.
Yeah.
And I think one of the things
that differs between people who
went to the University of Sydney
during a particular time and
even modern students at the
University of Sydney and
students elsewhere is the
ability to have a conception of
equity as an integrated, an
integrated set of doctrines and
remedies which have vitality.
And you go to other parts of
Australia and they're sort of
walking fusion fallacies.
And this, I think a lack of
appreciation of the ongoing
vitality of equity and, and
understanding how equitable
interests are created,
understand how they are people
enforce equities according to
principle is something which
I've always found terribly
interesting.
So yes, that was my favorite
subject.
And, and, and and look, it's
something because of the very
demanding nature of that course
and the fact that you had to
learn it so well to be able to
regurgitate it in a three hour
close book exam.
That's that's, that's stayed
with me.
Yeah.
Wow.
My next question, do you have a
book or a movie that's
significant to you and one you'd
recommend to students?
With a law theme, I think there
are two.
The first is a.
If you look at my door there,
you'll see a portrait of Saint
Thomas More, who was the Lord
Chancellor under Henry the
Eighth and had the courage to
resist the King's entreaties
that he signed off on the Act of
Supremacy and cave into allowing
the king to get a divorce from
Catherine of Aragon so we can
marry Anne Berlin in 1535.
And there's a film called The
Man a Man for All Seasons by
Robert Bolt was a play that was
a profound effect on me.
It's a wonderful story about
moral courage and about doing
the right thing.
And he's a fascinating man and
it's a great film.
Paul Schofield, who was a stage
actor, didn't do a huge number
of films.
The I'm interested in this
because my daughter is an
aspiring actress and, and, but
he he plays a role wonderfully.
And it's just like a Seminole
tale.
The other film, a modern film,
again on the low focus.
I love his the Verdict, which is
a film from the early 80s about
I washed up alcoholic Boston
lawyer.
He's got a case where he's he's
his practice has gone down the
toilet and he's got a case
that's given to him by friend
against the hospital for some
people.
And he decides to run it and
it's all going terribly badly.
And that the I won't spoil it by
giving details of the plot, but
eventually it comes back with a
victory for him where the jury
asks the immortal question, can
we give the plaintiff more than
they asked for, which is I've
been involved in the case where
there was a variation on that
theme.
But it's a fantastic film and
Paul Newman is pretty near.
It's from the early 80s.
So they're the two films that
I'd, I'd I think the two best
legally themed films and which
both of both of which have meant
a lot to.
Me.
Thank you so much.
Now on to my third question.
Did you always envision yourself
practicing as a judge?
And if not, what did you think
that you'd do?
I always thought that I would
not as a judge, no.
I had no expectations I'd be a
judge.
I probably started thinking
about that after being a
barrister for some time.
I, I, I always, always thought
it would be a wonderful thing to
do.
But I really loved being a
lawyer.
I really loved being a
barrister.
I loved cross examination.
I loved the camaraderie of being
in a team and I always, I
enjoyed being a solicitor.
I probably enjoyed being a
barrister more and the more
senior I got the more I enjoyed
it.
I was running up once whether I
was interested.
I wasn't hugely interested in
men because I still had two
children at school and I was
earning good money and I wanted
to continue earning very good
money and I bought a rather
expensive house that I needed to
pay off and then.
There were a range of
circumstances which coalesced
which meant that when I was
asked the second time then I was
very keen to do it and I haven't
regretted it for a moment.
Well.
Thank you so much.
We're approaching the end of the
podcast, and so I'd just like to
ask my final question.
Is there a piece of advice that
you've received that stands out
from the rest and one that you'd
like to share?
It won't be a particularly
popular piece of advice, so, or
one that necessarily resonates
with the generation who may be
listening to that's your
podcast.
But it's something that I said,
I think you're in an audience,
as I said before, and that is I
don't believe in work life
balance.
Everyone will tell you it's
important to maintain a work
life balance.
Everyone to say you got to
prioritize you, you know, but if
you truly love what you're
doing, you don't want such a
balance.
I, I, I've had, I, I hope I've
had an extremely successful
personal life.
I've had a very happy marriage.
I have a wonderful relationship
with my children and I don't
think that they would ever think
that I in any way neglected my
responsibilities as a father.
I was very keen.
If I had to work on the weekend,
I'd get up early in the morning
and I'd work so I could spend
time with them going to school,
sport, etcetera.
But if you really love your
work, you want to do it.
And, and frankly, when you're a
young lawyer, you do have to
work very, very, very hard if
you're going to be a success.
And, and there is no substitute
for hard work.
And if you're not prepared, if
you don't want a job where you
have to work terribly hard, then
get another job.
Yeah.
And I think, and my observation
is there's been a bit of a
generational difference in the
way in which people have an
attitude towards sacrifice.
And there is an element of SAC.
Look, certainly it was very
explicit when I became a young
lawyer.
You had to sacrifice in order to
achieve benefits which would
come to you later.
And frankly, I think that's from
what I gather speaking to
younger lawyers, etcetera, I'm
not sure if that's the way in
which people think about things
now, but I found it very
valuable.
I worked very hard as a young
lawyer.
I loved every minute of it.
And it's meant that I think I
really appreciate it as I've got
older, the lessons that I
learned through that endeavour.
So look, I suppose there's one
bit of advice.
I was, I was, I was given by
example.
And that is we expect a lot out
of you.
And the fact is you've got to
roll out your sleeve and
scratch.
Yeah, yeah, if you're going to
be a success.
Thank you so much for your
insights today and I just wish
you all the best for the rest of
the year.
Thanks so much.
Thanks very much.