"Arguably the best-known judge in the land" | Justice Michael Lee

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.