International Law & Suing Sovereign States | Damian Sturzaker

Hello everyone and welcome back to the Australian Law Student Podcast. I'm your host Oliver Hammond and in today's episode I was joined by Mark Lawyers partner Damien Straszka, A distinguished partner in the Disputes Resolution team at Mark Lawyers. Damien has over 25 years experience as a seasoned expert specialising in international arbitration and cross-border disputes. Beyond his legal practice, Damien contributes globally serving on international committees and educating future leaders in law. It was a pleasure to sit down with him and discuss a more international perspective on the law. So without further ado, sit back, relax, and enjoy the podcast. Hello everyone, and welcome to the Australian Law Student Podcast. On today's episode, I have Damien Sturziker, a partner from Mark Lawyers. Damien, thank you so much for joining with me today. Pleasure to be here. I'll start off with my first question and that's with your extensive experience across various jurisdictions. Could you please please share some key differences you have encountered on your journey and why you've decided to practice in Australia? Sure. So, so I was lucky enough early in my career to take up an opportunity of going on exchange. So after working here in Australia for a couple of years, there was an organization which is still called the Association for International Young Lawyers. And what they allow you to do is to go and get placed in different law firms overseas. And at the time not speaking another language. I thought, well, I'll choose a couple of locations where I know I'll be able to practice in English but still have an experience of a foreign jurisdiction. So where I went to a few countries in Scandinavia. So I had time in both Copenhagen, in Stockholm, and also in Helsinki. And that gave me a really good exposure to a civil law system. And I worked at law firms for about three or four months in various spots. And the thing that struck me both in that very early experience and then subsequently sort of as an international lawyer where we deal with foreign jurisdictions all the time is it's not so much the differences, it's more the similarity of practice. So you have an opportunity to look at the way particularly our focus is disputes and commercial cross-border disputes. The way that people approach the resolution of disputes fundamentally is the same whether you're applying civil law or common law. So and the fundamental rules, while there will be differences in relation to say, legal professional privilege or the way in which even to some extent professional ethics operate, the coaching of witnesses is absolutely encouraged in places like the United States, but is discouraged in common law systems in Australia. But for the most part, the way that people approach law and justice is fundamentally the same. So if you're analysing a case and you're trying to work out what's going to be the right outcome, the instincts that you develop as a common lawyer studying here in Sydney or as a foreign lawyer where you've maybe undertaken your studies in the Netherlands generally are going to be the same. Of course, you know, the, the authorities that you reference are going to be different, but the way in which you apply them is also going to be the same. And suddenly, you know, the, a lot of the practice that we do here at Mark has been in international arbitration and arbitration's a great example of this where you see a meshing and a moulding of in many cases the best of both common and civil. So you have the civil law system says, listen, we shouldn't have overly complicated pleadings. You really should state your case and then there should be an answer to that case. And that's it should be written in a narrative form, not in a highly technical form. So we see that we also see from point of view of witness statements that those witness statements really should be governing the way in which the case is run. It should be less about detailed and lengthy cross examination. So adopting the civil system, which says, hey, let the documents speak for themselves. Don't ask witnesses to go on at boring detail about what the about what the documents does. So for the most part I, you know, I think I've learnt a lot from different systems, but I was very happy to return back to Australia and practice essentially an international practice from here from Sydney. Hmm. And so learning about different systems, I suppose, does that in turn make you perhaps more equipped and better skilled to be in Australia and and a a Commonwealth system? I think I, I think any exposure that you get to a different way of doing things means that you adopt A more flexible approach and you've got a greater range of options within sort of your armoury to try and resolve something. So even if I'm dealing with like a domestic arbitration, you can say, well, hang on. We had a recent one which was provided for the option of a no hearing. So it was a matter that was going to be heard just on the documents. And so that both raising that with the other parties and with the arbitrator and saying, well, do we really need, is there any real value in this case in allowing for cross examination? And given both the value of that particular case, the issues involved, it allowed us to sort of explore that option. So, so yeah, I think that you can take the best of both worlds, adopt it to your situation here in Australia. And also now if you're a sort of a, if you're a budding young international lawyer, the opportunities for practice here are much better than they were, say, when I started doing it 30 years ago. So, and, and so why do you think that is? I mean, I've talked to a couple of barristers and it seems to me that Australia for the size of its country and perhaps for its geographical location seems to have quite a strong foothold in sort of international legal affairs. Is, is that because there's a lot of sort of cross-border transactional work that's happening in Australia sort of overseas or I think it's? I think it's a combination. I think we have, we have exceptional legal education. So you know, Australian universities are regarded very, very well around the world, including University of NSW, University of Melbourne, you know, rank very highly. So we, we train our young students really well. They are eagerly sought after in foreign jurisdiction. So, you know, a lot of Australian lawyers are practicing in, you know, in London, New York, in the continent. So that, that is something that then what often happens is that those people go away, they get, you know, 3-4, ten years experience internationally and then come back. So that has sort of, and that's been not a recent thing. That's something that's been occurring decades. So getting, you know, going across and getting your experience sometimes by way of postgraduate study at places like Oxford and Cambridge, but other other times just going and practicing has meant that we that we get this great cross fertilization and we get some really good people. The best example I can think of just recently in relation to the matters that are being heard before the National Court of Justice in relation to Israel. You look at that and there are, you know, there's Hillary Charlesworth, who's one of the National Court of Justice, just judges. Then you have Australian lawyers who are acting as advocates in those cases or are making submissions. So you sort of constantly see, you know, Australians popping up, yeah, in these international law cases, which is great. Yeah, Yeah. That's exactly what I mean. I mean, yeah, just sort of the the Australians you continuously see in the sort of international law field is, is is really interesting. I suppose the yes, it is a testament to the high quality legal education that Australia provides. So, yeah, I suppose sort of moving on, can you share any insights into the key challenges and perhaps strategies used in some of the major cases that you've been a part of? Yeah, of course. And I think, again, I sort of reminded that a lot of the work that we do here at Mark is regarded as strategic litigation. And that that's not to detract from the fact that, you know, a case has to stand on its own merits. You can't bring a case that doesn't have legal merit that both as a lawyer that you are prepared to sign off on and say, you know, fundamentally have a case. But cases can be brought for a variety of reasons with a variety of outcomes. And certainly here we've run cases which might, you know, go from anything to do with mandatory detention, seeking to overturn the government's approach in relation to mandatory detention, in relation to refugees, through to electoral law, through to international law cases. So, and in many cases what you're seeking to do sometimes. And we ran a case which related to rules that have been imposed by the Australian government preventing people returning from India during COVID. And we were seeking to overturn the right that the government, sorry, the rights that the government was seeking to assert over preventing people from returning. Now during the pendency of that case, the government changed the laws. And so whilst the case became irrelevant, it it achieved the outcome that it was seeking to achieve, which is to allow Australian citizens to return to Australia without it being prevented. More recently a case that I've had a heavy involvement in has been the Qatar case. So we are suing the government of Qatar and Qatar Airways in relation to a group of women who were Australian women on a flight back during the pandemic and they were detained in Doha Airport. They were taken off the airport, off the airplane and conducted. Bodily searches were conducted on them because an infant had been found in a bathroom and they, the Qatari authorities were trying to find the mother. So these women were conducted to invasive body searches and, and no recompense, no apology, no efforts were made on the part of the Qatar government to try and deal with our group. So we've brought proceedings here in Australia against the sovereign authority, the Qatar government as well as the the airline, saying that essentially you've breached international law, you've breached the Montreal Convention and that these women both deserve compensation, amongst a whole variety of other things that we say they're entitled to. Now, that's a case that clearly, you know, it's no small feat on the part of this group of women to sue a sovereign. In addition to that. And simultaneously we have conducted a campaign which has included reaching out to the government and saying to the government, listen, the way in which you're treating Qatar Airways, perhaps you need to look at whether or not they should be granted additional landing slots. And there was a a lot of attention paid to that. And ultimately the government decided not to grant Qatar Airways landing slots, and that caused a huge amount of political storm. In addition to that, we brought proceedings before the OECD. And what we saw from the OECD was a declaration that Qatar Airways had acted contrary to the International Covenant on Civil and Human Rights, and we said that there should be a finding there. So if you like, we're running a legal case that, you know, operates within its own conventions about whether or not a sovereign can be held liable for actions here. But we're simultaneously running a variety of other efforts on the part of our clients to achieve an outcome. And that's what we, I think lawyers need to be flexible if they want to run these sort of more complicated cases. You need to be, at the end of the day, you need to be a very good lawyer to be able to run cases, but you also need to be strategic in the sort of outcomes you're seeking to achieve. Yeah, yeah, I suppose does take that a little. Bit I mean. Going back to the discussion about the case with the people come back from India, yeah, how the government sort of changed the law halfway through. I mean, you mentioned that that you you received the outcome that you were looking to receive, which was that the government changed the law. Would you in those cases, what happens with proceedings? I think at the moment a lot of law students are doing federal institutional law and so something like standing is relevant. And I know that in some instances, part sort of the grief party still seeks for a declaration is that is. That, yeah, it is interesting. And I guess that can be challenging because we're a private commercial law firm. It can be challenging because you see some of these pieces of litigation and in the case of the India case, yet the government changed the law. But of course at that point, either the case is then discontinued and you have to reach an agreement with the other party in relation to costs. And again, that's ultimately a position of negotiation. But you certainly your clients are in a situation where they still could be liable for costs. Taking a more recent example, which not a matter that we're acting on, but we're very interested in, was the case brought on behalf of electric car owners in Victoria. Yeah. And the the proceedings that were then brought and prosecuted. So in in that situation, you have a situation where, yeah, they're seeking a declaration. There's not going to be an award of damages. So as a law firm, and that was obviously brought by a private law firm specialized in this area. In that case, the best case that you're going to get is potentially that the other side might have to pay your costs or you'll get the declaration, but you'll never get a damages award. So in that situation, either the the law firm may be then get paid its costs or what it might do. And this is something that is a really developing area is law firms and their clients will look to crowdfunding and they'll crowdfund. And we're running cases on behalf of a a outspoken protester who was objecting to the actions being taken by Adani in Queensland. And Adani took actions against him seeking that he be prevented from taking those actions. They obtained an injunction and then he went to via GoFundMe and has raised hundreds of thousands of dollars in funding in order to be able to try and overturn those injunctions. So there's alternative means of, you know, achieving outcomes because, of course, it's not like law firms can operate on a pro bono basis for everything. They need to sort of, you know, pay their young lawyers and, and, and pursue, you know, sustainable practice. Yeah. So, yeah. But there's a variety of ways now. Yeah. And that that crowdfunding I think is in some notable cases, I think there's some the spring to definitely spring to mind. So yeah, it's definitely interesting how those things are being funded. And so with the Qatar Airways case, you spoke a little bit about sort of putting a little bit of governmental pressure. That's something that sounds very unique to perhaps a law firm that deals with more international matters. I feel like, I mean, there might be in certain policy areas, if the law firm sort of specializes in tax, for example, there might be some recommendations to the government in sort of tax reform and that sort of thing. But in terms of speaking to the federal government per SE and trying to actually influence sort of quite key international policy sounds very unique to to the area of international. Law and certainly I I would agree that that probably where might probably take a more aggressive approach in relation to some of those issues and certainly in relation to the treatment of survivors in sexual assault. The work that one of my partners here has done with the Grace Tame Foundation has been about changing legislation and the way in which the assault of people under the age of 18 has been treated in legislation and and that has resulted in a change in the law. So legislation has been changed in various states to reflect what we were seeing to achieve. So that is that's an active engagement with legislators and say, listen, this needs to change. And so that sort of policy advocacy, you know, it is certainly law firms will adopt that approach, particularly if if the clients are on site in saying this is something that needs to change and we need to deal with it not just by way of a test case, but deal with it, you know, at a more fundamental basis. So, but that's something that, you know, we would regard in the appropriate case as something that you'd need to think about. And sometimes it'll be, you know, it won't be us, it'll be lobbyists and it'll be other people. But something that we if it was central to the legal issues in the case that we think needs to be pursued, then, then that's something that we'll do. And so I suppose again on that vein is perhaps adopting this sort of government sort of lob sort of pressure, putting pressure on the government. Is that at times a bit difficult, I suppose to reconcile with perhaps a law firm, which I suppose traditionally isn't really seen as sort of taking sort of a approach to something I don't know if that I know what's. Correct. Yeah, No, I know what you mean. Like certainly law firms pride themselves on their objectivity and on their independence and, and I guess we do as well, but we recognize that there are some things that require advocacy and, and that you're entitled to take a position on. And, and I think we're proud to do that. That's something that some law firms, and I understand also there's often this dilemma between the boutiques and big law, and big law will have a much harder job undertaking that exercise because there are so many interests. They have clients across such a wide spectrum. There's a commercial hesitancy to upset, you know, if you acted for the Farmers Federation. But on the other hand you had you, you active the, the greens, you might, there will be tensions there. So you end up not taking a position on anything. And we don't have those sort of issues with, we're able to, to manage that or we have a, some more unified purpose with what we're doing. So and there's a role there for, for, you know, BT firms. So that aspect I, I agree with you, not many law firms do, but but I guess we're very happy that we can. Happy. Yeah, exactly. And so there's also, I suppose the internal issues that that come with big law in the fact that you have, I suppose, higher up people in higher up positions that might have different, different stances and that sort of thing. And so having a, a smaller law firm, I suppose in that sense means that you can sort of fight it in sort of one, a unified sort of. It's virgin cognitive, yeah. Marshalling everyone together. Yeah. You know, so we're we're ten partners here. It's much easier to have a conversation with 10 partners than 100 and. Ten, Yeah. Or in some cases 500. Yeah, yeah. So much easier to get a position of unanimity. And then we pretty much that's the approach we adopt. We won't do something if if someone is dead set against it, we'll only do it on a unanimous space. Yeah, so. Yeah, that's good. I suppose in a similar vein, can you tell us about a case in in your time that's particularly proved to be a challenge or how it contributed to your growth as a legal practitioner? I suppose lawyers often speak about a certain case, or maybe one or two cases that were really formative in their legal education was what were. Yours, yeah, yeah. I had a case where I received an e-mail through an international contact where a lawyer from Nigeria said, look, I want to instruct you on this case. We're going to be seeing the Commonwealth government and, and instrumentality of the Commonwealth government and I'm going to be visiting Sydney. Can I come in and see you? And all of us have been subjected to Nigerian scams. And so I had a degree of skepticism about anything. And then anyway, one day I literally turned up and there in the waiting room was this lawyer from Nigeria who was there, who then explained to me what the nature of the case was. And it then led to probably six years, years of litigation all the way to the High Court where we at the end of the day recovered A damages award of over 40 million Australian dollars against. At this point, the instrumentality of the government was responsible for the development of plastic banknotes. And as you know, summarizing what was a six year journey, but essentially it was all about these bank, the ability to print. And sell this technology is used all over the world. So the plastic pack notes the Australian government wanted to sell that technology to Nigeria, one of the largest cash economies in the world. My client was the client who introduced the the technology to the Nigerian government. He was the, the not the lawyer, but his client was the person who was very well connected with the Nigerian government, was responsible for passport control, etcetera, secured the contract. The banknotes were rolled out very successfully. And then this instrumentality terminated his contract as it turned out fraudulently. And they, they then embarked into a whole bunch of other shady deals. And ultimately this thing called the currency scandal emerged and people were sent to jail both in Australia and overseas. But my client sat there having had a very valuable contract terminated wrongly and he said, well, I'm not going to put up with this and I, I will sue the Australian government and the, the in the instrumentality that was that developed the technology and had lined to him about the circumstances of the termination. So, but where the challenge emerged was that we, we ran the trial before a single judge in the Federal Court and we received an order of 60 million Australian dollars. Now, quite frankly, I, I think the damages that we were actually seeking was something like 30. So at the time that it was when something sounds too good to be true, sometimes it is. And not surprisingly, the full federal Court overturned the judgment. So we had a situation where we went from the client getting 60 to the full Federal Court said actually, no, the trial judge is an error and you can have three. So our damage went from 60 to 3 million and we were faced with the challenge of having to get special leave to appeal to the High Court and then get before the High Court. We, this was this at this point, we were now in the pandemic and we're actually the first trial heard before the High Court remotely. So we, we had this weird situation and we'd instructed, you know, the very best of counsel, etcetera. And we, we turned up to the, the, the High Court here, but the judges of the High Court were sitting all over Australia. So they, you know, were dialing in from Queensland, from Canberra, from wherever. Oddly enough, one of them was actually sitting in a different court up there in Queens Square. But we were sitting in the court, our opposition was sitting in the court, but everything was on audio, visual. And so, yeah, it was the first, first trial to be heard in that format before the High Court. And yeah, yeah, we subsequently won. So it was a very happy outcome for us and the client. And you know, fortunately, the other side paid, paid the damages that they had to pay. That case is amazing in in several ways, so yeah. It was a it was a remarkable case, but it was a remarkable case in so many ways because our client was disbelieved in some respects by the trial judge, but accepted in other respects. And I was watching as I guess 20-30 thousand other people were the Bruce Lemon hearing the other day. And there was reference made to our case as being an authority in relation to what do you do when you don't accept someone's evidence on a particular point, but still in terms of credit, you generally accept them as credible witness. So, so these things sort of continue to resound. Yeah, yeah, yeah. Later on. Well, that's amazing. Thank you for listening to the Australian Law Student Podcast. The following segment is Questions from the Bench. Here we ask our guests a set series of questions designed for you to get to know them better and to get the key advice to help you on your journey. Each week we also take a question from you, our audience. Head over to our socials and send us a message to get your question answered. Thanks for listening. Now. We'll move on to some rapid fire questions now. These are questions that we ask all our guests in order to get to know the person a bit better. And so starting from the first one, what was your favorite subject in law school and perhaps. Why maybe not surprisingly, it was conflict of laws. So and I just found that the interaction between different systems to be both like intellectually really difficult and engaging in trying to think about law from a perspective that wasn't the one that you'd been taught for the previous or four years. So that I found that was a subject that I really enjoyed. Yeah. Moving on to the next question, what's 1 habit you believe has been pivotal to your success in the legal field? I, I think fundamentally, I think probably empathy, I think it's probably, you know, that, that, that ability to try and understand what, whether it's the other side's motivations or your client's motivations. But exercising that and quite frankly, as you progress through a law firm, you'll ultimately become the supervisor of, of people and having an understanding of how, what motivates people and you know, what, what operates for them effectively as someone who's working as a junior lawyer. And then again, quite frankly, in the context of being a partner, having an ability to understand. So, you know, whether you talk about emotional intelligence or just generally empathy, I think that's a pretty important talent in law. And I think it'll probably also make your life a little bit less stressful. Yeah, yeah, I'm thinking that tip with, with regards to empathy, I think is perhaps not really thought of as perhaps being a very sort of primary function of a lawyer. But I think when you sort of boil it down to it, it really is to, to, to really have empathy, able to understand a client and to understand, yeah, again, the motivations of the various parties involved is, is really important and, and we'll make you a better lawyer as a result. And I think, I mean, in all aspects of law where the commercial negotiation or transactional work, the ability to read people is incredibly important. Yeah. And we were involved in negotiation yesterday. And again, sort of as you're negotiating with the other side and you look at them and you put a particular point and you go, yeah, they've accepted that or, you know, they want X. But I know if I push harder, they will ultimately relinquish that. Yeah, be able to read. That is really important. Move on to the third question. Can you name a book or a movie that's significant to you and one you'd recommend to students? Sure. One that I thought had a bit of an impact was Outliers by Malcolm Gladwell and it's a now a very, very well known book and he talks about the 10,000 hour rule. And whilst on the one hand I'm reluctant as as a law firm that we people don't record time here, it's about working effectively, not about how many hours you work, etcetera. But the 10,000 hour rule is about putting in the required hours in terms of the development of your expertise in something. And you know, whether it's, you know, playing the violin or whether it's law, but just over time having an interest in what you're doing. And it might be, you know, looking at something, looking at a recent case on your phone, on a bus on the way home or whatever. I think there's there's an element where you have to have put in the hours and or effort. And the more effectively you do it and the faster you do it, great. And you know, all, all power to you. But otherwise, I, I think, yeah, yeah. That that rule of the do have to put in the effort. You can't take too many shortcuts. Yeah. Yeah, exactly. I suppose on to the 4th question. For students aspiring to make an impact in the in the world, is there a particular skill or quality you believe is is most important for them to develop? Yeah. I mean, I guess I'd repeat empathy. I think, you know, to value your time outside of work as well to be balanced in the way that you approach your practice and not to be too intense. Now I don't seek to sort of contrast that with the whole 10,000 hour rule, but but you will find that you get on better with your Co workers and with your clients if you have something more to bring to the table than just legal expertise. And in a sense the way that legal education operates is obviously the thresholds get into law are very hard. It tends to drive a particular person, a particular personality into law. Sometimes those people are not actually very well practiced and they're not very well suited to the practice of law. And so we do find, we've had people here who you could not fault the marks that they got at university or back doing their HSC, but but not actually that good at being a lawyer. And so filtering out those people because ultimately they're not going to find a love of doing what they do. And I think that also comes back to curiosity. If there was a quality that I was looking for, it would be a curiosity. So a fascination with a whole variety of topics and subjects in law because each of them will feed into the other. Yeah. So if you're curious and you sort of, you know, your interest is sparked in anything from you, you know, international law through to real property, then you sort of go you, you'll end up a better lawyer. Enjoy, I suppose with with interest comes enjoyment as well, I think. That's really important. That's very. True, under the fifth question, did you always envision yourself practicing in the field that you do? And if not, what did you think you do? Perhaps starting off in law school, or perhaps even towards the end of high school? Yeah, yeah, I, I remember I when I was in year 10, we had that normal thing where you have work experience. Yeah, yeah. And and I think we had two weeks or some longer period. Yeah. And I'll let you, I did like three days in a stockbroker's office, you know, three or four days at a law firm. And I did three or four days in the TV news department of Channel Seven. Yeah, wow. And same thing, like whilst stockbroking, I instantly dismissed and went, Nah, I'd rather stick needles in my eye. But I did have a fascination for TV news, etcetera. So I think if it hadn't been law, it would have been journalism, I think. And I've found over the years that there are so many journalists who did law. We've had people here who you know who, who worked for us as paralegals but then went on and are now ABC journalists, etcetera. So, so I see a great overlap between journalists generally would have been a lawyer if they weren't a journalist and vice versa. So. So I think that would be the other. Thing No, I, I actually have witnessed that phenomena and it is a bit of a yeah, it is certainly strange. And I suppose, yeah, I mean, but even doing this, I suppose with, with this podcast and this entire sort of thing, it's sort of in a way a sort of level of journalism that I think, yeah, sort of you enjoy it, I think. And perhaps I feel with it is sort of law students last usually pretty personable people and they usually like to talk to people and they usually like to sort of engage in conversation and that sort of thing. And so, you know, it's sort of similar to a journalist in that way. But there's also those investigative skills and there's attention to detail. Yeah, the attention detail, the ability to go and find the answers to things in order to be able to then put questions to people is a big part of being a journalist. So, yeah, yeah. Last question, what's the greatest piece of advice you've ever received? And perhaps if you could check who gave it or yeah. Of course I, I went over and did some study in The Hague many, many years ago and I sort of did this thing. It was all really intense. And then when I finished I went over to London and I met with the guy who was the head of Herbert Smith Free Hills back in the day when they were just Herbert Smith. And he was a very experienced litigator and and whilst he was very, very smart man, I think I asked him literally the same question and he said, I always surround myself with people smarter than me. And I'm, you know, lucky enough to work with some really, really good people here. And having that as an opportunity. Like if you, if that is a rule, make sure that you always was. I heard something the other day it said like if, you know, if you're in a room with, you know, three idiots, then you're the 4th. So that, that idea that the people you hang around with will have a, a massive impact. And certainly one of the motivations for starting this law firm was to ensure that we chose the people that we worked with. The larger the firm, the less agency you have over choosing who you work with. Whereas pretty much every single person here has been chosen by, you know, the small group of founding partners. You go, okay, we want to work with this person. And that level of both control, but essentially sort of agency over your work environment is incredibly important. It means that you're not, it's not hard to come to work because you don't think, yeah, I'm gonna have to sit next to that. Yeah, Yeah. So yeah, I think surrounding yourself with really good people. I think that's also important, I think in, in, in not just law, but in other walks of life as well. Just sort of personally and yeah, having, having really good people around you is definitely something that that that will affect you personally and, and, and. Makes the whole journey. Yeah, exactly. Exactly. So Damon, we've ran out of time for this episode, so I want to say thank you so much for joining with me today, and I wish you all the best for the rest of the. Year, thank you for having me.