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 a 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 involving 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 I have a
very special guest with me, His Honour Justice Michael Lee of the Federal Court of Australia.
Thank you so much for joining me today. Not at all. I just had my first question,
I stopped 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
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 was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer,
I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer,
I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer,
I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer, I was a lawyer,
I went to the firm that I went to, which is a firm that rejoiced in the name Westgarth 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 earn $10,000 more and get free lunch? If I had have 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 have 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 her. I've been happily married to her. I've been happily married to her. I've been happily
married to her for 30 odd years. So I started fairly green and the great benefit of starting
in the 80s was before the rise of the mega firm. And so I had the 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. And if you go into a firm where you do discovery for two years, you're just as
likely to end up working on a case where you do discovery for two years, where 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 she didn't like appearing in court
herself. She didn't like appearing in court. She didn't like appearing in court. She didn't
like appearing in court. She didn't like appearing in court. She didn't like appearing in court. She
was 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 ability
or not, I really shudder thinking back at some of the appalling solicisms I no doubt created.
Most of the judges were quite nice. There were a few terrifying judges. I mean,
judicial bullying,
was looked at very differently then than 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 threw a stapler at the person appearing in front of him.
And those sort of things used to happen a lot more commonly than they did in later years.
My seminal experiences are really doing a lot of cases, a lot of manageable cases, where I was
constantly put into situations which challenged me.
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 mattered to me looking back,
are ones when I was perhaps a very junior barrister
where I was briefed by suburban firms.
In particular, I had the benefit 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 one 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 cross-examining a National Australia Bank manager
and I'm actually a customer with NAB.
And I remember I had to sign some document in the middle of the case
and my bank manager came to court to meet me at lunchtime
and I signed a mortgage during the course of the case.
But in any event, I remember that case.
I remember cross-examining the bank manager
and I was suing him for obvious reasons.
And I got some good admissions and eventually
there was a very good district court judge, Judge Rolfe,
who heard the case and we won.
And I remember the moment that we won,
this fellow just collapsed in this fit of tears of relief
because there was a difference between him spending
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 won a case that perhaps might not have been run well,
they're actually the things that I've,
I found most memorable
and in respect of which I've gained the most satisfaction.
But look, 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 where you can make a real difference
to someone's life and particularly where you think your skill set,
and your ability to marshal whatever talent you have
can make a difference,
they're the things that are really the most satisfying.
And often that's lost when you're part of a big team
and a huge bit of litigation.
Because you don't really feel that direct relationship
between your effort and your intellectual effort
or your forensic decision and your skill set and an outcome,
which in smaller cases you do.
I suppose in relation to that, though,
I mean, during the case,
if it is relating to someone's, you know,
life savings or retirement or something like that,
do you find that psychologically taxing?
Or is that something that you can sort of switch off
after the day's done?
Well, look, I've never been someone
who's particularly affected by stress
because I think if you do your best,
then I don't really worry about it.
But I must say one of the interesting things
about becoming a judge
and something that I've learned a lot about,
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've had a busy and demanding career at the bar
and running big cases at the bar
and the level of vexation and the level of stress,
that that involves is, in my view,
far more than being a judge.
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 for whom you're appearing.
There's only one thing you have to worry about,
and that is being faithful to your judicial oath.
And that's an incredibly liberating experience.
And so, you know,
instead of waking up on the first morning of 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 let it wash over you a bit
and all you have to do is focus on trying
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 were appearing in the district court
or the local court or the racing tribunal or whatever.
And so through a process of observation,
I was able to understand how they went about their jobs.
the more I think the most important role of an advocate
and the one which separates the truly great advocates
from the ones who are the most important.
The good advocates and the mediocre advocates.
And it's not very novel,
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 in a large,
and this is just a representative example,
and I'll use the example.
The person who was leading me
is now the Chief Justice, Stephen Gagelab.
And it was a very...
It was one of the last...
I think it was the first securities class action
ever go to really a trial.
And he and I were brought into it.
There were other barristers originally doing it,
but the firm decided to get us involved.
And superficially, it was very complex,
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 one and a half sheets of paper,
which he then proceeded to do,
and which he handed out,
handed to the judge during the course of his opening,
essentially a flowchart chart of the case.
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 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 not going to win on your second best point
if you don't win on your best point.
So if there are five different causes,
you may be able to run,
but one is the best.
it often occurs in cases
where you might be able to sue someone in nuisance,
sue them in negligence,
but for misleading deceptive conduct,
and there might be all sorts of duty issues
that rise in relation to negligence claims.
Well, why run it?
You've got a statutory duty.
It's much more straightforward.
So I would just encourage those people
who particularly want to become a barrister
That try, as you get more confident 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.
And so thank you so much.
I now move on to some,
standardized questions that we ask all of our guests um just to get to know them a little bit
better what was your favorite subject in law school and and why uh equity and i the lectures
were my gamma and lahane 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 it has 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 um uh an integrated set of
remedies which have vitality yes and uh uh you go to other parts of australia and there are sort
of walking uh fusion fallacies and uh and there's i think a lack of appreciation of the ongoing
vitality of equity and um and understanding how equitable interests are created understanding how
they um uh uh our people enforce equities according to principle um
uh is something which i've always found terribly interesting so yes that was my
favorite subject 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
closed book exam um uh that's that's that stayed with me yeah wow on to 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 um if you look over my door there you'll see
a portrait of saint thomas moore uh who was the lord chancellor under henry viii and had
um the courage to resist um the king's entreaties that he signed off on the act of supremacy and
um cave into the law theme i think there are two things that i think are important to me and i think
there are two things that i think are important to me and i think there are two things that i think
are important to me and i think there are two things that i think are important to me and i think
allowing the king to get a divorce from catherine of aragon so we can marry anne berlin in uh 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 um it's a wonderful story about moral courage and about
doing the right thing and uh he's a fascinating man and uh it's a great film paul
gofield who was a stage actor didn't do a huge number of films um uh i'm interested in this
because my daughter is an aspiring actress and um uh but he um he plays the role wonderfully and
it's just like a seminal tale the other film a modern film again on the law focus i love is uh
the verdict which is a
film from the early 80s about a washed up um alcoholic boston lawyer who'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 a friend
against a hospital for some people and he decides to run it and it's all going terribly badly and
i won't spoil it by giving um details of the plot but
eventually it comes back uh 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 a case where
there was a variation on that thing but it's a fantastic film and paul newman is brilliant it's
from the early 80s so they're the two films that i i i think are the two best legally themed films
and which both of both of which have meant a lot to me
thank you so much um now onto my third question did you always envision yourself practicing as a
judge and if not um 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 um i probably started thinking about that
um after being a barrister for some time
i i uh i always always thought it would be a wonderful thing to do
um 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 uh i always i enjoyed being a solicitor i probably enjoyed being a barrister more
um and the more senior i got the more i enjoyed it um i was rung up once whether i was interested
i wasn't hugely interested in then because i still had two children at school and uh
um earning good money and i wanted to continue earning very good money uh and had bought
uh a rather expensive house that i needed to pay off um and then uh there were a range of
circumstances which coalesce which meant that um 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 um popular piece of advice so or one that necessarily
resonates with the generation um who may be listening to this 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've got to produce a good income and then you've got to produce a good
income and then you've got to produce a good income and then you've got to produce a good
prioritize you you know uh but if you truly love what you're doing you don't want such a balance
i i i've had i hope um i've had an extremely successful personal life i've had a very happy
marriage i have a wonderful relationship with uh my children and i don't think that they would
ever think that i in any way neglected uh um my responsibilities of 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 skill sport etc but if you really love your work you want to do it and um uh
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 have the ability to do it then you're not going to be able to do it and if you're not
you're not going to be able to do it then you're not going to be able to do it and if you're not
want a job where you have to work terribly hard then get another job yeah and um i think 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 sack but 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 um from what i gather and speaking to younger lawyers etc i'm
not sure if that's the way in which people think about things now but i found that very valuable
i worked very hard as a young lawyer i loved every minute of it and uh
it's meant that i think i really appreciate it as i've got older uh um the lessons that i learned
through that endeavor 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 thank you so much thanks very much