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 Lawyer's partner Damien Strazica. 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 Strazica, 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 share some key differences you have
encountered on your journey and why you've decided to move to Australia?
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 organisation 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 were 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 the same. So it's not so much the
fact that a lawyer 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 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 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 certainly you know, a lot of the practice that we do here
at Mark has been in international arbitration. And arbitration is 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 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 documents say.
So I would say in my experience, I don't think you need to worry too much about what the
documents are saying. Because the
evidence does. So for the most part, I think I 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.
And so learning about different systems I suppose, does that in turn make you perhaps more equipped
means that you adopt a more flexible approach
and you've got a greater range of options
within sort of your armory 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 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 budding young international lawyer,
the opportunities for practice here are much better
than they were, say, when I started 20, 30 years ago.
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 that because there's a lot of sort of cross-border transactional work
that's happening in Australia, overseas, or what is it?
I think it's a combination.
I think we have exceptional legal education.
So Australian universities are regarded very, very well around the world,
including University of New South Wales, University of Melbourne,
rank very highly.
So we train our young students really well.
They are eagerly sought after in foreign jurisdictions.
So a lot of Australian lawyers are practising in London, New York,
in the continent.
So that is something that then what often happens
is that those people go away,
they get three, four, 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 for decades.
Going across and getting your experience,
sometimes by way of postgraduate study at places like Oxford and Cambridge,
but other times just going and practising
has meant that we get this great cross-fertilisation
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
for the National Court of Justice in relation to Israel,
you look at that and there's Hilary Charlesworth,
who's one of the National Court of Justice judges.
Then you have Australian lawyers
who are acting as advocates in those cases
or are making submissions.
So you sort of constantly see Australians popping up
in these international law cases,
Yeah, that's exactly what I mean.
I mean, yeah, just sort of the Australians
you continuously see in the sort of international law field
is really interesting.
I suppose that, yes, it is a testament
to the high-quality legal education that Australia provides.
So I suppose sort of moving on,
can you share any insights into the key...
the key challenges and perhaps strategies
used in some of the major cases that you've been a part of?
And I think, again, I was sort of reminded
that a lot of the work that we do here at MARC
is regarded as strategic litigation.
And 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,
both as a lawyer that you are prepared to sign off on
and say, you know, they 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.
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 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 heard a lot about,
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 aeroplane,
and conducted bodily searches were conducted on them
because an infant had been found in a bathroom.
And they, the Qatar authorities were trying
to find the mother.
So these women were conducted to invasive body searches.
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 brought proceedings here in Australia
against the sovereign authority, the Qatar government,
as well as 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 are treating Qatar Airways,
perhaps you need to look at whether or not
they should be granted additional,
And there was 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.
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.
I suppose dissecting that a little bit.
I mean, going back to the discussion about the case
with the people coming back from India,
how the government sort of changed the law halfway through.
I mean, you mentioned that 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 constitutional law.
Something like standing is relevant.
And I know that in some instances,
part sort of the aggrieved party still seeks for a declaration.
Is that, is that something you're?
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, yeah, the government changed the law.
But of course, at that point, either the case is then discontinued
and you have to reach an agreement.
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.
Oh, they had to stop.
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
who specialise 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.
You'll get the declaration, but you'll never get a damages award.
So in that situation, either the law firm may 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 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 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 achieving outcomes.
Because of course, it's not like law firms can operate on a pro bono basis for everything.
They need to pay their young lawyers and pursue sustainable practice.
So yeah, but there's a variety of ways now.
Yeah, that crowdfunding I think is in some notable cases.
I think there's some that 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 a law firm sort of specialises 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 the area of international law.
Certainly, I would agree that probably,
Mark, 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.
In which the assault of people under the age of 18 has been treated in legislation.
And that has resulted in a change in the law.
So legislation has been changed in various states to reflect what we were seeking 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 the clients,
are on side 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 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 that's something that we'll do.
And so, I suppose, again, on that vein,
is perhaps adopting this sort of government,
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's correct.
Yeah, I know what you mean.
Like certainly law firms pride themselves on their objects,
on their objectivity, and on their independence.
And I guess we do as well, but we recognise that there are some things
that require advocacy, and that you're entitled to take a position on.
And I think we're, you know, 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 acted for 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.
We're able to manage that,
or we have some more unified purpose with what we're doing.
So, and there's a role there for, you know, BT firms.
I agree with you.
Not many law firms do, but I guess we're very happy that we can.
Happy, yeah, exactly.
And so there's also, I suppose, the internal issues that come with big law
and the fact that you have, I suppose, higher up,
people in higher up positions that might have different stances
and that sort of thing.
And so having a smaller law firm, I suppose, in that sense,
means that you can sort of fight it in sort of one big unified sort of...
It's very true, yeah, marshalling everyone together.
You know, so we're ten partners here.
It's much easier to have a conversation with ten partners than a hundred and ten.
Or in some cases, five hundred.
So much easier to get a position of unanimity.
And we pretty much, that's the approach we adopt.
We won't do something if someone is dead set against it.
We'll only do it on a unanimous basis.
I suppose in a similar vein,
can you tell us about a case 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.
I had a case where I received an email 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 an instrumentality of the Commonwealth Government.
And I'm going to be visiting Sydney
and I'm going to come in and see you.
And all of us have been subjected to Nigerian scams.
And so I had a degree of scepticism 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 of litigation
all the way to the High Court, where we, at the time,
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 summarising what was a six-year journey,
but essentially it was all about these banks,
the ability to print and sell this technology is used all over the world.
So the plastic banknotes.
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 technology to the Nigerian government.
Not the lawyer, but his client was the person who was very well connected
with the Nigerian government, was responsible for passport control, etc.
Secured the contract, the banknotes were rolled out very successfully.
And then this instrumentality,
he terminated his contract, as it turned out, fraudulently.
And they then embarked into a whole bunch of other shady deals.
Ultimately, this thing called the Securrency 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.
I will sue the Australian government and the instrumentality that developed the technology,
and had lied to him about the circumstance of the termination.
But where the challenge emerged was that we ran the trial before a single judge in the federal court,
and we received an award of 60 million Australian dollars.
Now, quite frankly, I think the damages that we were actually seeking was something like 30.
So at the time, 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 damages 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, at this point, we were now in the pandemic.
And we were actually the first trial heard before the high court remotely.
So we had this weird situation and we'd instructed, you know, the very best of
counsel, et cetera.
And we turned up to the high court here.
But the judges of the high court were sitting all over Australia.
So they were dialing in from Queensland, from Canberra, from wherever.
Oddly enough, one of them was actually sitting in a different court up there in Queen 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 trial to be heard in that format before the high court.
And we subsequently won, so it was a very happy outcome for us and the client.
And, you know, fortunately, the other side paid the damages that they had to pay.
That case is amazing in several ways, so yeah.
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, 30,000 people.
30,000 other people were the Bruce Learman 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 a credible witness.
So these things sort of continue to resound later on.
Well, that's amazing.
Thank you for listening to the Australian Law Student Podcast.
The following segment is questions for you.
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 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
And so, starting off with the first one, what was your favourite subject?
What was your favourite subject in law school and perhaps why?
Maybe not surprisingly, it was conflict of laws.
And I just found that the interaction between different systems to be both 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 three or four years.
So that I found, that was a subject that I really enjoyed.
Moving on to the next question, what's one habit you believe has been pivotal to your
success in the legal field?
I think fundamentally, I think probably empathy.
I think it's probably that ability to try and understand 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 people and having
an understanding of what motivates people and 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 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.
I think that tip 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 really have empathy, to understand a client and to understand, yeah, again, the motivations
of various parties involved is really important and will make you a better lawyer as a result.
And I think, I mean, in all aspects of law, whether commercial negotiation or transactional
work, the ability to read people is incredibly important.
And we were involved in a 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
Being able to read that is pretty important.
Moving 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?
One that I thought had a bit of an impact was Outliers by Malcolm Gladwell.
And it's 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 a law firm that we, people don't record
It's about working effectively, not about how many hours you work, et cetera.
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 that you're interested in.
Maybe, 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 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.
Then, you know, all power to you.
But otherwise, I think, yeah, that rule of the, do have to put in the effort, you can't
take too many shortcuts.
I suppose on to the fourth question.
And for students aspiring to make an impact in the world.
Is there a particular rule that you would recommend?
Is there a particular skill or quality you believe is most important for them to develop?
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 you will
find that you get on better with your coworkers and with your clients if you have something
more to bring to the table.
That's real integrity other than just legal expertise.
And in a sense, the way that legal education operates is, obviously, the thresholds to
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.
They're not very well suited to the practice of law.
And so we do find, you know, we've had people here who you could not fault the marks that
they got at university or back doing their HSC.
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 know international law through to real property then you sort of go you you'll
end up a better lawyer enjoy i suppose with interest comes enjoyment as well i think that's
really important yeah that's it um onto the fifth question did you always envision yourself
practicing in the field um that you do and if not what did you think you do perhaps um starting off
in law school or perhaps even towards the end of high school yeah yeah i remember i when i was in
year 10 we had that normal thing we have work experience yeah yeah and uh 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 yeah um but i did have a fascination for tv news etc so i think if it hadn't been law
it would have been journalism yeah and i've found over the years that there are so many journalists
who did law oh yeah we've had people here who
you know who who worked for us as paralegals but then went on and are now abc journalists etc 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 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 um
yeah i mean but even doing this i suppose 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
um and perhaps i feel
with it is sort of law students last you're usually pretty personable people and they
usually like to talk to people and they usually like to sort of um engage in conversation 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 the attention to 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 um last question um what's the greatest piece of
advice you've ever received and perhaps um if you can share
yeah of course i um i went over and did some study in the hague uh 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 freehills um back in the day when they
were just herbert smith um and he was a very experienced litigator and and whilst he was
very very smart man um i think i asked him literally the same question and he said i always
work with people smarter than me um and i'm you know lucky enough to work with some really really
good people here um and having that as an opportunity like if you if that is a rule make
sure that you always um 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 fourth um so that that idea that the people you
hang around with will have a massive impact yeah and certainly one of the motivations for starting
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 yeah 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 yeah it means that you know it's not hard to come to work
and sit next to that guy so yeah i think surrounding yourself with really good people
i think that's also important i think in in not just law but in other walks of life as well just
sort of personally and um yeah having having really good people around you is definitely
something that that that will affect you um personally and just makes the whole journey
exactly exactly so um 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 um i wish you all the best for the rest of the year thank you