Catching sight of a flying pig might seem more likely than a first-year solicitor instructing in the highest court in the land. But, as Jamie O'Brien discovered, appearing in the High Court need not be a pipe-dream for a recent law graduate. All you need is a little luck, some smart employment choices, and a law firm that doesn't keep its juniors hidden from view.
To many, the High Court of Australia is a curious beast, shrouded in mystery and of little practical daily relevance. For new graduates it can be a whimsical fantasy; the stuff of law school textbooks and not an attainable reality.
I considered myself very fortunate, then, when a High Court matter landed in my lap while I was still finishing a rotation as an articled clerk at Melbourne firm Herbert Geer.
The matter itself had the makings of a David v Goliath type battle - a constitutional challenge brought by Telstra against the Commonwealth, the Australian Competition and Consumer Commission and 11 telecommunications companies (including seven of Herbert Geer's clients). Telstra claimed that, in being required to give rivals access to its broadband "local loops", its property was being acquired without providing "just terms" as prescribed by s.51(xxxi) of the Constitution. After 10 months of directions hearings, an exchange of pleadings and the unusual step of negotiating with Telstra on an agreed set of facts (known as a "stated case" and thereby avoiding the expensive side-trip to the Federal Court to determine the facts), the parties were finally given the chance to make their submissions in front of the bench of the High Court. There were three Queens Counsels, four Senior Counsels, seven Junior Counsels, nine other instructing solicitors and me.
From the minute the court was called into session, there was an air of showbiz about the proceedings. The bar table, the solicitors and the public gallery were sufficiently hushed by the presence of the seven Justices - Chief Justice Gleeson, Justice Kirby, Justice Kiefel, Justice Heydon and Justice Crennan, Justice Gummow and Justice Hayne. However, if their Honours were aware of this, they certainly didn't show it. In fact, at times they looked like they'd rather be somewhere else - as did many others in the court.
I can't say I blame them, though. Any lawyer who's ever had to wade through the jungle that is Part XIC of the Trade Practices Act 1974 (Cth) knows it's a confusing exercise, is endlessly definitional and based on a high level of technical knowledge from within the telecommunications industry. It is no wonder that it had Justice Kirby exclaiming he feared "we lawyers are using phrases and expressions that engineers would laugh at".
As the proceedings dragged on, there were inward sighs from the various reporters scattered about the gallery. Who knows what the constant silent procession of schoolchildren filing in and out of the courtroom thought of the proceedings?
Nonetheless, despite the looks of confusion, bewilderment and boredom on the faces around me, I found the entire experience totally thrilling. Watching the best in the business take their stand behind the lectern was enthralling. It certainly gave me a small thrill and made the months of preparation all worthwhile. I was getting to see something from start to finish, be present at the hearing and being given the chance to actually get involved in the matter - really involved. It made me excited and optimistic about the future, rather than apprehensive about the law and my place in it.
Of course a High Court matter doesn't come along every day and it may never come for some. The rarity of this opportunity was driven home by one of the partners at Herbert Geer, who pointed out that in 20 years of practising law he had never even been to the court.
Yet, whether it's commercial or litigious work that takes your fancy, the big matters that call into question the mechanics underpinning our society are out there, and it is possible to get involved as a junior.
It's as much about positioning yourself to take advantage of these opportunities as it is about your firm giving you the opportunity n the first place.
Likewise, juniors need to be doubly aware of the opportunities - or lack of them - available at their chosen place of employment. Target a top-tier firm on graduation and you will be representing some of the biggest companies in Australia - more often than not from the unique vantage point of the photocopy room. Head straight to a smaller firm and you may be handed your own files from day one. You'll gain first-hand experience but these aren't usually the "sexy" matters you read about in law school. A mid-tier firm can be perfectly placed to offer the "real" experience that many juniors long for.
Jamie has now lost his training wheels and is currently working as a second-year solicitor in the IP, Telecommunications & Entertainment group at Herbert Geer. Thanks to his assistance Herbert Geer's clients received a unanimous judgment in their favour in March this year. The second stage of the battle - for costs - continues.
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