With the kind permission of the Australian Financial Review, Hearsay is pleased to reproduce the following piece, celebrating the career of the recently retired Hon James Allsop AC, written by the incisive legal editor Michael Pelly. Michael has the knack of identifying and highlighting the core being of legal “royalty”. He wrote the biography “Murray Gleeson – The Smiler “ (Federation Press, 2014).
Apr 6, 2023
James Allsop, the outgoing chief justice of the Federal Court, is recalling an early case in his career about why litigation is the “failure end of the law”.
Allsop’s client was the wife of “very, very wealthy” English businessman, and she was embroiled in a dispute with a builder.
“He was paying for it, and I said to him: ‘Well, you’re a successful businessman. You must have seen courts operate a lot over your time’.
On the way out: James Allsop in his chambers – sans law books – ahead of his departure. Natalie Boog
“He looked at me shocked and said: ‘I am a successful businessman. And, because of that, this is my first time anywhere near a courtroom in my whole life. I do not like the experience’.
“Apart from people who have to do it within their business model – banks, insurance companies … [litigation] is a breakdown of what was anticipated and hoped for.”
For the past decade, Allsop has presided over the second-most important court in the federal judicial system, and – as the national commercial court – arguably the most important for business.
Thursday is his last day before handing over to Debbie Mortimer, who will be the court’s first female chief justice and the first to be appointed from within the court since it started in 1977.
The floor-to-ceiling bookshelves had already been stripped bare, and the last boxes packed, when The Australian Financial Review visited Allsop in his Sydney chambers this week. But the wingback armchair that he bought as a young barrister remains.
Canine colleague
It has been part of his office/chambers set-up since then, and looks like it. The most recent “part of the furniture” is Zac, a 14-year-old miniature schnauzer. He belongs to Allsop’s partner Sandy and is called over as the first photos are being taken.
“I am not sure that they are [allowed in],” says Allsop smiling, “but who’s going to tell me not to – you’re chief justice.”
“I am not sure that they are [allowed in]“: James Allsop with Zac. Natalie Boog
When Allsop took over from Pat Keane in 2013, it was a homecoming. His first job out of Sydney University law school – he was the medallist – was associate to the first chief justice of the Federal Court, Nigel Bowen.
After working as a solicitor at Freehills with legendary partners Kim Santow and David Gonski, he went to the bar in 1981 and became a silk in 1994. He joined the Federal Court in 2001 but was lured away to head the NSW Court of Appeal in 2008 and spent five years there.
Court reshaped
Over his decade at the helm, the Federal Court has been reshaped with the introduction of the National Court Framework, under which judges were given speciality areas and experienced litigators were hired as judicial registrars.
The court has taken over from state supreme courts as the forum-of choice for big defamation cases – e.g. Ben Roberts-Smith, Geoffrey Rush and Christian Porter – largely because they can get on quickly and there is no jury. It also does class actions, native title work, and has a large immigration law caseload.
During the pandemic, it won plaudits for its shift to online justice, which Allsop said was possible because of a huge investment in technology before COVID-19. However, he said courts should not forget “the human experience” when mixing physical and remote hearings.
The court has 54 judges in each state, who do a mix of trials and appeals. It has become the most common path to the High Court, with the last six appointees coming from its ranks.
Allsop says he always gives his associates one piece of advice if they tell him they are thinking of going straight to the bar.
“I say, ‘you’ve got to understand litigation is the failure end of the law … commercial law [litigation] is great fun but go and do transactions for at least a year; then you will get to know how business people think, how a deal is put together and how to think about business transactions’.
“All these people who are commercial litigators think they are commercial lawyers because they are commercial litigators. And they are dealing with people [that are] competing with each other to behave badly in litigation.
“That is not how business works. Business works on what I like to call the requisite degree of trust.
“You have to trust people to a point, and within the framework of what you’re doing … but you do expect something to be left on the table, and not to be skinned.”
Litigation can “drive people slightly mad”, Allsop says.
“It does affect their judgment; people get angry, they get emotional – even big companies. They are all people, claims managers or COOs, saying ‘we can’t let them do that’.”
He says some lawyers “are successful because they never get to court – a lot of lawyers don’t understand that”.
“Litigation is a necessary evil because it’s the substitute for the gun and the gang. And if you don’t have ready access at some level – whether through a union, through pro bono or through your own assets or class actions or an effective regulatory system to assist you – it increases the risk of an injustice.
“The ironic thing is that the rules of engagement in commercial life are made there, yet that’s the area where people behave badly.”
‘Best job in the world’
Allsop says he will likely do some arbitration work after a short break, but will miss what he calls “the best job in the world”.
“There are a few people who think some of the work is boring and a trial – whether it’s migration or bankruptcy.
“But I haven’t not enjoyed any case. They all involve catastrophe; it might be the most hopeless migration case – going back to a very dangerous place – and that potential catastrophe is almost always intertwined with humiliation.
“That humiliation comes from the powerlessness of being in the hands of others.
“And who? Judges and lawyers. Can you think of anything worse?
“It’s a unique form of power. It’s there to protect individuals, groups, and society by declaring rights in a civil and decent fashion, and giving fairness to everyone in defining and enforcing rights.”
