Australia’s most famous English silk, Geoffrey Robertson, once rhetorically rolled his eyes at the concept of fearless lawyers in Anglo-Australian law.
He was all for the idea but his point was that a brave lawyer, here or in London, braves mainly the risk of occasional unkind words from the bench and the media.
For truly courageous lawyers, he said, look to places like Columbia.
There, some lawyers’ career alternatives boil down to either a safe and very comfortable life for themselves and their families, subsidised by the local drug lords, or a more principled career on a very modest government income which, among other things, is hopelessly inadequate to guard them and their families from the real possibility of kidnapping or assassination.
Columbia remains a long way off but Robertson QC’s disparagement of legal courage here might require some updating after Justice Michelle Gordon’s reported comments in the Centro case this week.
The case is in its seventh week in the Federal Court. There are hundreds of millions of dollars at stake. The auditors were always in the gun. Now their counsel and solicitors King & Wood Mallesons might be too.
A judge’s power to order costs against the lawyers is not in doubt (see for example my post here on Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys  FCA 282 and the Allen Arthur Robinson post on a similar recent case here). But such costs orders typically involve after-the-event criticism of the lawyers from the bench.
Media reports of the Centro case suggest provisional criticism from the bench of the lawyers’ anticipated performance.
Assuming these reports are correct, what is a brace of silks and senior juniors and their über firm instructing solicitors to do?
While it would hardly look courageous, they could turn tail and run. Abandoning a line of argument in defiance of a client’s instructions is a real option in some cases. While obviously problematic (not least from the costs angle) it can be justified in the right circumstances by the lawyers’ overarching obligations under, among other things, the Federal Court Act, the Civil Dispute Resolution Act (Cth) and Victoria’s Civil Procedure Act.
Another option is persevering in the teeth of incoming judicial flak and attempting to win over an apparently very dubious judge. (although they have reportedly described their argument as “not without foundation” which sounds a mite trepidatious.)
But whichever course the auditors’ representatives now choose, they will probably require more guts than Robertson QC thought was usually required of Anglo and Australian lawyers.
This a nine-cornered stoush (yes, nine!) and costs will surely be running at several Portsea beach houses per week.