A Sydney barrister has lost an application for an extension of time to bring an appeal against a decision allowing her former lawyers in her successful defamation action against the Nine Network to intervene and obtain an order holding the costs obtained from the broadcaster in the court pending determination of an equitable lien.

In April 2024, Gina Edwards succeeded in her defamation action against the Nine Network and A Current Affair journalist Steve Marshall over a series of broadcasts and online articles alleging that she had deprived the rightful owner of a celebrity cavoodle of his dog.

Edwards was awarded $150,000 in aggravated damages, and partial indemnity costs. The question of costs was referred to a referee to determine a lump sum amount.

In January, law firm Giles/George sought leave to intervene in the costs matter after a falling out between Edwards and the firm. Edwards alleged the firm had engaged in disentitling conduct, and disputed items in and the quantum of costs owing to the firm.

In February, with Edwards and Nine agreeing on a lump sum amount, Giles/George succeeded in an urgent application to have the costs paid into the court pending determination of a claim for a solicitors’ equitable lien over the costs. Justice Michael Wigney made the order, satisfied that Giles/George had a “good arguable case”.

Edwards sought an extension of time in which to bring an appeal against Justice Wigney’s decision to allow Giles George to intervene, and his decision to order the costs be paid into the court pending determination of the lien.

Edwards contended that Justice Wigney erred in allowing Giles George to contravene s.178(1)(c) of the Legal Profession Uniform Law (NSW) pending the resolution of a costs dispute between her and Giles George by the NSW Law Society.

In a judgment delivered on Friday (July 18), Justice Melissa Perry said the short answer to this issue is that s.178 does not apply to a commercial client, which includes a sole practitioner engaged in the law. She said s.178 of the Uniform Law did not apply to Edwards who is a barrister even though she engaged Giles George in a private capacity.

Edwards also argued that Justice Wigney failed to accord her procedural fairness when he permitted Giles George to amend its interlocutory application, because the amended application dramatically expanded the scope of the original application, sought to obtain “substantive and coercive relief” against her, and sought to bypass ordinary procedures for commencing procedures to secure relief.

Justice Perry accepted Giles George’s submission that the allegation of procedural unfairness had to be understood in the context of court procedure, where Nine would be paying out the costs upon adoption of the Registrar’s report and Giles George had to move quickly to assert its rights.

Justice Perry also accepted Giles George’s contention that there was nothing unusual or inherently unfair in permitting it, as former solicitors for Edwards, to seek a declaration for an equitable lien after entry of judgment or as a supplement to final orders.

Justice Perry said it followed the allegation of procedural unfairness had no reasonable prospect of success.

Edwards further alleged there was a denial of procedural fairness in listing a further hearing with one day’s notice.

Justice Perry observed the matter came on urgently because the costs from Nine were imminently due to be paid to Edwards, and that far from being ambushed, Edwards effectively had 11 days in which to consider the matter from when Nine had suggested relisting the matter prior to the payment date.

Addressing the issue of prejudice, the judge said Edwards would have another opportunity to pursue avenues available to her after Justice Wigney made a final determination on the application for declaratory relief, while on the other hand there would be significant prejudice to Giles George if the status quo were not preserved.

The applications for an extension of time and leave to appeal were dismissed. Edwards was ordered to pay Giles George’s costs as agreed or assessed.

Edwards v Giles George Pty Ltd

See also Dog days in the defamation court 

Stephen Murray is the editor of the Gazette of Law & Journalism