Federal Court of Australia

Edwards v Giles George Pty Ltd [2025] FCA 822

ORDERS

THE COURT ORDERS THAT:

1.    The applications for an extension of time and leave to appeal are dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Ms Gina Edwards, a barrister, successfully sued Nine Network Australia Pty Limited and two others (together Nine Network) in defamation: Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422. The dispute between Ms Edwards and Nine Network on the amount of the lump sum costs order was resolved by a confidential agreement.

2    Relevantly for present purposes, prior to the lump sum costs dispute being resolved, the solicitors who had represented Ms Edwards in the defamation proceedings, Giles George Pty Ltd, filed an interlocutory application seeking leave to intervene and make submissions in relation to the registrar’s lump sum costs determination. The interlocutory application was subsequently amended to include an application for a declaration that Giles George holds an equitable lien over the monies consisting of the lump sum costs amount found to be payable by Nine Network.

3    On 30 January 2025, the primary judge relevantly made orders granting leave to Giles George:

(1)    to intervene in the proceedings limited to filing written submissions in support of the amended interlocutory application referred to in order 2 of these orders (order 1); and

(2)    to file an amended interlocutory application in the form annexed to the proposed short minutes of order emailed by George Giles to the primary judge’s chambers on 29 January 2025 (order 2).

4    Ms Edwards disputed Giles George’s claim to hold an equitable lien over the lump sum costs amount payable by Nine Network and opposed the making of the declaration. The matter was listed before the primary judge on short notice on 18 February 2025 because the agreement between Ms Edwards and Nine Network in relation to the lump sum costs amount included that Nine Network pay the agreed amount on 19 February 2025. Specifically, Giles George sought an order, on an urgent interlocutory basis, that Nine Network pay the agreed lump sum costs amount into Court, rather than to Ms Edwards directly, pending the resolution of its claim to hold an equitable lien in respect of those funds.

5    On 18 February 2025, at the conclusion of the urgent interlocutory hearing, the primary judge allowed the application by Giles George and made orders in the following terms:

5.    The Respondent pay the Lump Sum Costs amount into Court pending:

(a)    the determination by the Court of the issue of whether the Intervener has a solicitor’s equitable lien over the Lump Sum Costs amount; and

(b)    if it is determined that the Intervener has a solicitor’s equitable lien in respect of the Lump Sum Costs amount, the determination or resolution of any dispute between the Applicant and the Intervener in respect of the amount of the fees and disbursements, if any, payable by the Applicant to the Intervener.

6    The primary judge gave ex tempore reasons on 18 February 2025 and subsequently published his reasons on 26 February 2025. His Honour’s reasons may be summarised briefly as follows.

(1)    Ms Edwards argued that Giles George did not have a good arguable case in respect of the existence of an equitable lien because it had allegedly engaged in “disentitling conduct”.

(2)    While, given the urgency, Ms Edwards had been unable to file evidence in support of her claims, she endeavoured to identify in her submissions what she claimed to be the disentitling conduct. The primary judge noted that Ms Edwards’ submissions raised serious allegations against Giles George and that he had difficulty understanding some of her submissions. Nonetheless, his Honour concluded that he was not, at least at that stage, persuaded that the conduct alleged by Ms Edwards was conduct which would, if established, necessarily disentitle Giles George to the benefit of an equitable lien. Rather, if established, his Honour considered that such conduct may bear on Ms Edwards’ liability, or the extent of her liability, to Giles George for legal fees with respect to the defamation proceedings and other issues. In any event, his Honour noted that the allegations were untested and unsupported by evidence.

(3)    Ms Edwards also opposed Giles George’s application on the ground that she had allegedly undertaken to pay trial counsel from funds that she would otherwise receive from Nine Network in respect of costs. However, the primary judge concluded that it was Giles George, and not Ms Edwards, who was liable to pay counsel for their fees. Furthermore, his Honour found that there was no agreement between Ms Edwards and Giles George in respect of the amounts to be paid to counsel. Nevertheless, his Honour indicated that, if the parties were to agree on the amount that should be paid to counsel and the basis for such payment, consent orders would be made permitting those funds to be paid out of Court.

(4)    The primary judge concluded that he was satisfied that Giles George had a good arguable case that it has a solicitor’s equitable lien in respect of the agreed lump sum costs amount payable by Nine Network. His Honour, nevertheless, emphasised that that finding was made only on an interlocutory basis, holding at [10] that:

10.    I am also satisfied in the circumstances that the balance of convenience favours the payment of the lump sum costs amount into Court pending the resolution of the issue concerning the existence of the solicitor’s equitable lien and, potentially, the issue concerning Ms Edwards’ indebtedness to Giles George in respect of legal fees. It seems to me that it is appropriate to preserve the status quo by requiring the costs to be paid into Court pending the resolution of those issues. That is all the more so in circumstances where it may turn out to be the case that the fees that Ms Edwards may in due course be found liable to pay Giles George may exceed the lump sum costs amount.

7    Ms Edwards seeks an extension of time within which to seek leave to appeal from orders 1 and 2 made on 30 January 2025 and leave to appeal from orders 5(a) and (b) made on 18 February 2025 (Applications). Ms Edwards’ draft notice of appeal annexed to her affidavit sets out six proposed grounds of appeal. Grounds 1 and 2 relate to the orders of 30 January 2025, and grounds 3 to 6 relate to the orders of 18 February 2025.

8    Ms Edwards, who is unrepresented, filed written submissions in chief in support of her Applications, and in reply to the respondent’s submissions, in accordance with orders made on 3 June 2025 (as amended on 13 June 2025).

9    Finally, I note that Ms Edwards requested that the Applications be determined on the papers pursuant to r 35.18 of the Federal Court Rules 2011 (Cth). I made orders accordingly in circumstances where Giles George took no issue with that proposal, as noted in the orders dated 3 June 2025.

2.    APPLICATION FOR AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL (GROUNDS 1 & 2, DRAFT NOTICE OF APPEAL)

2.1    Relevant principles with respect to applications for an extension of time

10    By virtue of r 35.13(a) of the Federal Court Rules, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The relevant orders were made on 30 January 2025. However, as the application for leave to appeal was filed on 5 March 2025, it was filed on the 20th day after the expiry of the 14-day period.

11    I note that Ms Edwards incorrectly submitted that she was seeking “a five-day extension of time”. However, in circumstances where Giles George did not raise any issue with that submission (presumably (correctly) to focus upon the real issue, namely, whether any proposed ground of appeal would have a reasonable chance of succeeding), and an adequate explanation for the delay was given by Ms Edwards, I merely note this error for completeness.

12    The discretion to extend time is not confined by express criteria: Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19] (Finn J). However, the merits of the application for leave to appeal are relevant to the question of whether an extension of time should be granted, as well as other considerations including whether the delay is substantial, the adequacy of any explanation for the delay, any prejudice to the applicant if the application is refused, and whether the respondent would suffer any prejudice if the application is granted even though the mere absence of prejudice to the respondent does not suffice: see, for example, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–349 (Wilcox J); and Bechara v Bates [2018] FCA 460 at [17] (Perry J). Ultimately, the question of whether to grant an extension of time turns upon what the justice of the case requires in all of the circumstances: Wedesweiller v Cole (1983) 47 ALR 528 at 531 (quoted with approval by Wilcox J in Hunter Valley at 349).

13    Further, in considering whether an appeal would have sufficient merit, it will often be appropriate to consider the proposed grounds of appeal at a “reasonably impressionistic level”: see, by analogy, Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]–[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). However, there are other cases where a closer examination of the merits is appropriate: Tu’uta Katoa at [18]. In this case, the applicant’s proposed grounds 1 and 2 lack merit on their face. This case is therefore not a case where there is a reason to examine the merits of the proposed grounds other than at a reasonably impressionistic level.

2.2    The application for an extension of time should be dismissed

14    I accept that, while the delay was for 19 days, a reasonable explanation was given for the delay, and that the respondent would not suffer prejudice if the extension of time were granted. However, in circumstances where the proposed grounds of appeal lack any real chance of success, it would not be in the interests of justice to grant the extension of time, and the application should therefore be refused with costs.

15    Ground 1 of the draft notice of appeal alleges that the judge erred in permitting Giles George to contravene s 178(1)(c) of the Legal Profession Uniform Law (NSW) pending the resolution by the New South Wales Law Society of a costs dispute between Ms Edwards and Giles George. I note that by virtue of s 4 of the Legal Profession Uniform Law Application Act 2014, the Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria applies as a law of New South Wales.

16    The short answer to this proposed ground is that, by virtue of s 170(1)(a) of the Uniform Law, s 178 does not apply relevantly to “a commercial … client”. A commercial client includes “a law practice” which, in turn, includes “a sole practitioner”: see s 170(2)(a) of the Uniform Law; see also the definitions of “law practice”, “sole practitioner” and “Australian lawyer” in s 6(1) of the Uniform Law; see by analogy Djordjevich v Rohrt (in his capacity as liquidator of ACN 091 518 302 Pty Ltd (In Liq) ACN 091 518 302) [2022] VSCA 84 at [169]-[176] (Kennedy and Whelan JJA). I agree with Giles George that this includes lawyers (or, more precisely, barristers) who are clients in their private capacity: see Bilson (A Pseudonym) v Dominic Esposito Solicitors [2019] VSC 801 at [20]. As such, s 178 of the Uniform Law does not apply to Ms Edward who is a barrister even though she engaged Giles George in a private capacity. It follows that Ground 1 lacks any reasonable prospects of success.

17    Ground 2 of the draft notice of appeal alleges that the primary judge failed to accord Ms Edwards procedural fairness in permitting Giles George to amend its interlocutory application on 30 January 2025. Ms Edwards alleges that the breach of procedural fairness arose because the amended interlocutory application:

(1)    “dramatically” expanded the scope of the original application;

(2)    sought to obtain “substantive and coercive relief” against her; and

(3)    sought to “bypass ordinary procedures for commencing procedures to secure relief”.

18    As Giles George contends, the allegation of procedural unfairness “is to be understood in context” of court procedure. That context is correctly summarised by Giles George as follows.

16.    The context here was that the Court had received the Registrar’s report and, subject to the Court’s adoption of the Report, the Media defendants would be paying out the costs. The relief sought in the original Interlocutory Application was otiose, given the receipt by the Court of the Report. Giles George then needed to move quickly to assert its rights. Liens can be lost by delay. It is not a rule of Court that an amendment application must be accompanied by affidavit. His Honour was initially disinclined to deal with the application for a declaration as to a lien but was ultimately persuaded to do so.

19    Furthermore, as Giles George contends, there is nothing unusual or inherently unfair in permitting Giles George, as former solicitors for Ms Edwards, to seek a declaration for an equitable lien after entry of judgment in a proceeding or as a supplement to final orders: see e.g. QGC Pty Limited v Alberts (No 4) [2022] FCA 1590 at [67]-[76] (Rares J); Macura v Sarasevic (No 2) [2019] NSWSC 1621 at [7]-[9], [14]-[18] (Ward CJ in Eq).

20    It follows that the allegation of a breach of procedural fairness in Ground 2 has no reasonable prospect of success.

21    Finally, I note that insofar as Ms Edwards’ written submissions raise a question as to standing, no such contention is raised by the draft notice of appeal. In any event, under rule 9.12 of the Federal Court Rules, the Court has power to grant leave to intervene “with such rights, privileges and liabilities … as may be determined by the Court”: see also Macura at [7]-[9].

3.    APPLICATION FOR LEAVE TO APPEAL (GROUNDS 3-6, DRAFT NOTICE OF APPEAL)

3.1    Relevant principles with respect to applications for leave to appeal

22    A decision to grant leave to appeal is discretionary. The principles which govern the exercise of that discretion are well settled: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). Relevant considerations include:

(1)    whether in all the circumstances the primary decision is attended by sufficient doubt to warrant its reconsideration; and

(2)    whether substantial injustice would result if leave were refused, supposing the primary decision to be wrong.

23    If no arguable ground of appeal is raised by the applicant, it would be futile to grant leave to appeal and, accordingly, leave should not be granted: BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230 at [25].

24    Finally, as is the case with respect to a consideration of the merits of the proposed grounds of appeal in the context of an application for an extension of time, it will generally be appropriate to consider the proposed grounds of appeal at a reasonably impressionistic level in this context also.

3.2    The application for leave to appeal should be dismissed

25    Ground 3 of the draft notice appeal alleges a denial of procedural fairness in listing the proceedings on 18 February 2025. This allegation lacks merit.

26    First, as earlier explained, the matter came before the primary judge urgently on 18 February 2025 because Ms Edwards was to receive payment from Nine Network on 19 February 2025 pursuant to a confidential agreement between Ms Edwards and Nine Network. As George Giles tellingly contends, in this regard:

25.    It is to be remembered that it was the fact of the Applicant settling with the Media defendants and agreeing with them that within 14 days money would be paid directly to her, that required the matter to be brought back before the Court earlier than the 3 March date which was scheduled. It is noteworthy that the Applicant made an agreement which, if carried out, would destroy the practical benefit of the lien, in the face of an extant application for a declaration.

27    Secondly, Ms Edwards’ characterisation of the hearing of 18 February 2025 as an “ambush”, cannot be accepted given that Ms Edwards effectively had 11 days within which to consider the matter before participating in the hearing.

28    On 6 February 2025, Giles George served its submissions on the parties, including Nine Network. Subsequently on 7 February 2025, Nine Network emailed Giles George (copying Ms Edwards), requesting that the matter “be relisted urgently and, in any event, prior to the payment due date (19 February 2025)”. On 17 February 2025 at 2:59 pm, Giles George emailed the chambers of the primary judge and requested “an urgent relisting of this matter”, explaining that their attempt “to reach an agreement with Ms Edwards to leave this issue in abeyance … has been unsuccessful”. Subsequently on 17 February 2025 at 4:45 pm, chambers of the primary judge emailed the parties, informing them that “[t]his matter has been listed for case management … at 4:25 p.m. on 18 February 2025”.

29    While I accept that Ms Edwards may have experienced minor distress from the fact that the hearing for 18 February 2025 was only set down on the afternoon of 17 February 2025, it is important to recognise that she was, nevertheless, effectively put on notice of the matter from at least 7 February 2025 when Nine Network suggested to the parties that the matter be relisted prior to the payment date of 19 February 2025. In these circumstances, I therefore agree with Giles George who contends that Ms Edwards had, in effect, 11 days in which to consider the matter before participating in the listing on 18 February 2025. Furthermore, at the hearing on 18 February 2025, Ms Edwards was afforded an opportunity to make submissions in opposition to the amended interlocutory application and did in fact do so.

30    Thirdly, contrary to Ms Edwards’ submission, there was no substantive relief granted by the primary judge. His Honour’s orders that those monies be paid into Court simply maintain the status quo until the question of the existence of Giles George’s equitable lien over those funds can be determined on a final basis. Relatedly, as the application for declaratory relief by Giles George has not been finally dealt with, it will remain open to Ms Edwards to apply to the primary judge to vary or revoke the orders if, for example, matters which were not known before come to light.

31    Finally, I note that the primary judge made clear in his reasons that if agreement could be reached as to the amount to be paid to counsel, consent orders permitting those monies to be paid out of Court would be made. As a result, even if the argument the Ms Edwards had allegedly agreed to pay counsel directly from the monies otherwise received from Nine Network had any merit, it was possible that such payment would not be further delayed.

32    Grounds 4 and 6 of the draft notice of appeal allege that the primary judge erred:

(1)    in finding that there was an arguable case for the existence of an equitable lien in the absence of sufficient evidence by Giles George (ground 4); and

(2)    in reversing the onus of proof by focusing on Ms Edwards having not resisted the course taken, rather than requiring Giles George to justify that course being taken (ground 6).

33    These grounds do not have sufficient merit to warrant a grant of leave to appeal.

34    The primary judge found that there was no issue as to the applicable principles in respect of equitable liens in this context, as summarised by Campbell J in Firth v Centrelink [2002] NSWSC 564; (2002) 55 NSWLR 451 at [35]. As Giles George submits, two basal facts are required to establish an equitable lien in this context, namely that:

(1)    the solicitor acted for the client in proceedings; and

(2)    the sum of money over which the lien is sought was brought into existence (by judgment or settlement) as a result of the solicitors’ exertions.

35    It was plainly open for the primary judge to find that there was an arguable case that these facts were established and to make orders accordingly to preserve the status quo. Nothing raised by Ms Edwards suggests otherwise. Furthermore, as Giles George submits, a lien is not lost because the solicitors ceased to act: see Firth at [35(d)].

36    Finally, there is no merit in the suggestion that the primary judge reversed the onus of proof. Ms Edwards’ contention to the contrary represents, as Giles George submits, a misunderstanding of the conduct of the hearing by the primary judge.

37    Ground 5 of the draft notice of appeal contends that the primary judge erred in granting what was in effect an injunction where damages would have been an adequate remedy. However, as Giles George submits, it was plainly open to the primary judge to find that damages were not an adequate remedy given that:

(1)    no authority has been identified by Ms Edwards to support her contention that damages could be an adequate remedy in the present context; and

(2)    damages would plainly be inadequate because they are inferior to the right granted by an equitable lien which is proprietary in nature.

38    Thus, as Campbell J explained in Firth at [35(g) and (h)]:

(g)    The solicitor’s equitable right exists before the court is asked to intervene to protect it; it “arises immediately upon the recovery of monies through the exertions of the solicitor”: Carew Counsel Pty Ltd v French (at 476 [33]); if the lien is over the proceeds of an order for costs, it comes into existence at the time of making of that order for cost: Phillipa Power & Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266; Kison v Papasian (1994) 61 SASR 567. If the lien is over the proceeds of a settlement, it arises when the settlement agreement is entered into: Re de Groot (at 368). …

(h)    The right of the solicitor is one which the solicitor can enforce against the client, entitling the solicitor to an injunction to prevent the payment of the fund to the client without notice to the solicitor until such time as the quantum of the solicitor’s entitlement to be paid from the fund is ascertained: In The Estate of Fuld (No 4). If the quantum of the solicitor’s entitlement has been ascertained, the solicitor is entitled to an order that the amount of his entitlement be paid to him from the fund, notwithstanding opposition from the client: Leamey v Heath [2001] NSWSC 1095 (Campbell J, 22 November 2001, unreported).

(Emphasis added.)

39    Further and in any event, as Giles George submits, Ms Edwards did not give any evidence of her financial circumstances so as to establish a basis for a finding that damages could have been an adequate remedy.

40    Finally, as to prejudice, there is no relevant prejudice as Ms Edwards will have another opportunity after the primary judge makes a final determination on the application for declaratory relief to pursue any avenues which may be available to her. On the other hand, there would be significant prejudice to Giles George were the status quo not preserved.

41    It follows that the application for leave to appeal must also be refused with costs.

4.    CONCLUSION

42    In circumstances, therefore, where the proposed grounds of appeal have no reasonable prospects of success, it is not in the interests of justice to grant the applications for an extension of time and leave to appeal. Accordingly, the Applications are dismissed.

Associate:

Dated:    18 July 2025