WIGNEY J:
1 The applicant, Ms Gina Edwards, successfully sued the respondents, who I will refer to collectively as the Nine Network, in defamation: Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422. I subsequently made a costs order, which included an order that the quantum of the costs payable by the respondents be determined on a lump sum basis by a registrar acting as a referee: see Edwards v Nine Network Australia Pty Limited (No 6) [2024] FCA 758. Regrettably, though perhaps predictably, that was not the end of the matter. The urgent interlocutory application which is the subject of this judgment is the product of a dispute between Ms Edwards and her now former solicitors. The issue raised by the application is, in substance, whether the costs payable by the Nine Network should be paid into Court, not directly to Ms Edwards, pending the resolution of that dispute.
2 The dispute between the parties in respect of costs initially concerned whether the registrar's report which quantified the lump sum costs order should be adopted. Both Ms Edwards and the Nine Network had various quibbles in respect of the report and contended, in effect, that it should be varied in different respects. If that was not bad enough, the dispute was complicated by the fact that the solicitors who had represented Ms Edwards in the defamation proceedings, Giles George Pty Ltd, belatedly filed an interlocutory application seeking leave to intervene and make submissions in relation to the registrar's lump sum costs determination. That 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. On 30 January 2025 I granted leave to Giles George to intervene in the proceedings and make submissions in support of its amended interlocutory application.
3 Ms Edwards and the Nine Network eventually agreed on the amount of the lump sum costs order. Their agreement in that regard was said to be confidential. The dispute between Ms Edwards and Giles George has unfortunately not been resolved. Giles George presses its contention in respect of the existence of the equitable lien. Ms Edwards disputes that Giles George has an equitable lien over the lump sum costs amount that is payable by Nine Network and opposes the making of the declaration.
4 The reason that the matter is said to be urgent and has been listed before me at very short notice is that the agreement between Ms Edwards and the Nine Network in relation to the lump sum costs amount included that the Nine Network would pay the agreed lump sum costs amount on 19 February 2025 - which is tomorrow. Giles George has sought an order, on an urgent interlocutory basis, that the Nine Network pay the agreed lump sum costs amount into Court, rather than to Ms Edwards directly, pending the resolution of its claim that it holds an equitable lien in respect of those funds. It no doubt does so in order to protect its position as the putative holder of that lien.
5 In my view, the question whether the amount of the costs agreed as between Ms Edwards and Nine Network should be paid into Court, rather than to Ms Edwards directly, essentially hinges on whether Giles George has established that it has a good arguable case that it has a solicitor's equitable lien in respect of the money payable in respect of the lump sum costs order. If it has an arguable case in that regard, it seems to me that it would be appropriate for the moneys to be paid into Court to preserve the status quo until the question of the existence of the solicitor's equitable lien can be determined on a final basis.
6 There is no issue in respect of the applicable principles in respect of equitable liens in this context. They were summarised by Campbell J in in Firth v Centrelink [2002] NSWSC 564; 55 NSWLR 4512 at [35]. Ms Edwards' submissions, however, did not really address those principles.
7 Ms Edwards' main submission was, in effect, 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 what was said to be "disentitling conduct". Given the urgency in which the matter has been brought before the Court, Ms Edwards had not been able to file any evidence in support of her claims in that regard. She did, however, endeavour to identify in her submissions what she claimed to be the conduct which disentitled Giles George to the benefit of an equitable lien.
8 I do not propose, for present purposes, to rehearse Ms Edwards' submissions in that regard in any detail. That is particularly so given that some of the submissions raised serious allegations against Giles George. I also had difficulty understanding some of the submissions. It suffices for me to note that I am not, at this stage at least, persuaded that the nature of the alleged conduct of Giles George that Ms Edwards identified in her submissions was conduct which would, if established, necessarily disentitle Giles George of the benefit of an equitable lien. Most of the alleged conduct, if it is found to have occurred, may well bear on Ms Edwards liability, or the extent of her liability, to Giles George for legal fees in respect of the conduct of the defamation proceedings. It may also raise other issues. It is, however, not immediately apparent to me that the allegations made by Ms Edwards bear on the existence of a solicitor's equitable lien. In any event, as I have already noted, at this stage the allegations are just that - allegations made from the bar table which are unsupported by any evidence and have not been tested.
9 Another submission that was advanced by Ms Edwards in opposition to the application by Giles George that the lump sum costs amount be paid into Court was that she had undertaken to pay trial counsel from the funds which she would otherwise receive from the Nine Network in respect of costs. While I have some considerable sympathy for the proposition that counsel should be paid their fees as soon as possible, one of the problems with Ms Edwards' submission is that it is Giles George, not her, that is liable to pay counsel in respect of their fees. There is also apparently no agreement as between Giles George and Ms Edwards in respect of the amounts that should be paid to counsel. I indicated to Ms Edwards and Giles George that if they were able to agree on the amount that should be paid to counsel, and the basis upon which it is paid, I would readily make consent orders permitting those funds to be paid out of Court. That would mean that the only funds remaining in Court would be those over which an equitable lien might exist to secure the payment of any fees that might in due course be found to be payable to Giles George.
10 I am, in all the circumstances, satisfied that Giles George has a good arguable case that it has a solicitor's equitable lien in respect of the agreed lump sum costs amount payable by the Nine Network. I emphasise that that is a finding made only on an interlocutory basis. I will, of course, entertain more detailed submissions in respect of this issue at the final hearing. 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.
11 I accordingly propose to make an order that the lump sum costs amount as agreed between Ms Edwards and the Nine Network be paid into Court pending the resolution of the issues to which I have referred.
12 Upon application by Nine Network and Ms Edwards, I will also make an interim non-publication order pursuant to s 37AI(1) of the Federal Court of Australia Act 1976 (Cth) so as to preserve the confidentiality of the agreement between Ms Edwards and the Nine Network in respect of the lump sum costs amount, at least for the time being. My provisional view is that Giles George should in due course be permitted to know the lump sum costs amount, however I will hear further submissions from Ms Edwards and the Nine Network in respect of that issue when I consider whether to make a final non-publication order.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.