Texts could be key to costs in lawyer’s fight over Insta-famous dog

A former US state attorney and decorated barrister has secured a final win in her legal battle with A Current Affair, who falsely implied she stole a famous dog.

A former US state attorney and decorated barrister has secured a final win in her legal battle with A Current Affair, who defamed her by falsely implying she stole an Instagram-famous dog.

Gina Edwards was awarded $150,000 in April after a Federal Court judge found she had been defamed by Nine and journalist Steve Marshall in two 2021 broadcasts and an article.

Justice Michael Wigney ruled the publications falsely implied she had abducted an Instagram-famous cavoodle named Oscar amid a bitter custody war with the dog’s co-owner Mark Gillespie.

He concluded the broadcasts were “sensationalist, if not hyperbolic” and “painted Ms Edwards in a most unfavourable light”.

Former US assistant state attorney for the state of Florida Gina Edwards is fighting for her legal bill to be paid by Nine. Picture: NCA NewsWire / Monique Harmer

On Thursday, the matter returned to the Federal Court for a hearing to determine whether Nine will have to pay Ms Edwards’ legal costs for the high-profile defamation battle.

Her lawyer Sue Chrysanthou SC argued her client was entitled to be fully compensated after her win.

“Defamation cases historically, especially ones involving the media, are atrociously expensive,” she said.

Ms Chrysanthou said the cost to the complainant was often “so expensive” that they were left without much to show for it, even when they were awarded costs.

One of the purposes of defamation legislation is to encourage parties to resolve costly and prolonged disputes, Ms Chrysanthou told the court.

Yet she said Nine had shown “complete failure” to engage with the settlement process and explained there had been no response to two offers of compromise from Ms Edwards’ camp.

After the first offer to settle for $79,000 (just over half of what Ms Edwards was ultimately awarded), the court was told Marshall wrote a revealing text to Oscar’s former co-owner.

“I don’t want to give Edwards an inch here,” he told Mr Gillespie in March 2022.

Another later offer to settle for $45,000 was also rejected by Nine.

“We were deprived of the ability to negotiate in this matter and to settle this matter, which took up a lot of Your Honour’s time (and) the court’s time,” Ms Chrysanthou said.

The Federal Court found Ms Edwards was defamed by publications that implied she stole Oscar the cavoodle. Picture: NCA NewsWire / Monique Harmer

However, Nine’s lawyer Dauid Sibtain SC held that was “not correct” and told the court his client had presented Ms Edwards with two offers in late 2022 after refusing the offer of compromise.

The court was told the first offer required the former US state attorney to agree to a finding against her, while the second offered to pay for her legal costs without any further compensation.

Mr Sibtain declared Ms Edwards was not entitled to full costs because she had engaged in “disentitling conduct” throughout the proceedings.

He pushed for the former US state attorney to receive 80 per cent of the legal costs or legal costs incurred after the compensation offer was rejected in March.

Mr Sibtain pointed to Justice Wigney’s ruling that Ms Edwards had been involved in deception outside court when she pretended to take possession of Oscar temporarily so he could appear on a TV show but did not return him.

Ms Edwards “told a lie outside court” and had been found to be an “unimpressive witness who gave self-serving evidence” that was “unreliable and lacked candour”, he said.

Nine’s lawyer argued the legal battle dragged on for longer than it should have because Ms Edwards “put in issue matters which lacked a foundation”, such as the issue of Oscar’s ownership.

The custody battle over the Instagram-famous pup was central to the defamation case. Picture: Instagram

He stressed Justice Wigney’s rejection of Ms Edwards’ assertion that she had entered into a co-ownership agreement with Mr Gillespie over the famous cavoodle, ruling it was “unsupported by any cogent, reliable or credible evidence”.

Justice Wigney clarified he didn’t find Ms Edwards had lied but rather her evidence on some issues was insufficient or unreliable.

“The vast majority of her evidence I accepted,” he said.

Ms Chrystanou referred to the defamation case brought by her client, former special forces commando Heston Russell, against the ABC that was told of Mr Russell selling pictures of his “tumescent penis” on OnlyFans.

Justice Michael Lee found he gave false evidence on the matter and was not an impressive witness but determined he had been defamed and awarded him $412,000 in damages and costs.

Ms Chrystanou argued the outcome should be the same for Ms Edwards.

She also hit back at Nine’s “absurd” argument that her client has raised irrelevant issues and highlighted Nine’s desire to discuss an outfit Oscar wore to the opera during the trial.

“(To) say that my client was seeking to waste the court’s time in response to frankly, a mess of a defence, is a submission that cannot be sustained,” she said.

Ms Chrysanthou contended Nine had unnecessarily extended the legal proceedings with a “hopeless defence” of contextual truth that failed.

Justice Wigney ordered Ms Edwards’ costs until 11am on March 15 2022 be paid on a party/party basis, which means the parties will need to reach an agreement about the legal bills.

Mark Gillespie was filmed grabbing Oscar the cavoodle during A Current Affair’s broadcast. Picture: Nine

Ms Edwards and her husband now have custody of Oscar.

Legal costs accrued by Ms Edwards after that date are to be paid on an indemnity basis. 

The date marks the point at which it was deemed unreasonable for Nine not to make an offer to settle the proceedings. 

“It should have been readily apparent to (Nine) as of 10 March 2022 that Ms Edwards had a relatively strong case and that their defence, which at that point did not include a justification defence, was fairly weak and tenuous,” he said. 

“It should also have been apparent … that if Ms Edwards succeeded, the damages payable to her were likely to be significant and that the offer to settle of $79,000 and the payment of costs as agreed was eminently reasonable.”

Justice Wigney ordered the amount of costs payable be referred to a registrar, who will act as a referee for the discussion. 

The declaration concludes the fiery proceedings involving Oscar, who was permanently signed over to Ms Edwards and her husband Ken Falvell in November 2021 after the defamatory publications.

At the height of his fame, the Instagram-famous pooch had more than 10,000 followers.

Originally published as Texts could be key to costs in lawyer’s fight over Insta-famous dog