Re Gdanski

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 05884

IN THE MATTER of the Estate of LAWRENCE MAXWELL GDANSKI, deceased

BETWEEN:

JEFFREY GDANSKI (who is sued as the Executor of the Estate of LAWRENCE MAXWELL GDANSKI)	Plaintiff
v
RHANI RYNSBURGER & OTHERS (according to the attached Schedule, as Executors of the Estate of ARTHUR JOHN GDANSKI)	Applicants

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2024
DATE OF JUDGMENT:	21 June 2024
CASE MAY BE CITED AS:	Re Gdanski
MEDIUM NEUTRAL CITATION:	[2024] VSC 356

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PRACTICE AND PROCEDURE – Legal practitioners – Application to restrain legal practitioners for the plaintiff from acting in proceeding brought by the applicant for revocation of probate – Limited prior retainer – Whether breach of duty of loyalty and interests of justice require injunction – Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 and Schmidt v Ahrkalimpa Pty Ltd (Recv Apptd) [2020] VSCA 193 – Whether solicitor will be a material witness – Mitchell v Burrell [2008] NSWSC 772 – Consideration of solicitors conduct rules – Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 – Civil Procedure Act 2010 (Vic) – Dugan v Process Holdings Pty Ltd [2021] VSC 555 – Significant and prejudicial delay in bringing application – Held: Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke KC	Madgwicks Lawyers
For the Applicants	Mr J Mattin	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Introduction

Background

Events Leading Up To Lawrence’s Death
Events at the time and shortly after Lawrence died

Legal Principles

Confidential Information

Duty of Loyalty

Duty of Loyalty Principles
Duty of Loyalty Submissions and Consideration

Interests of Justice

Interests of Justice Principles
Solicitor a material witness

Solicitors Conduct Rules

HIS HONOUR:

Introduction

By summons filed 20 May 2024 the applicants seek orders restraining the plaintiff’s lawyers (Madgwicks Lawyers (‘Madgwicks’)) and Ms Debra Dunn (‘Ms Dunn’) from continuing to act, or restraining the plaintiff from continuing to engage them.
The applicants rely on:
(a)an affidavit sworn by Simon Crawford on 20 May 2024. The applicant refers in particular to the letters dated 12 March[1] and 12 April 2024[2] from Mr Crawford of HWL Ebsworth Lawyers to Madgwicks. Mr Crawford refers to and exhibits a number of other affidavits filed in the proceeding;
(b)written submissions filed 20 May 2024 (in which the applicants say they rely on ‘various affidavits filed in support of the revocation application’).
[1]See affidavit of Simon Andrew Crawford filed 20 May 2024, 82-5.
[2]Ibid 90-2.
The plaintiff opposes the application and relies on:
(a)affidavit of Jeffrey Gdanski sworn 9 February 2024;
(b)affidavit of Ms Dunn sworn 24 May 2024;
(c)affidavit of Alexandra Lawrence sworn 24 May 2024; and
(d)written submissions filed 24 May 2024.

Background

The following background is taken from the affidavits relied on. In large part there was no dispute as to what has occurred. It is necessary to consider the affidavits that have been filed in some detail in relation to questions of the terms of Madgwicks retainer and the work Ms Dunn was required to do under it, including the extent to which any advice was given by Ms Dunn to Arthur Gdanski (‘Arthur’) or any other family members, and the scope of possible conflict. It is not necessary to resolve any factual issues and I do not intend to express any concluded view as to contested factual matters in recounting the evidence below.
Lawrence Gdanski (‘Lawrence’) died on 8 November 2020 leaving a will dated 13 July 2012 (‘2012 Will’). On 21 April 2021, probate of the 2012 Will was granted to Jeffrey Gdanski (‘Jeffrey’). Affidavits have been filed suggesting another will may have been executed shortly before his death although no copy of any such will has been located.
Lawrence was survived by two brothers, Jeffrey (the executor under the 2012 Will) and Arthur who died on 26 December 2023. The applicants are Arthur’s daughters, Rhani Rynsburger, Camille Rynsburger (‘Camille’) and Joeline Rynsburger (‘Joeline’) as executors of his estate. They seek orders revoking probate granted to Jeffrey.

Events Leading Up To Lawrence’s Death

In 2012, Anthony David Lava (‘Mr Lava’), a solicitor, prepared wills for Lawrence and Jeffrey.
At some point in time after 2012, Lawrence gave a certified copy of his 2012 Will to Jeffrey. It was not contended that Jeffrey did not have a copy of this will in his possession at the time of Lawrence’s death. In the 2012 Will, Jeffrey is appointed executor and Lawrence gifts $50,000 to Arthur and $50,000 to Leanne McLaren and otherwise essentially leaves his residuary estate to Jeffrey. Jeffrey explains that his relationship with his older brother Lawrence was at times strained, but they nonetheless enjoyed each other’s company.
Desmond Hall (‘Mr Hall’) is 84 years old and knew Lawrence since he was 18 or 19 years old. He has sworn an affidavit in which he says that in about the end of February or early March 2019, Lawrence said to him he wanted to execute a new will with Mr Hall as executor and to leave everything to Arthur except for a $50,000 legacy to his ex-partner Leanne McLaren. Mr Hall says that:
the day before Lawrence’s kidney removal operation, I purchased a Will kit from a newsagency located on Church Street in Whittlesea to assist Lawrence to execute a new will, as he had not made his own arrangements to do so. Lawrence had not taken my advice to see a solicitor to prepare a Will because on the one hand, he told me that he didn’t want the local solicitors ‘knowing his business’, and on the other hand, he wasn’t willing to travel to see a solicitor out of town.
After purchasing the Will kit I handed the Will kit to Lawrence in his home where he proceeded to open it and fill out information. I saw that he inserted his name and address, and nominated me as executor on the form. I then stepped away to leave Lawrence to complete the rest of the information privately.
On the day of the scheduled surgery, I asked Lawrence if he had sorted out his new Will, and he assured me that he had done so by executing it before Tom Egan a conveyancer in Tom’s building. He also told me that if anything happened to him, I could access that Will in a yellow folder on his desk. I did not subsequently see a final executed version of the Will. [3]
[3]Affidavit of Desmond Hall filed on 6 November 2023, [15]-[17].
Two friends of Lawrences, Robert Romeo Ozimo (‘Mr Ozimo’) and Shane Lindsay Diamond (‘Mr Diamond’) have sworn that the relationship between Lawrence and Jeffrey was strained and that towards the end of Lawrence’s life that he indicated he was going to change his will. Mr Diamond says that
sometime in the 6-12 months before Lawrence’s death, Desmond and Lawrence mentioned to me that Lawrence had a new Will and that his ‘current Will’ was in Lawrence’s house. I did not see this Will myself and Lawrence did not discuss it with me other than to say Desmond was the executor of his Will.[4]
[4]Affidavit of Shane Lindsay Diamon filed on 6 November 2023, [7].
Mr Ozimo says in about the 6 months before he died Lawrence told him that he:
(a)did not want Jeffrey or Leanne McClaren to get anything but was going to ‘look after’ his brother Arthur;
(b)‘had organised a new will with Desmond’s assistance’ and ‘that Will was on a table in Lawrence’s house.’
I note that Mr Diamond and Mr Ozimo’s statements differ as to what Lawrence said were to be the terms of the new will.
Mr Lava, Lawrence’s solicitor, deposes in his affidavit sworn 24 February 2023 (but filed 6 November 2023) as to the making of the 2012 Will. He further says that several years later he received a call from Lawrence in which he said:
a. That he had torn up his 2012 will, which I took to mean the original 2012 Will;
b. that he had executed a new Will through a Will kit; and
c. he was enraged with Jeffrey and words to the effect that he did not want Jeffrey to get ‘one cent of his money.’[5]
[5]Affidavit of Anthony David Lava filed on 6 November 2023, [6].
It is not suggested by Mr Hall, or Mr Diamond or Mr Ozimo that Jeffrey (or his lawyers) were privy to any conversations that took place about any new will.
Ms Kathryn Alexandra Jane Garrioch (‘Ms Garrioch’), a conveyancer, swore an affidavit on 16 January 2023 (filed 6 November 2023) in which she states that she knew Lawrence and further that:
Sometime in or after 2018, Lawrence was speaking with Tom Egan, a real estate agent who runs his business in the same building in which I work, when he saw me walking past and asked me to be a witness to his Will.
I do not recall the exact date of execution of the Will. However, it would have been sometime after 2018, which was when I commenced my occupancy in that building complex.
I agreed to witness Lawrence’s will, and I was ushered into Tom’s office.
I noticed Lawrence’s Will appeared to be a post office will kit and was handwritten. Upon seeing this, I recall suggesting to Lawrence to consult a solicitor. Lawrence responded to the effect ‘lawyers are too expensive.’
Before witnessing the will, I checked Lawrence’s full legal name and address had been recorded correctly on the document, but I did not otherwise read the contents of the Will. I was familiar with Lawrence’s full name and address from previous dealings I’d had with him, and didn’t feel the need to verify this information by reference to identification documents.
I recall that both Tom and I witnessed Lawrence’s signature on the Will, and using the same pen as Lawrence, we both signed our names and recorded ourselves as witnesses. Lawrence then left with that executed will.
There were no other persons present at the execution of the Will, other than Lawrence, Tom and me.[6]
[6]Affidavit of Kathryn Alexandra Jane Garrioch filed on 6 November 2023, [4]-[10].

Events at the time and shortly after Lawrence died

Jeffrey has sworn an affidavit on 9 February 2024 (in support of his application to strike out the applicants’ revocation application) explaining what occurred on the day, and shortly after, Lawrence died. He says that he lives close to Lawrence’s house and a neighbour had alerted him that there was an ambulance outside Lawrence’s house. Jeffrey went there and saw Mr Hall. Jeffrey says that Mr Hall said to him
Lawrie had made a will, (‘the Alleged Will’), and he (Des Hall), was executor under it. This surprised me because I had a certified copy of Lawrie’s 2012 Will which Lawrie had arranged to be given to me and I understood that was Lawrie’s last will. At this time I thought the original of the 2012 Will was held by Tony Lava, Lawrie’s lawyer. I asked Des Hall to produce a copy of the Alleged Will and he said he didn’t have a copy.’
Mr Hall’s evidence is that he saw Lawrence in the morning and when he returned in the afternoon, found him dead. He says he contacted the police who subsequently arranged for an ambulance. He says Jeffrey arrived with his partner and that Mr Hall told Jeffrey about the new will and that he was executor.
Jeffrey has expressed concerns about Mr Hall’s presence in Lawrence’s house after his death including that:
(a)Jeffrey says that Lawrence had complained to him that Mr Hall was always asking for money, and that Lawrence had said he loaned money to Mr Hall’s son Tim, and that he kept details of the money loaned to Mr Hall and his son, Tim in an exercise book which he showed Jeffrey;
(b)when Lawrence arrived at the house, Mr Hall said to the police in Jeffrey’s presence, that Lawrence’s house was his house and that he would build four units on it and sell them all. Mr Hall denies this;
(c)Mr Hall was in the house for some time alone and suspects Mr Hall may have taken some things having regard to the fact that Jeffrey had been unable to locate the loan exercise book, or other books and accounts that he had seen prior to Lawrence’s death;
(d)upon leaving Lawrence’s house, and over Jeffrey’s objection, Mr Hall took Lawrence’s wallet, keys (including to Lawrence’s safe), mobile phone, and keys to Lawrence’s storage container. Mr Hall says he took the phone and keys, but not the wallet.
At the time of Lawrence’s death, Jeffrey had a certified copy of the 2012 Will, but not the original. Mr Hall’s evidence is consistent with there being an earlier will ‘leaving everything to Jeffrey except a $50,000 legacy.’
Jeffrey says that on 8 November he and Mr Hall agreed to meet there the next day at 10:00 am. Jeffrey says that the next day he saw that Mr Hall was at Lawrence’s house at 9:00 am which again caused him concern. Things became heated and the police were called, each of Jeffrey and Mr Hall appear to have called lawyers. Mr Hall appears to have called Mr Lava and Jeffrey called Ms Dunn, and it was agreed that they should leave the property and return on 13 November to conduct a search for Lawrenc’s will.
At some stage between 9 November and 13 November, and having discussed it with Arthur and Camille and Ms Dunn, Jeffrey arranged for the locks at the property to be changed, but, he says, he did not enter it.
On 10 or 11 November, Madgwicks was retained.
Ms Dunn says that instructions originally came from Jeffrey who called and said that Lawrence had died and ‘asked for assistance on issues surrounding securing and searching the house for a will.’ She says ‘it was Jeffrey, not Camille, who requested I attend the house to search for a Will.’[7] She then says
After being contacted by Jeffrey I was contacted by telephone by Arthur and Camille. I can recollect at the outset, upon first contact from Jeffrey, I was aware of the Will of Lawrence Maxwell Gdanski … made on 13 July 2012. ….(of which Jeffrey had a copy) and was provided with a copy.; and if the original 2012 Will could be found, and there was no subsequent Will, it was intended to obtain probate of the 2012 Will. This possibility was discussed with Jeffrey, Arthur and Camille.[8]
[7]Affidavit of Debra Anne Dunn filed on 5 May 2024, [6].
[8]Ibid [7].
The extent of the legal services to be provided was in issue. The written retainer is dated 11 November 2020, signed by Mr Angelo Conti a partner at Madgwicks, but not signed by either Jeffrey or Arthur. It was not suggested that Madgwicks and Jeffrey and Arthur did not agree to the terms of the retainer which was as follows:
(a)The client is (Item 1): ‘Arthur & Jeffrey Gdanski c/of 90 Church Street, Whittlesea … Email [email protected]; [email protected].’
(b)Matter (Item 2): ‘Advice in relation to the Estate of the Late Lawrence Gdanski’;
(c)Estimated legal costs (Item 3): ‘$11,330 (GST inclusive)’;
(d)Scope of the matter (Item 4):
·General advice in relation to the Estate in view of recent events and confusion regarding most current Will.
·Attendances on Jeffrey, Arthur (including by his daughter Camilla) and various others at the home of the deceased at 3 Elm Street Whittlesea to search for the latest Will of the late Lawrie Gdanski
·General advice in relation to actions to secure the Estate in the event Jeffrey Gdanski is the Executor under the most current Will
·liaising as requested with the Police, Desmond Hall and Tony Lava
·Attending meeting at 11 am Friday 13 November 2020 at 3 Elm Street Whittlesea including travel there and back (costs may need to be revised depending of (sic) amount of travel time etc.) may attend with other independent witness.
Carrying out the work referred to above represents the proposed course of conduct of this matter.
(e)Exclusions (Item 5): ‘Anything not referred to in the scope above.’
(f)Supervising partner (Item 6): ‘Angelo Conti’…
(g)Responsible lawyer (Item 7): ‘Debra Dunn. Special Counsel’….
Ms Dunn’s evidence is that:
That agreement was entered into prior to the original 2012 Will being found, for the purpose of searching for a Will only. At the time … it had been discussed with Jeffrey and Arthur that if the original of the 2012 Will was found and no subsequent will was found, I would be acting for Jeffrey as executor. The cost agreement was prepared on this basis. It was a very limited retainer entered into as a matter of urgency following arguments between Jeffrey and Des Hall which had resulted in police being called.[9]
[9]Ibid [8].
The plaintiff contends that the terms of the retainer, insofar as it involved acting for Arthur, was very limited and involved essentially searching for the original 2012 Will and any other will at the deceased’s premises on the two occasions that searches were conducted. The plaintiff submitted that if the original 2012 Will was located, but no will kit will was located, then the limited retainer would be at an end and Madgwicks would continue to act on behalf of Jeffrey as executor of the estate under the 2012 Will.
The applicants submit that the terms of the retainer are broader than Jeffrey asserts and include, on its terms, ‘general advice,’ which they say was provided at the first search.
Jeffrey organised for Ms Dunn to attend the deceased’s house to search for the original 2012 Will, which took place on 13 November 2020. In attendance were: Jeffrey and his partner Matilde Martinez (known as Mhel), Mr Lava, who is a lawyer who drafted the 2012 Will, Ms Dunn, Helen McNamara (a lawyer from Madgwicks), Arthur’s daughters Camille (the second applicant, who at the time held a general power of attorney for Arthur) and Joeline (the third applicant), and Mr Hall.
Jeffrey says there was a lot going on and relations were strained during this search with Mr Hall claiming to be the executor and Camille and Joeline interested in taking jewellery. Jeffrey also states that he was informed by Ms Dunn that she had asked Mr Lava ‘whether he had the original of the 2012 Will, to which Tony Lava responded, he had looked and he did not’.
Jeffrey says that on the day of the first search:
Debra Dunn was asked questions by Camille and others, about what would happen if no will was found. Debra Dunn answered those questions in general terms to explain that the estate would pass on intestacy and that the brothers Arthur and Jeffrey could apply for letters of administration on intestacy. Debra Dunn also referred to the possibility of obtaining probate of the 2012 Will or if found the Alleged Will.
Camille says that she ‘asked Ms Dunn … what would happen if no will was found. Ms Dunn informed me that it would be a 50/50 split between my father and Jeffrey, on the basis that Lawrie would be deemed to have died intestate.’
Apparently there were many papers but no wills were found during the first search. A further search was arranged for 30 November.
On 30 November a second search was conducted by Ms Dunn with Jeffrey, Mhel, Camille in attendance.
Ms Dunn prepared a file note dated 30 November 2020. The client’s name is ‘Jeffrey Gdanski’. The matter description is ‘Advice in relation to the late Lawrence Gdanski.’ The note records ‘Testamentary Documents’ apparently located during the 30 November search as follows. The file note includes:
CA blank standard form Will and Testament (not completed) found in the roller desk drawer in the lounge room.
DDirty envelope unfilled in, said to contain the Last Will and Testament standard issue, found in top drawer of desk in office (one of the spare bedrooms). Uncompleted Last Will in more modern font.
EFound in filing cabinet in lounge room, yellow envelope containing power of attorney. Handwritten notation on the envelope “Power of Attorney and Will” containing photocopies of the following documents:
(a)Last Will of Lawrence Gdanski made 13 July 2012;
(b)Last will of Jeffrey Gdanski made 13 July 2012
(c)Enduring Power of Attorney by Laurie appointing Jeffrey made 13 July 2012;
(d)Enduring Power of Attorney by Jeffrey appointing Laurie made 13 July 2013.

The documents in item D have been produced and are blank standard form wills with no handwriting on them. They each contain a standard form revocation clause stating that they revoke prior wills.
On 11 December 2020, Ms Dunn emailed Jeffrey, Camille and Mr Hall and wrote:
I refer to my presence at the former residence of the later Laurence Gdanski Monday week ago and confirm that my search did not locate any original wills, only a copy of the will already known of made 13 July 2012. I will send a more detailed letter in this regard, shortly.
Des, as no will has been found appointing you as executor, would you please confirm that you are no longer making a claim to act as executor in this matter?
In December 2020, Mr Lava, Lawrence’s solicitor, found the original 2012 Will which Jeffrey collected.
On 18 December 2020, Ms Dunn convened an online meeting. Present at the meeting were Jeffrey, his partner, Mhel, Ms Dunn, Arthur, Camille, Joeline, possibly Arthur’s other daughters, and Diane Rynsburger (Arthur’s ex-wife). Ms Dunn and Jeffrey say that the 2012 Will was discussed and Ms Dunn said Jeffrey would be applying for probate of the 2012 Will. Camille takes issue with a number of things that Jeffrey says about the conversation on 18 December but does not positively say in her affidavit that Ms Dunn did not say what is alleged about seeking probate of the 2012 Will. It is otherwise unnecessary to mention disagreement about the contents of this conversation.
Ms Dunn says that in performing work under this limited retainer, she ‘did not provide any specific advice to Arthur or Jeffrey nor did [she] receive any confidential information from either Arthur or Jeffrey during that time.’[10]
[10]Affidavit of Debra Anne Dunn filed on 24 May 2024, [11].
On 21 April 2021, probate of the 2012 Will was granted to Jeffrey.
In September 2021, Leanne McLaren made a family provision claim on the estate claiming to be the deceased’s partner. That claim was settled in May 2023 (‘McLean Part IV Claim’).
In December 2021, shortly prior to his death, Arthur made a family provision claim on the estate. Jeffrey notes that after Lawrence’s death and the discussions about obtaining probate of the 2012 Will, Arthur did not seek to challenge the will or the grant of probate but rather engaged his own lawyers and made a family provision claim. On 7 November 2022, $50,000 was paid out of estate funds to Arthur’s lawyers, Portfolio Law. It was described in correspondence by Madgwicks as an ‘early interim distribution.’
On 6 February 2023, HWLE Lawyers sent a letter to Madgwicks stating that they ‘reserved the right’ to revoke probate but providing no reasons. There was further correspondence between February and September 2023.
On 19 May 2023, the McLaren Part IV claim was settled on terms that Jeffrey as executor pay a sum to her plus costs.
On 6 November 2023, the applicants issued a summons for revocation of the grant. The grounds are said to be that the 2012 Will was revoked by a later ‘will-kit’ will. The explanation for the delay given by counsel is that it takes time to get material together for such applications.
On 5 December 2023, Madgwicks wrote to HWLE Lawyers indicating opposition to the revocation application on the grounds that:
(a)There is significant delay between probate (when all material facts were known) and the summons;
(b)Numerous steps have been taken in the administration of the estate between the grant of probate and the issuing of the summons including the settlement of McLaren’s Part IV Claim; and
(c)Arthur had made a Part IV claim, and had sought payment of $50,000 from the estate, while represented by other lawyers. Madgwicks say that this conduct is inconsistent with a revocation application.
On 7 December 2023, consent timetabling orders were made.
On 2 February 2024, the plaintiff filed an application for summary dismissal of the revocation application and an affidavit of Jeffrey Gdanksi in support.
On 4 March 2024, the court listed the summary dismissal application for 27 May 2024, and on 12 March 2024, timetabling orders were agreed.
On 12 March 2024, in correspondence to Madgwicks, HWLE Lawyers first raised the issue of conflict and injunctions against Ms Dunn and Madgwicks.

Legal Principles

There are three[11] possible bases upon which injunction may be granted to prevent a lawyer from acting in a proceeding:
(a)where there is a real risk of misuse of confidential information;[12]
(b)where such conduct would be in breach of the equitable (fiduciary) duty of loyalty which forbids concurrent as well as the successive holding of two inconsistent engagements;[13]
(c)where, independently of whether there has been any breach of any equitable or legal obligation, it is desirable in the interests of justice to restrain the solicitor from continuing to act.[14] Such circumstances may include, as is suggested here, where it is likely a lawyer will be a witness on a contentious matter of fact.
[11]As discussed below the second basis is not universally accepted.
[12]Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, 508 [24] (‘Spincode’).
[13]Ibid [53], [60] (Brooking JA). I note that Brooking JA suggests ([53]) there may be a negative contractual obligation implied into the terms of the retainer.
[14]Ibid [58], [60].
There is no material difference in the present case between the application of these principles to the question whether to restrain the lawyers from acting on the one hand, and whether to restrain the client from continuing to engage the lawyers on the other hand. Accordingly, the above principles, and the analysis below, apply to all of the relief sought.

Confidential Information

The applicants did not submit that Ms Dunn or Madgwicks had obtained any confidential information, and so it was not submitted that by them continuing to act there was any risk of misuse of such information. In any case, I accept Ms Dunn’s uncontested evidence that she did not receive any confidential information in the course of the retainer, which predominantly involved searching for the original 2012 Will and any will-kit will.

Duty of Loyalty

Duty of Loyalty Principles

In relation to the duty of loyalty, the applicants relied heavily on the decisions in Spincode[15] and Holdsworth v Anderson.[16] It is apparent from those cases that a lawyer’s duty of loyalty, being associated with the public interest in the administration of the law, is characterised by a ‘special quality’ that imposes ‘more severe’ obligations than might attend other duties of loyalty.[17]
[15]Ibid.
[16]Holdsworth v Anderson (Supreme Court of Victoria, J D Phillips J, 26 August 1994) (‘Holdsworth’).
[17]Spincode (n 12) 517 [44], quoting Professor Finn’s paper (‘Seminar on Professional Responsibility’) given in 1987, 519-520, [47], 521 [50] citing McVeigh v Linen House Pty Ltd [1993] 3 VR 394, 398.
In Spincode, Brooking JA held that a duty of loyalty can continue notwithstanding the termination of a retainer, and is not dependent upon any risk of misuse of confidential information.[18] That principle has not been universally accepted and the existence of such a duty of loyalty beyond termination of a retainer, save in respect of confidential information, has been rejected in the United Kingdom[19] and New South Wales[20] and in the Federal Court.[21] But I am bound by the current position in Victoria as expressed by the Court of Appeal in Schmidt v Ahrkalimpa Pty Ltd (Recv Apptd)[22]
We acknowledge that there is authority in jurisdictions outside Victoria to the effect that a fiduciary duty does not survive the termination of the relationship that gave rise to it. However, in our view, in the absence of a contrary decision by the High Court, the law in Victoria is as stated by this Court in Edmonds v Donovan (2005) 12 VR 513. That is, depending on the circumstances of a particular case, fiduciary duties may survive the termination of the relationship that first called those duties into being.[23]
[18]Ibid [52].
[19]Ibid [32], [38], [52] (discussed by Brooking JA) citing Prince Jefri Bolkiah v KPMG [1992] 2 AC 222.
[20]See for example, Técnicas Reunidas SA v Andrew [2018] NSWCA 192, [8] (Leeming JA with whom Bathurst CJ and White JA agreed) (‘Técnicas Reunidas’); Cooper v Winter [2013] NSWCA 261, [96] (Ward JA with whom McColl and Barrett JJA agreed) citing Kallinicos v Hunt (2005) 64 NSWLR 561.
[21]Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252 (‘Dealer Support’) where Beach J extensively examined and rejected Brooking JA’s reasoning in Spincode.
[22][2020] VSCA 193 (‘Schmidt’).
[23]Ibid [142] (Kyrou, Hargrave, Emerton JJA). See also, Gavanas v The King [2022] VSCA 271, [46] (Kyrou, McLeish and Kennedy JJA), citing Sent v John Fairfax Publication Pty Ltd [2002] VSC 429, [98]-[110] (Nettle J) especially, [104] and [110]; Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152, [40] (Whelan J).
For present purposes, the way in which that duty of loyalty may operate to restrain a lawyer from acting, notwithstanding the absence of any risk of misuse of confidential information, is demonstrated by an example given in Holdsworth and cited in Spincode[24]:
[c]onsider, for example, the case of a solicitor acting for both vendor and purchaser [having complied with ethical practice requirements for doing so] … Suppose the transaction of sale and purchase goes off for want of payment on the due date, and an argument develops over the delivery of the purchase price to the solicitor. There may be nothing confidential about the facts by which a loan that dispute will be resolved, it can be supposed that the solicitor, having been retained by both vendor and purchaser to act, and having accepted that retainer, and having acted, can then act for one against the other in the resolution of that dispute? It is surely part of the contract of retainer that the solicitor will use his best endeavours in the interests of his client and he does not do that by placing his own particular knowledge of events in which he took part as the agent of both at the disposal of one to the exclusion of the other. It is on that basis that I think that (at least in the ordinary case) a Court of equity would restrain the solicitor from acting for either vendors or purchaser in the dispute between them. Nor do I think that anything turns on whether that dispute first arose before or after the formal conclusion of the work which the solicitor had been engaged to transact on behalf of both. [25]
[24]Spincode (n 12) [49],[51] (Brooking JA).
[25]Holdsworth (n 16) 17-18.
In Wan v McDonald[26], Burchett J considered the situation where a solicitor having acted for two parties, subsequently ‘seeks to act against one of his former clients, and in the interests of the preferred client, in litigation arising out of the very matter in which he himself acted for both.’ Burchett J held:
In my opinion, it could only be in a rare and very special case of this latter kind that a solicitor could properly be permitted to act against his former client, whether or not any real question of the use of confidential information could arise.
[26](1992) 33 FCR 491, 512-13 cited in Spincode (n 12) [50].

Duty of Loyalty Submissions and Consideration

The applicants relied heavily on the decisions of Spincode and Holdsworth in submitting that Ms Dunn and Madgwicks would be in breach of their duty of loyalty if they continued to act. They submit that the retainer makes it clear that the clients were Jeffrey and Arthur. So much is apparent from the written terms of the retainer and the evidence of Ms Dunn. As discussed above, there is disagreement as to the extent of the retainer. Jeffrey submits that the retainer was limited essentially to the search for a will. Whereas, the applicants say the retainer extended to general advice, and in fact involved advice as to what was to occur if no will was found.
The question of the extent of the retainer is not without difficulty. The present facts are not dissimilar to the hypothetical considered in Holdsworth discussed above, where a solicitor engaged to act for both parties in a conveyance, may be prevented from acting against one of them in a subsequent claim for payment of the purchase price because to so act would be in breach of the duty of loyalty. In the present case, even accepting the plaintiff’s submission that the retainer was only for the purposes of searching for the will, which in itself may be considered uncontentious, the search was undertaken in a context where the result of the search (being the failure to find any executed will-kit will), led to the situation where there was a choice to be made between:
(a)seeking probate of the 2012 Will (either the certified copy or, upon the subsequent location of it, the original) in which case Jeffrey would benefit because he was the residuary beneficiary under that will; or
(b)proceeding on the basis of evidence that Lawrence executed a will kit will, which arguably contains a revocation clause, and which could not be located, which could potentially lead to the conclusion that the 2012 Will was revoked by the will-kit will[27] and, because the will-kit will itself is lost, the will-kit will is presumed to have been revoked[28] in which case Lawrence’s estate may pass on intestacy. Such circumstances, if established, would place Arthur’s estate in a better position than if probate were granted of the 2012 Will.
[27]Wills Act 1997 (Vic) s 12(2).
[28]Re Moschoudis [2016] VSC 139, [10] (McMillan J).
In that sense, after the search, Ms Dunn was in a position where acting for either Jeffrey or Arthur may be seen as acting against the other.
But the principles discussed above are not absolute. The Court of Appeal in Schmidt[29] proceeded on the basis that whether or not a duty of loyalty continues after termination of a retainer ‘depends on the circumstances.’[30] That is consistent with Philips JA’s qualification in Holdsworth that an injunction may lie ‘in the ordinary case’ and also with J D Phillips J’s decision in Macquarie Bank v Myer[31] where his Honour held ‘there cannot be said to be any absolute rule.’ [32]
[29]Schmidt (n 22) [90], see footnote 22.
[30]Ibid [142].
[31][1994] 1 VR 350, 359 (J D Phillips J) (‘Macquarie Bank’), cited in Spincode (n 12) [48]
[32]Ibid 359.
One circumstance to be taken into account is the terms of the retainer and the work that was done under it. In this case, a significant aspect of the retainer was the search for a will, being either the original of the 2012 Will and/or a subsequent will-kit will. The physical work of searching for documents is not necessarily legal in nature, although the process of ensuring that the search is carried out in an appropriate manner may have required some care to minimise risks of documents being handled inappropriately. As for advice, the only advice that appears to have been given under the retainer was advice during the first search in response to a question from Camille as to what would happen if no will was found. Ms Dunn replied that the estate may be administered as on an intestacy. Jeffrey says that the possibility to obtain probate on the copy 2012 will was also mentioned.
Next was the conversation Ms Dunn had online on 18 December 2020 with Jeffrey, Arthur, and Arthur’s daughters after Mr Lava found the original 2012 Will. The evidence indicates that Ms Dunn said Jeffrey would be applying for probate of the 2012 Will. There is no suggestion that after this, Arthur raised any issues about Ms Dunn acting for Jeffrey.
A further matter that is relevant to the question whether an injunction should be granted is the conduct of Arthur after the original 2012 Will was located and Ms Dunn said a grant of probate would be sought. Arthur did not make any complaint about Ms Dunn or Madgwicks continuing to act. It is uncontroversial that after being told probate would be granted of the 2012 Will, and knowing its terms, Arthur then retained his own lawyers who presumably advised him, and made a Part IV application, which continued on through the next year during which he received a payment described as an ‘interim distribution’. It was submitted that Arthur acquiesced in Ms Dunn and Madgwicks representing Jeffrey and that numerous steps were taken on that basis.
Further, there has been significant delay in seeking injunctive relief. The plaintiff submits that the delay has been lengthy, that many steps have been taken in the administration of the estate, and that prejudice would follow if an injunction were granted. Arthur knew from at least 18 December 2020 that Ms Dunn would be acting in the application for a grant of probate of the 2012 Will.
In this case the consequences of delay are not trivial. Much work has been done. A Part IV claim by Leanne McLaren, alleging she was Lawrence’s domestic partner, was issued and has been settled. Arthur’s Part IV claim based on the 2012 Will was issued and went on for several months, during which an ‘interim distribution’ was made to him, presumably pursuant to the 2012 Will. No doubt there is a large degree of knowledge that has been accumulated by those working on the file in Madgwick’s and if other solicitors are retained it is likely duplicative costs will be incurred. The plaintiff also submitted that there is also a real risk that memories have faded about the searches that took place in November and December 2020. Although it is unclear how that would be relevant to the question of injunctive relief based on a breach of duty of loyalty.
Another relevant circumstance is the fact that Madgwicks and Ms Dunn have taken steps to ensure Ms Dunn does not have access to the file and is not involved in the running of the case. Ms Alexandra Lawrence, a solicitor at Madgwicks, has sworn that after the revocation application was issued, it was determined that out of an abundance of caution, Ms Dunn should not take part in any conversation with Jeffrey about recollections of relevant matters. Ms Lawrence also says that in March 2024, when it was first suggested Ms Dunn could be a material witness, steps were taken to lock the file internally which meant that Ms Dunn would not have access to the file in Madgwicks’ system. Ms Dunn has sworn that she has not discussed her recollection of the searches or any contentious matters with Jeffrey since the revocation application was issued. Ms Lawrence has also informed Jeffrey that he is not allowed to speak with Ms Dunn.
The applicants submit that they do not have faith in ‘Chinese walls’ and point out that an affidavit filed by Jeffrey on 9 February 2024, when Ms Dunn was supposed to be excluded from the matter, contains her name in the tramlines. Ms Lawrence explains that this was merely the product of using an existing precedent in the system and confirms that Ms Dunn remains subject to the restrictions on access discussed above. The applicants also note that Jeffrey states many times that he makes his affidavit based on what he was told by Ms Dunn, and suggest that either perjury or deceit is involved somewhere. The explanation given for Jeffrey’s statements in his affidavit that he relied on what he was told by Ms Dunn is that such information was provided by Ms Dunn prior to her exclusion from the file.
I accept that in some instances a Chinese wall, no matter how impenetrable, may not be sufficient to exclude the type of concerns[33] that warrant injunctive relief. But that is one matter to be taken into account in determining whether injunctive relief should be granted in the exercise of the court’s discretion. It is not determinative. I am not satisfied based on the evidence before me that there has been any perjury or dishonesty in relation to the operation of the exclusions put in place by Madgwicks and Ms Dunn. In coming to that conclusion, I note that allegations of perjury and deceit are serious and must be considered in light of the principles in Briginshaw.[34] I rely in particular on the evidence of Ms Dunn who has sworn that she has not discussed her recollection of the searches or any contentious matters with Jeffrey since the revocation application was issued. No evidence has been adduced that causes me to doubt that sworn statement.
[33] As to which, see discussion in Spincode (n 12) [44].
[34]Briginshaw v Briginshaw (1938) 60 CLR 336.

Taking into account all of the above circumstances, I am not satisfied that injunctive relief should be granted based on any duty of loyalty. The terms of the retainer were limited primarily to the search; to the extent any advice was given it was very brief and basic. There has been significant delay in making the application during which time Lawrence engaged another solicitor to act for him which included him making a Part IV application based on the 2012 Will, and receiving an interim distribution out of the estate. Among other things, that diminishes the force of any submission that he has suffered harm arising from any potential breach of duty that must be answered by an injunction. Other steps have been taken as well, including partial administration of the estate and settlement of another Part IV application. When it became apparent that a revocation application may be made, a system was put in place to ensure Ms Dunn was no longer involved in the file.
For those reasons I decline to grant injunctive relief against Ms Dunn on the basis of any breach of duty of loyalty.
The applicants also seek orders against Madgwicks. There is nothing to suggest that anyone else at Madgwicks was involved in performing any legal services or giving any advice other than Ms Dunn. While I note that Angel Conti is named as the supervising partner in the retainer, the applicants do not seek specific injunctive relief in relation to him but rather only seek it against Ms Dunn and Madgwicks generally. The submission that Madgwicks should be restrained was not developed other than briefly on the basis, so it seemed, that a Chinese wall is insufficient protection against the breach of duty of loyalty. For the reasons stated above, including in relation to the Chinese wall put in place, I do not consider that Madgwicks should be restrained from acting, or the plaintiff from engaging them.
The applicants have not demonstrated any principle upon which Madgwicks, as it is currently constituted, or any lawyers who did not do work under the retainer, are subject to an ongoing duty of loyalty sufficient to found injunctive relief against the whole firm.[35]

Interests of Justice

[35]See discussion in Dealer Support (n 21) [90] (Beach J).

Interests of Justice Principles

In relation to the inherent jurisdiction of the Court to restrain a practitioner in the interests of justice, the following principles apply:
·[T]he court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.
·The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
·The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
·Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
·The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.[36]
[36]Técnicas Reunidas (n 20) [71] (Leeming JA with whom Bathurst CJ at [1] and White JA at [86] agreed) followed in Mafkam Pty Ltd v CV Australia Pty Ltd [2020] VSC 296, [40] (Riordan J).
In ACN 092 675 164 Pty Ltd (in liq) v Suckling[37] Riordan J observed that:
Although the juridical basis of the Duty of Loyalty Ground is undoubtedly different to the Administration of Justice Ground, I am unable to find any case which identifies a fact that would be relevant to one ground but not the other; or any circumstance in which an injunction restraining a solicitor from acting against a former client would be granted on one ground but not the other.[38]
[37](2018) 56 VR 448.
[38]Ibid 470 [87].
Consistently with that statement, I do not consider that any of the matters dealt with above in relation to duty of loyalty would warrant an injunction on the basis of the interests of justice.

Solicitor a material witness

One further submission made is that Ms Dunn should be restrained because she is likely to be a material witness.[39] While there are cases where solicitors have been restrained from continuing to act because they were likely to be a witness, and there are at times sound reasons for such restraint,[40] the mere circumstance that a solicitor will be a material witness, even on a controversial matter, does not inevitably mean a solicitor should be retrained from continuing to act.[41] In Mitchell v Burrell, Brereton J held that:
the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice — which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests — require the lawyer to be restrained from continuing to act.[42]
[39]Miller v Martin [2019] VSCA 86, [18].
[40]Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395, [3], [47]; R v Silverstein [2020] VSCA 233, [118].
[41]See Mitchell v Burrell [2008] NSWSC 772, [70] (Brereton J) (‘Mitchell’), cited with approval in Dugan v Process Holdings Pty Ltd [2021] VSC 555, [62] (Lyons J) (‘Dugan’); Makripoulias v Arhontovasilis [2022] VSC 53, [13] (Moore J).
[42]Mitchell (n 41) [20].
Each case depends upon its own facts and circumstances and requires the Court to assess:
(a)the risk of inconsistent evidence ‘such that there may be conflict between the interests of the solicitor (whether financial, personal or reputational) and the interests of the client at trial;’[43] and
(b)the nature of the relevant conflict.[44]
[43]Dugan (n 41) [93]
[44]Ibid.
I do not consider that Ms Dunn should be restrained from continuing to act in the present case based on any likelihood she will be a witness. Primarily that is because it is apparent from the evidence that she is not continuing to act for Jeffrey, nor does she intend to in the future. That being the case, I do not apprehend that there is a meaningful risk of conflict or prejudice or that injunctive relief is ‘required’ in the interests of justice. As discussed above, I am satisfied that the precautions Ms Dunn and Madgwicks have implemented will mean she is not involved in the running of the matter. In my view that is a sufficient basis on which to reject the applicants’ submission that an injunction should be granted against Ms Dunn based on her being a witness.
Secondly, the matters about which Ms Dunn may be called on to give evidence relate to the searches for the original 2012 Will or a will-kit will in late 2020. There is no material suggesting that Ms Dunn behaved in any way inappropriately in her involvement in the search for any will, such that her integrity will be called into question. Nor was it submitted that she would be challenged on that basis. Nor was it submitted that Ms Dunn’s objectivity as to the conduct of the searches would be compromised by reason of any conflict. In those circumstances I am not satisfied that she will likely be called on to give evidence on any ‘contentious’ or ‘material’ matter in the relevant sense, or that there is any significant risk that evidence given by Ms Dunn will be inconsistent with evidence given by the applicants. Nor do I consider that Ms Dunn’s independent objectivity would be compromised by reason of any conflict.
Thirdly, I consider that as Ms Dunn is the individual lawyer whose conduct is complained of, the bases upon which the application for an injunction against Ms Dunn has been refused provides a basis for refusing relief against Madgwicks as well.
Finally, the matters discussed above under the duty of loyalty in relation to delay apply equally to the question of the interests of justice.
For those reasons, I decline to grant any injunction as sought in the interests of justice.

Solicitors Conduct Rules

The applicants also rely on the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, and in particular rules 3.1, 12.1, 25.1 and 27.2 which apply by operation of the Civil Procedure Act 2010 (Vic). They submit that those rules ‘underwrite a solicitor’s primary duty to the court as one of its officers concerned in the administration of justice and, to that end, to eliminate a particular form of influence or interest that, of its nature, might compromise the practitioners ability to discharge that duty.’
In Dugan, Lyons J considered the extent to which conduct rules are relevant to the exercise of the Court’s discretion to restrain a solicitor from continuing to act as follows:
[70]For my part, to the extent that r 27 is relevant to the exercise of the Court’s inherent jurisdiction to restrain a solicitor from acting, I consider that r 27 is generally consistent with the principles in Kallinicos and Mitchell set out above. In this regard, I refer to the comments of Brereton J in Kallinicos to the effect that, while the rules of conduct are of some relevance to the Court’s discretion, they are far from decisive.
[71]However, consistent with the authorities, I agree with the plaintiffs’ submission that whether or not a solicitor or firm should be restrained from continuing to act will depend upon the particular circumstances and facts. The Court is to weigh up the degree of risk of conflict of the relevant kind, any prejudice to the parties, the readiness of the matter for trial, the likely cost of changing solicitors and the practical realities.
There is nothing in the rules that cause me to depart from the conclusions I have reached in considering the duty of loyalty and interests of justice above.
The applicants’ summons will be dismissed. I will ask the parties to provide draft minutes reflecting these reasons including as to costs. If costs cannot be agreed, I direct the parties to provide submissions of no more than three pages within seven days as to the orders sought.

SCHEDULE OF PARTIES

S PRB 2021 05884
BETWEEN:
JEFFREY GDANSKI (who is sued as the Executor of the Estate of LAWRENCE MAXWELL GDANSKI)	Plaintiff
- v -
RHANI RYNSBURGER	First Applicant
CAMILLE RYNSBURGER	Second Applicant
JOELINE RYNSBURGER	Third Applicant

[2024] VSC 356

21 June 2024