The Estate of Tabain
[2025] NSWSC 690
•1 July 2025
|
New South Wales |
Case Name: | The Estate of Tabain |
Medium Neutral Citation: | [2025] NSWSC 690 |
Hearing Date(s): | 7 April 2025 |
Date of Orders: | 1 July 2025 |
Decision Date: | 1 July 2025 |
Jurisdiction: | Equity - Succession & Probate List - Probate |
Before: | Slattery J |
Decision: | Injunction granted restraining solicitor from continuing to act for the plaintiff. Directions made in relation to contested costs orders. |
Catchwords: | LEGAL PRACTITIONERS - contested litigation concerning the admission to probate of wills of the deceased made in 2015, 2019 and 2021 – solicitor acted for the deceased in relation to the preparation of the 2019 will and now acts for the plaintiff (the executor of that will) in seeking admission of the 2019 will to probate, alleging that the deceased lacked testamentary capacity at the time of making the 2021 will – deceased uplifted the 2019 will from the solicitor before making the 2021 will – other parties contend that the deceased’s 2021 will is valid and that he destroyed the 2019 will – solicitor is a witness in the contest in relation to contentious factual circumstances of the deceased’s making of the 2019 will and his later uplifting of the 2019 will from the solicitor’s office before the will’s alleged destruction – whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting for the plaintiff in the proceedings. |
Legislation Cited: | Evidence Act 1995 (NSW) |
Cases Cited: | Holborow v Rudder [2002] WASC 265 |
Texts Cited: | G.E. Dal Pont, Lawyers’ Professional Responsibility 7th Edition, Lawbook Co, 2020. |
Category: | Procedural rulings |
Parties: | Mark Justin Tabain (First applicant on the motion) |
Representation: | Counsel: |
File Number(s): | 2024/00173450 |
Publication Restriction: | Nil |
JUDGMENT
The late James Peter Thomas Tabain died on 29 April 2024. He was survived by his wife Sandra Jean Tabain ("Sandra") and their three children, who are presently locked in litigation over his estate of some $44 million. The deceased's and Sandra’s three children are Matthew James Peter Tabain (“Matthew”) born on to February 1974, Mark Justin Tabain ("Mark") born on 1 August 1975 and Jon Sinclair Tabain (“Jon”) born 5 August 1977.
These proceedings are listed for final hearing for 10 days commencing on 7 October 2025 before Hammerschlag CJ in Equity. Several interlocutory contests took place in the Probate List before the Probate List Judge on 7 April 2025. Two of these three interlocutory issues resolved either by agreement or determinations, not requiring reasons. The two resolved issues related to (a) whether the Court should authorise under Corporations Act 2001 s 237 the commencement of a derivative action on behalf a company controlled by the deceased, and (b) whether the Third Cross-Claim against Matthew should be determined at the same time as other issues in the proceedings. The detail of those resolved issues is not material to the present application.
The parties engaged in an unsuccessful mediation on 30 May 2025. They have now asked the Court to resolve the third issue that was argued on 7 April 2025. That issue concerns whether the solicitors acting for the deceased’s estate, Ms Julianna Kneebone, and her firm of which she is the principal, Kneebone & Associates Pty Ltd (“Kneebone & Associates”) should be restrained from further acting in the proceedings on behalf of the plaintiff. Mark and Jon have moved by motion dated 25 November 2024 (“the restraint motion”) to restrain Ms Kneebone and her firm from acting any further in the proceedings. Mark is the first respondent to the motion. Ms Kneebone and her firm have appeared as the second and third respondents to the restraint motion. The Court indicated that it would deal with this motion if the proceedings did not settle at the mediation. This judgment deals with that issue.
On 7 April 2025 Mr P Tierney of counsel appeared for Mark and Jon (the second and third defendants in the proceedings and the applicants on the restraint motion), instructed by Commins Hendriks, solicitors. Mr S Stanton of counsel appeared for Matthew (the plaintiff and the first respondent to the restraint motion) instructed by Kneebone & Associates Solicitors. Dr S Chapple SC appeared on behalf of Ms Kneebone and Kneebone & Associates, the second and third defendants on the restraint motion. The Court was much assisted by the concise focus by the legal representatives of all parties on the real issues in dispute on the restraint motion.
The parties adduced evidence on the motion of the material that they would each rely upon at final hearing. The Court had regard to that material, not for the purposes of making findings of fact but to understand what the contest was likely to be at final hearing and what issues would arise at final hearing.
Procedural Background – A Contest About Three Wills
By his Statement of Claim filed on 28 June 2024, Matthew propounds the deceased's will, dated 21 March 2019 ("the 2019 will") for admission to probate.
In their First Cross-Claim, Mark and Jon primarily propound the deceased's later will dated 5 July 2021 (“the 2021 will”). Alternatively, they claim that if the 2019 will is found not have been revoked by the 2021 will, they seek to pass over the 2019 will and propound a will dated 11 February 2015 ("the 2015 will"), on the basis that the deceased neither knew or approved the contents of the 2019 will and that it was otherwise procured by undue influence. Ms Kneebone's evidence is relevant to these contentions. She was closely involved in the taking of instructions for and the execution of the 2019 will.
In a Second Cross-Claim filed on behalf of Sandra on 29 August 2024, she claims if the 2021 will is not found to be the last valid will of the deceased, that she should have a grant of letters of administration on intestacy on the basis that the deceased otherwise revoked the 2019 will by destruction and because the 2019 will revoked the 2015 will before it in turn was revoked, the deceased died intestate.
The circumstances pleaded in the Second Cross-Claim, giving rise to its claim are that in or around July 2020, the deceased went to the solicitors holding the original of the 2019 will, Kneebone & Associates and uplifted the original of the 2019 will for the purpose of destroying it. Though contested, there is some evidence that the deceased may have destroyed that will after uplifting it from Kneebone & Associates. Ms Kneebone’s evidence is highly relevant to this issue, as she gives a disputed account of the deceased uplifting the 2019 will.
Not long after the proceedings commenced, on 14 August 2024 Mark and Jon filed a motion ("the earlier restraint motion") in which they sought, among other relief that Ms Kneebone and Kneebone & Associates Pty Ltd be restrained from acting as the solicitors for the plaintiff.
The plaintiff, Matthew resisted that claim. The earlier restraint motion was heard before Lindsay J on 20 August 2024. His Honour dismissed it but without prejudice to any entitlement that Mark and Jon may have to apply in the future for similar relief.
On 25 November 2024, Mark and Jon filed a second motion, the present restraint motion, which claimed much the same relief as the earlier restraint motion, namely that Ms Kneebone and Kneebone & Associates be "restrained from acting as the solicitors for the plaintiff" in these proceedings.
The basis of Mark and Jon’s restraint motion may be shortly stated. Ms Kneebone has sworn two affidavits relevant to the determination of the probate proceedings, one on 19 September 2024 and the other on 5 March 2025. Those two affidavits explain the manner and circumstances in which Ms Kneebone took instructions for the 2019 will and in which the deceased’s original documents – including the original March 2019 will – were released from her custody to the deceased and to Matthew. It is not contested that Ms Kneebone's evidence is relevant to Mark and Jon’s alternative claim on the First Cross-Claim: that the deceased neither knew or approved the contents of the 2019 will and that the 2019 will was otherwise procured by reason of undue influence.
On 19 November 2024, the solicitors for Mark and Jon, Commins Hendriks, wrote to Ms Kneebone inviting her and her firm to cease acting in the proceedings. Ms Kneebone reacted to that invitation by openly declaring that she would distance herself from aspects of the preparation of the proceedings on Matthew’s behalf. She stated that she considered it would not be appropriate for her personally to progress and be involved in the evidence to be filed on behalf of the plaintiff, Matthew. Consistently with that position, Ms Kneebone, engaged counsel to take instructions for the further affidavits that have been subsequently filed and deployed for the plaintiff, Matthew, in the proceedings. Ms Kneebone later offered an undertaking that, other than for logistical or administrative assistance, she would have no involvement with the taking of instructions or other preparation in respect of any further affidavits to be filed in the proceedings that refer, directly or indirectly, to any the factual matters traversed in her primary affidavits of 19 September 2024 and 5 March 2025. Ms Kneebone submits that she should be permitted to continue to act for Matthew on this basis.
Mark and Jon say that the precautionary measures that Ms Kneebone has taken to distance herself from the preparation of evidence are insufficient to satisfy the Court that she should be permitted to continue to act for Matthew in the proceedings. They continue to press for relief on the restraint motion.
Applicable Legal Principles
The legal principles to be applied to the circumstances are drawn both from the regulatory framework governing the conduct of legal practitioners and the general law.
As to the regulatory framework, Rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“the Solicitors’ Conduct Rules) is relevant and provides:
“27 Solicitor as material witness in client’s case
27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member must not continue to act for the client if doing so would prejudice the administration of justice.”
Ms Kneebone accepts that that she cannot appear as advocate for Matthew at the hearing of this matter and she does not intend to do so. Therefore Rule 27.1 does not apply.
Rule 27.2 does not create an absolute prohibition upon a solicitor who is material witness acting for a client in the proceedings. Rather Rule 27.2 is directed to whether a solicitor giving evidence material to the determination of contested issues would prejudice the administration of justice by continuing to act for the client. As will be seen this test is close to the test at general law.
Mr Tierney, on behalf of Matthew and Jon, also points to Rule 25 of the Solicitors’ Conduct Rules which relates to the integrity of evidence and provides as follows:
“Rule 25 - Integrity of evidence—two witnesses together
25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time—
25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing, and
25.1.2 where such conferral could affect evidence to be given by any of those witnesses,
unless the solicitor believes on reasonable grounds that special circumstances require such a conference.
25.2 A solicitor will not have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.”
Ms Kneebone’s case attempts to answer the effect of these rules by quarantining her involvement in the proceedings and demonstrating that she can reduce her interaction with other potential witnesses for the plaintiff through her undertaking.
At general law, the Court has inherent jurisdiction to restrain solicitors from acting in particular cases. This jurisdiction is an incident of its inherent jurisdiction over its officers and its control of its process in aid of the administration of justice. And jurisdiction exists beyond the principles that apply where a former client seeks to restrain the use of confidential information held by a solicitor, or where a solicitor is in a position of conflict of interest or duty.
The general law test of when this jurisdiction will be exercised to restrain a legal practitioner from acting, is usefully restated in the decision of Brereton J (as his Honour then was) in Kallinicos v Hunt (2005) 64 NSWLR 561 [2005] NSWSC 1181 at [76] (“Kallinicos”) as follows:
“… 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”
This passage emphasises that the protection of the “integrity of the judicial process and the due administration of justice” importantly also includes “the appearance of justice”. This was affirmed by the Court of Appeal in Técnicas Reunidas SA v Andrew [2018] NSWCA 192 at [71].
The jurisdiction is regarded as exceptional and is to be exercised with caution: Kallinicos at [76]. 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: Kallinicos at [76]. Such a consideration has additional force when the application is made, not by a former client, but by an adverse party – being described as a “serious matter”: JamesJohn Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 at [28], Bergin J (as her Honour then was) citing Mandie J in Tricontinental Corporation Ltd v Holding Redlich (A firm) (VSC, Mandie J, 22 December 1994).
Many reasons prompt the exercise of the jurisdiction. But common factors often present, as remarked on by Heenan J in Holborow v Rudder [2002] WASC 265 are,
“whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgment, a court may conclude that the lawyer should be restrained from acting, even for a client who desires to continue his service”.
It is important to note that in Heenan J’s formulation it is only necessary for the Court to be persuaded that “the practitioner may not exercise the necessary independent judgement” (emphasis added). It is not necessary to positively show that the practitioner will not exercise the necessary independent judgement.
In Oceanic Life Limited v HIH Casualty and General Insurance Limited [1999] NSWSC 272 [at 48], Austin J described the jurisdiction in the following public interest terms:
“However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court’s practical approach to its supervisory discretions”
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: Kallinicos at [76].
Hallen J has applied these principles in a probate context in Wild v Meduri [2023] NSWSC 113 at [282]. In that case Hallen J prevented a solicitor, who had been a witness to a will from continuing to act in contested proceedings about that will. Hallen J commenting that when a solicitor recognises that he or she is a material witness to the creation of a will that should ordinarily trigger at least consideration of the withdrawal of the solicitor from conduct of the probate proceedings.
Ms Kneebone’s Explanation of Her Current Role
Ms Kneebone’s 1 April 2025 affidavit sets out in detail her conduct of these proceedings since she was notified on 25 November 2024 of the restraint motion. She acknowledges immediately in that affidavit that “it would not be appropriate for me to progress personally the preparation of the evidence to be filed on behalf of the plaintiff” in these proceedings.
Ms Kneebone undertakes in her April 2025 affidavit as follows:
“I undertake that other than logistical or administrative assistance… I will have no involvement with the taking of instructions or preparation in respect of any further affidavits to be filed in these proceedings that refer to, whether directly or indirectly, any of the factual matters traversed in my affidavits dated 19 September 2024 and 5 March 2025. I intend to brief counsel to assist with the preparation of those affidavits.”
In her 1 April 2025 affidavit, Ms Kneebone sets out a summary of how she has sought to distance herself from the preparation of the plaintiff’s evidence in the proceedings since November 2024. Below is a summary of the evidence that she gives of the preparation of the affidavit evidence of various witnesses in Matthew’s case, together with some observations as to the effect that evidence.
(1)Dr Martin Jude – 7 February 2025. Ms Kneebone drafted a letter of instructions and instructed a support staff member to compile the affidavit and annexures in one PDF document. Ms Kneebone does not claim that the support staff members in her practice are legally qualified.
(2)Matthew – 10 February 2025. Ms Kneebone engaged counsel to prepare the affidavit, and her support staff were involved in instructing counsel. Ms Kneebone was involved in forwarding the affidavit to senior counsel for review. Ms Kneebone does not say that she has never read this affidavit and could be cross-examined to suggest that she had read it before she swore her affidavit of 5 March 2025.
(3)Catherine Tabain – 10 February 2025. Catherine Tabain is the wife of Matthew Tabain, the plaintiff and Ms Kneebone’s client. This affidavit was prepared by counsel. Ms Kneebone deposes to informing Catherine Tabain that counsel would be preparing her affidavit. This affidavit was sworn before Ms Kneebone’s affidavit of 5 March 2020 and she could be cross-examined to suggest that she has access to it and had read it before she swore her affidavit of 5 March 2025.
(4)Andrew Sands – 10 February 2025. After initial contact by Ms Kneebone to enquire if Mr Sands was willing to give evidence, this affidavit was prepared by counsel and Ms Kneebone’s support staff.
(5)Ms Kneebone – 5 March 2025. Ms Kneebone prepared her own affidavit which was settled with counsel. It was said to be one which “filled in gaps” in the evidence. Ms Kneebone is open to being cross-examined about how she determined where “gaps” were and whether that involved her viewing any of the evidence of other witnesses before preparing her evidence. This is an open question but one which is likely to be tested at trial.
(6)Matthew – 30 March 2025. This affidavit of Matthew relates to the legal and financial issues associated with the crop dispute the subject of third cross-claim. Ms Kneebone says that she drafted this affidavit. Ms Kneebone is open to cross examination about whether her conferences with Matthew concerning this affidavit touched upon the subject matter of his evidence beyond the Third Cross-Claim and how she maintained strict subject matter boundaries in her conversations with Matthew.
(7)Ms Kneebone – 1 April 2025. This affidavit was drafted between Ms Kneebone and counsel.
Ms Kneebone has engaged a number of different counsel to draft these various affidavits. The prosecution of Matthew’s case would probably need to engage fewer counsel but for Ms Kneebone’s efforts not to be involved in taking instructions in relation to the matters traversed in her affidavits of 19 September 2024 and 5 March 2025.
Consideration
Mark and Jon do not contend that Ms Kneebone has any confidential information that might justify the claimed restraint or that she is in a position of conflict of interest or duty. The restraint motion is solely based on the Court’s public interest jurisdiction over its practitioners and the application of the principles stated in Kallinicos to the present circumstances.
In reply, Matthew put his case succinctly through Dr Chapple’s written submissions:
“In the present case, Ms Kneebone has, quite appropriately, removed herself from the taking of instructions from relevant witnesses, and has provided an undertaking that she will continue to do so. That undertaking strikes a balance that preserves the integrity of the evidence and does not deprive Matthew of the lawyer of his choice. There is no need for any further restraint on Ms Kneebone to preserve the integrity of the court process and the due administration of justice. The Notice of Motion should be dismissed.”
But for Ms Kneebone’s removal of herself from dealing with the witnesses in Matthew’s case, she in substance accepts that the principles stated in Kallinicos would result in her being unable to act for him. The submissions that Mark and Jon put in response to Mr Kneebone’s and Matthew’s case on the motion are dealt with in the Court’s analysis below.
As indicated, Ms Kneebone’s and Matthew’s case on the motion concedes that but for Ms Kneebone undertaking not to be involved in the preparation and adducing of evidence of other witnesses for Matthew that Solicitors’ Conduct Rules, Rules 25 and 27.2 would disqualify her from continuing to act for him. A principal question for consideration therefore becomes whether the remedial measures put in place through Ms Kneebone’s undertaking are adequate to displace the conclusion which would ordinarily follow from the application of those rules.
But those remedial measures must be judged against the extent to which Ms Kneebone’s evidence and credibility will be in issue in these proceedings. The Court’s analysis of the nine factors below presents a strong case for restraining Ms Kneebone from continuing to act for Matthew, both under Solicitors’ Conduct Rules, Rules 25 and 27.2 and Kallinicos principles if no remedial measures are put in place. Indeed, her offer of remedial measures is an admission of the potency of these nine factors in this case.
First, Ms Kneebone’s credibility is likely to come under attack in respect of two principal events. She will be defending her version of events in relation to the alleged assault at the time that the 2019 will was collected from her offices. And she will be defending her credibility about her taking instructions in relation to the 2019 will. She will probably be directly challenged as to the quality of her professional conduct in preparing that will and having it executed by the deceased. Mark and Jon’s counsel will be likely to cross examine her thoroughly to ground their contention that deceased did not know or approve the contents of that will and that Ms Kneebone failed to appreciate that the deceased was subject to undue influence when she took those instructions. Ms Kneebone gives detailed evidence about her version of these two principal events.
Secondly, beyond these two principal events Ms Kneebone’s credibility is also likely to come under attack in relation to her interactions with family members (both parties and non-parties) other than her own client, Matthew. She deposes to having hostile communications with some of these other family members over a lengthy period. Her evidence attributes statements to other family members that arguably tend to show they bear ill will towards Matthew or are acting towards him in bad faith. Ms Kneebone’s affidavit evidence could readily be deployed at trial, and indeed is apparently constructed with this in mind, to undermine the general credibility of these witnesses and would arguably be admissible to show bias on their part.
Thirdly, again beyond the two principal events of the alleged assault on the making of the 2019 will, Ms Kneebone’s 5 March 2025 affidavit expresses both broad and detailed observations about the conduct of the deceased over 2019, 2020 and 2021. Based upon her narrative of observations Ms Kneebone makes frequent judgments about his declining cognitive capacity over that period. Her affidavit shows that she had extensive involvement in Tabain family affairs during 2019, 2020 and 2021. Her affidavit includes reflective observations based on her personal and professional experience that judge the deceased’s changing cognitive capacity on the various occasions that she encountered him through 2019 – 2021. To ground these judgments, she draws upon her broad knowledge of the deceased’s character, and personal and financial affairs. Ms Kneebone’s narrative of the deceased’s cognitive decline is based on her own solicitor’s file notes and recollections throughout this period. The extensive and detailed nature of Ms Kneebone’s evolving narrative means that all her interactions with the deceased over the 2019 – 2021 period create wide ranging potential for disputing her evidence.
Fourthly, and perhaps most significantly, Ms Kneebone’s affidavit evidence pledges her own credibility in the service of her client, Matthew, to an unusual degree. For example, Ms Kneebone deploys her extensive file notes that record her conversations with her own client Matthew and Matthew’s wife, Catherine, about contemporaneous events. The purpose of advancing these file notes in her evidence is plainly to bolster the credibility of both Matthew and Catherine in relation to the minutiae of their evidence. By doing this Ms Kneebone widely commits her own credibility (through the claimed accuracy of her file notes) to support the credibility of the accounts of Matthew and Catherine. Such evidence will probably be admissible, at least by reason of Evidence Act 1995, s 64(3) as an exception to the hearsay rule because “the person who made the representation [recorded in the file note] has been or is to be called to give evidence”. Once this evidence is admitted, the Court at trial will be making closely interconnected judgments about Ms Kneebone’s credibility and the credibility of the other witnesses in Matthew’s case, especially Matthew himself.
And some of these areas of interconnected credibility between Ms Kneebone and Matthew go to the centre of the issues for trial. One example of many will suffice. Ms Kneebone made a file note of a conversation on 7 July 2020 that she said she had with Matthew’s wife Catherine, who it is proposed will give evidence in Matthew’s case. Ms Kneebone records in the file note statements made to her by Catherine as follows:
“Matt is scared as Jim’s memory changes by day. Jim is unhappy.
We don’t know if Jim has done another will.
I’m worried about Matthew. Jon and Mark have ganged up against Matthew.”
Again, Ms Kneebone has made a file note of a conversation she had with Matthew in a telephone call on 15 July 2020. Parts of this file note relate to the deceased’s declining cognitive capacity, and the conduct of Matthew’s brothers towards Matthew, as follows:
“I’m worried about my father.”
“They locked me out of the office.”
“… I asked dad for the passwords. He forgets what I’ve asked and doesn’t follow it up.”
“Mum knows about the will, but dad doesn’t even remember going to see you in West Wyalong to do it.”
Here Ms Kneebone bolsters Matthew’s evidence of his concern about declining memory and cognitive capacity of the deceased and founding a case that Jon and Mark are biased against Matthew. This interconnectedness of Ms Kneebone’s evidence and credibility with that of her clients, throws such a substantial counterweight against her obligations to act for Matthew with full professional independence that at least the appearance of justice is undermined.
Fifthly, Ms Kneebone’s voluntary deployment in her affidavit evidence in chief of multiple file notes such as these, over the period from 2019 to 2021, is inherently likely to impair her capacity for objectivity in the prosecution of her client’s case. Ms Kneebone is likely to be, cross-examined about the accuracy of her recollection of many of these conversations. She is likely to be defending her own credibility about her care, methodology and motivations in constructing her file notes in this way. It is difficult to avoid the obvious conclusion that when Ms Kneebone is being cross-examined about these matters, she is likely to be conscious that the Court’s judgment of her credibility will have implications for the credibility of her client Matthew and the success or failure of his case.
And those implications are potentially acute in parts of her evidence. Of the occasion when the deceased picked up his 2019 will and Ms Kneebone’s file, Ms Kneebone says that “I formed the view that Jim [the deceased] lacked mental capacity” at that time, because of what she regarded as irrational statements that the deceased had made. Here, about a year before the 2021 will, Ms Kneebone puts herself forward as a key witness as to the deceased’s growing cognitive lack incapacity.
Sixthly, the extensive nature of the file notes Ms Kneebone deploys and the nature of the issues she has chosen to extract from them in her March 2025 affidavit, will enable a cross examiner to attack her as to how familiar she was with Matthew and Catherine’s affidavits at the time that she prepared her March 2025 affidavit. She is likely to be cross-examined on behalf of Mark and Jon to have her admit that by the time she decided to distance herself from the drafting of affidavits, she already had sufficient knowledge of the evidence that Matthew and Catherine had prepared, or would be likely to give, that she was able to select the material in her affidavit to support that evidence and shape her affidavit accordingly. By this the Court does not suggest she would be minded to advance distorted or incorrect evidence. She could for example be challenged in cross examination as to whether in relation to selecting the file notes of her conversations with Catherine, whether she had access either to Catherine’s February 2025 affidavit, or to statements upon which it was based. Any admission of such knowledge is likely to involve her in the potential for contravention of Solicitors’ Conduct Rules, Rule 25 and add to doubts about her independence and the integrity of the evidentiary process. Neither of her March 2025 or her April 2025 affidavits entirely disclaims that she had knowledge when she prepared her March 2025 affidavit of the evidence that Matthew and Catherine had given or would be likely to give. The Court here makes no findings that she had such knowledge. Matthew’s case may ultimately be able to establish that she had no such knowledge. But the contest about that issue is likely to reflect negatively upon the integrity of the judicial process and the due administration of justice, including the appearance of justice, if she continues to act for Matthew.
Seventhly, one of the regrettable features of this case is the at times bitter correspondence between the legal representatives of the parties that has tended to escalate rather de-escalate hostilities between them. The Probate List Judges have constantly exhorted parties in probate proceedings to reduce confrontation and for legal representatives not to act as an unfiltered voice for their clients’ aggression and suspicions. Ms Kneebone’s correspondence at times has these characteristics, although she is not the only legal representative launching such correspondence in these proceedings. On its own this would not be reason to enjoin her from acting for Matthew, but it illustrates the foreseeable breadth of the credibility attack that could be launched against her. Each piece of her correspondence beyond the wholly dispassionate kind (and there are sufficient examples of such correspondence on her part) can be used to cross examine her to show bias towards her own client. To the extent this correspondence is recent, cross examination upon is likely to reflect adversely both upon the administration of justice and the appearance of justice by mixing Ms Kneebone’s credibility with her capacity for independent judgement in the conduct and preparation of the proceedings. Allowing this to occur is neither to her advantage nor that of the the administration of justice. And it is avoidable, at least from now on, if she is restrained from continuing to act for Matthew.
Eighthly, a looming risk in permitting Ms Kneebone to continue to act for Matthew is the disruption of a future 10-day hearing. It is possible that Ms Kneebone may make admissions under cross-examination that she has had access to some of the affidavits (or statements preliminary to affidavits) of the witnesses for Matthew. The Court makes no findings now that this will occur but only that it is a foreseeable risk of her continuing to act for Matthew. If such admissions are made the present application might well be renewed. It may be successful. There is no identified Plan B for managing this situation on behalf of Matthew. Ms Kneebone is a sole practitioner without any employed qualified legal practitioners. Her clerks and practice managers cannot stand in for her. There is at least an appreciable risk that following an admission in cross examination she will need to apply for an adjournment to bring in other lawyers to act for Matthew. This would lead to an unacceptable risk of disruption of the due administration of justice in a 10-day hearing. It would create an acute problem for the trial judge, who would be reluctant to disrupt the hearing with an adjournment to engage new lawyers for Matthew but would equally have to balance the need to ensure fairness to Mathew. This potential problem is both foreseeable and avoidable now. This possibility is a real risk to the due and efficient administration of justice if Ms Kneebone continues to act for Matthew.
A related and predictable problem is how the hearing would run with Ms Kneebone at the helm of Matthew’s case. She does not have any employed solicitors although she probably has city agents. Unless she will be the first witness in Matthew’s case, she will be unable to undertake the management or calling any other witnesses. She would have to be the first witnesses whether that was good for his case or not. But more importantly even if she gave evidence first, it is difficult to understand how she as a sole practitioner could do her ordinary duty as a solicitor in preparing other witnesses to give evidence and testing their evidence for trial (G.E. Dal Pont, Lawyers’ Professional Responsibility 7th Edition, Lawbook Co, 2020, p 602) without automatically breaching Solicitors’ Conduct Rules Rule 25, unless she entirely delegated witness preparation as well. It is to be wondered what useful services she could genuinely provide Matthew in active contested litigation without attracting a further application for her to cease to act for the plaintiff.
Finally, the existing and future cost of quarantining Ms Kneebone from these other witnesses is likely to become very expensive. For example, the Court called for information about the cost of producing Ms Kneebone’s affidavit of 5 March 2025. The Court was told that she and counsel had together billed an eye-catching sum of $45,247.25 to produce that single affidavit. She has engaged counsel to produce most of the other significant affidavits in these proceedings. The cost of quarantining Ms Kneebone from other witnesses probably creates additional legal costs. Whatever happens in the outcome in these proceedings, if at their conclusion, Matthew’s costs are sought to be recovered on assessment, then the other parties may have a persuasive argument that they should not have to pay Matthew’s additional legal costs up to the present of quarantining Ms Kneebone from these witnesses.
Ms Kneebone offers to undertake remedial countermeasures by quarantining herself from the preparation of the affidavits for the hearing that overlap with the evidence in her September 2024 and March 2025 affidavits. But the discussion above already shows the impracticability of the implementation of such measures in a dynamic litigation hearing. Issues that would arise after such an undertaking are
(1)problems in her arranging the attendance of and preparing witnesses without breaching Rule 25,
(2)the foreseeable risk that a further application may successfully be made to prevent Ms Kneebone acting in the middle of the hearing,
(3)inflexibility in the conduct of Matthew’s case requiring Ms Kneebone to give evidence first or be excluded from the hearing room, and
(4)working out where the boundaries are between what is prohibited and what is not.
Matthew and Ms Kneebone advanced several arguments against the restraint that Mark and Jon seek. But each of these arguments is ultimately unpersuasive when considered against the facts of this case.
First, Ms Kneebone and Matthew submit that granting an injunction now will disrupt the preparation of the proceedings on her behalf. But there is still well over three months before trial. There is ample time to engage new lawyers to replace Ms Kneebone. The Court did not determine this matter before the mediation, to allow Matthew to take advantage of the efficiencies of having Ms Kneebone available during the mediation. But the proceedings did not settle at mediation and time has now come to face this issue and in the Court’s view Ms Kneebone should not be permitted to act for Matthew in these proceedings any longer. Moreover, weighing directly against this argument is the even greater disruptive risk of Ms Kneebone having to surrender acting for Matthew during the hearing. Ms Kneebone and Matthew will be given an opportunity to adapt to this judgment to minimise disruption. The restraining order will not take effect until 6 PM on Monday 14 July 2025, giving Matthew and Ms Kneebone a sufficient period to arrange other legal representation. They have had notice of this possibility since the restraint motion was filed in November 2024.
Secondly, Ms Kneebone and Matthew submit that granting the orders sought in the restraint motion will deprive Matthew of the legal representation of his choice. This contention is obviously of considerable weight, but it is ultimately counterbalanced by other factors. There is no suggestion that Matthew needs to change barristers, so that continuity will persist. And the value of the lawyer of one’s choice is perhaps a questionable benefit, when the objectivity of that lawyer is so much in question as it is in this case.
Thirdly, in a related point, the expense of changing lawyers is emphasised on behalf of Matthew. But the extra expense of changing solicitors would need to be so great it would significantly outweigh the cost of the existing measures quarantining the preparation of evidence from Ms Kneebone. And it was always within Ms Kneebone’s and Matthew’s power to minimise the cost, disruption and impact of the change by voluntarily initiating it themselves when the restraint motion was filed in November last year. They did not take that course; instead, they chose to fight the motion and delay the need to choose new lawyers, which was implied by the circumstances. The need for that move was far less obvious when Lindsay J decided the earlier restraint motion but was clearer in November 2024 as the filing of the plaintiff’s evidence approached.
And Matthew will not be entirely deprived of Ms Kneebone’s services. The Court considered how the impact of a restraining order might be reduced. Such a restraining order should be crafted to cause no more inconvenience than is necessary to serve the interests of justice. Ms Kneebone should be permitted to continue to act in relation both to the potential derivative action (not yet commenced) and the Third Cross Claim in relation to the disposition of crop proceeds. Neither of these claims will be heard and determined at the same time as the probate action. Both claims are unrelated to the deceased’s execution of testamentary instruments. Ms Kneebone’s evidence does not intersect with the issues relating to the third Cross Claim. The hearing of the Third Cross claim is likely to be deferred until after the completion of the probate suit. There seems to be little overlap between Ms Kneebone’s evidence and the potential derivative action. The Court has deferred the derivative action in any event. Ms Kneebone may perhaps be able to act in that action, but that does not need to be decided now.
The restraint to be imposed following these reasons will therefore be limited to the probate suit. But should the trial judge in the probate suit decide that a derivative action and the Third Cross Claim will proceed earlier, then the scope of the present restraint may have to be reconsidered.
Finally, Matthew argues that such harm as may occur to the administration of justice has already taken place. That is partly true, but such harm as has occurred should not be magnified by continuing the situation any longer than is necessary.
Conclusion and Orders
Mark and Jon have been successful on the restraint motion. Ordinarily, costs should follow the event. Ms Kneebone, Kneebone & Associates and Matthew all resisted the relief sought on the motion and would ordinarily be jointly and severally liable to pay Mark and Jon’s costs of the restraint motion. The Court will hear the parties briefly on costs if there is a dispute about the costs of the motion. This should be done in writing.
Finally, it should be noted in any cost assessment at the end of the proceedings that Matthew’s reasonably recoverable litigation costs after November 2024 may well not include the remedial measures taken to quarantine the preparation of Matthew’s evidence from Ms Kneebone.
All matters of trial management, other than matters which relate to the implementation of these orders, should now return to the trial judge’s supervision. For these reasons Court makes the following orders and directions.
The Court:
(1)ORDERS that Ms Kneebone and Kneebone & Associates Pty Ltd, being the second and third respondents to the motion dated 25 November 2024 (“the restraint motion”), and the second and third respondents to the restraint motion by their servants and agents are restrained on and from 15 July 2025 from further acting for the first respondent on the restraint motion, in relation to all probate issues in these proceedings;
(2)DIRECTS that if the respondents to the restraint motion contest that they should pay the costs of the applicants on the restraint motion jointly and severally, then the respondents to the restraint motion should provide written submissions in relation to costs by Monday, 14 July 2025 and the applicants of the motion should provide costs in reply by Monday, 21 July 2025;
(3)NOTES that if submissions are not made by the respondents in accordance with ORDER 2 above, the respondents to the restraint motion shall jointly and severally pay the costs of the applicants on the restraint motion; and
(4)GRANTS liberty to apply.
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