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Toll Remote Logistics Pty Ltd v Bemobile (Solomon Islands) Ltd [2013] SBHC 54; HCSI-CC 321 of 2012 (7 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 321 of 2012

BETWEEN :

TOLL REMOTE LOGISTICS PTY LTD
Claimant/Respondent
(ACN 004 210 093)

AND:

BEMOBILE (Solomon Islands) LTD
Defendant/Applicant

Hearing : 13 March 2013
Ruling : 7 May 2013

Mr. Togamae for Applicant
Mr. Kingmele for Respondent

RULING

[1] This is an application by the Applicant filed on 5 January 2013 seeking: (a) An order for Sol-Law to disqualify itself from being solicitors for the Respondent; (b) costs and (c) such further or other order as the court may think fit.

[2] The Applicant is a company whose registered address is Level 7, 380 St Kilda Rd, Melbourne Victoria, 3004 Australia.

[3] On 13 June 2012, the Respondent filed an Amended Writ against the Applicant in the county court of Victoria at Melbourne ("the County Court"). The claim, inter alia, is for the payment of AUD521, 218.67 against the Applicant for services rendered plus interest and costs. The Applicant was served with the Amended writ on 29 August 2012. However, it failed to make an appearance to the writ. As a result, the county court entered Judgment in default of appearance ("the Judgment") against the Applicant in the sum of AUD533, 132.74, including interest and costs. The judgment was subsequently registered in the Supreme Court of Victoria, Australia.

[4] Sol-Law acts for the Respondent in this case. The case for the Applicant is that Sol-Law represents Fiji National Provident Fund (FNPF) proceeded on due diligence exercise conducted between BeMobile and FNPF. In the course of that exercise all interests including confidential and privileged information of the Applicant relating to the current dispute/ligation with Respondent were covered. The involvement of Sol-Law in that exercise gave Sol-Law unprecedented access to BeMobile records. That all disclosures to FNPF by the Applicant were confidential and legally privileged, in particular: the external legal advice on the matter between the Applicant and the Respondent; the Applicant's own assessment of the merits of the matter and the proposed course of action in the litigation. That Sol-Law's participation in the due diligence exercise for FNPF whilst representing the Respondent against the Applicant was contrary to section 11 (6) of the Legal Practitioners (Professional Conduct) Rules ("the Rules") the Applicant then addresses the court on Rule 11 (5), (6), and (8) of the Rules.

[5] The Respondent's case is that the Applicant has not provided any evidence to show any conflict, which exists between FNPF and the Respondent are in conflict. The Respondent submits that rule 5 does not apply in litigation matters, it merely applies to non-litigation matters, as for instance conveyance matters. Rule 11 (6) does not apply to facts of this case. BeMobile's interests are not relevant for purposes of rule 11 (6). Sol-Law's client is the Respondent. Rule 11 (8) does help the Applicant. This rule deals with a situation where a lawyer having acted for a client had access to confidential information, then turns around and uses such information against that client.

[6] Sol-Law Counsels who were involved in the due diligence exercise are Mr. Sullivan and Mr. Soma in relation to the FNPF case. The exercise was carried out in a well secure room. The Sol-Law Counsel in this case is Mr. Kingmele. There was no evidence of any conversation between Counsel on the findings of the due diligence exercise. There is therefore no real risk of communication of relevant confidential between Counsels. No evidence from the due diligence conducted by Mr. Sullivan QC and Mr. Soma can change the county court judgment entered against Applicant in this claim.

[7] The Court agrees with submission by Counsel for the Respondent on the interpretation of rules 11 (5), (6) and (8) of the Rules. The Chief objective of the Claimant in this claim is to register its judgment of the county court of Victoria in the High Court of Solomon Islands in order to enforce its judgment debt against the debtor, the Applicant. No information gathered by the Sol-law Solicitors who took part in the due diligence exercise will ever change anything in that judgment. It will remain the same even if it is used for purposes of enforcement of the county court orders before this court.

[8] In the circumstances, the court will refuse the application by Applicant and is accordingly dismissed with costs to the Respondent on indemnity basis.

Order : 1. Application dismissed.
2. Costs on indemnity basis to the Respondent.

THE COURT