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Anna Dadic v Orion Holding Overseas Limited [2008] DIFC CFI 007

Anna Dadic v Orion Holding Overseas Limited [2008] DIFC CFI 007

November 8, 2010

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Claim No. : CFI 007/2008

THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE COURT OF APPEAL


BEFORE DEPUTY CHIEF JUSTICE SIR ANTHONY COLMAN
JUSTICE SIR JOHN CHADWICK
and H.E. JUSTICE ALI AL MADHANI

Between

ANNA DADIC Appellant
-v-ORION HOLDING OVERSEAS LIMITED
(In liquidation)
Respondent
Hearing: 21 October 2010
Counsel: Ms Anna Dadic, Sky Gardens, Dubai, Claimant (litigant in person)
Judgment: 21 October 2010

JUDGMENT

1. Application Notice 68/2010 now before this Court is made by notice dated 7 September 2010. The Applicant seeks review at an oral hearing, under RDC 44.15(2), of Orders made on 26 August 2010 and 15 August 2010 by the Chief Justice sitting as a single judge of the Court of Appeal.

 

2. The procedural matrix can be stated shortly. A single judge of the Court of Appeal may entertain an application for permission to appeal on paper. If without a hearing the judge refuses the permission sought, a party may request the decision to be reconsidered at an oral hearing, if necessary before the same judge. That is Part 44.15 of the Rules of the DIFC Court. The Order of 15 August 2010 was an Order made on the papers refusing an extension of time to appeal and permission to appeal. The Order of 26 August 2010 was made on a subsequent application, dated 22 August 2010, made under Part 44.15. Without a hearing the Chief Justice, dismissed that application. It is in respect of the two Orders that the present request for a review under RDC 44.15(2) is made. The second of the two Orders adds nothing to the first.

 

3. The Order of 15 August 2010 was made on two applications, numbered 44/2010 and 45/2010, dated respectively 13 and 15 June 2010. Each of those applications seeks an Order for the extension of time and permission to appeal an Order issued on 4 April 2010. That Order was made on 10 February 2010 following a hearing before His Excellency Justice Omar Al Muhairi. There was a delay between the decision made on 10 February and the issue of the Order recording that decision on 4 April 2010. An extension of time is needed because, by 13 and 15 June 2010, the time for appealing under RDC 44.36 had passed. Part

 

44.36 is in these terms:

“The appellant must file the appellant’s notice at the Appeal Court within: (1) such period as may be directed by the lower Court which should not normally exceed 28 days and which may be longer or shorter than the period referred to in paragraph 2; or (2) where the Court makes no such direction 14 days after the date of the decision of the lower Court that the appellant wishes to appeal.”

 

4. In the present case the relevant decision was the decision on 10 February 2010. Accordingly, an Appellant’s Notice filed in June was some four months out of time. Even if, as the Appellant contends, she was entitled to wait until the Order was issued on 4 April, the Appellant’s Notice was still some two months out of time.

 

5. The Chief Justice took the view, for reasons which he expressed in writing, that this was not a case in which time should be extended. He said this:

“16. The applications were made on 15 June 2010. The hearing before His Excellency Justice Omar Al Muhairi took place on 10 February 2010. His order was issued on 4 April 2010. Even after taking into account the delay in the issuance of the order, more than two months had elapsed before the applications were made. The applicant must already have known some if not all of the directions made after that hearing since she had sought leave by way of application number 17 of 2010 of 25 February 2010 to appeal against one of those directions made at that hearing.

17. There is no reason why the delay in the issuance of the transcript would prevent the applicant from filing a protective application within the prescribed time limits, nor was any medical certificate furnished by anyone to explain why the applicant was unable to meet the prescribed time limits. More critically, this is not the first time an extension of time to appeal has been sought by the applicant in this matter. In application number 17 of 2010 the applicant was out of time by more than four months, and her application for an extension of time was refused. One would have thought that the applicant would have been more prudent in filing further applications. Allowing the time extension sought in the present applications would make a mockery of the timelines prescribed by the rules of Court.

18. In view of these circumstances which I have carefully considered, I dismiss the application for an extension of time to appeal in both applications. It is, therefore, unnecessary for me to deal with the remaining prayers of the applications. Application numbers 44 and 45 of 2010 are, therefore, dismissed in its entirety.”

 

6. We have been shown a chronology which was put before the Chief Justice in a statement of the Applicant dated 22 August 2010. The chronology sets out the events which are said to have taken place between 5 April 2010 (the day after the Order was issued) and 15 June 2010. As appears from the passage in the Chief Justice’s ruling to which I have referred, there was no medical certificate to cover various periods during which, as it appears from the chronology, the Applicant was “very sick”. Those periods — and I take them from the chronology — were from 7 to 10 April, from 14 to 17 April, from 26 April to 2 May, and from 28 May to 6 June. As the Chief Justice pointed out, there is nothing other than the chronology and the Applicant’s statement to confirm that she was too sick to attend to the submission of her Appellant’s Notice after 4 April; and nothing in the chronology covers the period from 10 February to 4 April.

 

7. It would be sufficient to say no more than that nothing that we have heard persuades us that the conclusion reached by the Chief Justice — that there was no sufficient reason for the delay which has taken place in this case, to lead to the extension of time permitted by the Rules — ought to be disturbed. But, in order to understand the references in the Chief Justice’s ruling to Application No. 17/2010, it is appropriate to set out some of the history.

 

8. The present applications arise in proceedings brought, under Claim CFI 007/2008, by the Applicant as claimant against her former employers, Orion Holding Overseas Limited, a company now in liquidation. The Applicant claimed damages for wrongful termination of her employment. That claim was met by an offer of compromise in the sum of AED 200,000. The offer was not accepted within the time limits prescribed in RDC 32; and, accordingly, questions arose as to where the costs of the proceedings should fall. Those questions came before me, sitting in the Court of First Instance, on 20 August 2009. Put very shortly, I held that, with some exceptions (not now material), the claimant should have her costs of the proceedings down to and including 8 April 2009 and that she should pay the defendant’s costs from 8 April down to and including 21 June 2009. I ordered costs to be assessed on the standard basis. The present applications relate to the assessment of those costs.

 

9. The costs came before the Court for assessment at the end of October 2009. One of the issues which needed to be determined for the purposes of the assessment was the rate per hour which should be allowed in relation to the Applicant’s time spent in preparing and pursuing her case. That issue arose in the circumstances that the Applicant had qualified as a solicitor in Australia; but who was not a registered practitioner in the DIFC Courts. Accordingly, it was necessary to decide whether she should be allowed a rate comparable to the rate that would be charged by a registered practitioner litigating in this Court; or whether she should be restricted to some lesser rate appropriate to her position as a litigant in person. That issue was determined by an Order dated 28 October 2009 made by His Excellency Justice Omar Al Muhairi. He determined that the appropriate rate to be allowed was AED 50 per hour. That is, in effect, a litigant in person rate rather than a rate which would be applicable to a registered practitioner.

 

10. The assessment of costs proceeded on that basis; and so led to assessment of a sum in respect of the Applicant’s costs which was substantially lower than that which she was claiming on the basis of a registered practitioner’s rate. She wished to challenge the assessment on that basis; and, by Application No. 83/2009 dated 21 December 2009, sought permission and extension of time to appeal from the Order of 28 October 2009 by which the rate had been fixed. That was her intention appears plainly from a witness statement — her 19th statement — dated 21 December 2009 which she filed in support of her application for permission to appeal.

 

11. So, the issue as to the rate, and the Applicant’s wish to have that issue considered before the Court of Appeal, had been identified by 21 December 2009. That application, No. 83/2009, was, it seems, overtaken by events. Following the assessment of costs and the issue of a draft final certificate, there was a hearing on 10 February 2010 before His Excellency Justice Omar Al Muhairi. We have been shown a transcript of that hearing. It is plain from that transcript that the judge was not willing to reopen the rate fixed by his Order of 28 October 2009. He said this (at internal page 4 of the transcript):

“You have a right and leave to appeal and you did. You submit application and what I am going to — I said 50 dirham per hour today. I am going to rehear the assessment not as a rate. The rate the other Court will decide.”

A little later, at the top of page 5, the judge went on:

“The rate is already decided and you have leave to appeal that rate and you did and the Court of Appeal is going to accept or reject. It is up to the Court of Appeal what they are going to do.”

 

12. It is not at all clear why the judge thought that leave to appeal the rate had, in fact, been given. There is no indication that the application seeking leave, that is to say Application No. 83/2009 dated 21 December, had ever been considered by the Court of First Instance or by this Court. The Applicant appreciated that, it seems, because (at internal page 258 of the transcript) she asked the judge to give her leave to appeal. His response was: “Submit an application to the Registry.” She took that advice; and she did submit a further application to the Registry. That is the Application No. 17/2010 which is dated 25 February 2010. 25 February was just within the time prescribed under RDC 44.36(2).

 

13. In her application of 25 February she sought permission to appeal decisions made on 10 February 2010. It can be seen from the draft Order which she annexed to that application that that was, indeed, what she wanted. She asked for leave to appeal to the Appeal Court the decisions made at the appeal hearing on 10 February 2010 in the Court of First Instance.

 

14. She also asked — in her application of 25 February 2010 — for leave and an extension of time to appeal from the Order which I had made on 20 August 2009. That Order of 20 August 2009 had nothing to do with fixing a rate for the assessment of costs. It was, as I have said, an Order which determined (so far as material) who should pay the costs of the proceedings up to 20 August 2009.

 

15. Application No. 17/2010 of 25 February 2010 came before Chief Justice Sir Anthony Evans on the papers on 10 June 2010. He refused both an extension of time and permission to appeal against my Order of 20 August 2009 and so that element of the application was plainly spent and has not been renewed.

 

16. Sir Anthony Evans then went on to say this (in paragraph 15 of his written ruling):

“The claimant appeals against the judge’s decision to allow the rate of 50 dirham per hour for her time spent in relation to the proceedings claiming that the rate should be more than 2,500 dirham per hour.”

 

17. He set out, under five paragraphs, the submissions relied upon in support of that application for leave: including, as I have indicated, the Applicant’s submission that the Applicant is and was at all material times a competent and qualified Australian lawyer with substantial legal experience and, as such, qualified to be registered in the DIFC Courts’ Register of Practitioners, although not, in fact, so registered prior to 20 August 2009.

 

18. So, the point that had been raised first by the Appellant’s Notice of 21 December 2009, and subsequently by Application No. 17/2010 issued on 25 February 2010, was firmly before the Chief Justice on 10 June when he considered the latter of those applications. His conclusion was this (paragraphs 17 to 19):

“In my judgment, the claimant conducted these proceedings as a litigant in person throughout. Her registration by the DIFC Courts as a qualified legal practitioner did not alter that fact. There is no evidence that she was practising as a lawyer at any relevant time, whether as a sole practitioner or in partnership with others. Had she been in practice records would have been available of professional fees charged by and to her or her partnership in connection with the proceedings and it might have been possible for her to contend that such fees should be assessed as part of her costs. As it was, she incurred no liability for professional fees even as a book transaction for her own services. She was simply a litigant in person conducting her own case. As for the reasonableness of 50 dirham per hour, His Excellency Justice Omar Al Muhairi was clearly entitled to take account as he thought fit of all the circumstances including the rate allowed under the CPR and to fix 50 dirham per hour as an hourly rate appropriate for the claimant as a litigant in person. For these reasons, leave to appeal under this head is refused.”

 

19. Chief Justice Sir Anthony Evans went on, at paragraph 23 of his ruling, to direct, pursuant to RDC 44.16, that the Applicant should not be permitted to renew those applications at an oral hearing before the Court. RDC 44.16 is in these terms:

“Where the Appeal Court refuses permission to appeal without a hearing, it may, if it considers that the application is totally without merit, make an order that the person seeking permission may not request the decision to be reconsidered at a hearing.”

 

20. It is plain, therefore, made under that Rule that Chief Justice Sir Anthony Evans had formed the view that the application for permission to appeal and for an extension of time was totally without merit.

 

21. That is the background against which the Applicant then made her applications under reference number 44 and 45, some three and five days later. The timing of those applications cannot have been a coincidence. Chief Justice Sir Anthony Evans refused Application No.17/2010 on 10 June and, within a week, she made two further applications seeking permission to appeal out of time from the decision made on 10 February 2010 as recorded in the Order issued on 4 April. A more obvious attempt to abuse the process of the Court would be difficult to imagine. This Applicant, having had her matter dealt with on Application No. 17/2010 and dismissed as totally devoid of merit, then sought to reopen the matter by two further applications issued within a few days thereafter.

 

22. She failed to persuade Chief Justice Hwang in August 2010 that the circumstances justified the extension of time which, by then, she needed. It seems to us obvious that one of the reasons why she had not issued the applications that were issued on 13 and 15 June was that she was waiting for Application No. 17/2010, made on 25 February to be determined. That application having been refused, she simply tried again.

 

23. In those circumstances there is nothing that can justify an order for an extension of time and for the permission to appeal that the Applicant requires. As I have said, it seems to us that this attempt can only be regarded as abusive. For those reasons, the Order made by the Chief Justice on 15 August 2010 dismissing Applications 44 and 45 should be upheld; and the present application dated 7 September 2010 should be dismissed.

 

24. I would add only this. The previous applications having been characterised by Chief Justice Sir Anthony Evans as being totally without merit, it is appropriate for this Court to indicate that the present Application No. 44/2010 and 45/2010 are also totally without merit; and the attempt to have them reviewed by a full Court on Application No. 68/2010 is, itself, totally without merit. If this Applicant persists in making applications which are totally without merit, she must expect that, on the next occasion, this Court — or the Court of First Instance — will make an order which requires that no application shall be issued by her without the leave of a single judge first having been obtained.

 

25. As I have said, Deputy Chief Justice Sir Anthony Colman and His Excellency Justice Ali Al Madhani have indicated that they agree with the judgment just delivered. Accordingly, the application is dismissed.

 


Deputy Chief Justice Sir Anthony Colman
Justice Sir John Chadwick
H.E. Justice Ali Al Madhani

Date of Issue: 8 November 2010

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