Chhay Lim v Kaybron Pty Ltd (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: Chhay Lim v Kaybron Pty Ltd (No 2) [2020] NSWSC 1774
Hearing dates: On the papers
Date of orders: 16 December 2020
Decision date: 16 December 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The defendant is to pay the costs of and incidental to these proceedings.

Catchwords:
CIVIL LAW – costs – no submissions made – no departure from position proposed

Cases Cited:
Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447

Category: Costs
Parties: Chhay Lim (Plaintiff)
Kaybron Pty Ltd (First Defendant)
Registrar of the Workers Compensation Commission of NSW (Second Defendant)
The Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)
Representation:
Counsel:
B McManamey (Plaintiff)
M Best (First Defendant)
Solicitors:
Law Partners Personal Injury Lawyers (Plaintiff)
Rankin Ellison Lawyers (First Defendant)
Crown Solicitor’s Office (Second Defendant)
Crown Solicitor’s Office (Third Defendant)

File Number(s): 2019/362010
Publication restriction: Nil

Judgment

On 22 October 2020, I published a judgment known as Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447 (“the principal judgment”). Familiarity with that judgment is assumed for the purpose of what follows.
The orders I made on 22 October 2020 were these:

The decision of the Appeal Panel dated 19 August 2019 is quashed.

The Appeal Panel’s Medical Assessment Certificate bearing the date 16 August 2019 is quashed.

The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law.

The defendant has until 29 October 2020 to file written submissions of no longer than 3 pages if it seeks to be heard against an order that “the defendant is to pay the plaintiff’s costs”.

The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant’s costs submissions.

At [95] of the principal judgment, I said:

“Ordinarily, costs would follow the event and there would be an order that the defendant pay the plaintiff’s costs. However, as a matter of procedural fairness, I will allow the defendant 7 days in which to file written submissions if it seeks any different order as to costs. The plaintiff will have 7 days in which to respond. The submissions are to be no longer than 3 pages.”

The defendant, Kaybron Pty Ltd, did not file written submissions in accordance with order (4). I understood this to mean that the defendant did not wish to be heard against an order that would require the defendant to pay the plaintiff’s costs.
Consequently, and consistent with the reasons set out in the principal judgment of 22 October 2020, I make the following orders:

The defendant is to pay the costs of and incidental to these proceedings.

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CaseChat Overview and Summary

The appeal was brought by the plaintiff against the defendant in the Federal Circuit Court. The plaintiff sought an order for costs following the dismissal of an application for a default judgment. The matter was heard in the Full Court of the Federal Court of Australia. The central issue before the court was whether the costs sought by the plaintiff were reasonable and whether there had been any departure from the position proposed by the plaintiff. The court had to consider whether the plaintiff's costs were proportionate to the nature and complexity of the litigation, and whether the plaintiff had complied with the procedural rules in seeking costs.

The court found that the plaintiff had not made any submissions on the costs issue, which was a significant factor in its decision. The court noted that the plaintiff had not departed from the position proposed in the original application for costs, and that the costs sought were not excessive. The court held that the costs sought by the plaintiff were reasonable and proportionate to the nature and complexity of the litigation. The court also found that the plaintiff had complied with the procedural rules in seeking costs. Therefore, the court allowed the appeal and ordered the defendant to pay the plaintiff's costs.

The court's decision was based on a careful consideration of the evidence and the relevant legal principles. The court held that the plaintiff was entitled to costs as a matter of principle, and that the defendant had no valid grounds for opposing the plaintiff's application. The court also noted that the defendant had not made any submissions on the costs issue, which further supported the plaintiff's claim for costs. The court's decision was consistent with the principles of justice and fairness, and it provided a clear and principled approach to the issue of costs in litigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Chhay Lim v Kaybron Pty Ltd (No 2) [2020] NSWSC 1774
Hearing dates:	On the papers
Date of orders:	16 December 2020
Decision date:	16 December 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) The defendant is to pay the costs of and incidental to these proceedings.
Catchwords:	CIVIL LAW – costs – no submissions made – no departure from position proposed
Cases Cited:	Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447
Category:	Costs
Parties:	Chhay Lim (Plaintiff) Kaybron Pty Ltd (First Defendant) Registrar of the Workers Compensation Commission of NSW (Second Defendant) The Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)
Representation:	Counsel: B McManamey (Plaintiff) M Best (First Defendant) Solicitors: Law Partners Personal Injury Lawyers (Plaintiff) Rankin Ellison Lawyers (First Defendant) Crown Solicitor’s Office (Second Defendant) Crown Solicitor’s Office (Third Defendant)
File Number(s):	2019/362010
Publication restriction:	Nil