Chhay Lim v Kaybron Pty Ltd (No 2) [2020] NSWSC 1774

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 1. 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. 2. The orders I made on 22 October 2020 were these: 1. The decision of the Appeal Panel dated 19 August 2019 is quashed. 2. The Appeal Panel's Medical Assessment Certificate bearing the date 16 August 2019 is quashed. 3. The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law. 4. 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". 5. The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant's costs submissions. 1. 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." 1. 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. 2. Consequently, and consistent with the reasons set out in the principal judgment of 22 October 2020, I make the following orders: 1. The defendant is to pay the costs of and incidental to these proceedings.