Bryong Adams on her own & OBO all partners in the firm known as Herbert Smith Freehills v PlayUp Limited

1. [1]

   Before me today as duty judge is a notice of motion filed by the defendants on 11 November 2025. That notice of motion sought orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) requesting non-publication or non-disclosure of material potentially exhibited to an affidavit filed in the proceedings by the solicitor for the plaintiff. Ancillary orders related to that are also sought.

2. [2]

   The proceedings were commenced by summons and comprise an application for judicial review, effectively seeking certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to a determination made by the Manager of Costs Assessment as well as a merits review under s 93B of the Legal Profession Uniform Law Application Act 2014 (NSW).

3. [3]

   The summons is listed for hearing on 10 February 2026 with a one-day estimate.

4. [4]

   Since the proceedings were commenced in August 2025, there have been some directions hearings before the registrar. There appears to have been some attempt between the parties at those directions hearings to zero in on pre-trial issues, including the potential for some debate about “confidentiality and/or privilege” of some of the potentially exhibited and/or deployed evidentiary material. In that context the notice of motion of 11 November was filed. As revealed in exchanges between the Court and counsel appearing for the applicant defendants, and as outlined in the written submissions of counsel for the plaintiff, Mr Baron Levi, the notice of motion is misconceived. Counsel appearing for the defendants communicated to the Court after opportunity to discuss the position with his instructing solicitor that by consent, the notice of motion should be dismissed.

5. [5]

   The only outstanding issue therefor, is costs.

6. [6]

   Counsel for the defendants submitted that the costs order should be that the plaintiff’s costs be costs in the cause. He argued that the issues for determination in the proceedings have not yet been determined, and the subject matter of the overall proceedings is relating to costs.

7. [7]

   Mr Baron Levi for the plaintiff submitted that the notice of motion was unnecessary. It has effectively been discontinued and frankly should not have been brought. There was a requirement for the substance of the motion to be addressed via written submissions as ordered by the Registrar. There was a requirement for attendance of counsel today to argue and contest the orders sought in the motion. This is not a situation where costs should be costs in the cause. It is a discrete application concerning discrete and separate subject matter to the overall proceeding.

Decision and costs

1. [8]

   In the normal course as provided by the Uniform Civil Procedure Rules 2005 (NSW), costs would follow the event. The folly entailed in the filing of the notice of motion in the first place has been recognised and consent has been communicated to the notice of motion being dismissed.

2. [9]

   It is in those circumstances appropriate that the defendants pay the plaintiff’s costs of the notice of motion.

3. [10]

   I make the following orders:

   1. (1)

      The notice of motion filed 11 November 2025 is dismissed.

   2. (2)

      The defendants are to pay the plaintiff’s costs of the notice of motion filed 11 November 2025.