Costs of refused case management motion to be costs in the cause after technology company’s application fails

The High Court determined the allocation of costs following the refusal of a motion by a technology company seeking to have certain preliminary issues heard together with, or directly after, similar issues in concurrent proceedings. The court decided that the costs of this motion, which was characterised as a case management step and which raised significant and novel issues for the parties, should be costs in the cause—meaning the party that succeeds in the substantive proceedings will ultimately recover these costs. The court found that, while the respondent statutory regulator was entirely successful and a general presumption exists that costs should follow the event, the constructive engagement, significance of the issues, and the reasonableness of bringing the motion warranted departing from the presumption. No order for costs was made in favour of the State, which was not a party to the motion.