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Huynh v Commonwealth of Australia [2026] FCA 440 | Case summary | Zoe
On 23 May 2025, this proceeding was summarily dismissed on the basis that this Court had no jurisdiction to entertain the applicant's application: Huynh v Commonwealth of Australia I ordered the applicant to pay the respondents' costs of and incidental to the proceeding as agreed or assessed.
By email to my chambers on 24 November 2025, the respondents' solicitors advised that the parties had not reached an agreement as to costs and sought for costs to be determined on a lump-sum basis, on the papers. The applicant indicated his consent to the lump-sum costs process on 21 January 2026 and I made timetabling orders providing for the filing of a costs summary and any accompanying submissions by the respondents and any costs response and accompanying submissions by the applicant.
In support of their lump-sum costs application, the respondents rely upon the affidavit of Sheridan Rose New, a lawyer at the Australian Government Solicitor (AGS), affirmed 9 February 2026. That affidavit sets out a costs summary in accordance with the Court's Costs Practice Note and contains the necessary verification required by Annexure A of the Costs Practice Note. The respondents also rely on the affidavit of Tony Giuni, another lawyer at AGS, affirmed 14 November 2024, which was read and relied upon for the hearing on 9 May 2025.
The applicant was required to file any costs response or written submissions before 23 February 2026. On 2 March 2026, he was asked by email to confirm, by 6 March 2026, whether he would be filing any materials in response to the respondents' submissions. As at the date of finalising these reasons, no response was received and no evidence or submissions have been filed by him. I consider that ample notice has been given to the applicant and proceed in the costs determination without any assistance from him.
The legal principles relating to assessing costs on a lump sum basis are well established and are conveniently set out in Frigger v Professional Services of Australia Pty Ltd (No 7)[2025] FCA 1639 at [6] (Feutrill J). It is unnecessary to fully reproduce these principles here, but I have had regard to them in making this determination.
The actual costs incurred by the respondents between 22 October 2024 (the date AGS commenced working on this proceeding) and 13 January 2026 amounted to $68,003.98 (inclusive of $14,165.48 in disbursements).
The respondents claim the lump sum of $70,000. That figure has been rounded down from $71,149,98, made up of the following costs:
[4]
(a) $14,165.48, being 100% of disbursements, consisting of
(i) $13,050.14 in counsel fees; and
(ii) $1,115.34 in fees for court transcripts;
(b) $50,484.50, being professional fees invoiced by AGS relevant to these proceedings; and
(c) $6,500, being an estimate of the work performed by AGS since 14 January 2026 and the work required to complete the lump sum affidavit and submissions and receive the decision.
[5]
Lump sum costs assessments are to be conducted in a broad and impressionistic manner, but nevertheless the process should be logical, fair and reasonable. Additionally, it is important to note that on 14 November 2024, the respondents offered to consent to the applicant discontinuing this proceeding with no order as to costs upon the basis of an absence of jurisdiction (being the ultimate basis for their summary judgment application succeeding). That offer was not taken up.
I am satisfied, on the basis of the evidence and submissions relied upon by the respondents, that it is fair and reasonable that the applicant should be ordered to pay the respondents' costs in the lump sum amount sought by them of $70,000. It is important to note that this amount, while being only a little less than the actual costs incurred plus the estimate for future work at the time the affidavit was prepared, does not include GST nor any profit margin. That is appropriate in all the circumstances.
[6]
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.