Hassan (formerly AFX21) v Minister for Home Affairs

[2025] FCAFC 69

FEDERAL COURT OF AUSTRALIA

Hassan (formerly AFX21) v Minister for Home Affairs [2025] FCAFC 69

Appeal from:

Hassan v Minister for Home Affairs [2024] FCA 527

File number:

NSD 844 of 2024

Judgment of:

KATZMANN, THAWLEY AND KENNETT JJ

Date of judgment:

20 May 2025

Catchwords:

COSTS – where primary judge ordered by consent that the parties bear their own costs of a particular issue – where issue not raised on appeal – where unsuccessful appellant seeks order for the respondents to pay his costs of the issue incurred at first instance – where no application for leave to appeal – where no error in making consent costs order –where appeal dismissed – costs follow the event

PRACTICE AND PROCEDURE – where application for leave to appeal against costs order not sought or granted – application for costs refused

Cases cited:

Crawford v State of Western Australia (No 2) [2025] FCAFC 48

Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224

Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527

House v The King (1936) 55 CLR 499

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

8

Date of hearing:

Determined on the papers

Counsel for the Appellant:

Mr J F Gormly with Mr C Honnery

Counsel for the Respondents:

Mr P D Herzfeld SC with Ms N A Wootton

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

NSD 844 of 2024

BETWEEN:

YASSIR HASSAN (FORMERLY AFX21)

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	KATZMANN, THAWLEY AND KENNETT JJ
DATE OF ORDER:	20 MAY 2025

THE COURT ORDERS THAT:

1.The appellant pay the respondents’ costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 22 April 2025, the Court dismissed Mr Hassan’s appeal from the primary judge’s orders dismissing his claim in negligence against the respondents: Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527. Counsel for Mr Hassan indicated at the hearing that he wished to be heard in relation to costs in the event the appeal was unsuccessful.

2. On 3 June 2024, the primary judge gave effect to the consent position of the parties and ordered that Mr Hassan pay the respondents’ costs, except “as to the validity and application” of a particular direction (2021 Direction) which had been in issue in the proceedings until shortly before the hearing. The primary judge ordered the parties to bear their own costs in that regard. The validity of the 2021 Direction was not in issue before the Full Court.

3. Mr Hassan now seeks “an award of his costs in challenging the validity and application” of the 2021 Direction: ACS[1]. Mr Hassan submitted that there should be an “award of his costs” in that regard, that those costs should be “set off” and that he should be “indemnified from those costs”: ACS[1], [3] and [18]. Whilst it is not clear precisely what order Mr Hassan seeks, it is clear that Mr Hassan is asking this Court to revisit the primary judge’s costs order which gave effect to the parties’ agreement as to costs. This is not a claim for costs of the appeal.

4. The application for costs must be dismissed. Firstly, the order gave effect to the agreement of the parties as to costs. No proper basis has been articulated for departing from that agreement. Each of the matters raised by Mr Hassan in his submissions was known to him at the time he consented to the costs order, and he has not articulated any sensible basis on which the Court should depart from the order giving effect to the parties’ agreement. It might be observed that the consent order was, in any event, more favourable than an order that costs follow the event.

5. Secondly, Mr Hassan was not successful on appeal and so the costs order did not need to be revisited as a necessary consequence; in order to challenge the consent order as to costs, Mr Hassan was required to, but did not, seek and obtain leave to appeal, the costs order being interlocutory in nature: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224 at [13]–[14] (Colvin, Stewart and Feutrill JJ); Crawford v State of Western Australia (No 2) [2025] FCAFC 48 at [9] (Mortimer CJ, Stewart and O’Bryan JJ).

6. No explanation was given as to why leave to appeal was not sought and no argument was advanced as to why leave to appeal should be granted.

7. Thirdly, as a decision in relation to costs is a discretionary decision, to justify an order varying the costs order made below Mr Hassan was required to, but did not, demonstrate error in the primary judge’s decision of the kind identified in House v The King (1936) 55 CLR 499; Crawford at [9]. Mr Hassan did not identify in his Notice of Appeal any ground of error in relation to the primary judge’s costs order, made by consent. Nor did he achieve any measure of success on the grounds he did advance that might have called for the costs order to be set aside or varied in any respect.

8. Mr Hassan has not advanced any reason why the costs of the appeal should not follow the event: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 at [4] (Markovic, Thawley and Cheeseman JJ). Mr Hassan should pay the respondents’ costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Thawley and Kennett.

Associate:

Dated:       20 May 2025

SCHEDULE OF PARTIES

NSD 844 of 2024
Respondents
Fourth Respondent:	THE SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS