Federal Court of Australia Ryan v Commissioner of Police, NSW Police Force (No 5) [2023] FCA 1478 File number(s): NSD 974 of 2018 Judgment of: ABRAHAM J Date of judgment: 28 November 2023 Catchwords: COSTS – where matter remitted – where original costs order set aside – whether circumstances justify further apportionment Legislation: Disability Discrimination Act 1992 (Cth) s 15(2) Police Act 1990 (NSW) s 87 Cases cited: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; (2002) 54 IPR 495 New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski (No 2) [2011] FCAFC 152 Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106 Ryan v Commissioner of Police, NSW Police Force (No 3) [2021] FCA 408 Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of last submissions: 2 November 2023 Date of hearing: Determined on the papers Counsel for the Applicant Mr M Gibian SC Solicitor for the Applicant: Police Association of New South Wales Counsel for the Respondents: Mr M Seck Solicitor for the Maddocks Respondents: ORDERS NSD 974 of 2018 BETWEEN: KENNETH JOHN RYAN Applicant AND: COMMISSIONER OF POLICE, NSW POLICE FORCE First Respondent THE STATE OF NEW SOUTH WALES Second Respondent order made by: ABRAHAM J DATE OF ORDER: 28 November 2023 THE COURT ORDERS THAT: 1. The applicant pay 80 percent of the respondents' costs as agreed or assessed from the granting of leave to make the application on 27 September 2019 to the date of the decision in Ryan v Commissioner of Police, NSW Police Force (No 3) [2021] FCA 408 on 23 April 2021. 2. The applicant pay the respondents' costs as agreed or assessed from the date of remitter from the Full Court on 16 March 2022 until the delivery of Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016. 3. There be no order as to costs of the applicant's interlocutory application, dated 22 September 2023, save for that part of the application seeking a change to the apportionment of costs the subject of Order 1, where the applicant is to pay the respondents' costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J: 1 In Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016 (Ryan (No 4)), I dismissed Mr Ryan's application in relation to claims under the Disability Discrimination Act 1992 (Cth) (DD Act). The history of the proceedings is detailed in that judgment, and in summary is as follows. On 16 February 2021, I dismissed Mr Ryan's claim: Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106 (Ryan). On 16 March 2022, the Full Court allowed an appeal against my decision: Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 (Ryan FC). In summary, the Full Court found that it was a misconstruction of cl 1.42 of the NSW Police Force 2014 Leading Senior Constable Guidelines (LSC Guidelines) (the clause under which the revocation was made), to conclude it mandated revocation of a Leading Senior Constable appointment when the preconditions set out in the clause were satisfied: Ryan FC at [203], [231]. The Full Court found that error infected the findings in Ryan as to the applicant's claims for direct and indirect discrimination and remitted the matter. 2 These brief reasons address the issue of costs. 3 Following the orders in Ryan (No 4), the parties provided written submissions as to costs. There is no dispute that in relation to Ryan (No 4), the applicant should pay the costs of that remitted proceeding, to be agreed or assessed. 4 As the appeal was allowed in respect of Ryan, the costs order made at the conclusion of that hearing was set aside by the Full Court. My reasons for that costs order are outlined in Ryan v Commissioner of Police, NSW Police Force (No 3) [2021] FCA 408 (Ryan (No 3)). I ordered that the applicant pay 80 percent of the respondents' costs as agreed or assessed from the granting of leave to make the application on 27 September 2019 to the date of the decision in Ryan (No 3). 5 The applicant submits that in relation to those proceedings the order I should now make is that the applicant pay 50 percent of the respondents' costs as agreed or assessed from the granting of leave to make the application on 27 September 2019 to the date of the decision in Ryan (No 3). 6 In Ryan (No 3), I set out the relevant principles to be applied in considering a costs application. I apply those principles without repeating them. 7 The basis of the applicant's submission for apportionment of 50 percent, as opposed to 80 percent of the costs in Ryan is, in summary, that the respondents promulgated the construction of the LSC Guidelines that the Full Court concluded was in error. That was a substantial issue which occupied a significant part of the written and oral submissions. It also provided the basis for other submissions upon which the respondents were ultimately unsuccessful: the argument that the revocation of Mr Ryan's appointment did not fall within s 15(2)(b) or (d) of the DD Act that was not pursued after the Full Court judgment; and whether the LSC Guidelines constituted an agreement under s 87 of the Police Act 1990 (NSW). The misconstruction of the LSC Guidelines permeated the respondents' submissions on all other issues, such that the question ended up being a "common and fundamental thread running through of the primary judge's reasons" in Ryan, citing Ryan FC at [231]. Ultimately, the remitted proceedings would have been unnecessary but for the contention advanced by the respondents that the LSC Guidelines compelled revocation. 8 The respondents oppose that order, submitting inter alia, that the construction they contended for was not unreasonable, and that the evidence heard in Ryan was the basis of the later hearing. Unlike the separate legal question of whether the first respondent was the employer of the applicant (the basis for the costs apportionment in Ryan (No 3)), the proper construction of cl 1.42 wholly overlapped with Superintendent Glinn's consideration of whether cl 1.42 had been satisfied based on his understanding and interpretation of the provision. 9 Having considered the submissions and applying the principles outlined in Ryan No 3, in particular, that the Court should exercise caution against too ready a resort to apportionment according to issue based outcomes, I am not persuaded that some other order be made in respect of the proceedings in Ryan: New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski (No 2) [2011] FCAFC 152 at [14]-[15]; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; (2002) 54 IPR 495 at [10]. It cannot be said that it was unreasonable for the respondents to run the construction argument they did. The applicant has not submitted otherwise. In any event, resolving the correct construction of the LSC Guidelines was a necessary step in determining the applicant's claims. In that regard, as the respondents submitted, the construction issue was not a discrete or separate issue. Moreover, the time and expense incurred leading evidence otherwise relevant to the dispute between the parties, and which ultimately formed the basis for the decision in Ryan (No 4), was necessary regardless of the construction dispute. 10 In my view, in respect of the proceedings in Ryan, the order should remain that the applicant pay 80 percent of the respondent's costs to be agreed or assessed. 11 Given the circumstances in which this costs issue has arisen, I do not propose to make any orders as to costs in relation to filing the interlocutory application to enable the order for costs in (Ryan No 4) to be set aside. However, as the applicant was unsuccessful in its submission that the apportionment of the costs in respect to Ryan be changed, the respondents are entitled to the costs of that aspect of the application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate: Dated: 28 November 2023