Background
Bradley Bishop, a former Qantas baggage handler, injured his shoulder at work and sought workers compensation for shoulder surgery using a pyrocarbon implant. Qantas refused to pay, contending that the Workers Compensation (Private Hospital Maximum Rates) Order 2024 limited its liability to prostheses listed on the Department of Health Prostheses List; the implant was not listed.
The Personal Injury Commission ultimately found for Qantas. On appeal, the Court of Appeal allowed Mr Bishop’s appeal in Bishop v Qantas Airways Ltd [2026] NSWCA 93, holding that the Order did not set Qantas’ liability at nil for an unlisted prosthesis. It reserved the question of appeal costs after Qantas indicated it might seek a different costs order.
The Court’s Holding
The Court ordered Qantas to pay Mr Bishop’s costs of the proceedings in the Court of Appeal. The ordinary rule is that costs follow the event, and Qantas had not shown a sufficient reason to depart from it.
Qantas argued that Mr Bishop succeeded only after re-enlivening, at the hearing, a ground that his written submissions had not pressed. The Court rejected that characterisation: the ground appeared in his original notice of appeal and did not substantially alter the case Qantas had to meet. The construction of the Maximum Rates Order was in any event necessary to address the appeal’s other ground.
The Court also rejected Qantas’ premise that Mr Bishop had failed on a separable dominant issue. It had been unnecessary in the primary appeal judgment to determine the ultra vires ground. Mr Bishop was the true victor, having succeeded on the central dispute over Qantas’ liability for the implant itself.
Key Takeaways
- A successful appellant will ordinarily recover costs under UCPR r 42.1 unless the circumstances justify another order.
- Re-enlivening a ground included in the original notice of appeal is materially different from introducing a genuinely new late amendment.
- A court may consider issue-specific success in costs, but will not do so where the issues are not clearly separable and the successful party is the true victor.
Why It Matters
The decision confirms that a late shift in emphasis will not necessarily deprive a successful party of costs, particularly where it causes no demonstrated prejudice or wasted expense. It also follows the substantive appeal ruling that the Maximum Rates Order did not exclude liability for an otherwise compensable unlisted prosthesis.