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[2026] NSWCA 152
procedural. The respondent is to pay the appellant’s costs of the proceedings in this Court, including the costs of the costs application.
Mr Bishop won the appeal about Qantas' liability for the shoulder procedure and prosthesis. Qantas argued that it should not have to pay his appeal costs because the successful argument had been brought back into the case at the hearing, after not being pressed in written submissions. The Court rejected that argument. The ground had been in the original appeal notice, and the same interpretation question would have arisen under another ground. The Court also said that the other ground had not failed; it did not need to decide it. Because Mr Bishop succeeded on the main disputed issue, Qantas had to pay his costs.
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2,230 words · generated 07/10/2026
This is a costs judgment made after the Court of Appeal had allowed Bradley Bishop's appeal in Bishop v Qantas Airways Ltd [2026] NSWCA 93. The question in this judgment was not a fresh determination of the compensation dispute. It was whether Qantas should pay Mr Bishop's costs of the proceedings in the Court, or whether the Court should make a different costs order because of how the appeal had been argued.
4 cited instruments linked from this judgment.
Mr Bishop, formerly a Qantas baggage handler, injured his left shoulder at work in October 2020. His orthopaedic surgeon sought approval for a shoulder hemi-arthroplasty using a pyrocarbon implant. Qantas declined to cover the procedure, relying on cl 8(1) of the Workers Compensation (Private Hospital Maximum Rates) Order 2024. That clause provided that surgical prostheses “are to be selected from the Department of Health Prostheses List at the minimum benefit rate” ([4]-[6]).
The prosthesis Mr Bishop's surgeon proposed was not on the list. Qantas argued that the clause set its maximum liability at nil for a prosthesis not listed. Mr Bishop's position was that cl 8(1) did not set a maximum for an item outside the list. The earlier appeal judgment accepted Mr Bishop's construction. As this costs judgment recounts it, “are to be selected from” fixed the applicable rate for a prosthesis drawn from the list; it did not require all prostheses to be selected from that list. The clause therefore did not operate to set a maximum for the prosthesis at issue ([8]).
The costs dispute arose from the sequence of appeal grounds. Mr Bishop's original Notice of Appeal included Ground 1, alleging that the Order was beyond the power conferred by its parent Act, and Ground 2, seeking an award under s 60 of the Workers Compensation Act 1987 (NSW) ([12]). In written submissions, Ground 2 was not pressed ([13]). The day before the hearing, the Court raised a construction question on which both parties' submissions appeared to proceed on a particular assumption about the Order. At the hearing, Mr Bishop sought and received leave to re-enliven Ground 2; Qantas was invited to provide further written submissions, but did not do so ([14]-[16]).
The Court had allowed the appeal and then permitted Qantas to file submissions about costs. Qantas asked for no order as to costs, which would leave each party to bear its own costs. Mr Bishop argued that costs should follow the event. The Court agreed with Mr Bishop and ordered Qantas to pay his costs of the proceedings in the Court ([2], [9], [20], [37]-[38]).
The Court began with UCPR r 42.1: the general rule is that costs follow the event, unless another order is appropriate ([25]). It explained that a successful party has a reasonable expectation of recovering costs, while emphasising that the rule does not limit the discretion conferred by s 98(1)(a) and (b) of the Civil Procedure Act 2005 (NSW) ([25], [27]).
The Court noted that the “event” generally concerns the outcome of the claim as a whole. Ordinarily, a costs order is not divided up issue by issue simply because the successful party did not succeed on every point ([26]). However, it is possible in an appropriate case to tailor costs to distinct issues. The decision turns on the particular circumstances and on whether a different order would reflect matters such as the parties' relative responsibility for the costs incurred ([27]-[28]).
Qantas relied on the late-amendment principle described in Beoco Ltd v Alfa Laval Co Ltd. As the Court summarised it, where a late amendment substantially changes the case the defendant must meet, and the action would otherwise fail, the defendant may receive its costs up to the amendment ([29]-[30]). The Court also referred to Faraday v Rappaport and Waterman v Gerling (Costs). Those authorities informed the question whether the appeal's history and the extent of Mr Bishop's success justified departing from the ordinary rule ([29], [31]).
The Court rejected Qantas' characterisation of Ground 2 as a late amendment. Ground 2 had been included in the original Notice of Appeal. It had been left unpressed in the written submissions, but was re-enlivened at the hearing. The Court treated that history as significantly different from introducing a new ground for the first time at a late stage ([33]).
The Court's second reason was that the construction issue was not distinct from Ground 1. The Court considered that it could not decide whether the Order was “ultra vires its parent act” without considering what the Order's language meant. The construction question would therefore have needed attention even if Ground 2 had not been re-enlivened. The Court accordingly rejected the submission that Ground 1 involved clearly dominant or severable issues, and found that re-enlivening Ground 2 had not substantially altered the case Qantas had to meet ([34]).
Third, the Court rejected the premise that Mr Bishop had failed on Ground 1. It said that Ground 1 was “strictly unnecessary to determine” once the construction argument under Ground 2 succeeded ([35]). That distinction mattered to Qantas' proposed issue-based costs approach: the Court did not treat the result as one where Mr Bishop had lost a separate ground and won only a different, newly added one.
Finally, the Court considered the overall result. It accepted Mr Bishop's point that even on Qantas' construction, he would have obtained some relief concerning the costs of the procedure. But his success went further: he succeeded on the central dispute about the cost of the prosthesis itself. The Court identified Mr Bishop as “the true victor” ([36]). It concluded that Qantas had not shown a sufficient reason to displace the usual costs rule ([37]).
The judgment does not announce a new general costs rule. It applies the established starting point under UCPR r 42.1: costs ordinarily follow the event, but another order may be made where appropriate ([25]). It also restates that the court's statutory discretion under s 98 of the Civil Procedure Act 2005 (NSW) is broad and must be exercised in light of the case's circumstances ([27]).
Before this decision, the authorities identified in the judgment established several relevant propositions. First, a successful party will ordinarily recover costs of the proceeding as a whole, rather than having costs recalculated for every issue ([25]-[26]). Second, a court may make an issue-based costs order in an appropriate case ([27]). Third, a late amendment can have costs consequences, particularly where it substantially changes the case the other party must meet and the claim would otherwise fail ([29]-[30]). Fourth, the focus remains on the overall result and whether the party who did not obtain the main relief can properly be regarded as the “true victor” ([31]).
After this decision, those principles are applied to a particular procedural history: a ground included in the original appeal notice, omitted from written submissions, then re-enlivened at the hearing. The Court found that the circumstances did not justify treating that procedural step as a late amendment for costs purposes. That conclusion depended on the ground's original inclusion, the overlap between the grounds, the lack of a substantially altered case to meet, and Mr Bishop's success on the central issue ([33]-[36]).
The decision therefore illustrates, rather than replaces, the general costs framework. It does not say that re-enlivening a ground can never affect costs. Its reasoning is tied to the facts and the links between the appeal grounds in this case.
At [25], the Court states: “The general rule is that costs follow the event, unless some other order appears appropriate.” In plain English, the starting point is that the unsuccessful party pays the successful party's costs, but the court retains discretion to make another order.
At [26], the Court explains that the “event” generally means the outcome of the claim as a whole. In practical terms, winning some issues and losing others does not automatically require costs to be divided issue by issue.
At [27], the Court explains that the statutory discretion under s 98 is not narrowed by the general rule. In plain English, the usual costs approach guides the decision, but the court can adapt its order to the particular circumstances.
At [33], the Court says that Ground 2 “was advanced in the original Notice of Appeal; it was not a new ground.” The point is that the procedural history mattered: the ground had not first appeared on the hearing day, even though it was not pressed in the written submissions.
At [34], the Court says that the construction of cl 8(1) “would have had to be addressed in any event” under Ground 1. This means the key interpretive question was not an entirely new issue generated by re-enlivening Ground 2.
At [35], the Court says Ground 1 did not “fail”; it was “strictly unnecessary to determine”. In plain English, the Court did not decide that ground against Mr Bishop. It did not need to reach it after he succeeded on the construction point.
At [36], the Court calls Mr Bishop “the true victor”. That conclusion reflects his success on the central contested issue, including the prosthesis cost, not merely the existence of some success on the appeal.
The reasoning is most directly relevant where a party succeeds after reviving at a hearing a ground that was included in the initiating appeal document but was not pursued in written submissions. The judgment shows that the court may examine whether that procedural history really amounts to a late amendment, rather than treating the timing of the oral argument as decisive ([13]-[16], [33]).
The relationship between the revived ground and the other grounds is also important. Here, the Court concluded that the interpretation issue underlying Ground 2 would have arisen in any event under Ground 1. It therefore rejected the contention that the grounds were clearly severable or that the revived ground substantially changed the case to be met ([34]).
The result may also be relevant where the successful party did not obtain a decision on every ground, but the court finds that an undecided ground was unnecessary rather than unsuccessful. The judgment cautions against treating an unresolved ground as a failed one when assessing whether costs should be apportioned ([35]).
Finally, the overall degree of success matters. Mr Bishop won on the central contested issue concerning liability for the prosthesis, and the Court found he was the true victor ([36]). The decision does not establish that any success, however small, will produce full costs. It expressly notes that where a late amendment produces only slight success, the other party may be regarded as the true victor, while some or all costs may still be recovered in other circumstances ([31]).
The supplied judgment does not discuss any later court's treatment of Bishop v Qantas Airways Ltd (No 2). It therefore provides no basis to say whether a subsequent court has followed, distinguished, applied or otherwise treated this costs decision.
The judgment itself relies on earlier authorities rather than reviewing later treatment of its own reasoning. It cites Oshlack and Northern Territory v Sangare for the general expectation associated with the usual costs rule ([25]). It cites Waters on treating the event as the outcome of the claim as a whole ([26]), and Calvo and Kumaran for the possibility of issue-based costs orders in appropriate cases ([27]). It discusses Beoco, Faraday and Waterman in relation to late amendments and identifying the true victor ([29]-[31]).
The decision also records Bishop v Qantas Airways Ltd [2026] NSWCA 93 as the earlier merits judgment in the same proceeding. The present judgment describes the earlier decision's construction of cl 8(1) and uses that procedural and substantive outcome as context for the costs decision ([1], [8]). That reference is not evidence of later treatment of the costs judgment.
This judgment resolves whether the general costs rule should be displaced on the specific facts, but it does not define a comprehensive test for when an argument omitted from written submissions and revived at a hearing becomes a “late amendment”. Its conclusion rests on Ground 2 having appeared in the original Notice of Appeal and on the construction issue also arising under Ground 1 ([33]-[34]).
The judgment also does not quantify or separately assess any costs said to have been caused by the re-enlivening. It notes the parties' submissions about preparation, hearing time, prejudice and supplementary submissions, but its stated reasons for the result focus on the original Notice of Appeal, the overlap between the grounds, the absence of substantial alteration, and the overall success ([16], [21]-[24], [33]-[36]).
Nor does it establish when issue-based costs orders should be made whenever grounds are described as distinct. The Court states that such orders are available in appropriate circumstances, but concludes that the grounds in this appeal were not clearly separable ([27], [34]). How that discretion applies to materially different procedural histories is not determined here.
The judgment does not address later judicial treatment of its reasoning. Any account of how subsequent courts have used it would require sources beyond this judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bishop v Qantas Airways Ltd (No 2) [2026] NSWCA 152
Hearing dates: On the papers
Date of orders: 31 July 2026
Decision date: 31 July 2026
Before: Adamson JA, McHugh JA, Free JA
Decision: The respondent is to pay the appellant’s costs of the proceedings in this Court.
Catchwords: COSTS — Party/Party — General rule that costs follow the event — late amendment
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act 1987 (NSW), ss 60, 62
Workers Compensation (Private Hospital Maximum Rates) Order 2024
Cases Cited: Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137
Bishop v Qantas Airways Ltd [2026] NSWCA 93
Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197
Commonwealth of Australia v Gretton [2008] NSWCA 117
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Faraday v Rappaport [2007] NSWSC 253
Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247
Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306
Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Turkmani v Visvalingam (No 2) [2009] NSWCA 279
Waterman v Gerling (Costs) [2005] NSWSC 1111
Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328; [1994] NSWCA 338
Category: Costs
Parties: Bradley Bishop (Appellant)
Qantas Airways Limited (Respondent)
Representation: Counsel:
D Hooke SC / LD Robison (Appellant)
T Ainsworth (Solicitor) (Respondent)
Solicitors:
Santone Lawyers (Appellant)
Hall & Wilcox Lawyers (Respondent)
File Number(s): 2025/00311908
Publication restriction: N/A
THE COURT**:** On 21 May 2026, the Court published its reasons for judgment in this matter, allowing the appeal: Bishop v Qantas Airways Ltd [2026] NSWCA 93 (‘PJ’). McHugh JA (Adamson and Free JJA agreeing) said as to costs: “The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. In the absence of submissions on that issue, I would propose an order that Qantas pay Mr Bishop’s costs”: PJ[56].
However, in circumstances where Qantas indicated at the hearing that in the event Mr Bishop succeeded, it might wish to be heard on costs, the Court granted liberty to Qantas to file and serve any submissions as to whether some other order should be made as to costs within seven days of the publication of its reasons. Qantas exercised that liberty and filed written submissions on 28 May 2026. Mr Bishop filed submissions in response on 3 June 2026.
For the reasons that follow, there should be no departure from the general rule. Qantas should pay Mr Bishop’s costs.
Mr Bishop, who was formerly employed by Qantas as a baggage handler, injured his left shoulder in the course of his employment in October 2020. His orthopaedic surgeon subsequently sought authorisation from Qantas to perform a shoulder hemi-arthroplasty (the Procedure) using a pyrocarbon implant (the Shoulder Prosthesis).
Qantas declined to cover the costs of the Procedure, relying on cl 8(1) of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 (the Order), which stated that surgical prostheses “are to be selected from the Department of Health Prostheses List at the minimum benefit rate.” Qantas argued that this mandatory language (“are to be selected from”) operated to fix its maximum liability at nil for any prosthesis not included on the list. The Shoulder Prosthesis did not appear on the list.
Mr Bishop contended that cl 8(1) was not directed at prostheses falling outside the list, and therefore did not fix any maximum amount for the Shoulder Prosthesis. Mr Bishop applied to the Personal Injury Commission for a determination that Qantas pay the cost of the Procedure, including the cost of the Shoulder Prosthesis itself.
On 16 December 2024, Senior Member Haddock made a determination in favour of Mr Bishop. Qantas appealed, and on 21 July 2025, Deputy President Snell made an order revoking the determination made by Senior Member Haddock, and in lieu thereof, made an award in favour of Qantas. Deputy President Snell’s decision was that Qantas was not required to pay the cost of either the Shoulder Prosthesis or the Procedure. Mr Bishop appealed to this Court.
The central question in this Court was the proper construction of cl 8(1) of the Order. The Court held that the words “are to be selected from” operated to fix the applicable rate, not to mandate the selection of prostheses from the list: PJ[39]-[44]. The clause is thus engaged only where a prosthesis is drawn from the Prostheses List. Where, as in this case, the Shoulder Prosthesis did not appear on the list, the clause had no operation and fixed no maximum liability. By reason of ss 60(1) and 62(1) of the Workers Compensation Act 1987 (NSW) (the 1987 Act), the amount for which Qantas was liable was the cost to the hospital of the Procedure, including the Shoulder Prosthesis itself: PJ[48]-[49].
Qantas submits that there should be no order as to costs, such that each party would bear its own costs.
Qantas submits that there should be a departure from the usual order as to costs for the following reasons:
The ground on which Mr Bishop succeeded was not one he raised (but rather had been abandoned prior to the hearing on 30 April 2026); and
Mr Bishop failed on the only ground he had (until the hearing) advanced.
In order to understand these submissions, it is necessary to say something about Mr Bishop’s grounds of appeal.
In his Notice of Appeal dated 14 October 2025, Mr Bishop relied upon two grounds of appeal:
1 The presidential member failed to hold that the Workers Compensation (Private Hospital Maximum Rates) Order 2024 is ultra vires its parent act, the Workers Compensation Act 1987 (NSW).
2 The presidential member failed to otherwise enter an award pursuant to s.60 of the Workers Compensation Act 1987 (NSW) for left shoulder pyrocarbon hemi-arthroplasty and associated expenses.
In Mr Bishop’s written submissions dated 9 February 2026, Ground 2 was not pressed.
By email on 29 April 2026, the day before the hearing of this matter, the Court pointed out that both parties’ submissions proceeded on the footing that the Order fixed the maximum amount of the employer’s liability for the treatment Mr Bishop sought. The Court advised the parties that it wished to hear submissions at the hearing on that question of construction.
On the morning of the hearing, Mr Bishop in effect sought leave to re-enliven Ground 2 of his grounds of appeal on the basis that the construction of the Order was most appropriately addressed by that ground. Leave was granted.
At the hearing, the presiding Judge asked whether the re-enlivening of Ground 2 would occasion any difficulty to Qantas. Senior Counsel for Qantas responded that this would depend on how the argument developed, but indicated that he would seek to address it “on the run”. The Court granted leave to Qantas to provide further written submissions as to the matters raised in the Court’s email. That leave was not ultimately taken up. However, Senior Counsel for Qantas indicated that Qantas might wish to be heard on costs, given that the appeal had developed differently from what the written submissions had foreshadowed. Those were the circumstances in which the Court made the orders in its primary judgment on 21 May 2026 (granting liberty to Qantas to make submissions as to costs) referred to at [2] above.
Qantas submits that Mr Bishop’s success on the appeal is attributable to a ground raised only by what amounts to a late amendment (i.e., re-enlivening Ground 2 at the hearing). Qantas says that it therefore ought not bear the costs of Mr Bishop, in whole or in part. Qantas relies on Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 at 154:
“As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment.”
Qantas also relies on Faraday v Rappaport [2007] NSWSC 253 at [23]-[30], submitting that in circumstances where the claim on which Mr Bishop succeeded was “raised only by late amendment”, it would be “improper” to award Mr Bishop his costs.
Qantas submits that Ground 1 failed; that the issues arising under Ground 1 were both clearly dominant and severable; and that in these circumstances, it would be open to the Court to order that Qantas pay Mr Bishop’s costs with respect to Ground 2, and that Mr Bishop pay Qantas’ costs in respect to Ground 1. However, Qantas seeks instead that there should be no order as to the costs of the appeal, with the effect that each party bears its own costs.
Mr Bishop filed written submissions seeking that costs follow the event. Mr Bishop advances three arguments.
First, that re-enlivening Ground 2 caused no wasted costs, in circumstances where it required no additional preparation or hearing time and Qantas did not take up the liberty granted to file the supplementary written submissions as to the matters raised in the Court’s email.
Secondly, that the appeal would have succeeded, at least in part, regardless of which construction of cl 8(1) of the Order the Court found correct. Mr Bishop argues that even on Qantas’ own construction in this Court, Deputy President Snell’s award would have had to be set aside in Mr Bishop’s favour, insofar as the claim had been for costs of the surgery and incidental costs (as opposed to the costs of the Shoulder Prosthesis). In other words, Mr Bishop contends that his success on appeal did not depend on the Court’s accepting his construction of the Order over Qantas’; he submits he would have been entitled to succeed either way.
Thirdly, Mr Bishop submitted that authorities such as Beoco do not support departing from the general costs rule in these circumstances. He points out that even where there is a late amendment, cases such as Waterman v Gerling (Costs) [2005] NSWSC 1111 insist that the focus remains on who is the “true victor”. He emphasises that re-enlivening Ground 2 caused no actual wasted costs, no real surprise, and no prejudice to Qantas. He notes that Qantas has not pointed to any specific additional costs it actually incurred as a result of his reliance on Ground 2 at the hearing.
Mr Bishop submits that the event in the appeal was one of complete success for him: the appeal was allowed, the decision below was set aside, and an award of compensation was made in his favour. On this basis, he submits there is no reason to depart from the general rule that costs follow the event, and that Qantas should bear the costs of the appeal in full.
The general “rule” is that costs follow the event, unless some other order appears appropriate: r 42.1, Uniform Civil Procedure Rules 2005 (NSW). The general rule gives a successful party a reasonable expectation of recovering costs from the unsuccessful party: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67], [134]; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]-[25].
The “event” generally refers to the outcome of the claim as a whole. A court will ordinarily award the costs of the proceeding to a successful party without attempting to differentiate between the issues on which the party succeeded and any issues on which the party failed: Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 at 330-331; [1994] NSWCA 338.
The general rule under r 42.1, however, does not limit the wide statutory discretion in s 98(1)(a) and (b) of the Civil Procedure Act 2005 (NSW), which must be exercised in light of the particular circumstances. Accordingly, in an appropriate case, a costs order may be tailored to reflect a party’s degree of success on distinct issues: Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197 at [8]-[10]; Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247 at [12]-[14]. A court may, in appropriate circumstances, refrain from ordering costs in favour of a successful party: see, eg, Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811-812; Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306 at 309-310.
In considering whether to depart from the general rule, the Court must have regard to its purpose, in particular that costs orders should reflect the parties’ relative responsibility for the costs incurred: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]; Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [13].
A successful party may be deprived of costs where its success is attributable to a ground raised only by late amendment: Beoco at 154 (applied in NSW in, e.g., Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318 at [8]-[9]); Faraday at [25]-[30].
Where a plaintiff's late amendment substantially alters the case the defendant must meet, and the action would otherwise have failed, the defendant may be awarded its costs up to the date of the amendment: Beoco at 154.
Where a late amendment results in only slight success for the plaintiff, the defendant, having regard to the case as a whole, may be regarded as the “true victor”. However, where that is not so, the plaintiff may still recover some, or even all, of its costs: Waterman at [17], [26], [27].
The general rule that costs follow the event should not be displaced in the circumstances of this case.
First, with respect to Qantas’ submission that it ought not bear Mr Bishop’s costs where Mr Bishop’s success is attributable to a ground that was raised only by late amendment, this submission should not be accepted. Ground 2 was advanced in the original Notice of Appeal; it was not a new ground. While it was not pressed in Mr Bishop’s written submissions, it was re-enlivened at the hearing. That is significantly different from a truly late amendment which raises a ground for the first time.
Secondly, and more significantly for present purposes, the underlying issue (construction of cl 8(1) of the Order) was an issue that would have had to be addressed in any event as part of considering Ground 1. The question whether the Order was “ultra vires its parent act” could not be determined in the abstract, without considering the effect of the language in which the Order was expressed. It therefore cannot be said that Ground 1 raised a set of clearly dominant or separable issues. Nor did the re-enlivening of Ground 2 so substantially alter the case the defendant had to meet as to justify departing from the general rule.
Thirdly, it should be noted that Ground 1 of Mr Bishop’s appeal did not “fail”. It was strictly unnecessary to determine Ground 1 in circumstances where Mr Bishop’s construction argument made under Ground 2 was successful: PJ[53]-[54]. The premise of Qantas’ argument seeking apportionment of costs is to that extent not established.
Fourthly, Mr Bishop’s submission that even on Qantas’ own construction of the Order he would have been entitled to a partial award (i.e., as to the costs of the Procedure) in his favour should be accepted. But Mr Bishop’s success went well beyond that. On the crucial contested issue in this Court – Qantas’ liability to pay the cost of the Shoulder Prosthesis itself – Mr Bishop was entirely successful. The “true victor” was on any view Mr Bishop.
Qantas has not demonstrated any sufficient basis for departing from the general rule that costs follow the event. Qantas must pay Mr Bishop’s costs, including the costs of this application.
The order of the Court is:
The respondent is to pay the appellant’s costs of the proceedings in this Court.
**********
Bishop
Qantas Airways Ltd (No 2)
[2026] NSWCA 93
[1998] HCA 11
(2019) 265 CLR 164
(1998) 193 CLR 72
(1994) 254 ALR 328
The respondent is to pay the appellant’s costs of the proceedings in this Court, including the costs of the costs application.