Qantas Airways Ltd v Bishop - [2025] NSWPICPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Qantas Airways Ltd v Bishop [2025] NSWPICPD 53
APPELLANT:	Qantas Airways Ltd
RESPONDENT:	Bradley Bishop
INSURER:	Self-insured
FILE NUMBER:	A1-W24236/24
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	21 July 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 16 December 2024 is revoked. 2. In lieu thereof there is an award for the respondent employer.
CATCHWORDS:	WORKERS COMPENSATION – Section 62 of the Workers Compensation Act 1987; whether section 62(6A) of the 1987 Act confers a discretion to increase an employer’s liability pursuant to s 62(1A) in respect of ‘any particular hospital treatment’; application of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Pelama Pty Ltd v Blake [1988] NSWCC 6; 4 NSWCCR 264; Workers Compensation (Private Hospital Maximum Rates) Order 2024 – whether the Order is ultra vires; application of Day v Harness Racing New South Wales [2014] NSWCA 423; 88 NSWLR 594; McEldowney v Forde [1971] AC 632; Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne [1933] HCA 56; 49 CLR 142; Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Ainsworth, solicitor
Hall & Wilcox
Respondent:
Mr L Robison, counsel
Santone Lawyers
DECISION UNDER APPEAL:	Bishop v Qantas Airways Ltd [2024] NSWPIC 703
SENIOR MEMBER:	Ms K Haddock
DATE OF SENIOR MEMBER’S DECISION:	16 December 2024

INTRODUCTION AND BACKGROUND

Bradley Bishop (the worker/respondent) was employed by Qantas Airways Ltd (Qantas/the appellant) as a baggage handler. He injured his left shoulder and neck on 15 October 2020 while connecting a tow bar to a motor vehicle. Qantas accepted liability under the workers compensation legislation in respect of the injuries. The worker came to a cervical fusion at C4/5 on about 15 August 2023. On 14 November 2023 Dr Harper, an orthopaedic surgeon, performed left shoulder surgery involving synovectomy and left biceps tenodesis. This improved movement but the worker had ongoing left shoulder pain.[1] Dr Harper recommended left shoulder surgery involving “pyrocarbon hemi-arthroplasty”. Dr Harper described the proposed procedure as involving an implant, being a “pyrocarbon humeral head”.
[1] Worker’s statement, 22/7/24, Application to Resolve a Dispute (ARD) pp 1–7, [18]–[22].
Dr Harper reported on 15 June 2024, in response to questions asked of him by Qantas. He said, “There is no other implant that I would use to resolve his arthritis”. He also said:
“Bradley is in extreme pain requiring regular opiates. I hope you can understand that the pyrocarbon hemiarthroplasty is his best chance of restoring pain relief and long-term function.”[2]
[2] ARD, p 13.
The appellant denied liability for this procedure in a dispute notice dated 17 June 2024. The notice stated:
“… the requested…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICPD 53
Decision Date: 21 July 2025

CaseChat Overview and Summary

Qantas Airways Ltd sought a declaration from the court that section 62(6A) of the Workers Compensation Act 1987 confers a discretion to increase an employer’s liability for ‘any particular hospital treatment’. The defendant, Bishop, opposed this application, arguing that the relevant legislation did not permit such discretion. The matter was heard by the Supreme Court of New South Wales.

The court had to determine whether the term 'any particular hospital treatment' in section 62(6A) of the 1987 Act was broad enough to allow for the increase in employer’s liability. The interpretation of this provision was crucial to understanding the scope of the employer's potential financial obligations under the Workers Compensation Act. The court also needed to assess whether the Workers Compensation (Private Hospital Maximum Rates) Order 2024 was beyond the powers of the legislative body that created it, potentially rendering it invalid.

The court found that section 62(6A) of the 1987 Act did not confer a discretion to increase an employer's liability for 'any particular hospital treatment'. The court relied on precedents such as Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue and Project Blue Sky Inc v Australian Broadcasting Authority to interpret the statute narrowly. The court also determined that the Workers Compensation (Private Hospital Maximum Rates) Order 2024 was not ultra vires, applying principles from Day v Harness Racing New South Wales and McEldowney v Forde. The court concluded that the order was within the legislative powers of the relevant authority.

The court issued a declaration that section 62(6A) of the 1987 Act does not confer a discretion to increase an employer's liability for 'any particular hospital treatment'. The court also confirmed the validity of the Workers Compensation (Private Hospital Maximum Rates) Order 2024.

Orders