Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council

The case of *Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council* was heard in the Court of Appeal of New South Wales. The dispute concerned the validity of proceedings brought under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW) and the ability of a party in such proceedings to compel a medical examination of a worker. The applicant, Kurnell Passenger & Transport Service Pty Ltd, sought to rely on section 119 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) to obtain a medical assessment of the worker, which the respondent, Randwick City Council, resisted.

The primary legal issues before the Court of Appeal were whether the conferral of jurisdiction on a court to hear section 151Z(1)(d) indemnification proceedings was invalid by reason of Chapter III of the Constitution, and whether section 119 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) could be validly used by an employer and a putative tortfeasor in section 151Z(1)(d) proceedings to obtain a medical assessment of a worker. Relatedly, the court considered whether it was appropriate to order a stay of proceedings unless the plaintiff submitted to a medical examination, and the proper interpretation of section 119 in the context of indemnification proceedings.

The Court of Appeal determined that the use of section 119 in section 151Z(1)(d) proceedings was extraneous to the statutory purpose of section 119, which was designed to facilitate claims for compensation rather than indemnification. The court found that the legislative history of section 119 indicated it related to claims for compensation under Chapter 4 of the *Workers Compensation Act 1987* (NSW), and its application in indemnity proceedings would be capricious and unjust. Furthermore, the court held that the WorkCover Guidelines on Independent Medical Examinations and Reports did not restrict the operation of section 119, but rather clarified its intended scope. The court did not find that the conferral of jurisdiction for section 151Z(1)(d) proceedings was invalid under Chapter III of the Constitution.

The Court of Appeal granted leave to appeal and directed the applicant to file its amended notice of appeal within seven days.