Robertson v Registrar of the Workers Compensation Commission & Beny's Joinery Pty Ltd  NSWSC 918. Smart AJ.
49 The blamelessness of a plaintiff or applicant for the delay and the mistake of a solicitor (including his dilatoriness) are capable of constituting special circumstances.
When the "mistake" of the solicitor in not meeting the time limit for the appeal application is because he takes the view that he cannot provide legal services because of s 327(8) of the [LP] Act without additional medical advice which cannot be obtained within the time limit that is also capable of constituting a special circumstance and one justifying an extension of time.
This is especially so when the solicitor takes prompt steps to obtain such advice, particularly from the treating doctor, there is reason for the delay (overseas commitments) and the envisaged delay is relatively short.
The solicitor cannot be expected when the period of delay is relatively short to embark upon the expense of engaging other medical advice of the requisite quality at short notice with all that involves.
The power to grant or refuse an extension of time should not be exercised in an arbitrary fashion nor be encumbered by a series of further rules. Great care must be taken in using other cases. It will rarely be correct to single out one or more common factors in the later case and note that they existed in the earlier case.
50 I have not felt able to subscribe to the views expressed by Malpass AsJ in Aguiar v Reg'r WCC & Ors  NSWSC 1017.
51 The delegate has stated in paragraph 9 of his determination that he does not accept that the unavailability of Mr Robertson's treating doctor and the unwillingness of his solicitor to certify and lodge an appeal are something beyond the normal course of events so as to be extraordinary or special.
That reveals an incorrect approach and possibly a misapplication of the judgment of Malpass AsJ in Aguiar.
It is not the case that special circumstances do not exist because in the normal course of events treating doctors are unavailable or sometimes unavailable to attend to a matter as promptly as desired or required or because solicitors may decline to provide legal services by preparing and lodging an appeal application and associated submissions or because solicitors may decline to certify under s 327(8) of the Act, or s 345 of the Legal Profession Act, pending the supply of further evidence.
I doubt if it is relevant to consider whether others have suffered from similar difficulties.
What has to be looked at are the particular circumstances of Mr Robertson. This may involve looking at the reasons for the doctor's unavailability, the period of delay, the course of dealing between the doctor and the applicant and probably, his solicitors, the availability of other suitably qualified and experienced medical practitioners in the field at short notice within the 28 day period, any extra expense involved in a shift and the prudence of making a late change.
As earlier mentioned, the delegate would need to consider not only the solicitor's refusal to provide legal services to certify but possibly the underlying reasons bearing in mind the terms of ss 345 and 347(1) of the Legal Profession Act.
Further, the blamelessness of the worker and his reliance on his solicitor would also require consideration.