The Gazette 1989

GAZETTE

APRIL 1989

aggregate to be unjust, it seems to me it would have to be shown that it was fixed excessively high. But such is not the case. The figure of 250 simply requires an average equal t o the pass mark. I a m satisfied therefore that th e standard was not unreasonable and so was lawful. The fourth issue is whether the Applicant as a matter of fact knew that 50% was the pass standard set for the examination i n 1986 before he sat the examination? I cannot see that this issue i s relevant t o any o f th e reliefs claimed by the Applicant and I deal with it solely because it is one of the issues directed to be tried by the Order of the President. The Applicant's evidence was that h e knew fo r th e 1985 examination that the pass mark was 50%; that he did not know if the Society set a different pass mark every year; that he did not know what the pass mark for 1986 would be and he did not make any enquiries about it. My conclusion from this evidence is that while the Applicant may not have known for certain that the pass mark for 1986 was 50%, i f he had been asked before the examination what he thought the pass mark was, h e probably would have replied that he believed i t was 50%, but he was not sure. The fact that he made no enquiries about it shows either that he felt he knew sufficiently what it was or that he was not concerned with what i t was. Between knowing and not knowing there is an intermediate area where there is knowledge but also doubt as to the accuracy o f that knowledge. I t seems to me that this is probably the Applicant's position and I do not think that i t in any way pre- judiced his performance i n the examination. He was working t o achieve the best possible result irrespective of what the pass mark was. The final issue is whether the Respondents are compellable i n law to consider the Applicant as having achieved a satisfactory standard on the marks actually received by him in the examination. In my opinion they are not. It is only when the Committee is satisfied as to the proficiency of a candidate at an examination that they must declare him t o have passed (Regulation 2 8 (1) 1975 Regula-

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declare that he has reached the appropriate standard. But i f the Court were to do that, it would be substituting its view of what the standard should be for that of the Committee, and that is something it is not entitled to do. I have already held that the standard laid down by the Committee cannot b e challenged. If I were to declare that the Applicant had reached that standard I would be being incon- sistent a s I would i n effect b e substituting a different standard for the Committee's standard which I have already held to be lawful. Counsel for the Applicant also referred t o th e evidence o f Professor Ellis who had said i n regard t o the Applicant's marks that most examination boards would have brought him up to a pass, but some would not have. He submitted that on the basis of this evidence the Court should declare that the Applicant had reached the appropriate standard. But such

tions) so the Committee would require to have been satisfied as to the proficiency o f the Applicant before he could claim as of right the declaration he is seeking. But they could have been so satisfied only if the Applicant had reached the minimum standard which they had laid down, namely, a n overall average of 50%. Having set that as a standard o f proficiency t o b e attained, they could not have been satisfied with any candidate who failed to attain it. And that is the Applicant's position. He did not succeed i n obtaining a n overall average of 50%. And even though he was only three marks short of the standard, that margin, though small, left him in the position of not having attained the standard and deprived him of the right to claim that he ought to have been passed. Counsel fo r th e Applicant submitted that as the Applicant is standing on 247 marks, the only reasonable and just decision is to

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