The Gazette 1989

GAZETTE

APRIL 1989

Regulations), but how are they to be so satisfied? Is it by applying themselves the standard they have laid down, or by permitting the examiners to apply it and relying on their conclusions? The regulations are not very clear on this. Regulation 7 says that "the Committee shall also consider and adjudicate upon the reports of the examiners". The use of the word "adjudicate" would suggest that the final decision as to whether a student has passed is to be made by the Committee but, if this is corect, the question might still arise as to whether the Committee, having appointed examiners, as it is given power to do under the regulations, can reserve to itself what may necessarily be a function

of the examiners, namely, the decision as to whether a candidate has passed or not. It could be argued that two separate functions are involved, that of laying down the standard of proficiency to be obtained, and that of applying the standard, and that the former is to be carried out by the Committee and the latter by the examiners. Under the present system it would appear that both are carried out by the Committee. The issue is whether under the Act and the regulations this is permissible. It is an issue which it seems to me may need to be considered by the Society. This judgment has been appealed to the Supreme Court.

evidence is not in my opinion sufficient. It does not necessarily follow from it that if the Applicant's position had been considered by a board consisting of all the extern and chief intern examiners, he would have passed. The furthest it goes is to indicate that he might have passed. And that is not enough to entitle him to a declara- tion that he did. The foregoing are my findings on the issues submitted to the Court for its determination. It follows from them that the Applicant's principal claims for relief must be refused. He is not entitled to have quashed the decision of the Committee refusing him entry to the Law School nor is he entitled to a declaration that he has passed the final examination - first part. But in my opinion he is entitled to the following two declarations: (1) A declaration that it is ultra vires the present powers of the Society to impose a limiting quota of in or about 150 on candidates seeking admission to the Law School, and (2) A declaration that it is ultra vires the powers conferred on the Society under the 1975 Regulations to hold a com- petitive examination for entry into the Law School of the Society. In considering the relief claimed by the Applicant I was limited to the issues which had been agreed between the parties. Having now fully considered the system adopted by the Society for the examination with which this case is concerned, it seems to me that there is a further issue which could be relevant. As it was not raised or argued before me, I do not propose to express any view on it, but as it is an issue which could arise in the future, I consider that I should refer to it. It might be formulated as follows: in the light of the pro- visions of the 1954 Act and the 1975 Regulations, who should decide if a student has passed the final examination - first part? Is it the examiners or is it the Com- mittee? It is clear that it is for the Committee to lay down the standard of proficiency to be obtained and on being satisfied as to the proficiency of a candidate to declare him to have passed (Regulation 28 (1) of the 1975

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