Malcolmson v. Legal Practitioners Admissions Board

[2008] QCA 98

COURT OF APPEAL

de JERSEY CJ
FRASER JA
DOUGLAS J

Appeal No 3279 of 2008

SCOTT DAVID MALCOLMSON	Applicant
and
LEGAL PRACTITIONERS ADMISSIONS BOARD	Respondent

BRISBANE

..DATE 01/05/2008

JUDGMENT

FRASER JA:  The applicant seeks an order that the respondent conduct an examination for him in a Barrister's Board subject, Securities.  The applicant has passed all other necessary examinations.  If the applicant sits and passes that examination he will have obtained the academic qualifications required for admission by the Barrister's Admissions Rules 1975.

Those rules were repealed by the Supreme Court Admission Rules 2004 but relevant provisions of the repealed rules continue in force for some continuing students like the applicant.  Sub-Rule 34(2) of the Supreme Court Admission Rules 2004 prohibits the Board from conducting any such examinations after 31 December 2007.  This application is made under sub-Rule 34(3) which provides that despite sub-Rule 2 the Court may order that the Board may conduct an examination after 31 December 2007 for a particular person if the Court considers there are special circumstances.

The circumstances upon which the applicant primarily relies are that in February 2007 the Board advised him that it had ceased to offer an examination in securities; on 7 February 2007 he asked for permission to do the subject externally; and the Board responded on 20 March 2007 that he could not sit the exams for the stage 4 subjects, Evidence and Bankruptcy Law, in March 2007 and complete the remaining stage 3 subject, Securities, through another institution.

The applicant swears that as a result of the Board's decision to refuse him permission to complete the Securities subject externally he decided not to enrol in Securities in 2007 at either of the two Universities at which it was then offered.  The applicant did not require permission of the Board to sit the Securities examination externally and the result of his understanding of the Board's letter is startling:  unless the Board relented, the applicant could not complete the subject either through the Board or externally.

A competing view of the letter is that the Board was concerned to ensure that the applicant completed Securities before embarking on later stages of the course, but the Board had earlier indicated that the applicant could complete Securities concurrently with later stages.  Furthermore, the Board ultimately did permit the applicant to sit examinations for all of the remaining later stage subjects in June and November 2007, even though he had not completed Securities.

In March 2008, the Board formally advised the applicant of the effect of sub-Rule 34(4) of the current Rules, which provides that after 31 December 2007 a result obtained in an examination in the subject at a University, after completing the University's curriculum for the subject, is taken to be a result in an examination by the Board in the subject.

The applicant then made inquiries and discovered that he could only complete the Securities subject at a University in the second half of the year 2008.  This is an obstacle to the applicant's admission in June 2008 for which he deposes that he is otherwise qualified.  Completing the University course in Securities would cost the applicant $1,600, compared with less than $150 if the examination were set by the Board.  The applicant does not qualify for HECS.

The Board accepts that the necessary examinations in Securities of the necessary high quality could now be set up in sufficient time to permit the applicant to undertake it and if successful, to apply for admission in June 2008.  An examiner acceptable for the Board has agreed to undertake the necessary work if the appropriate order is made by the Court. 

Sub-Rule 34(3) should be construed, bearing in mind that relinquishment of Board examinations was driven by the need to ensure contemporary academic qualifications of an appropriately high standard, secured through professionally run institutions of undoubtedly quality and reputation.  In that light the restrictions in the availability to the applicant of an examination in the subject Securities at a University, against the background identified earlier, are capable of constituting special circumstances of the kind contemplated by sub-Rule 34(3). 

The Board does not oppose the application. 

It may be open to question whether sub-Rule 34(3) empowers the Court to make a mandatory order that the Board conduct a particular examination or whether the Court's power is limited to exempting the Board from the prohibition that otherwise prevents it from conducting the examinations after 2007.  It is not necessary to pursue the question here because the Board's Senior Counsel informed the Court that the Board will conduct the examination if the Court is persuaded that special circumstances exist. 

I am satisfied that there are special circumstances and that it is appropriate for this very unusual case to make an order in terms of sub-Rule 34(3).  I would order that the Board may conduct an examination in the subject, Securities, for the applicant.

THE CHIEF JUSTICE:  I agree.

DOUGLAS J:  I agree.

THE CHIEF JUSTICE:  That is the order of the Court.

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