The Court of Appeal has denied an appeal by the ‘Atenisi Institute for a declaration that it does not have to comply with the Tonga National Qualifications and Accreditation Act.
It also sought a declaration that certain compliance notices issued by the Board established under that Act were invalid.
Lord Chief Justice Whitten had already dismissed the private educational institute’s claims, including one for damages, last October.
However, he declared that the compliance notices issued by the Board in February 2018 and February 2019 were unlawful, invalid and of no effect, declared them to be so and set them aside.
‘Atenisi sought to bring a limited appeal which did not challenge the refusal of the declarations relating to compliance with the Act.
‘Atenisi’s right to call itself a university was questioned in 2009 and the following year the Board refused ‘Atenisi’s application to register under the Act. ‘Atenisi began proceedings which were settled on the basis that it would be registered as a tertiary institute. It was registered as such in 2011 as a provider under the Act for 12-month period.
Registration was renewed on several occasions, the latest expiring in August 2017. That renewal was on condition that ‘Atenisi should submit its programme of study for accreditation within six months. ‘Atenisi had previously been advised by the New Zealand High Commission that it could not be included in an aid programme sponsored by New Zealand without accreditation under the Act.
In February 2017, ‘Atenisi submitted its application for accreditation of its B.A. programme. There followed a lengthy exchange of correspondence and meetings between representatives of the parties. The Board insisted ‘Atenisi complete certain documentation, but the institute argued it was more suitable to a technical or vocational school rather than a university.
‘Atenisi sought exemptions from the Board, but it would not back down and insisted the forms be fully completed.
In December 2017 the Board, wrote to ‘Atenisi advising that the Minister of Education had decided that ‘Atenisi had to comply with the Act. This meant ‘Atenisi had to work to meet accreditation criteria like all other providers.
In January 2018 the Board resolved that ‘Atenisi was required to refrain from delivering specified programmes and was not to enrol any students in 2018 until those programmes were approved and accredited. It issued the first of a number of compliance notices.
In April 2018 ‘Atenisi delivered to the Board updated hard copies of its application documents including certain appendices.
In May 2018 ‘Atenisi began judicial review proceedings. Lord Chief Justice Paulsen granted leave for them to be brought, expressly limited to the issues of non-compliance with the Act and whether ‘Atenisi was a provider subject to the requirement of registration.
By its Third Amended Statement of Claim ‘Atenisi sought a declaration that it was not subject to the Act and therefore to the jurisdiction of the Board and that, in effect, the Act does not provide for any sanctions or penalties against it as a provider. ‘Atenisi also made a claim of breach of an implied contract alleged to exist between the Board and its “constituency” including ‘Atenisi and sought damages for breach of that contract in respect of the loss to it because it had been unable to receive in-country tuition support via NZ Aid for the preceding years, Tonga Vocational Educational Training Funding in 2017/2018 and Cyclone Repair Funding from the Ministry of Education in 2018, such damages to be quantified at trial.
‘Atenisi and the Board agreed to split the trial such that if ‘Atenisi was successful in establishing breach of an implied contract there would be a separate trial on issues of “legal entitlement, causation or quantum.”
The Lord Chief Justice found that ‘Atenisi was not exempt from the Act, but found that its challenge to the compliance notices succeeded.
Judges Hansard and Blanchard said they agreed with the Lord Chief Justice’s ruling that, the implied contract claim was misconceived. No other damages claim was pleaded.
“We note that in a ruling on 21 October 2019 the Lord Chief Justice said that, without expressing a view, it might be open to ‘Atenisi to consider issuing fresh proceedings for any damages it says have been caused by reason of the unlawful notices.” they said.
The appeal was dismissed with costs against ‘Atenisi in favour of the Board.
