'Atenisi Institute Inc v Tonga National Qualification and Accreditation Board [2024] TOCA 5; AC 15 of 2023 (28 May 2024)

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IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

JUDGMENT OF THE COURT
___________________________________________________________________________

Counsel: Dr. M. Horowitz – lay advocate for the Appellant
Miss A. Kafoa for the Respondents

[1] In 2017 ‘Atenisi Institute Incorporated applied to the Tonga National Qualifications and Accreditation Board for accreditation for certain tertiary courses which it proposed to offer. The Board exercised its discretion to appoint an expert panel to assess the application in accordance with its statutory criteria.^[1] ‘Atenisi challenged that decision and in 2019 the Supreme Court granted the Institute leave to apply out of time to judicially review its lawfulness.

[2] In 2022 Whitten LCJ directed the determination of two preliminary questions before trial, on the apparent assumption that the answers to both were likely to be dispositive of ‘Atenisi’s substantive claim. In a broad sense the first question was to determine the Institute’s challenge to the composition of the expert panel appointed by the Board on the grounds of (a) apparent or apprehended bias or (b) lack of qualifications of one or more of the appointed panelists. The second question was of a discretely legal nature, and required determination of whether the any accreditation by the Board should be confined to a specific past period of ‘Atenisi’s qualifying courses and operations. That direction was upheld by a decision of this Court on 17 August 2023^[2].

[3] On 24 November 2023, after hearing argument on those two preliminary questions, Cooper J dismissed ‘Atenisi’s substantive application for judicial review. ‘Atenisi appeals against that decision and several interlocutory orders. It also appeals against an order made by the same Judge on his own motion on 11 March 2024, well after the substantive judgment, staying unspecified proceedings until ‘Atenisi’s lay advocate, Dr Horowitz, gave security for costs in an unspecified amount.

[4] This litigation has a torturous procedural history. ‘Atenisi has made numerous interlocutory applications on a range of issues, culminating in this Court’s 17 August 2023 judgment which made a series of directions for the expedited hearing of the Institute’s claim in the Supreme Court. Dr Horowitz’s written submissions in support of ‘Atenisi’s current appeal seek, directly and indirectly, to revisit some of those directions. However, they are binding, and we do not intend to explore the past except to the extent necessary to dispose of this appeal. We note also that much of Dr Horowitz’s submissions, and of the documentary material filed both in this Court and the Supreme Court, raise points which are irrelevant to determination of the issues arising on this appeal and we do not intend to address them.

[5] ‘Atenisi seeks judicial review “...by way of mandamus requiring [the Board] to process and determine [‘Atenisi’s] application for accreditation [of certain tertiary courses] according to law”. The Board’s relevant legal obligations are found in two legislative provisions.

[6] First, the Tonga National Qualifications and Accreditation Board Act 2004 established the Board. Its duties are specified as, among others, to (a) “develop a national qualifications framework for post compulsory education [and] training” and (b) “establish policies, criteria, accreditation, monitoring, reviewing register and listing of post compulsory education and training”^[3].”Accreditation “ is defined as “..the confirmation of a course of study that has met the standards set by the Board and which leads to a qualification approved by the Board”^[4]. Part III sets out the process for registration of providers, which must apply to the Board for (a) “registration to provide education and training”; and (b) “accreditation for a course ^[5]of study leading to a stated qualification.” The Act specifies the comprehensive details to be included in any application^[6].

[7] Second, the Tongan National Qualifications and Accreditation Regulations 2010 govern the Board’s processes. It is appropriate for these purposes to recite three central provisions and two schedules. Regulation 17 states

(1) All persons, organisations and institutions wishing to provide post compulsory education and training shall apply to the Board, in the form prescribed in Schedule D for accreditation in respect of each –

(a) course of study leading to a stated qualification; and Regulation 18 Tongan National Qualifications and Accreditation Regulations 2010 Page 10 to

(b) short course made up of units from a course of study leading to a stated qualification.

(a) submit with the application supporting evidence that it has an appropriate system for managing quality that covers and meets the accreditation quality standards detailed in Schedule C; and

(a) grant accreditation for specified courses of study and short courses for a specified period provided that at the end of that period an application for review shall be made to the Board; and

(b) require the Chief Executive Officer to evaluate any application made to it, conduct such verification of the contents of the application, including a site visit if deemed necessary, and duly report to it the level of compliance with the quality standards set for accreditation.

(2) The Board may grant accreditation when the applicant for accreditation meets the quality standards specified in Schedule C.

(3) The Board may enlist the assistance of such industry or subject experts as necessary to determine the capacity of the applicant to deliver the course of study and short courses.

(4) The applicant shall be informed of the involvement of specific industry or subject experts in the consideration of an application for accreditation.

(5) Accreditation shall be granted for specified courses of study and short courses subject to conditions imposed by the Board.

(6) In the event that an application for accreditation is not granted, the notification to the applicant shall include reasons.

(1) Upon grant of accreditation, the Board shall authorise the issue of a Certificate of Accreditation, and, where the successful applicant has not been previously registered, a Certificate of Registration.

(2) Accreditation shall be deemed to commence from the date of issue of the Certificate of Accreditation.

(3) The Board shall record the issuance of all Certificates of Accreditation in the Register of Accreditation by recording the following - Tongan National Qualifications and Accreditation Regulations 2010 Regulation 20 to Page 11

(a) the legal name (and trading name where this is different) of the accredited body;

(d) the period of accreditation granted (or the scheduled date for review or quality audit);

(4) Accredited bodies shall display the Certificate of Registration and Certificate of Accreditation and courses of study and short courses covered by the Certificate in a conspicuous place.

For the purposes of this Schedule, “External stakeholders” may include teaching staff from other providers delivering similar courses of study, industry representatives, professional bodies, community representatives or government ministry representatives.

The following are minimum standards for post compulsory education and training providers. A new provider shall meet Accreditation Standard 1, elements 1.1 to 1.5, before being registered. Accreditation Standard 2, elements 2.1 to 2.6, shall be met for each qualification, course of study and short course prior to delivery. In addition to Accreditation Standards 1 and 2, Accreditation Standard 3, elements 3.1 to 3.12, shall be met by the provider on an ongoing basis.

Accreditation Standard 1: The provider is established and organised to provide quality education and training.

1.1 The provider or its governing body is a legally established or recognised enduring body.

1.2 The provider has measurable goals and objectives for education and training.

1.3 The provider has a coherent, documented quality management system of policies and procedures.

1.4 The provider has adequate and appropriate governance and management to achieve its education and training goals and objectives.

1.5 The provider’s name is appropriate and does not mislead learners about the nature of the educational and training provision.

Accreditation Standard 2: An educationally sound and effective process is used for the development, approval and review of all qualifications and courses associated with the provider.

2.1 The title is appropriate and complies with the requirements of the Tonga Qualifications Framework.

2.2 The learning outcomes have been developed and reviewed, where appropriate, in consultation with relevant external and internal stakeholders.

2.3 The learning outcomes and credit requirements are clearly defined and consistent with the requirements of the Tonga Qualifications Framework.

Accreditation Standard 3: The provider is delivering quality education and training.

3.1 The provider’s quality management system is effectively applied to the whole organisation, and is regularly reviewed and updated.

3.2 The provider has adequate and appropriate physical and learning resources to deliver its qualifications and courses of study.

3.4 Appropriate staff development plans, based on identified needs, are implemented and outcomes monitored to ensure effectiveness.

3.5 Appropriate entry and selection criteria for each course of study and short course are well publicised and applied consistently.

3.6 Timely, effective and appropriate student guidance and support systems are provided.

3.7 The provider defines and implements effective teaching and learning practices that are educationally sound and appropriate to the course of study and mode of delivery.

3.8 Course delivery undertaken in partnership with, on behalf of, or by another organisation either inside Tonga or outside Tonga, meets the standards set in the provider’s quality management system.

3.9 Any off-site practical or workplace components of courses of study are effective and integrated into curricula.

3.10 The assessment of learning outcomes is fair, valid and consistently applied.

3.11 Notification of results and reporting on student achievement is adequate and appropriate.

3.12 Where degree courses of study are offered, adequate resources and support are provided to meet the provider’s defined research goals and objectives.

These details are required of all organisations applying for registration to offer post compulsory education and training services and workplace.

*Organisation Details*
Name of education, training or workplace organisation
Type of body corporate
Physical address of education and training premises
Postal address
Governing body
*Contact Details*
Contact person
Designation
Telephone number(s)
Facsimile number
Email address
Website
*Nature of Intended Education and Training*
Indicate the intended education and training focus, such as subject areas, qualifications, courses of study and short courses, that the organisation intends to offer [use additional paper if needed or attach appropriate documents]
*Intended Learner Profile*
Indicate in these boxes the estimated number of students in each age group that are like lot enrol in your organisation’s programmes during the next calendar year	18 years and over
	14-17 years
	11-13 years
	10 years and under
*Accreditation of Education and Training Courses*		Yes [√]
Indicate whether the organisation has lodged an application for accreditation at the same time as its application for registration (see separate TNQAB application form)

We, the undersigned, confirm that this application for registration as a post compulsory education and training provider represents an accurate statement of the current status and operations of our organisation and that the governing body supports the policies and procedures included in the application.

We confirm that the governing body has been advised of the Tonga National Qualifications and Accreditation Board Act 2004 and of Tonga National Qualifications and Accreditation Board policies and procedures of relevance to the activities of the organisation and that to the best of our knowledge these activities comply with relevant requirements therein.

We confirm that we have considered any aspects of our operations that may place students or the public at risk and have implemented policies and procedures to ensure their protection.

Signature: _____________________________________
Date : _____________________________________

Contact details
Please send the completed application form, along with all relevant supporting documentation, to:

Tonga National Qualifications and Accreditation Board
PO Box 65
Nuku’alofa Tongan

These details are required of post compulsory education and training providers applying for accreditation to deliver either courses of study leading to a stated qualification or short courses made up of units of a course of study which may lead to a stated qualification.

*Organisation Details*
Name of education, training or workplace organisation
Type of body corporate
Physical address of education and training premises
Postal address
Governing body
*Contact Details*
Contact person
Designation
Telephone number(s)
Facsimile number
Email address
Website
*Courses of Study and Short Courses for which Accreditation is sought*
Attach evidence that the provider meets both Accreditation Standard 1 and Accreditation Standard 2 for each listed course of study and short course, and Accreditation Standard 3 for existing courses of study and short courses. Ensure that all listed under section 10(2) of the Tonga National Qualifications and Accreditation Board Act 2004 are included with this application.



*Education and Training Provider Registration*		Yes [√]
Indicate whether the organisation has lodged an application for accreditation at the same time as its application for registration (see separate TNQAB application form)

We, the undersigned, confirm that this application for post compulsory education and training accreditation represents an accurate statement of the current status and operation of our organisation with regard to the courses of study and short courses listed, and is supported by the governing body.

We confirm that we have considered any aspects of our operations that may place students or the public at risk and have implemented policies and procedures to ensure their protection.

Signature: _____________________________________
Date : _____________________________________

[11] ‘Atenisi was established first as high school in 1964 and then as a university in 1975. Dr Horowitz is its dean. It sought accreditation to offer students post compulsory education training courses.

[12] ‘Atenisi has mounted its primary challenge to the suitability and independence of the members of the panel appointed by the Board within its statutory discretion for the purpose of assisting in determining the Institute’s capacity to deliver the specified courses of study for which it sought accreditation. ‘Atenisi’s sustained complaint was directed at the expertise of the four appointees and the existence of perceived professional conflicts. The appointed members are Dr Ana Taufeulungaki, Dr Ungatea Kata, Dr Tangakina Steen and Dr Robin Havea (possibly to be replaced by Dr Lesieli Tongito). In summary, as Dr Horowitz emphasized in his written and oral submissions before us, ‘Atenisi contended that their academic qualifications were inadequate or specific to professional disciplines unrelated to the courses which it offers, and that the independence of each appointee was compromised by links to other parties or perceived antagonism to the Institute’s teaching philosophy.

[13] In support of its claim ‘Atenisi filed affidavits and evidence statements from four witnesses – Ms Tina Smith, National President of the Tertiary Education of New Zealand, ,Dr Allan Botica, a principal of a public relations consultancy in New Zealand, Mr Kalafi Moala, a lecturer in investigative journalism at the Tonga Institute of Higher Education, and Dr David Eubanks, an American academic.

[14] On 17 August 2023 this Court ordered that Ms Smith be available at the hearing in the Supreme Court for cross examination by the Board’s counsel, to “...test the way in which a review of this type would ordinarily be conducted, as a matter of practice”^[7] and made incidental orders. However, this Court’s judgment directed that cross-examination should take place by audiovisual link ; that Dr Horowitz or some other ‘Atenisi representative was to make contact with Ms Smith and ascertain her availability; and that once her availability was confirmed, the Board was to arrange the audio visual link from a suitable venue.^[8] This Court ordered the Board to meet the costs^[9]. Dr Horowitz acknowledged that ‘Atenisi’s case on the preliminary questions could be conducted on the evidence of its witnesses including Ms Smith’s answers on oath under cross examination.

[15] The first question for the Supreme Court’s determination was whether the inclusion of any or all the panel members was unlawful for apprehended bias or inadequate or inappropriate qualifications. The second, and apparently subsidiary, question was whether the Board’s assessment of ‘Atenisi’s application for accreditation was to be confined to its courses between 2014 and 2017.The Institute sought the remedy of either (a) a retrospective accreditation for the years 2014 to 2017 “...as of 2023” or (b) accreditation presently but taking account only of the years 2014 to 2017 and excluding the years 2017 to the present.

[16] However, Cooper J determined first the discrete question of statutory interpretation before the question about the expert panel composition. The transcript suggests that the Judge reversed the directed order at Dr Horowitz’s urging. He advised the Court that ‘Atenisi would not be proceeding further if it ruled unfavourably on the second question which he described as the ambit issue.^[10]

[17] Cooper J answered the second question in the Board’s favour, on the ground that the statutory regime did not empower the Board to grant retrospective accreditation for specific periods. He could not locate any statutory power for the Board to declare accreditation for a defined time in the past. He construed the legislation framework as essentially forward looking or prospective. The Judge was apparently influenced by Dr Horowitz’s repeated refusals to cooperate with the Board’s requests to allow the panel to undertake a site visit to evaluate the application for accreditation, a mandatory requirement under Reg 18 (1) (b) if deemed necessary.

[18] Cooper J answered the first question in the Board’s favour also. Contrary to this Court’s direction, ‘Atenisi did not produce Ms Smith for cross-examination by the Board in the Supreme Court. It appears that the two had fallen out. The Judge found that Ms Smith was no longer cooperating with Dr Horowitz and was not prepared to participate in the proceedings. He was unimpressed by Dr Horowitz’s attempts to provide unsubstantiated and unsworn evidence to excuse Ms Smith’s absence. He dismissed Dr Horowitz’s application for leave to file a substitute witness statement from a Dr Bonnell.^[11]

[19] The Court then struck out the Institute’s claim on the alternative grounds that (a) its case disclosed no reasonable cause of action^[12] because in Ms Smith’s absence there was no evidence to support it or (b) it would be an abuse of process or unfair if Ms Smith’s evidence was to be accepted without challenge.

[20] The first preliminary question for determination, as framed by Whitten LCJ and affirmed by this Court, is whether the inclusion of any or all the nominated panelists was unlawful by reason of (a) apprehended or apparent bias or (b) inadequate or inappropriate qualifications, thereby constituting a breach by the Board of an alleged recognized custom in Regulation 18 (3). We shall deal separately with these two limbs.

[21] Unfortunately we do not have the benefit of Cooper J’s finding on the first limb of apprehended bias. He referred briefly to the issue twice in passing ^[13] but otherwise did not address it in striking out ‘Atenisi’s claim. He appears to have relied on Ms Smth’s unavailability for cross examination as disposing of the point. We must consider it afresh.

[22] In reliance on Mr Moala’s affidavit, Dr Horowitz submitted before us that all four appointees were disqualified for apparent bias. Specifically, he argued that Dr Sheen was disqualified from acting because she served as the Board’s chair from November 2019 to November 2022 while the chief executive officer at the Ministry of Education, giving rise to an apprehension of bias. Dr Horowitz also contended that as Interim Vice Chancellor, Dr Sheen had directed Tonga National Institute, a consortium which “has yet to deploy, much less incorporate, [‘Atenisi’s] superior academic expertise”. He submitted that Dr Taufe’ulungaki was similarly disqualified because she was the outgoing dean of the Department of Education of Christ’s University in the Pacific, which was a local competitor against the Institute’s reputation for militant criticism of Christianity and had been the Minister of Education for half the period when the Crown supported the Board’s refusal to register ‘Atenisi.

[23] It is well settled that an apprehension of bias arises where a well-informed, fair-minded observer might reasonably apprehend that a decision maker might not bring an impartial mind to the resolution of the question for determination^[14]. We have not heard argument on the threshold question of whether a member of an advisory body, appointed at the Board’s discretion to assist in determining ‘Atenisi’s capacity to deliver the course of study for which it sought accreditation, was exercising a decision-making power. While we entertain doubts about whether that threshold is met in this case, we cannot answer it in the absence of informed argument.

[24] However, we are satisfied that even if the panelists are or will be exercising decision making powers, ‘Atenisi’s argument cannot succeed. The premise for Dr Horowitz’s submission on bias was that the appointees might be disaffected towards ‘Atenisi’s application by virtue of professional loyalties to other institutions, or personal antagonism towards an institute which was seen as pursuing a heretical teaching philosophy.

[25] We consider that that premise is misconceived. Without a reliable evidential base, ’Atenisi cannot establish that a particular member might be viewed as biased on the speculative possibilities that an association with other institutions or entities offering the same or similar courses to ‘Atenisi might indirectly benefit from its non-accreditation or that panelists will be adversely affected in performing his or her legal duty because they adhere to a different religious belief system. The panelists are bound to assess an accreditation objectively, according to the prescriptively detailed legislative criteria.

[26] Dr Horowitz relied specifically on Mr Moala’s sweeping, subjective opinion that “...local media would regard as prejudiced ..” a panel comprising all four appointees. However, the test for determining bias is objective. The well-informed, fair-minded observer does not look through the lens of a member of one narrowly delineated class and according to his subjective standard. In our judgment there is no evidence sufficient to raise a reasonable apprehension that any one of the panelists might not act fairly and impartially when assessing ‘Atenisi’s capacity to offer a specified course. The Institute’s case falls well short of raising an apprehension of bias by any of the appointed panelists.

[27] Dr Horowitz’s succinct closing submissions at trial, which he largely repeats on appeal, relied on an argument that under what he called the doctrine of parium judicium ‘Atenisi is entitled to be assessed by academic peers holding faculty positions at New Zealand or Australian universities. He submitted that panelists should have published doctoral theses in the social sciences and humanities, supplemented by a member with a doctoral thesis in the natural sciences together with a creative artist with a postgraduate degree.

[28] In apparent reliance on Ms Smith’s evidence, whom he described as ‘Atenisi’s star expert witness, Dr Horowitz submitted that the panel chair should have a published doctorate in the discipline in which the Institute principally instructs and publishes, described as its targeted disciplines, and that the application should not be assessed exclusively by academics with doctorates in education. He also sought to rationalize and excuse Ms Smith’s absence from the hearing, suggesting it was the Board’s fault for failing to have sought to cross examine her in a timely way, presumably when earlier opportunities were presented. On these grounds, Dr Horowitz submitted, all four panelists should be replaced.

[29] ‘Atenisi’s challenge to the expert panel’s composition must fail. The Board appointed the panel to assist it in assessing “the capacity” of the Institute to offer the courses for which it seeks accreditation. It is a narrow factual inquiry into the applicant’s resources. The legislative framework does not require the Board to appoint a panel. That step is available to the Board in its discretion in a particular case. Other than specifying that the panel members are “expert”, the Regulations are silent on what might qualify a particular person for eligibility to perform that role. The obvious inference is that the Board has a wide discretion on whom to appoint: its decision on appointments to the panel cannot be questioned providing the person crosses the threshold of an academic qualification or experience sufficient to qualify him or her to undertake the assessment role required by Reg 18.

[30] Dr Horowitz’s submission requires a legislative gloss to be imposed to the effect that the Board is bound to appoint a panel of members with doctoral theses across a range of his nominated disciplines and holding academic posts in Australasian universities. Reg 18 (3) does not require that any member should hold a doctorate or teach at an overseas institution. Dr Horowitz does not submit that any one appointee is not qualified to assess ‘Atenisi’s capacity to offer a particular course, and there is no basis for reading into the words of Reg 18 his subjective limitation on eligibility for appointment.

[31] We note that Dr Horowitz seeks support for his argument from what he describes as expert evidence from a group of witnesses. An analysis of their affidavits reveals that none of them qualifies as an expert for these purposes. Their affidavits are brief, didactic and conclusory and, without exception, in the nature of submission rather than reliable, independent evidence, expert in the field of academic accreditation. The language used by all deponents’ bears striking similarities to the prose style of Dr Horowitz’s submissions. And Dr Eubanks writes as a crusader for new and unconventional methods of accreditation, a cause openly advanced in Dr Horowitz’s submissions.

[32] It is unclear to us why the Board required Miss Smith for cross examination. Her affidavit did not approach the threshold for admissibility as independent expert evidence and could not be accorded any weight. While this Court gave leave to the Board to cross-examine her, to test the way in which a review of this type would customarily be conducted in practice, Ms Smith did not qualify herself as an expert in this field of tertiary accreditation. She did not depose to any knowledge of or familiarity with the process of conducting a tertiary accreditation assessment. Her absence was immaterial to the outcome of this claim.

[33] Ms Smith’s affidavit is silent also on her teaching discipline. She simply has a teaching background and was elected as president of a teachers’ union in New Zealand, a collective bargaining agency. The emotive language of her affidavit discloses the extent of her advocacy for ‘Atenisi’s cause. Without undertaking any objective analysis of their contents, she describes a series of Initial Record Books issued by the Board in 2022 as “...promiscuously fault [ing ‘Atenisi’s] competence and pedagogy”. Also, in direct contradiction of a central plank of Dr Horowitz’s submission, she speculates that for reasons of political correctness an overseas expert from a developed nation who might be appointed to an assessment panel might be dissuaded from extensively challenging a Crown entity like the Board “...for fear of perpetuating ‘neo-colonialism’”.

[34] On the misconceived premise that Ms Smith’s evidence may have had probative value, Dr Horowitz attempted before us to explain away her absence on grounds which Cooper J had rejected. In particular, he relied on emails from Ms Smith and others which the Judge had refused to accept at the hearing in the absence of a supporting affidavit^[15]. He also sought to raise the existence of geographical and logistical difficulties in securing her presence...

[35] The Judge was right to reject Dr Horowitz’s attempts to justify Ms Smith’s absence. Dr Horowitz’s failure to produce his initiating and subsequent emails in the exchange with Ms Smith was telling. Our disquiet is heightened by Dr Horowitz’s answer to a question from the Court at the hearing on 23 August 2023^[16]. He stated that “I can’t produce her [Ms Smith] at the moment. I mean she could be found but the TEU cannot find her and I cannot find her...I am not making this up... they [the TEU] cannot seem to locate her.”. He did not disclose that at 8.20 pm on the previous day, 22 August 2023, a TEU representative had emailed Dr Horowitz, in reply to his originating email (which he did not produce) under the subject heading PLS DON’T FORWARD TO TINA SMITH, to advise that “Tina [Ms Smith] has contacted Julie about this”. And Dr Horowitz’s claims that ‘Atenisi was precluded from calling Ms Smith by the geographical and logistical difficulties were undermined by the terms of this Court’s order directing her attendance by audiovisual link.

[37] Dr Horowitz also challenged the Judge’s refusal to allow ‘Atenisi to file a late statement of expert evidence from Dr Andrew Bonnell, an Australian academic. He is the head of the Australian TEU. His short affidavit affirmed a brief conclusory statement in Ms Smith’s affidavit. For the reasons which we have explained, this statement did not qualify for admissibility as a statement of expert opinion.

[38] In our judgment ‘Atenisi has failed to show that the Board’s decision to appoint the panel was unlawful on the ground that any one or all members were inadequately qualified to advise on the Institute’s capacity to deliver the specified courses for which it sought accreditation. It is unclear to us why Whitten LCJ’s formulation of the second limb of the first question included an alleged recognized custom under Regulation 18 (3). The provision does not refer to any such yardstick, and we have not taken it into consideration in deciding that this first question must be answered in the Board’s favour, albeit for different reasons to those given by Cooper J.

[39] The second preliminary question is whether the Board is legally obliged to confine its assessment of ‘Atenisi’s application retrospectively to a defined period between 2014 and 2017. The apparent rationale for ‘Atenisi’s purported limitation on the scope of the panel’s assessment is an acknowledgement implicit in Dr Horowitz’s submissions that the courses offered by the Institute after 2017 would not satisfy the Board’s criteria for accreditation. Dr Horowitz has not advanced a statutory analysis to support his limitation or ambit argument or subject Cooper J’s rejection of it to an analytical critique. His complaint is that while ‘Atenisi was accreditable in 2017 when its application was filed, what he describes as the Institute’s subsequent decline is attributable to the Board’s delinquency. He relies on principles applicable to the law of torts which he says justify a liberal approach to construing the legislative regime.

[40] We must approach this question by applying settled rules of statutory interpretation without resorting to common law principles. In the absence of a reasoned challenge, we are satisfied that Cooper J was correct to find against ‘Atenisi on the basis that the Regulations were prospective in nature. We agree with Ms Kafoa that the words of Reg 18 (1) (a) appear to exclude any argument that the assessment might be of a retrospective nature. The regulation provides that accreditation for specific courses shall be for a specified period provided that at its end an application for review shall be made to the Board. ‘Atenisi could not in 2024 apply to review accreditation for a course which ended in 2017

[41] Moreover, Reg 18 (1) (b) provides that a site visit may be undertaken if deemed necessary. Leaving aside arguments about responsibility for the panel’s inability to undertake a site visit when requested in 2022, such a visit where deemed necessary by the Board would be of no possible utility in 2024 to determine ‘Atenisi’s eligibility in 2017. It would be impossible for a panel in 2024 to assess the Institute’s capacity to offer specified courses seven years earlier. We accept that there may be some circumstances where the Board or a panel considers that past performance is relevant to future capacity, but that assessment is for them and not for Atenisi to stipulate that the scope of the inquiry must be limited to a three-year period which finished seven years ago. Obviously, a panel would not derive assistance from historical material of that antiquity in assessing capacity in 2024

[42] Other regulatory provisions offer a conclusive answer to Atenisi’s case for retrospective accreditation:

[43] It follows that the second question must also be answered in the Board’s favour. In our judgment the Board cannot now or at any future time grant ‘Atenisi accreditation for tertiary courses taught in the years from 2014 to 2017 or any other retrospective period of time.

[44] Our answers to the first two questions, adverse to ‘Atenisi, are dispositive of its substantive claim. They effectively dismiss the two grounds on which its claim is advanced. As those grounds are not now reasonably arguable, its claim must be struck out.

[46] The Respondent is entitled to costs of and disbursements in this Court and the Supreme Court as agreed or, if not, as fixed by the Registrar.

[47] With leave, ‘Atenisi has appealed within the scope of its existing appeal against six orders made by Cooper J on 11 March 2024, primarily an order that no legal action can be commenced by Dr Horowitz or on his behalf unless he first pays into Court security for costs. The following five orders are of a consequential and thus incidental nature

[48] Before us, Ms Kafoa advised that the Judge initiated this step of his own motion on the day following delivery of his substantive judgment. The Board did not participate thereafter or make any submissions. Dr Horowitz confirmed that he made submissions in answer. The Judge’s apparent purpose was to consider whether Dr Horowitz should be declared a vexatious litigant. He eventually decided against such a declaration and in its stead made the challenged orders.

[49] The Supreme Court had no jurisdiction to order security be given for costs after the substantive hearing has been concluded and final judgment had been delivered. The orders themselves are made against a non-party, they seek to restrain Dr Horowitz from commencing any action whether related or unrelated to this proceeding unless security is given only with leave of this Court, and they require payment of an unspecified sum. Apart from their unenforceability for uncertainty, the orders are disproportionate and place an unreasonable restriction on Dr Horowitz’s rights of access to the Courts. Moreover, the Supreme Court has no power to direct that any leave applications should be determined by this Court.

[50] We accept Ms Kafoa’s point that these proceedings have imposed a heavy costs burden on the Board which has limited financial resources. We note that the Board would be entitled to apply for an order for security for costs against either ‘Atenisi or Dr Horowitz if either party attempts to take any new substantive steps in this proceeding or issue any new proceedings against the Board.

[51] We have not overlooked the intense level of frustration which the Judge experienced in his dealings with Dr Horowitz during the substantive hearing as reflected in the tone and contents of his judgment. We also acknowledge Ms Kafoa’s measured outline of Dr Horowitz’s discourteous, obtuse and at times obstructive conduct towards the Court and its delaying effect on the disposition of the claim and its adverse effect on the Board’s costs and resources. However, the remedy fashioned by the Judge was beyond his jurisdiction after his substantive judgment was delivered and was in any event uncertain and disproportionate.

[52] ‘Atenisi’s appeal against all the orders made on 11 March 2024 must succeed, and they are set aside. There will be no order for costs.

^[1] Tonga National Qualifications and Accreditation Board Act 2004; Tonga National Qualifications and Accreditation Regulations 2010
^[2] ‘Atenisi Institute Incorporated v Tonga National Qualifications and Accreditation Board AC 9 of 2023
^[3] Section 8
^[4] Section 2
^[5] Section 10 (1)
^[6] Section 10 (2)
^[7] At [46].
^[8] At [27]
^[9] At [48]
^[10] Transcript of 30 August 2023 hearing, p 6
^[11] Order 26 Rule 2 of the Supreme Court Rules
^[12] Order 8 Rule 8 of the Supreme Court Rules
^[13] At paras [18] & [34]
^[14] See ‘Atenisi Institute Incorporated v Tonga National Qualifications and Accreditations Board [2023] TOCA 11’ AC 27 of 2022 at [36] & [37]; Vunipola v Tongatapu Rugby Football Sub- Union [2023] TOCA 22; AC 28 of 2022 at [36] & [37]
^[15] At paras [40]-[47].
^[16] Transcript at pp 12-13

Court of Appeal of Tonga

'Atenisi Institute Inc v Tonga National Qualification and Accreditation Board [2024] TOCA 5; AC 15 of 2023 (28 May 2024)