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'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 45; CV 13 of 2018 (15 October 2019)

IN THE SUPREME COURT OF TONGA

CIVIL DIVISION

NUKU’ALOFA REGISTRY


CV13 of 2018


BETWEEN:


‘ATENISI INSTITUTE INC Plaintiff


AND


TONGA NATIONAL QUALIFICATIONS AND

ACCREDITATION BOARD Defendant


BEFORE: LORD CHIEF JUSTICE WHITTEN

Counsel: Dr M. Horowitz, counsel pro se for the Plaintiff

Mr S. Tu'utafaiva with Mr S. Taione for the Defendant

Date of hearing: 9, 10, 11, 12, 13, 16, 18 and 20 September 2019

Date of judgment: 15 October 2019


JUDGMENT


INTRODUCTION

  1. The Plaintiff (‘Atenisi) has operated since 1975 as an educational provider offering tertiary courses in social science, natural science and the creative arts. Its core curriculum has been the critical appraisal of philosophy, history, literature, coupled with instruction in mathematics and language. Dr Horowitz is the current Dean of the Plaintiff.
  2. For a period during the proceeding, until 20 February 2019, the Plaintiff was represented firstly by Sione Fonua of Fonua Law and subsequently by John Appleby of Wilson McKay, lawyers in New Zealand. Dr Horowitz has otherwise had the carriage of the matter for the Plaintiff. He appeared at and conducted the trial on behalf of the Plaintiff, assisted by other faculty members.
  3. The Defendant (TNQAB) is a statutory body established under s.3 of the National Qualifications and Accreditation Board Act 2004 (the Act). The Act received royal assent on 22 June 2006 and came into force on 12 December 2007.[1] The objects of the Act included establishing the Defendant and introducing a system for, inter alia, the registration of providers of post compulsory education training (“PCET”) and accreditation of their courses of study.
  4. This proceeding raises important issues concerning the interpretation and application of the Act.
  5. The Plaintiff seeks judicial review in the form of declarations to the effect that it is not subject to the Act. It also challenges the validity of compliance notices issued by the Defendant which sought, among other things, to impose conditions requiring the Plaintiff to cease recruitment of students for its unaccredited courses. has raised a number of complaints against the Defendant.
  6. The Plaintiff raised a number of other complaints against the Defendant during the course of the proceeding and further during the trial. For the reasons discussed below, many of those complaints do not arise for determination in this proceeding.
  7. To understand the issues that are for determination, one must start with the factual background to the dealings between the parties, from the evidence adduced at trial, which resulted in this proceeding.

THE EVIDENCE – GENERALLY

  1. Paulsen LCJ directed that the trial be conducted by affidavit. The Plaintiff filed affidavits from 12 witnesses. It also called evidence from another six witnesses. Notwithstanding that the Defendant only required one witness for cross-examination, the Plaintiff called a number of its deponents to give further evidence. No objection was taken by the Defendant and Mr Tu'utafaiva took the opportunity to cross-examine a number of them.
  2. The affidavits of Giovanno Bernardo, Leonaitasi Hoponoa, Paul Janman, Bernadette Luciano, Rev. Marvin Stow and ‘Okusitino Tae all provided statements of support for the Plaintiff and its pedagogy.
  3. Dr ‘Aisake Eke, too, deposed to his support for the Plaintiff’s pedagogy. He also recounted attending a meeting with Pauliasi Fifita, the Defendant’s principal qualification officer, on 11 October 2017, referred to further below.
  4. Dr David Eubanks is a leading critic of Learning Outcome assessment in the United States as it is practised for accreditation requirements. He provided affidavit evidence explaining his criticism of templates such as those used by the Defendant in its accreditation applications, as being inapplicable to liberal arts academies such as the Plaintiff. He was the only witness required by the Defendant for cross-examination and gave evidence by video link.
  5. Dr Lorenz Gonschor has been the Plaintiff’s Dean of faculty since July 2017. His evidence largely consisted of a review of the Plaintiff’s archives and records to identify various documents which, in his view, supported the Plaintiff as deserving university status. In essence, and notwithstanding that he was not a party to many of them (most predated his commencement at the Plaintiff by many years), Dr Gonchor was used as the vehicle by which many of the historical records and communications upon which the Plaintiff wished to rely were tendered into evidence. To that end, he gave evidence about the Plaintiff's research capability, student interest, achievements of graduates, community outreach, physical plant and the Plaintiff's historical success in applying for foreign grants for its academic program. He identified what he considered to be deficiencies in the philosophy section of the library collection of the University of South Pacific Tonga (USP). He also criticised the templates used by the Defendant and expressed the view that the Defendant lacked the competence to credibly assess instruction at a liberal arts university such as the Plaintiff. He further deposed that because the Defendant declined to modify its metrics for assessment, the Plaintiff was compelled to pursue its right to exemption from the Defendant's jurisdiction and seek accreditation from another international accreditation authority.
  6. Mrs ‘Iliaisaane Sisi’uno Helu is the Chair of the Plaintiff's Board of Directors. Mrs Helu deposed, in summary, that:
  7. Lose Vasalua Helu, another Plaintiff director, resubmitted various exhibits which the Plaintiff had previously relied upon, which were said to be defective as to form.
  8. Cornelius Velt is the proprietor of Tau’olunga Computer in Nuku'alofa. He searched the Internet Archive records in San Francisco concerning the content of the Defendant's website since 23 April 2012 and identified that between 24 January 2013 and 16 November 2017, the Defendant's website contained the statement that it is "responsible for the quality assurance of non-university tertiary training providers".
  9. The Plaintiff also called evidence, pursuant to witness summonses, from:

I will refer to their evidence during consideration below of discrete issues to which their evidence related.

  1. In what might be regarded as a somewhat irregular manner of conducting a civil trial, Dr Horowitz turned out to also be a key witness for the Plaintiff. While he did not swear any affidavits of evidence, he in fact authored many of the documents exhibited by others and included in the trials bundles. He was also a party to a number of conversations with officers of the Defendant, upon which the Plaintiff sought to rely. In his dual role as counsel and witness, he gave unsworn evidence throughout the trial from the bar table. No objection was taken by counsel for the Defendant nor did they seek to cross-examine Dr Horowitz.
  2. The Defendant relied solely on the evidence of Mrs Pauline Moa, the Acting CEO of the Defendant since 1 July 2013. Mrs Moa swore a document entitled ‘Brief of Evidence’ on 20 May 2019 which exhibited some 37 documents, and a supplementary affidavit sworn 6 September 2019 which exhibited the Tonga Qualifications Framework Policies 2009.
  3. Neither party took any objection as to admissibility of any of the documents exhibited to the various affidavits, which were supplemented through tender during the trial, and which ultimately became each party’s trial bundle.
  4. There were relatively few conflicts in the evidence on relevant issues. The few that did arise are addressed within the relevant sections below. Otherwise, I was satisfied that all the witnesses who gave oral evidence during the trial were forthright and did their best to assist.
  5. The evidence traversed dealings between the parties spanning back some ten years. In order to understand the issues for determination, it is necessary to set out a chronology of relevant events from the documents tendered and uncontroversial evidence from a number of the witnesses.

CHRONOLOGY

  1. On 8 December 2009, Dr Horowitz wrote to ‘Opeti Pulotu, Principal Officer of the Defendant thanking him for alerting him to the fact that there might be an issue regarding 'Atenisi’s use of the term "university". Dr Horowitz submitted ‘remarks to facilitate the (Defendant’s) deliberations about the matter’. He set out reasons why the Plaintiff felt justified in calling itself a university by reference to certain criteria which were said to be cited in the Defendant's QA Policies. He offered to provide further documentation if it was required and concluded: "I hope these remarks will assist TNQAB consideration of 'Atenisi university status". [Ex. P23]
  2. On 4 October 2010, ‘Atolomake Helu, the Plaintiff’s then vice president and Dr Horowitz provided a memorandum to the Plaintiff’s President, which recorded that during a visit to the campus on 21 September 2010, the then CEO of the Defendant, Dr Fasi, reminded the writers that "it is within his Board's power to close universities that are unable to qualify for registration". I raised with Dr Horowitz at the time my concerns about the admissibility of, or at the very least, any weight which could be attached to this note as evidence of the truth of its contents.[2] Counsel for the Defendant did not object to it being received into evidence.
  3. On 23 October 2010, a number of members of the philosophy department at Sydney University wrote to the then Prime Minister pressing concern about the fact that the Ministry of Education had not yet registered 'Atenisi University. They expressed support for 'Atenisi and asked the Prime Minister to ensure that the question of its registration favourably regarded. [Ex. P18]
  4. In 2010, the Defendant refused the Plaintiff's application for registration. As a result, the Plaintiff commenced proceedings CV186 of 2010 against the Kingdom of Tonga. That action was settled on the basis that the Plaintiff would be registered as the 'Tertiary Academy of 'Atenisi Institute". Surprisingly, no written terms of that settlement were tendered. Dr Horowitz said that to the best of his knowledge, there weren’t any.
  5. On 7 December 2010, the President of 'Atenisi Institute wrote to Dr Fasi formally acknowledging the acceptance by the Plaintiff's Board of Directors of the registration offered by the Defendant. She added: “We wish to be registered as an Institute whilst working closely with TNQAB for University status of ‘Atenisi in the near future." [Ex. D9].
  6. On 14 July 2011, the Plaintiff was registered in the name of 'Atenisi Institute as a provider under the Act for a period of 12 months. [Ex. D10]
  7. Between about November 2012 and November 2017, the Defendant's website homepage contained the following statement:
"Tonga National Qualifications and Accreditation Board (TNQAB) ensure [sic] that Tonga's qualifications are valued as credible both nationally and internationally.
TNQAB services the tertiary education sectors and is responsible for the quality assurance of non-university tertiary training providers. TNQAB's priority is to support our clients by providing effective and efficient services, within our statutory mandate, that meet their specific needs."
[Emphasis added]
  1. After its initial registration lapsed, on 20 June 2013, the Defendant granted the Plaintiff a three month provisional registration within which to complete certain requirements and recommendations contained in a registration report analysis compiled by Mrs Moa who was then the Deputy Director, and peer reviewed by Fololina ‘Ikani, a senior qualification officer (“Fololina”). [Ex. D11]
  2. On 22 August 2013, the Defendant approved the renewal of the Plaintiff's registration. [Ex. D12]
  3. On 7 August 2015, Pauliasi Fifita and Fololina 'Ikani authored a monitoring report in relation to renewal of the Plaintiff's registration at that time [Ex. P29]. During his evidence, Mr Fifita recounted that at one site meeting when preparing the report, he expressed the view that he considered the Plaintiff was a university. He said his view was based on his knowledge of the Plaintiff’s reputation, the period of time it had been in operation, and references he had seen from around the world recognising the Plaintiff’s programs at university level. He added however that at the time of his work on the monitoring report, he was not concerned with assessing whether the Plaintiff was to be registered as having university status but rather whether it's registration as a provider should be renewed. The report was unsigned. Mr Fifita explained that it was not the practice to sign the report, but it was sent to the relevant provider to confirm the accuracy of facts within it. Thereafter, the report was submitted to the acting CEO in draft, who then submitted her version of the report to the Board for its decision. While his and Fololina’s recommendations included approving renewal of the Plaintiff's registration as a PCET provider for four years, it transpired that the Board renewed the Plaintiff's registration on that occasion for only two years. He said he did not know why.
  4. In that regard, Mrs Moa explained that upon receipt of the draft monitoring report and its recommendations, the application then went through a process of peer review, including discussion on how reasonable it would be for the Board to extend registration by certain periods. She said that the decision on duration did not depend on course content, but rather included considerations such as the nature of the working relationship between an applicant and the Defendant, and whether there might be any reservations due to, for example, years of inadequate responses by an applicant to the Defendant's requests. She did not directly explain why the Plaintiff's registration was renewed for only two years on that occasion. I note in that regard that s.17(3) of the Act requires a review of all registered providers to be carried out every two years.
  5. On 27 August 2015, the Defendant renewed the Plaintiff’s registration, for two years, on condition that it submit its program of study for accreditation within six months and to inform the Defendant of any changes made to its management and governance. [Ex. D13]
  6. On 26 October 2015, Mrs Moa emailed Mr Fifita in relation to USP having some local programs that had been conducted since 2011 and which required accreditation [Ex. P28]. During cross examination, Mrs Moa explained that those courses were short courses less than level 1, which USP had only offered on request. She said they were discontinued shortly after her email and no further action was required or taken in relation to accreditation of those courses.
  7. On 8 December 2015, Jordan Green, Second Secretary of the New Zealand High Commission, wrote to Mrs Helu in response to the Plaintiff's request for special dispensation in order to be included in the New Zealand ‘In Country Awards’ aid program for 2016. He stated that they were unable to approve the request because New Zealand would only support courses that are accredited with the TNQAB. He explained how USP had been eligible for funding because the courses offered at the Tonga Campus received automatic accreditation where they the same as that taught in Fiji and if the course was accredited with the Fiji Higher Education Commission (FHEC). Any courses that were local only (not taught in Fiji and registered with the FHEC), would need to be submitted for accreditation by TNQAB. He stated that USP was not receiving an exemption from the need for its courses to be accredited, rather TNQAB was recognising and accepting the accreditation done by FHEC. He clarified that they were simply asking 'Atenisi Institute to meet the same conditions that are applied to all institutions included in the New Zealand Aid Program." He strongly encouraged 'Atenisi Institute to proceed with getting its courses accredited with TNQAB’, and added that whether 'Atenisi Institute was recognised as a university or an institute would not change New Zealand's position on the matter: "All courses must still be accredited by an international accreditation authority (TNQAB, FHEC, etc)”. [Ex P27]
  8. On 9 February 2017, under cover of email from Dr Horowitz to Mrs Moa, the Plaintiff submitted an application for accreditation of its Bachelor of Arts program [Ex. D14]. Dr Horowitz replied to queries posed by the template the Quality Assurance division had forwarded, and stated:
“We understand other academies have at times employed professionals to prepare their submissions. As this is beyond ‘Atenisi’s budget, we trust QA will coach the (attached) submission as necessary. (For the nonce, we would appreciate learning whether referenced atts. A, B or C are in fact necessary)..."
  1. On 9 February 2017, Mrs Moa emailed Dr Horowitz (cc’d to Mrs Helu and Fololina) acknowledging receipt of certain attachments (not listed on the email) and advised that they would be forwarded to the officer responsible for degree programs who would continue to work with him on the application. [Ex. P62]
  2. On 10 March 2017, Professor Luciano, Deputy Dean and Associate Dean (International), Faculty of Arts at the University of Auckland wrote to the Plaintiff advising "at the moment the University of Auckland retains a list of universities that would fall into the equivalency category. 'Atenisi appears on that list." [Ex. P44]
  3. On 9 April 2017, Dr Horowitz emailed Mrs Moa [Ex. D15] in which he stated:
"Our understanding is that, upon expiration of registration 22 August, 'Atenisi will no longer be able to renew registration without accreditation - i.e., the purgatory of unaccredited registration that 'Atenisi has retained since 2011 is to be discontinued...."
  1. He explained that the Tertiary Academy was going on break between semesters and then said:
"Given these facts, it would seem prudent to promptly commence the cooperative process which you refer [sic] in your e-message 9 February ..."
  1. On 13 April 2017, Fololina emailed Dr Horowitz informing him that the Plaintiff's Bachelor of Arts accreditation application had recently been reassigned to her. She requested a meeting to discuss the application [Ex. D15(a)]. The next day, Dr Horowitz responded “'Atenisi looks forward to tailoring our application...". He then proposed certain meeting times [Ex. D15(b)]. A meeting was scheduled for 20 April 2017 at 'Atenisi Institute [Ex. D15(c)].
  2. On 16 May 2017, Fololina emailed Dr Horowitz certain documents from appendices she said she had already sent him to assist in the completion of the Plaintiff’s accreditation documentation [Ex. P32]. She reminded him to complete other parts of the documentation in addition to the supporting documents in the checklist she had given him, including appendices 1a and 2b.
  3. On 28 May 2017, Dr Horowitz emailed Fololina a number of appendices forming part of the Plaintiff's application for accreditation [Ex. D16 and P63]. He expressed concern that Fololina was then soon to take maternity leave. He described appendix 2 in support of Qualification Registration as having been completed with reference to TQF 2009 (meaning the Tonga Qualification Framework). In relation to appendix 2b, Dr Horowitz wrote:
"Constructing a list of Learning Outcomes for 41 courses - necessarily deploying constructs that contradict the assumption of 'Atenisi instructions - is an extensive and tedious task, certainly beyond the short-term capability of the Dean. An information science volunteer is on route from the US to assist my office in this painstaking effort."

He stated that when 'Atenisi re-opened in early July, they expected to be intensively submitting supplementary documentation in advance of the looming late August deadline. In relation to the supporting documents, he stated that 'Atenisi was not focusing on assembling supporting documents at that juncture as they were “unlikely to be subject to criticism and revision”, but that once appendix 2b to application 3 was accepted, supporting documents could be organised within a week. Instead, they were directing all resources towards the timely completion of appendix 2b. He therefore proposed that recruitment for the assessment team commence as soon as possible on the reasonable expectation that appendix 2b and supporting documents would be submitted by August.

  1. On 13 July 2017, Dr Horowitz emailed Mrs Moa with the subject line reading "closing the deal!" [Ex. D18 and P65]. He wrote:
"From ‘Atenisi’s perspective, 3/4 of our application for accreditation appears to have been approved by Fololina this past semester; only the knotty problem of component descriptors remain. But 'Atenisi is confident it can jump this last hurdle before the Aug. deadline. Kindly assign the Institute a succeeding advisor, and let's both get the challenge of 'Atenisi accreditation of our desks!".
  1. Mrs Moa deposed [22] that when Fololina resumed duty she checked the application program accreditation (version 1) together with all the attachments submitted from the Plaintiff and made notes of requirements that had not been complied with [Ex. D18(b)]. In that checklist, Fololina appears to have described in “Part 1: Initial analysis”, that the application form submitted was in "draft". The rest of the checklist which is populated with various documents required for the application and crosses or ticks according to whether they have been provided suggests that close to 3/4 had not been provided including Course Descriptors and Learning Outcome Details.
  2. On 29 August 2017, Fololina emailed Dr Horowitz requesting a monitoring site visit on 1 September 2017 in relation to the Plaintiff’s registration renewal and status of its degree program accreditation application [Ex. D19].
  3. On 7 September 2017, Fololina emailed Dr Horowitz an invoice for the accreditation application fees of $500 [Ex. D20]. She noted that in relation to appendix 1a, only six of the course component descriptors had been completed and the remaining four had been removed. She requested that they be completed for each of the courses submitted. Further, she stated that the Plaintiff was yet to complete and submit appendix 1b: Learning Outcome Details and Appendix 3: Checklist for the evaluation of a Qualification.
  4. On 10 September 2017, Dr Horowitz emailed Fololina attaching what he described as "the completed ledger of course competencies with assessment criteria" [Ex. D21]. He stated he was currently working on the Appendix 3 checklist. The attached documents provided some details (6 of the 10 referred to by Fololina previously) of the various subjects, including "Defined Competencies". They did not contain, inter alia, any Learning Outcome Details. It is also to be noted that in the 'Level’ section for each subject, the numbers inserted range between 1 and 4 [Ex. D21(a)]. The Framework provides Level numbers for various courses/qualifications ranging from 1 to 10. Bachelor Courses are level 7. During the trial, Dr Horowitz did not, in my view, provide a satisfactory explanation for that anomaly.
  5. On 11 September 2017, Fololina emailed Dr Horowitz to bring to his attention the outstanding requirements for completion of appendices 1a 'Course component descriptors’ and 1b 'Learning Outcome Details'. She set out an example using one of the courses to show how appendix 1b had to be completed [Ex. D22].
  6. On 12 September 2017, ‘Amelia Manuofetoa, Qualifications Analyst within the Quality Assurance Division of the Defendant emailed Dr Horowitz (cc’d to others) in relation to the Plaintiff's registration renewal [Ex. P66]. She thanked him for the meeting they had the day before and said that she would fill the renewal form with the information she had already gathered. After that had been processed, she stated, the Plaintiff would be informed about the result.
  7. On 14 September 2017, Dr Horowitz emailed Fololina components of the program application being signed and stamped versions of the management statement and appendix 3, together with CVs of current faculty [Ex. D23]. Later that day, Fololina acknowledged receipt of those documents and said she was looking forward to receiving more from Dr Horowitz and especially after the clarification made on appendix 1a and 1b [Ex. D24]
  8. On 19 September 2017, Dr Horowitz emailed Mrs Moa [Ex. D25]:
"The Tertiary Academy at 'Atenisi Institute requests prompt solicitation and deployment of a team of assessment examiners to its bid for accreditation prior to the end of spring semester 2017 (i.e., 3 November). The Academy suggests it has submitted sufficient documentation to support evaluation by an assessment team....".

He set out a list of various attachments and appendices which he stated had been submitted.


  1. A short time later that morning, Dr Horowitz emailed Fololina under the subject heading 'Appendix 1b' [Ex. D26 and P67]. Among other things he stated:
"Our understanding was you would guide 'Atenisi towards presenting (what in TNQAB's judgement is) an effective package to the assessment team, but that responsibility for its contents would be ours. Hopefully you will abide by that sentiment because 'Atenisi has concluded that the methodology of Appendix 1B is hyper specific, and compliance with it (1) ought not be required for a small liberal arts Academy; (2) is counter indicative of 'Atenisi pedagogy; and consequently (3) is unnecessary - and indeed misleading - regarding the assessment of 'Atenisi instruction. But more crucially, compliance with appendix 1B is logistically impossible for us - i.e., even if we endorsed its methodology, we’re not in a position to deploy it.”
  1. He went on to describe the logistical problems 'Atenisi faced in terms of its size, limited staff, that he had been directed to return to teaching after having spent two months completing appendix 1a and compiling some 150 competencies for 30 courses offered over the past five years many of which he did not teach. He described the task of supporting the 150 competencies with 600 to 800 sub competencies as "logistically impossible". Dr Horowitz explained that over its 42-year history, 'Atenisi had pursued process pedagogy as opposed to outcome pedagogy. Consequently, he wrote:
"In our view Appendix 1 deploys the wrong pedagogy to assess 'Atenisi instruction; in fact, deploying outcome pedagogy is rather like assessing a Thai tuk-tuk at the Holden Speedway with little interest in fuel economy or compatibility with a sustainable planet.... Accordingly, Appendix 1 seems more appropriate for a technical academy than a liberal arts one. Granted, detailed specificity might be required for vocations demanding ready knowledge to solve problems in real-time. But in the digital age the internalisation of detailed specificity is hardly necessary for philosophers, literati etc; indeed specificity in these disciplines often hinders the articulation of creative theory."
  1. He concluded that he had earlier that morning urged Mrs Moa to exempt 'Atenisi from appendix 1b and to proceed to ‘solicit and deploy an assessment team’, that their goal remained to obtain accreditation by the end of spring semester and that he was happy to negotiate the proposal with her or Mrs Moa personally.
  2. Less than an hour after sending that email, Dr Horowitz sent an email to Siniva Samani, the Defendant’s risk assessment manager [Ex. P68]. The email was headed "CONFIDENTIAL; SAMANI EYES ONLY”. He asked Siniva whether he could "help turn the tide for 'Atenisi” and that it was “difficult to see 'Atenisi prospering next year without NZ Aid Tuition Support, which requires accreditation." He described the TNQAB’s demand for 600 to 800 sub competencies appended to the 150 as "logistically impossible". He stated that he had spoken to a few tertiary administrators in New Zealand over the past week and all agreed that that requirement was an unreasonable demand on a tiny liberal arts school offering an undergraduate general studies degree. He asked Siniva to persuade Mrs Moa that TNQAB's “insistence on such hyper-specific compliance is ultimately untenable”. He also encouraged Siniva to speak confidentially with Mr Fifita as to whether Appendix 1b was appropriate for a small liberal arts academy whose strong suit has always been philosophy and literature. Dr Horowitz then suggested that a compromise might be negotiated but that he preferred to explore that confidentially with Siniva. He concluded:
"'Atenisi is sufficiently unique to require special treatment in New Zealand; in Tonga, it requires assessment by Martians! Seriously, Siniva, we are dealing with a square 'Atenisi peg and a round TNQAB hole, and TQ needs to be flexible."
  1. On 21 September 2017, Fololina replied to Dr Horowitz’s email of the 19th (cc’d to Mrs Moa) [Ex. P69 and D27] stating:
"According to your email, it is evident that you are not willing to complete Appendix 1b: Learning Outcomes Details form. However, I would be grateful if you could complete Appendix 2: Course Component/Unit Descriptors instead.... I hope your accreditation preparation continues to go smoothly from now...".
  1. On 25 September 2017, Dr Horowitz replied [Ex. D28] that it was "unfair to accuse 'Atenisi of being 'unwilling' to complete Appendix 1b....” He reiterated that in his view the appendix was incompatible with 'Atenisi’s pedagogy and logistically impossible for it to complete, and that the same obstacle presented in relation to appendix 2. He then proposed an alternative whereby he and a number of other teaching staff would submit summaries of the ‘instructional mission informing the various social science, humanities, science and creative art courses taught’. He stated that "'Atenisi is confident the above submissions, in conjunction with Appendix 1a, sufficiently equip an assessment team to evaluate the quality of its Bachelor of Arts curriculum - a curriculum that the Faculty of Arts at the University of Auckland has recently judged equivalent to its own." He repeated his offer to visit the Defendant's office to negotiate what he described as the "final phase” of the Plaintiff’s application for accreditation.
  2. On 26 September 2017, Fololina emailed Dr Horowitz [Ex. D29] that the Plaintiff’s request to be exempted from completing appendices 1b and 2 had been declined for a number of reasons including that the accreditation application was considered incomplete without the appendices, the Defendant did not have an effective package tailored specifically for 'Atenisi only and what was requested from 'Atenisi was exactly the same as that requested from any other provider. She strongly suggested that 'Atenisi comply either by completing appendix 1b or appendix 2 according to its own preference, and to submit it so that the accreditation application could progress to another level. She reminded Dr Horowitz that it was the Defendant who set the quality standards and it was 'Atenisi’s responsibility as a PCET provider to demonstrate its ability to meet those quality standards.
  3. On 2 October 2017, Dr Horowitz submitted appendix 2 [Ex. D30]. The next day, Fololina acknowledge receipt, and thanked Dr Horowitz for his continued persistence [Ex. D31].
  4. However, on 6 October 2017, Fololina emailed Dr Horowitz [Ex. P32] that there was a ‘slight misunderstanding’ in terms of the appendix 2. She clarified that the appendix 1b: Learning Outcomes Details form (which she set out in the email) in respect of which Dr Horowitz had requested exemption, was the old version. She provided the new version which was the form she was after.
  5. On 9 October 2017, Dr Horowitz emailed Fololina [Ex. D33] that the Plaintiff had outsourced the completion of appendix 2 to educational consultants in the United States. He stated that a digital copy of the Plaintiff's courses for 2014 to 2017 had been forwarded to the consultants who promised completion of the appendix by 23 October. He added that the Plaintiff had directed the consultants to complete appendix 2 “per our preference."
  6. On 11 October 2017, a meeting took place between representatives of the Plaintiff including Dr Eke and Mr Fifita during his site visit. Dr Eke deposed [7-9] to the discussions at the meeting. During the meeting, Mr Fifita expressed the view that the Plaintiff ought to have been accredited on the strength of the assessment of the Faculty of Arts of the University of Auckland issued on 10 March 2017 [Ex. P44].
  7. Dr Eke deposed that Mr Fifita had said he was aware the Plaintiff had been struggling with the application for accreditation, and that the “packet (meaning the templates) was only appropriate for the assessment of a technical or vocational school and inappropriate for a liberal arts academy". When he asked whether Mr Fifita had advised Mrs Moa of the limitations of the packet, Mr Fifita apparently replied that he had done so but that the Defendant continued to require the Plaintiff to complete and submit it.
  8. During his evidence on this issue, Mr Fifita confirmed that he had expressed the opinion that he considered the Plaintiff was a university for the reasons stated. He also confirmed that he had “felt” for the Plaintiff when learning that it was struggling with completing the templates (or ‘packets’) for accreditation because the packet, he opined, was only appropriate for the assessment of a technical or vocational school and inappropriate for a liberal arts academy as it was “very hard for a university to describe its courses in terms of performance criteria”.
  9. The Plaintiff relied upon a document [Ex. P95 and 96] which was a printout of part of the sent email messages folder of David Tilton of the Plaintiff which contained descriptions (but not the text) of some 38 messages to the Defendant each corresponding to a particular course offered by the Plaintiff with certain files (unidentified) attached to each email. They all bore the date ‘22 October 2017’. Despite having earlier stated from the bar table that the Plaintiff did not submit the appendices by email,[3] Dr Horowitz later described these documents as evidence of the electronic submission of the appendices to the Defendant.
  10. On 23 October 2017, Dr ‘Asiake Eke, Mr Sione Fonua and Mrs Sisi’uno Helu wrote to Minister Fifita as Chair of the Defendant [Ex. P22], in which they stated, inter alia:
"We have reached the conclusion that TNQAB has declined to expedite the accreditation of the University at 'Atenisi Institute over the past eight years and that such incrementalism again threatens the University's access to funding in the coming year. As this outcome will finally create irredeemable hardship, we urgently petition the Hon. Minister to grant a representative of our group special audience with the TNQAB Board in order to make the case for immediate accreditation.”
  1. Their plea was stated to be based on a number of considerations concerning ‘academic accomplishment’ and ‘financial consequences of the status quo’. As to the latter, they noted that while New Zealand Aid and the LDS Church had in the past provided financial support, both had refused to renew support until 'Atenisi was accredited.
  2. The question of whether, and if so, how, the Plaintiff submitted its appendices to the Defendant in electronic form appeared to be answered by an email later that day in which Fololina advised Dr Horowitz that appendix 2 of the electronic copies he had handed her that day had not been recovered [Ex. P97 and 99]. Dr Horowitz recalled that he had handed them to Fololina on a USB drive. She asked him to send appendix 2 by email before the application progressed to another level.
  3. On 25 October 2017, Fololina emailed Dr Horowitz (cc’d to Mrs Moa) thanking him for making extra efforts to submit the required documentation for the accreditation application [Ex. D34 and P70]. However, she requested that all the electronic copies he had sent be submitted in hard copy format as well,[4] and the accreditation fee be paid. She added:
"The initial analysis of the application will commence straight away. An analysis report will be produced and peer reviewed before you will be notified of the outcome."
  1. Part of the process undertaken by the Defendant in considering the Plaintiff's application involved engaging overseas panel members to assess the Plaintiff's institution. On 27 October 2017, Fololina emailed Dr Horowitz in relation to the costs of the review panel [Ex. P52]. Including the accreditation fees, she estimated the costs to be around $5,000. According to Mrs Moa [38], Dr Horowitz raised concern about that cost.
  2. On 31 October 2017, Fololina emailed Dr Horowitz (cc’d to Mrs Moa) [Ex. D35 and P71] advising that the Guidelines for Program Accreditation provided that the CEO "appoints the panel members and designate [sic] the panel chair", and that any subsequent enquiries relating to panel appointment and composition were to be directed to Mrs Moa. She concluded that the decision, however, to pursue program accreditation or withdraw was entirely up to 'Atenisi.
  3. Sometime in November 2017, Mrs Moa was looking at the Defendant's website for consistency with the website of the Defendant's New Zealand counterpart. She said that in the previous five years or so, nobody had brought it to her attention nor had anyone made any complaint about the “non-university providers” on the homepage as advanced by the Plaintiff in this case. By reference to the Act and the Regulations, Mrs Moa realised that the description of the Defendant as being responsible for (if that phrase were to be interpreted as a limitation on its mandate, or as the Plaintiff contended 'only responsible') 'non-university providers' was erroneous. She had it corrected to, relevantly [Ex. P77]:
“TNQAB services the tertiary education sectors and is responsible for the quality assurance of all Post Compulsory Education Training providers..."

  1. On 7 November 2017, Mrs Helu wrote to Mrs Moa [Ex. P35 and 53] to remind her that the Plaintiff was only open for business approximately eight months annually and therefore any further dialogue regarding re-registration and accreditation would need to be postponed until mid-February 2018. She expressed the Plaintiff’s disappointment that the application for accreditation had been 'sufficiently tortuous so as to not yet be completed'. She then summarised the Plaintiff's 'log of the process', much of which has been recounted above. However, for 3 November 2017, she wrote that:
“... the Plaintiff's board of directors concluded that the documentation of outcomes not only wasted 'Atenisi’s time and money, but in the end would prove of little value in assessing the academy’s instruction."

She concluded that, in any case, 'Atenisi was prepared to resume its dialogue with TNQAB when key hands were back on board.

  1. On 1 December 2017, Mrs Moa wrote to Mrs Helu advising that the decision of the Minister, in his capacity as chair of the Defendant Board, was that Atenisi had to comply with the TNQAB Act 2004 and TNQAB Regulations 2010 [Ex. D35(a) and P34]. She stated that meant that 'Atenisi had to work to meet the accreditation criteria like all other providers who had met accreditation. Mrs Moa deposed [40] that the Defendant did not receive any further correspondence from the Plaintiff in relation to its accreditation application after this letter to Mrs Helu.
  2. On 16 January 2018, Professor Simmons, Associate Dean of the International Faculty of Arts at the University of Auckland wrote to Dr Horowitz, assuring him that 'Atenisi continued to be listed among those universities whose BA/BS degrees were valued ad eundem[5] by the University of Auckland. [Ex. P17]
  3. On the same day, the Defendant resolved that eight providers, including the Plaintiff, were required to refrain from delivering specified programs and were not to enrol any students in 2018 until those programs were approved and accredited [Ex. 35(b)].
  4. As a result, on 22 February 2018, the Defendant issued to the Plaintiff a letter signed by Mrs Moa which she described during her evidence as a "compliance notice" [Ex. 35(c)]. The Plaintiff received the notice by email on 6 March 2018. The notice recited part of section 10 of the Act which required all providers to apply to the Board for registration to provide education training; and accreditation for their courses of study. It then stated that 'Atenisi Institute was found to be non-compliant with the Act in delivering the unaccredited programs. The reason for non-compliance was stated to be "delivering unaccredited programs” and what appeared to be non-compliance with section 10 of the Act. The notice continued:
“Recommended Steps for Provider to take:
Please respond to the notice of non-compliance within 10 working days, with an action plan showing when, who and what will be done to accredit these programs within 2018.
Consequences of not responding to the compliance notice:
If the provider does not comply with the compliance notice, TNQAB may immediately impose new, or amend or revoke any existing condition(s) on registration or any of its qualifications.
Conditions imposed by the Board:
(i) Cease recruitment of new students in 2018 for all unaccredited programs.
(ii) This condition will be removed for individual programs when they are accredited.”
  1. Shortly after receipt of the compliance notice, the Plaintiff resolved to commence proceedings. It initially filed an ex parte application for a declaration that it was a university and not subject to the Act. Dr Horowitz explained that the Plaintiff did not then intend to involve the Defendant in any litigation and that it simply wanted a statement from the court to the above effect.
  2. On 12 March 2018, Siniva Samani emailed Dr Horowitz advising that Mrs Moa had told him that 'Atenisi was due for an audit in the next month and the audit team would look at the renewal of 'Atenisi’s registration” [Ex. P72].
  3. On 15 March 2018, Fololina emailed Dr Horowitz (cc’d to Mrs Moa and Siniva Samani) [Ex. D36] expressing sympathy for the fact that 'Atenisi Institute have been damaged by Cyclone Gita. She requested details of any new physical address if 'Atenisi had managed to relocate. She stated that Siniva had requested her to update Dr Horowitz on what was expected from 'Atenisi in order to expedite the accreditation process. She noted from past correspondence that the Plaintiff’s accreditation application was still in draft form. She referred him to her email of 25 October 2017 ‘as a continuation and way forward to 'Atenisi’. She requested Dr Horowitz to focus on and address what was requested. She stated that any other matters that may be required beyond the scope of the email would be dealt with later.
  4. On 12 April 2018, Dr Horowitz wrote to Fololina attaching a cheque for $500 and an updated hard copy of the Plaintiff’s application documents submitted in 2017 [Ex. 37]. He stated that a photocopy of attachment 9 was previously submitted and was hopefully retained by the Defendant. He then stated:
"A hard copy of APPENDIX 1a with [PCET] APPENDIX 2b: Course Descriptions and Components (2014-17) is currently being prepared by Educational Consultant in the U.S. and shall be delivered to TNQAB early next week under separate cover.”
  1. On 13 April 2018, Fololina wrote to Dr Horowitz acknowledging receipt of a hard copy of the Plaintiff’s accreditation application that day, and payment of the relevant fee. She reminded him however that she was anticipating the submission of appendices 1a and 2b on 16 April 2018. She stated that the application would be checked for completion before they proceeded with the analysis and evaluation, and that he would be informed of the outcome in ‘due time’.
  2. Consistent with his letter of 12 April 2018, Dr Horowitz stated during the trial that the week after, he hand-delivered to the Defendant's office hard copies appendices 1a and 2b. In her affidavit, Mrs Moa deposed [44] that she could not confirm whether TNQAB had received those appendices. During her evidence at trial, the Defendant’s register of documents received during the relevant period was produced [Ex. P90]. It contained an entry for 16 April 2018[6] recording that Dr Horowitz had delivered two folders. Dr Horowitz insisted that those folders contained the appendices. Mrs Moa was unable to advance the matter because she was not aware of the register entry and had not made any further enquiries of her staff on this matter prior to swearing her affidavit or giving evidence during the trial.
  3. On 19 April 2018, Fololina wrote to Dr Horowitz in relation to a quality audit the Defendant was required to carry out of all PCET providers for monitoring and reviewing purposes [Ex. P74]. She explained an eight-step process involved and requested 'Atenisi to undertake Step 2 by submitting a Self Evaluation Report. She concluded that the Plaintiff would be notified “in due time” in relation to further details concerning the audit process requirements including an audit schedule and plan.
  4. In May 2018, the Plaintiff’s application for leave to apply for judicial review was heard and determined (referred to further below).
  5. On 7 August 2018, and notwithstanding that these proceedings were underway, Fololina emailed Dr Horowitz in relation to scheduling an audit site visit for later that month [Ex. P75].
  6. On 8 August 2018, Fololina emailed Mrs Helu advising that the Plaintiff’s application for accreditation would be handled by Kisione Manu [Ex. P76]. She assured that Mr Manu would provide any accreditation advisory consultation the Plaintiff wished to seek. She also queried whether Dr Horowitz was still the contact person from the Plaintiff.
  7. On 21 February 2019, Mrs Moa issued another 'compliance notice' to the Plaintiff in very similar terms to her letter of 22 February 2018, which relevantly extended the recruitment ban for 2019 [Ex. P78].
  8. The declaration initially sought by the Plaintiff necessarily affected the legal interests of the Defendant. Subsequently, Paulsen LCJ made directions for the Defendant to be joined and required the Plaintiff to make an application for leave to apply for judicial review in accordance with Order 39 rule 2(1) of the Supreme Court Rules.

NATURE OF JUDICIAL REVIEW PROCEEDINGS

  1. Judicial review is not the same as an appeal. The Court is not concerned with reviewing the merits of the findings and conclusions of the statutory decision-maker. "The purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected. It is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matter in question. The duty of the court is to confine itself to the question of legality. Its concern is with whether a decision-making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal could have rd or abused itsd its powers.": Karalus v Royal Commission of Inquiry into the sinking of the MV Princess Ashika [2010] Tonga LR 133 at [3].[7]<
  2. The grounds upon which administrative action is subject to judicial review have been conveniently classified as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: Pekipaki v Fifita [2018] TOCA 19 at [29].[8]

ISSUES FOR DETERMINATION

  1. Guided by those principles, and against the above background, I turn now to identify the issues for determination arising from the grant of leave to apply for judicial review and subsequent pleadings.

Leave to apply for Judicial Review

  1. On 18 May 2018, Paulsen LCJ granted the Plaintiff leave to apply for:

The pleadings

  1. Notwithstanding the ambit of the above grant of leave, the Plaintiff’s pleaded case sought to expand the breadth of issues for determination.

Third Amended Statement of Claim

  1. By its Third Amended Statement of Claim dated 1 March 2019 (“3ASOC”), the Plaintiff alleges, relevantly, that:
  2. The Plaintiff then advances four principal ‘causes of actions’. All amount to effectively seeking a declaration that the Plaintiff is not subject to the Act or therefore the ‘jurisdiction’ of the Defendant. That claim is based on the following grounds, in summary:
  3. The Plaintiff's “alternative first cause of action” seeks a declaration, in effect, that the Act does not provide for any sanctions or penalties against any provider [39]. During the course of argument, that complaint became directed to the recruitment ban conditions purportedly imposed by the Defendant in its first and second compliance notices.
  4. The Plaintiff also claims damages as a consequence of the Defendant’s alleged breach of implied contract for loss of various forms of financial support, ‘to be quantified at trial’ [49b]. The only documentary evidence on damages adduced at trial was a list Dr Horowitz described as funds received from the New Zealand High Commission between 2010 and 2012, which totalled $61,975.00 [Ex. P83]. During closing submissions, it became clear that the Plaintiff had not turned its mind fully to proof of issues such as legal entitlement, causation or quantum. At my suggestion, both parties agreed to effectively split the trial such that if the Plaintiff is successful on liability on this count, a separate trial may follow dealing with those issues.
  5. Finally, by its "alternative fourth cause of action" the Plaintiff effectively seeks to establish a shield against any potential adverse costs order. It alleges that by reason of the statement on the Defendant’s website followed by the recruitment ban conditions, the Plaintiff was obliged to commence these proceedings and therefore the Defendant is estopped from claiming costs.
  6. I pause to note that prior to these proceedings, the Plaintiff did not raise with the Defendant any of the matters now the subject of its pleaded ‘causes of action’.

Second Amended Defence to the 3ASOC

  1. The Defendant denies the Plaintiff’s claims and complains that a number of them are beyond the scope of the grant of leave. Further, by its Second Amended Statement of Defence to the 3ASOC, the Defendant raises the following positive allegations:
  2. In his opening, Mr Tu'utafaiva nominated what he considered to be the real issues in dispute by adoption of Paulsen LCJ’s summary of the pleaded causes of action in his decision on the Plaintiff’s application for interlocutory injunction,[9] namely, whether:
  3. That articulation of the Plaintiff’s causes of action predated the 3ASOC.

Reconciliation of issues raised

  1. In order to reconcile and encapsulate the issues raised by the Plaintiff which are relevant to the grounds for relief it seeks, and in an endeavour not to cause any undue prejudice to either party in the manner in which each has conducted its case, I have condensed the relevant issues into the following formulation:
    1. Is the Plaintiff exempt from the Act, by reason of any of its pleaded grounds or causes of action?
    2. Are the Defendant's compliance notices lawful?

Issues not for determination

  1. Before turning to consider the two questions for determination, I will address a number of the other issues raised directly (within the pleadings) or indirectly (during the trial) by the Plaintiff. For the reasons given above and for those that follow, in my view, these issues do not fairly arise for determination in the proceeding.

“Decade of malice”

  1. Dr Horowitz described the last ten years or so of dealings between the Plaintiff and the Defendant (the Ministry of Education and the Government generally) as a “decade of malice” towards the Plaintiff . He asserted that the Plaintiff had been “bullied” and “coerced” into giving up its status as a university following the settlement of the 2010 proceedings, and that the Plaintiff had been “pressured” into not applying for university status since.
  2. The Plaintiff relied on a number of documents which it considered supported this complaint:
"2. (S)ince December 2010, the (Defendant) has insisted that the University at 'Atenisi Institute register as the Tertiary Academy of 'Atenisi Institute. Initial CEO and succeeding acting CEO warned that (the Defendant) would only register ‘Atenisi in that manner and that failure to agree to those terms would endanger the school's licence to operate in Tonga." [emphasis added]

Those statements were conclusory and did not contain any detail or evidence by which the court could act, or place any weight, on them. Mrs Helu did not attend during the trial to give any further evidence.

(b) Dr Horowitz’s letter dated 8 December 2009 submitting ‘remarks to facilitate the Defendant’s deliberations about the Plaintiff’s university status’ - Dr Horowitz said that the Plaintiff never received a response to his letter. If that letter was to be regarded as an application for registration as a university (which was never squarely contended as such by the Plaintiff during trial - discussed further below), then s.10(3) of the Act required all applications for registration to be processed within six weeks of receipt. Any application for judicial review of any failure or refusal by the Defendant to determine such application was required therefore to be made within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending that period: O.39 r.2(2). No application for review was made within that time, nor was any application made in this proceeding for an extension of time within which to review that matter.
(c) The letter from Dr ‘Asiake Eke, Mr Sione Fonua and Mrs Sisi’uno Helu to Minister Fifita as Chair of the Defendant on 23 October 2017, in which they requested the Minister to grant an urgent special audience to make the case for the Plaintiff’s ‘immediate accreditation’ was based on the assertion that over the preceding eight years, the Defendant had ‘declined to expedite’ the Plaintiff’s accreditation, which was therefore threatening its access to funding. That premise was demonstrably incorrect. Dr Horowitz confirmed during the trial that the Plaintiff’s first ever application for accreditation was commenced in February 2017. Further, since 2011, the Defendant has renewed the Plaintiff’s registration on a number of occasions.
  1. The Plaintiff called evidence upon subpoena from the nobles, Lord Tu’ivakano and Lord Tu’i’afitu. Despite Dr Horowitz’s attempts to lead evidence in support of this issue, neither witness agreed with his suggestion that there were criticisms of, or opposition to, the Plaintiff from ‘major players’ (not identified) within the ‘political class’, commerce and religion. Lord Tu’i’afitu added that if there were any criticisms by members of the general community, it was not possible for that criticism to filter up and influence government attitudes or policy, and that it had no effect on those working as ministers.
  2. During cross-examination of Mrs Moa, Dr Horowitz recounted an occasion in 2015 when he voluntarily visited her at her office, during which, she asked him whether the Plaintiff was holding itself out as a university. Dr Horowitz said he responded by showing Mrs Moa one of his business cards to assure her it did not bear the word ‘university’. He suggested to Mrs Moa during her evidence that her request on that occasion was part of the Defendant ‘disciplining’ the Plaintiff. Mrs Moa did not specifically recall the meeting because she said they had had many conversations. She denied the suggestion of disciplining the Plaintiff and said that the Plaintiff had not applied for registration as a university.
  3. Whatever one might make of the above evidence, there was no evidence whatsoever to demonstrate that any alleged enmity by the Defendant (or the government generally) over the past decade has had any direct or indirect bearing on the manner in which the Defendant has dealt with the Plaintiff in the discharge of the Defendant’s duties and responsibilities under the Act, and particularly, not in relation to the Plaintiff’s extant applications for renewal of its registration as a PCET provider and accreditation of its course, commenced in 2017.
  4. The Plaintiff’s complaint in this regard appears to have proceeded from the belief, as expressed by Dr Horowitz during the trial, that the “gig (or game) is rigged”, meaning that the Plaintiff expects the Defendant to reject its application regardless of whether the application including the appendices actually meet the Defendant’s Framework and policy requirements. In other words, that any decision-making process the Defendant has embarked or will embark upon in respect of the completed applications is infected by some sort of bias.
  5. Whilst some of the above matters were referred to in the Plaintiff’s 3ASOC, they provided what could only be regarded as historical background and did not form any part of the pleaded grounds for review or ‘causes of action’. There has been no claim in respect of reviewable wrongs such as bias, bad faith or improper purpose. That is perhaps unsurprising because the Defendant is yet to decide the Plaintiff’s applications currently before it. Therefore, these complaints, notwithstanding my observations on the evidence above, are in any event, premature. It is the ultimate decision which must be shown to have been infected by such wrongs: Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [8]. See also Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276.
  6. In those circumstances, I consider that the allegations of a “decade of malice” have no bearing on the proper consideration of the two principal issues specified above, and therefore do not and cannot fairly arise for determination in this proceeding.

“University status”

  1. Again, by way of background to its pleaded case, the Plaintiff complained that the Defendant had failed to register it, under the Act, as a university. The Defendant contended that since its original registration as 'Atenisi Institute in 2011, the Plaintiff has never applied for registration as a university.
  2. Dr Horowitz did not deny that, but said it was not possible to apply because there was no box on the form one could tick to designate ‘university’. He did seek to tender any such form. In any event, I have difficulty accepting that explanation. It was not suggested there was or is any impediment to the Plaintiff conveying to the Defendant a request for registration as a university in accordance with regulation 16(3) and the Defendant’s ‘Guidelines for Registering a Provider as a University’ [Ex. D3].
  3. Dr Horowitz again pointed to his letter in 2009 [Ex. P23] which I have addressed in paragraph 108(b) above but, as noted, did not contend that it constituted an application. The Plaintiff also relied on other letters of support in which a number of overseas universities have apparently recognised the Plaintiff’s courses as equivalent to their own. However, Dr Horowitz confirmed that to date, none of those letters have been submitted to the Defendant in support of any application for registration as a university or otherwise.
  4. Against that, the Plaintiff has throughout continued to hold itself out to the outside world as a university. No issue arises as to whether it can lawfully do so. On the other hand, insofar as the Plaintiff has complained about not being registered as a university under the Act, two scenarios present:
  5. The only place in the 3ASOC in which this issue is pleaded as part of its causes of action is paragraph 51. However, it features there as part of the Plaintiff’s estoppel claim arising from the Defendant’s website statement. It does not call for any consideration of whether, for the purposes of the Act, the Plaintiff was, or ought to have been registered as, a university at the relevant time. The estoppel claim proceeds from the premise that the Plaintiff was a university (whether that means within the Act or generically to the outside world), and therefore ought be exempt from the Act because at one time the Defendant’s website described it as being responsible for quality assurance of ‘non-university providers’. Notwithstanding the conceptual difficulties associated with the Plaintiff apparently contending, on the one hand, that it should be considered a university for the purposes of the Act, but on the other, contending that the Act does not apply to it, the pleaded estoppel claim is considered below.
  6. Further, and in any event, had the Plaintiff applied for registration as a university, any refusal by the Defendant per se would not be a matter for judicial review, compared to any alleged impropriety in the method or procedure by which the Defendant arrived at any such decision, which could be. It is not a matter for the Court to usurp the statutory role of the Defendant by deciding whether the Plaintiff should be registered under the Act as a university. If the Defendant offended any administrative law rule which resulted in its decision being quashed, the matter would simply be remitted by the Court back to the Defendant for further consideration and determination according to law.
  7. Accordingly, in my view, any issue of whether the Defendant ought to have registered the Plaintiff as a university does not and cannot arise for determination in this proceeding.

“Inapplicable templates”

  1. A good deal of the Plaintiff's evidence and argument at trial was devoted to its contention that the templates required by the Defendant as part of the accreditation application documentation were inapplicable to the courses offered by the Plaintiff.
  2. At paragraphs 27 to 30 of its 3ASOC, the Plaintiff alleges that the “catalysts for seeking exemption” included “improper considerations by the Defendant” in that the criteria for assessment of its application for accreditation of courses of study are inappropriate for, and have been wrongly applied to, the Plaintiff’s courses. Apart from tangential reference in paragraphs 42 and 43 (the “grandfather rights” cause of action), this complaint does not found, or feature in, any of the pleaded forms of relief.
  3. Dr Horowitz wrote to the Defendant on 19 and 25 September 2017 complaining, in summary, that completion of the templates, particularly, appendices 1a and 2b was “logistically impossible” for the Plaintiff. The reasons stated, again in summary, included:
  4. Mr Plaintiff also relied, in this regard, on the evidence of Mr Fifita that during the site meeting in October 2017 he expressed the opinion that the templates were only appropriate for the assessment of a technical or vocational school and inappropriate for a liberal arts academy as he considered it very hard for a university to describe its courses in terms of performance criteria. He also said he ‘felt for the Plaintiff’ when he learned that it was struggling to complete the templates. He did not say how he came to learn that or how or why the Plaintiff was said to be struggling. Further, his evidence included that:
  5. When she was asked about (e), Mrs Moa’s evidence was that Mr Fifita said he did not want to work on the Plaintiff’s case for accreditation because he did not feel confident to assess its degree program. She added that that was not the first time Mr Fifita had declined an assignment on similar grounds. Therefore, she said, she developed others like Fololina who were more confident in assessing degree programs. These matters were not put to Mr Fifita.
  6. Dr Eubanks opined that templates such as those used by the Defendant as part of the statutory Framework:
  7. Notwithstanding his criticisms, Dr Eubanks acknowledged that similar templates are still being used throughout many States in America. He said that in his experience, about half of applications submitted within the USA involving similar templates were not successful at first, and that they required further dialogue and negotiation with the accrediting bodies to achieve accreditation. He did not know whether he had been shown appendices 1a and 2b completed by the US consultants for and submitted by the Plaintiff as part of its application. He confirmed that he had not been asked by the Plaintiff to present his views to the Defendant either prior to the Plaintiff submitting its accreditation application, before this action commenced, or at all.
  8. Neither Dr Eubanks or any other witness called by the Plaintiff proffered any alternative to the templates or learning components or a different assessment methodology to fulfil the requirements of s.10(2)(a) of the Act for the particular qualifications offered.
  9. ‘Opeti Pulotu said he did not see any real problem in completing the templates whether by a technical college or exploratory liberal arts university. He described the templates as being used to support providers to meet the requirements of the TNQ Framework. He was not aware of complaints about the templates from any other providers, and he was currently working on an application by another provider for accreditation of its Bachelor of Arts course, with no problems reported.
  10. Mrs Moa’s uncontroverted evidence was that all other PCET providers applying for accreditation were required to complete, and had completed, the templates. There was no evidence of any other providers having experienced the difficulties complained of by the Plaintiff or of having expressed to the Defendant criticisms of the applicability of the templates such as contended for here by the Plaintiff.
  11. As noted above, the Plaintiff has not sought any relief in relation to this complaint. It has only been pleaded as a catalyst for seeking exemption from the Act as a whole. It did not, for instance, seek relief based upon any alleged inflexible application of policy by the Defendant without due consideration of the application on its merits[10]; or that the Defendant failed to take into account a relevant consideration or that it took into account an irrelevant consideration.[11]
  12. Again, that is unsurprising because notwithstanding the Plaintiff's remonstrations about the ‘logistical’ difficulties in terms of time, effort and expense associated with completing appendices 1a and 2b, the Plaintiff’s evidence was that it did complete them through the assistance of overseas consultants and, according to Dr Horowitz, they were submitted to the Defendant. This is therefore not a case where the Plaintiff complains that it was unable to complete its application by reason of the inapplicability of the templates required or that upon attempting to complete the templates, the Defendant subsequently refused the application by reason of some deficiency in the Plaintiff's responses to the templates. In fact, as is apparent, the Defendant has not yet assessed or determined the outcome of the accreditation application. That was largely due to the fact that the Plaintiff commenced these proceedings shortly after receipt of the first compliance notice. The involvement of the Defendant in the proceedings commenced shortly after Dr Horowitz said he hand-delivered the hard copies of the appendices to the Defendant's office. Not long thereafter, the parties ceased any further meaningful communication on the process of evaluation of the accreditation application, pending the outcome of these proceedings.
  13. In other words, insofar as the fate of the accreditation application is concerned, there is no decision by the Defendant yet which might be amenable to judicial review. In that sense, the proceedings insofar as they may have been aimed at the outcome of the application, are premature. Similarly, there was no evidence that the Defendant had issued a decision to the effect that the Plaintiff's application was either incomplete or deficient in some respect, whether or not related to completion of the appendices, which itself might have otherwise been amenable to judicial review.
  14. The object of the Plaintiff's action is far more fundamental. Notwithstanding its demonstrated ability to have its application including appendices completed, it subsequently chose to commence these proceedings by seeking a declaration that it is exempt from the Act. In circumstances where the accreditation application is still pending final assessment and determination by the Defendant, the timing of that decision is not entirely easy to fathom.
  15. Accordingly, having regard to the scope of issues revealed by the grant of leave and the ‘causes of action’ or grounds for declaratory relief pleaded by the Plaintiff, I find there is no issue to be determined in relation to the applicability or otherwise of the templates required to be completed as part of the accreditation application.
  16. I should add, that subject to the possible types of claims which might have arisen had the Defendant rejected the Plaintiff’s application as outlined above, I share the reservations expressed by Paulsen LCJ in his determination of the Plaintiff’s application for injunction [23] as to whether the Court would review assessment criteria adopted by the Defendant. I agree that it is a matter in respect of which the Court could be expected to exercise a high degree of deference to the views of the Board. The concept of an applicant for accreditation dictating to a statutory accrediting body the bases or methodology upon which the applicant contends its application should be assessed is problematic to say the least.

“Defendant’s inadequate qualifications”

  1. The Plaintiff asserts that the Defendant “is incompetent to assess an exploratory liberal arts university” because its assessors do not possess the necessary qualifications or training to be able to understand or assess whether the features of the Plaintiff’s courses as required by the templates meet the requirements for accreditation. This was not raised with the Defendant during the course of preparing and submitting its application for accreditation or after. It is not a basis pleaded for any of the relief claimed. Apart from an assertion in one of Dr Gonchor’s affidavits, which did not attract any attention during the trial, the issue was only sought to be agitated by Dr Horowitz during closing submissions.
  2. Even if it had been pleaded, again, in the absence of any decision by the Defendant of the Plaintiff’s application for accreditation, there is nothing for the court to review in this regard.
  3. In order to potentially attract judicial review, firstly, any such decision would have to amount to a rejection of the application on the basis, in whole or in part, that the details required by the impugned templates did not meet the requirements for accreditation. Then, there would need to be evidence of the qualifications necessary for an authority such as the Defendant to be able to assess courses such as those provided by the Plaintiff. The Plaintiff did not adduce any such evidence at trial. Further, save for the academic qualifications of Mr Fifita, who was not involved in assessing any of the Plaintiff’s extant applications, there was no evidence as to the qualifications or experience of any of the Defendant’s other personnel who were, or have been, so involved.
  4. This too is not an issue for determination.

“Refusal or delay in assessing the Plaintiff’s application”

  1. At paragraph 14 of its 3ASOC, the Plaintiff alleges that it is yet to receive a “comprehensive evaluation of its application for accreditation”. So much is accepted by the Defendant. However, the plea goes nowhere in terms of the causes of action which are pleaded as bases for the declaratory and other relief claimed.
  2. As discussed in detail below, I am satisfied on the balance of probabilities that as at either late October 2017 or 16 April 2018, at the latest, the Plaintiff submitted to the Defendant the remaining appendices required for its application for accreditation. There was no evidence that the Defendant required any further documentation, or took issue with the appendices, after that time.
  3. Regulation 17(3) provides that all applications for accreditation shall be processed within six weeks of receipt. Notwithstanding, the Plaintiff has not claimed any relief based on delay or constructive refusal by the Defendant of either of its applications. Again, such a claim would be inconsistent with the principal claim pleaded by the Plaintiff, namely, that is should be exempt from the Act.
  4. Notwithstanding some communications between the parties after the commencement of this proceeding, the Defendant has not undertaken any further assessment of the Plaintiff’s applications pending the outcome of the action. That, in my view, is a reasonable course for an authority in the position of the Defendant to take.

“Unequal treatment”

  1. At paragraphs 31 to 33 of its 3ASOC, the Plaintiff alleges that the Defendant has applied unequal treatment in relation to certain courses USP was at one time offering without accreditation. This too is not a matter which forms the basis of any of the relief claimed.
  2. As noted in the chronology above, Mrs Moa explained that the USP courses were local short courses less than level 1, which USP had only offered on request. Section 10(1)(b) of the Act requires accreditation of a course of study which leads to a stated qualification; or a short course made up of units from a course of study which may lead up to a stated qualification. There was no evidence that the USP short courses were either. Mrs Moa said the courses were discontinued shortly after her email and no further action was required or taken in relation to accreditation of those courses.
  3. Otherwise, Mrs Moa confirmed the basis for USP’s accreditation of certain of its major courses, as explained by Jordan Green of the New Zealand High Commission in his letter to the Plaintiff dated 8 December 2015, being that they had already been accredited with the Fiji Higher Education Commission. Such cross-border accreditation recognition is expressly contemplated by regulation 13(b).
  4. There is no evidence before me to establish even an arguable case on this point, whether for bias or otherwise; nor, as I have said, is there any pleaded claim for relief in respect of it. In my view, this issue too is not one which properly arises for determination.

IS THE PLAINTIFF EXEMPT FROM THE ACT?

  1. I now turn to consider each of the Plaintiff’s pleaded bases for its contention that it ought not be subject to the Act. In doing so, I put aside the considerable evidence of the Plaintiff’s conduct during the relevant period, and certainly since 2017, by which it had gone to great lengths to comply with the relevant requirements of the Act. Any potential criticisms of the Plaintiff for approbating and reprobating on this issue must yield to its more recent challenge to the operation of the Act (no doubt due to the assistance of legal advice) and the proper legal analysis that requires.

Definition of “provider” in s.2 of the Act

  1. Section 2 of the Act defines “provider” as:
“an ‘institution or a private company accredited by the Board to deliver and assess post compulsory education course(s) of study which will conclude with the granting of a qualification approved by the Board.”
  1. The term ‘accredited’ in the definition appears to be an amalgam of the concepts in s.10. There, all providers are required to apply for registration to provide education and training, and for accreditation of their courses of study. For present purposes, nothing turns on it, and I proceed on the basis that the definition is intended to mean a provider who is registered.
  2. The Plaintiff submits that by reason of that definition, the Plaintiff, being unaccredited (or unregistered), is therefore not a 'provider'. As such, it argues it is not subject to the Act or indeed any direction from the Defendant.
  3. Dr Horowitz submitted that it is not for the court to “rewrite legislation deemed inconsistent”. He relied on an extra-curial article published in 2003 by the Hon. Justice Susan Glazebrook of the Court of Appeal of New Zealand entitled “Filling the Gaps”.[12] There, her Honour opined (p.14):
“... if the words are plain and admit of only one meaning then judges should apply the words, even if the meaning may seem at odds with the purpose of the legislation.”
  1. However, her Honour went on to describe three exceptions, the third being (p.16):
“... where the words of a provision, literally interpreted, would be so far outside the purpose of the statute that to apply them literally would lead to an absurdity.”
  1. The footnote to that exception referred to Sir Rupert Cross on Statutory Interpretation (3ed, 1995) 49, in which he stated that a judge:
“has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute”.
  1. The correct approach to the statutory interpretation task required here, reflective of the statements referred to above from Justice Galzebrook’s speech, may be more fully summarised as follows:

Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586; Sheehan v Watson (supra); Air New Zealand LMcAlistAlister [2008] NZCA 264; [2008] 3 NZLR 794.


(i) Definitions are not to be treated as substantive provisions. Their function in a statute is merely to indicate that when particular words or expressions, the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way: Gibb v FCT [1966] HCA 74; (1966) 118 CLR 628 at 635. [13]
  1. Mr Tu'utafaiva submitted that the interpretation advanced by the Plaintiff was too narrow and would likely result in an outcome which is absurd, in the relevant sense. I agree.
  2. The evident purpose of the Act, when read as a whole with its accompanying Regulations, is to establish a system of registration of PCET providers and accreditation of their courses, by reference to a national qualification framework, with ongoing monitoring and review to ensure those providers continue to meet prescribed quality standards. The intent of that scheme of regulation is reflected by an unchallenged statement on the Defendant’s website describing its role as “to ensure that Tonga qualifications are regarded as credible, nationally and internationally, in order to help learners succeed in their chosen endeavours and to contribute to the Tongan society”.
  3. Neither party sought to tender any reading of the Bill (‘Hansard’) as it passed through the Legislative Assembly, which might possibly have elucidated this issue. However, the Introduction section of the Defendant’s Quality Assurance Policy [Ex. D6], which is referred to in detail further below, contains an historical background to the inception of the Act and the aims of Parliament in passing it. No objection was taken to it and I have no reason to doubt its accuracy as a reflection of the Government’s intentions in passing the Act. While not directly relevant to the task of interpreting the Act, it is informative. The Introduction included the following explanatory statement:
“There are a growing number of education providers in Tonga in all sectors of education and the GoT aims to ensure that quality of education provision is transparent and reliable. Thus it is necessary to establish benchmarks of achievement and equivalency which will add clarity for all concerned. The TNQAB will not only set standards for qualifications, but also provide quality assurance services by registering providers, accrediting courses of study, and conducting audits and reviews.”
  1. There are clear indications throughout the text of the Act and its accompanying Regulations that Parliament intended all PCET providers to be subject to the statutory scheme:
    • (a) Section 10 requires “All” providers to apply for registration and accreditation. It is not expressed in voluntary or optional terms.
    • (b) Section 11 (and regulation 16) requires the Defendant to maintain a register of all approved providers and to remove from the register any provider whose registration is cancelled. Read with the preceding section, it is clear that from the pool of all providers who apply for registration and/or accreditation, some may be approved who would then be included in the register.
    • (c) Section 17 requires all registered providers to undertake reviews of their courses and units of study.
    • (d) Regulation 15 requires providers of PCET accredited by the Board to meet specified registration and accreditation quality standards.
    • (e) Regulation 16(3) requires the Defendant to only register a provider as a university if the provider meets the characteristics of a university as set by the Defendant.
    • (f) Regulation 17 requires “All” persons, organisations and institutions wishing to provide PCET to apply to the Defendant for accreditation of their courses.
  2. If the scope of operation of the Act were to be determined solely by a literal reading of the definition of "provider" in section 2, it would mean that any PCET provider who was not accredited, or whose accreditation lapsed, would not, or would no longer be, subject to the Act. The principal mandatory requirement in section 10 of the Act - to apply for registration as a provider and accreditation of courses - could therefore easily be circumvented. The objective of the legislation would be frustrated and likely result in the statutory scheme being wholly undermined. That is not an outcome which Parliament could be presumed to have intended.
  3. In my view, the correct interpretation of the Act on the question of its scope, in particular, the obligation to apply for registration and accreditation, is that it applies to all providers of post compulsory education and training operating within the Kingdom, regardless of whether they are first time applicants or previously accredited applicants seeking renewal. The Plaintiff is such a provider. The Act applies to it.
  4. This aspect of the Plaintiff’s claim fails.

“Grandfather rights”

  1. The Plaintiff alleges that ‘having exhausted its capability to comply with the Defendant’s unreasonable and unfair mode of assessment, the Plaintiff is entitled to grandfather rights which exempt it from the Defendant's jurisdiction by dint of the historic record of its university’.
  2. During the trial, Dr Horowitz suggested that the Defendant should have recognised the Plaintiff’s ‘grandfather rights’ automatically, and without any request or application by the Plaintiff to the Defendant asserting such rights. When asked whether such recognition ought to have been in the form of some sort of total exemption from any and all requirements of the Act, or automatic registration as a provider under the Act with perhaps some greater ‘flexibility’ being afforded in respect of accreditation of its courses, Dr Horowitz said that the Plaintiff would be ‘comfortable with a five-year check-up’.
  3. The concept of a tertiary education provider such as the Plaintiff asserting entitlement to automatic rights of entry into a new regulatory system for the registration of providers and accreditation of their courses, based solely on the length of time that provider had been operating in the PCET market prior to the commencement of that system, is in my view, anomalous.
  4. In the ordinary case, so called grandfather rights arise from a grandfather clause within a statutory provision exempting persons or other entities already engaged in an activity from rules or legislation affecting that activity: Reid v New Zealand Fire Service Commission [1997] BCL 129. The new rules may also phase out or revoke grandfather clauses.
  5. For example, in Clockfair Ltd v Sandwell Metropolitan Borough Council & Anor [2012] EWHC 1857 (Admin), the transitional arrangements for the implementation of the (then) new Gambling Act 2005 provided for grandfather rights in respect of premises-based permissions held under the existing law (for a casino, betting shop, bingo hall or arcade), which guaranteed the equivalent premises licence under the new Act. Also, in Monarch Airlines Ltd, R (on the application of) v Airport Coordination Ltd [2017] EWCA Civ 1892, an airline that held slots in a season in one year was able to claim them for the corresponding season the next year, by reason of such "historic precedence" or "grandfather rights" being found in the Slots Regulations.
  6. Dr Horowitz referred to the definition of “grandfather clause” from Black’s Law Dictionary as;
“Exemption – allowance statement. Insulates specific entities, object, or situation from the fallout of changes or imposition of a decision. It could be a rule, law, or statute with pre-existing conditions.”
  1. Upon enquiry as to what ‘rule, law or statute’ he considered applied in the present case, he submitted that the Plaintiff’s exemption ‘could be a rule’ by the Defendant.
  2. Apart from that, the Plaintiff relied exclusively on the decision in Waverley Transit v Metropolitan Transit Authority (1988) 16 ALD 253; [1988] Vic SC 262. There, Waverley had a pre-existing contractual relationship with the MTA for bus routes. That contract provided for options to renew. As a result of various statements by MTA representatives to the effect that Waverley could expect its contract to be renewed, Waverley expended substantial capital sums, including the purchase of a competitor’s business. Instead, the MTA introduced a new system of open tendering for new bus route contracts, as a result of which, it decided to award a contract to Quince, another of Waverley’s competitors, and not to Waverley. O’Bryan J ordered the MTA's decision be declared void and restraining orders were imposed. He was also declared that a notice of purported termination of the agreement between MTA and Waverley was void and that that agreement remained in existence. His Honour also ordered MTA to extend the term of the said agreement for a further two years. In substance, he found that the tender process was flawed because of bias, breach of the rules of natural justice, and that there had been an expectation created by MTA that its contract with Waverley would be renewed and that relief upon a promissory estoppel should be provided against MTA. The decision was upheld on appeal: Metropolitan Transit Authority v Waverley Transit Pty Ltd [1991] VicRp 14; [1991] 1 VR 181.
  3. Waverley, both at first instance and on appeal, did not concern or even mention grandfather rights. In closing submissions, Dr Horowitz supplemented his reliance on Waverley by reference to an article published by the Australasian Timetable Association (“ATA”) in its Australasian Timetable News.[14] The ATA describes itself as “an organisation for anyone interested in the study of transport timetables, schedules, maps and associated literature.” That newsletter article stated:
“Qunice’s [sic] sold
It has been announced that Australian Transit Group, who currently operate town and school bus services across regional WA and NT have purchased the Oakleigh charter business owned by Rod and Graeme Quince. The current operation consists of 34 buses. Quince’s originally operated the Yarraville – Kingsville service in 1944, and later services in the early 50s in the Oakleigh area, but these had been sold by 1958. In 1988, the company won several eastern suburb routes from Driver (Waverley Transit) and Ventura as part of a controversial bidding process, that resulted in a court finding the owners had ‘grandfather’ rights to the routes. Qunice’s, [sic] who had purchased around 60 buses for the new contracts, was eventually allocated Routes 615, 631, 634, 705, 708 and 731 most of which were new routes formed following the bungled bidding process. The company decided not to renew their contracts with the government in 1998, and their routes were transferred to National, Moorabbin Transit, Ventura and Invicta, who subsequently took network changes in late 1998 to absorb their acquired routes.”
  1. Neither the decision in Waverley nor the above article assist the Plaintiff in this aspect of its claim.
  2. The Plaintiff was unable, correctly, to identify any provision in the TNQAB Act or its Regulations which conferred what might be regarded as grandfather rights. It may be assumed therefore that Parliament intended that despite any ‘historic record’ of a given PCET provider operating prior to commencement of the statutory scheme, all providers were and are required to seek registration and accreditation by the Defendant. The rationale is plain enough. Suppose a self-titled university teaching in the 1980s was then widely regarded as providing state of the art tertiary courses in terms of both content and delivery. If that provider continued in the same manner thirty years later, without review or development of its offerings, it may not necessarily be able to maintain the same reputation by comparison to contemporary course content and teaching methods. Its students therefore may be at a distinct disadvantage in a competitive employment or post graduate market. That is precisely the type of risk sought to be addressed by the TNQA statutory scheme. By working with all providers, through the registration, accreditation and regular review processes, the Defendant seeks to effect Parliament’s plan to ensure PCET throughout Tonga is and remains ‘credible, nationally and internationally, in order to help learners succeed in their chosen endeavours and to contribute to the Tongan society’.
  3. This aspect of the Plaintiff’s claim fails.

Claims based on the Defendant’s website statement

  1. According to the evidence of Cornelius Velt, which was not challenged, between 24 January 2013 and 16 November 2017, the following statement appeared on the Defendant's website homepage [Ex. P56]:
"Tonga National Qualifications and Accreditation Board (TNQAB) ensure [sic] that Tonga's qualifications are valued as credible both nationally and internationally.
TNQAB services the tertiary education sectors and is responsible for the quality assurance of non-university tertiary training providers. TNQAB's priority is to support our clients by providing effective and efficient services, within our statutory mandate, that meet their specific needs."

[Emphasis added]


  1. That emboldened statement, it will be seen, underpins a number of the Plaintiff's causes of action. An issue arose therefore as to who was responsible for making the statement or providing the relevant content which was uploaded onto the Defendant's website.

Who authored the statement?

  1. The Defendant pleaded[15] that it was "not aware that the web developer of the Defendant had put up the information on the Defendant's website". Further, in a response dated 18 March 2019 to the Plaintiff's request for discovery, including "who posted the notice?", Mrs Moa wrote: "The web developer, Mr Roderick Bing and his staff were responsible for putting up the information on the website."
  2. I observe at this juncture that the person who puts up or posts certain content onto a website may not necessarily be the same person who authored that content. Seen in that light, the Defendant’s statements above were somewhat equivocal.
  3. However, in her brief of evidence [46], Mrs Moa unequivocally deposed that the relevant wording was “made by the consultant and the Defendant was not aware of the developer’s wording until November 2017”.
  4. In 2012, the Defendant undertook to redesign and redevelop its website. In doing so, it engaged Roderick Bing by his company, Vavatau Technology, as the IT consultant for the project. He gave evidence that he and his staff were principally responsible for developing the layout of the website and that the content in terms of text to be inserted into the various pages was generally provided by the Defendant by way of emails or electronic documents on flash drives. He could not be certain who authored the relevant statement. Given the passage of time, the computers on which that work was undertaken had since been discarded and he was only able to locate a limited number of emails which were relevant to the project. The parties were given access to a flash drive with those files which Mr Bing brought to court during the course of his evidence. Neither identified any other documents within that drive apart from the two files Mr Bing provided in hard copy which he considered might have been relevant to the issue of who was responsible for the content [Ex. P57]. He was not able to recall precisely how he received those documents. However, in response to a query from me, he was also able to provide a hard copy of the metadata for each of those Word files.
  5. The first document contained a version of the content for the website. It contained the relevant statement. The metadata showed that the file had been created on 18 November 2012 and last modified on 19 November 2012. The name of the author and the person who last modified the file was "kids". Mr Bing was certain that neither he nor any of his staff had ever used that name or ‘handle’ for any of their work.
  6. That was to be contrasted by the second document which Mr Bing produced. It was a final report on the project and the official launch of the website on 14 December 2012. The metadata for that file showed that it had been created and last modified on 17 December 2012 and that the author was ‘Vavatau’. In listing the work carried out to implement the changes to the website, the report stated, inter alia:
"4. ... Contents have been created to be as informative and relative as possible, to provide as much information to the users of the website."
  1. Further on, under the heading "Immediate updates required", the report contained the following:
"1. Content update - certain content used during the development of the new website was identified as outdated. The updated will be provided by TNQAB and we will upload updates on the website.
2. Updates for providers portfolio. Contents and information to be provided as soon as possible so updates can be added."

  1. Contrary to her direct statements referred to above, attributing responsibility for the statement to Mr Bing, during cross-examination, Mrs Moa was in fact unable to shed much light on this issue. At the relevant time, her position within the Defendant was principal qualifications officer. She was not directly involved in the management of the website project; the then CEO, Dr Fasi, was in charge of it. She recalled that he asked each of the department heads to contribute content relevant to their pages. She said she may have contributed to part of the quality assurance section, where she worked at that time. She said that when she noticed the error in late 2017, she made enquiries, but nobody knew how the statement came to be on the website. She did not explain why she previously asserted and deposed that Mr Bing was responsible in circumstances, which became clear during the trial, where she really did not know who was responsible.
  2. For the reasons developed below, the issue of who was responsible for the relevant statement on the Defendant's website will be seen to be of peripheral relevance or significance at best. For completeness however, on the state of the evidence before me, I am satisfied on the balance of probabilities that the source of the relevant statement was someone within the Defendant.
  3. Mr Bing impressed me as an honest, careful and forthright witness who provided the best evidence he could of events which occurred some seven years ago.
  4. Mrs Moa’s departure from her previous written and sworn statements on this issue were initially concerning. Had the issue been of greater importance to the outcome of the case, her departure, and the Defendant’s stance on the issue, may have warranted closer scrutiny. However, having observed Mrs Moa’s evidence during the trial about this issue, it is not necessary to make any findings on her credibility or reliability so far as concerns this issue. She was simply unable to assist on historical matters such as this in respect of which she was never directly involved. Dr Fasi was not called.
  5. Viewed objectively, I consider it highly unlikely that a web developer in Mr Bing’s position would be responsible for the content on a website for a statutory authority such as the Defendant. That content had to be derived from, or by reference to, underlying legislative instruments. That task is more likely to have been within the province, and certainly subject to the approval, of the Defendant and its relevant officers. The examination of the documentary evidence which was relevant to this issue, as set out above, reinforces that view.

Observations on the legal effect, if any, of the website statement

  1. Before turning to the Plaintiff’s claims based on the website statement, I make the following observations on the extent to which the statement had, or could have had, any legal effect on the relationship between the parties.
  2. Firstly, the website did not state, as Dr Horowitz suggested on a number of occasions during the trial, that the Defendant was responsible "only" or "exclusively" for non-university providers. Those words do not appear anywhere in or around the statement. The subject sentence began with the words "TNQAB services the tertiary education sectors...". Further, the first sentence on the page stated "...(TNQAB) ensure [sic] that Tonga's qualifications are valued as credible, both nationally and internationally". In my view, the page did not contain any words which could have reasonably conveyed an impression of limitation or exclusivity such that the Defendant’s statutory jurisdiction extended only to non-university providers.
  3. Secondly, even if the website could reasonably have been construed to the effect as alleged by the Plaintiff, such stated limitation on the Defendant's jurisdiction was legally incorrect. Nothing in the Act or Regulations limits the powers and responsibilities of the Defendant only to non-university providers. Dr Horowitz did not seek to contradict that proposition. As noted above, s.10 refers to "all providers", without distinction as to whether such providers are universities or otherwise, having to apply for registration and accreditation. Regulation 16(3) expressly refers to the Defendant registering providers as universities subject to meeting specified criteria. In fact, Dr Horowitz confirmed that during the relevant period, he had had occasion to look at the Act and was aware that it did not limit the Defendant’s jurisdiction in the manner pleaded by the Plaintiff in this proceeding.
  4. Thirdly, any statement on the Defendant's website could not override, and would always have to be read subject to the actual provisions of the Act. Save for genuine claims of estoppel based on a provider's reliance upon any such misstatement, to its detriment, the erroneous statement is unlikely to have any binding legal effect.
  5. Fourthly, the Plaintiff's own evidence is that it was not aware of the misstatement, and certainly did not act upon it, during the time it was posted. The chair of the Plaintiff’s Board of Directors, Mrs Helu, deposed [3] that at its meeting on 16 February 2018 (the misstatement having been corrected on or about 16 November 2017), the Board learned of the statement that had been on the Defendant's website (exhibiting a screenshot of the Defendant's online portal as at 23 October 2017). She described the misstatement as the Defendant’s "policy to restrict assessment for accreditation to non-universities". She averred that her Board concluded that by being compelled to register as a tertiary academy since 2010, the Plaintiff had "unknowingly forfeited the right to be exempt from assessment for accreditation with its accompanying perils".
  6. The 'right' asserted is based upon an erroneous premise. Even had the Plaintiff been aware of the website misstatements during the relevant period, and if the statement could be construed as limiting the Defendant's jurisdiction to non-university providers only, for the reasons stated above, it was not an accurate statement at law of the powers and responsibilities actually conferred on the Defendant by the Act. The sentence immediately following the misstatement referred to the Defendant providing services "within our statutory mandate". That expression imports and directs attention to the relevant provisions of the Act, which as stated above, do not limit the Defendant’s mandate only to non-university providers. It follows, again subject to any claim for estoppel considered further below, that the Plaintiff could not gain any ‘rights to exemption’ based on a legally incorrect statement. Such ‘rights’ simply did not exist.
  7. Further, it is difficult to see how one can unknowingly forfeit a right, which at the relevant item, one does not know one has. The inverse proposition – that one failed, or decided not, to assert an assumed right – runs into the problem identified in the preceding paragraph.
  8. Fifthly, at no time prior to this litigation did the Plaintiff ever approach the Defendant asserting such rights on the basis of the website statement. Had it done so, according to the evidence of Mrs Moa as to what she did when the misstatement was brought to her attention, there is little doubt that she would have corrected the error by reference to the true position under the Act, which Dr Horowitz actually knew.

“Breach of implied contract” claim

  1. Dr Horowitz characterised the misstatement as a 'pledge' which ‘binds’ the Defendant to exempting the Plaintiff from registration and accreditation. That was interwoven with a pleaded claim that the Defendant had a ‘special fiduciary responsibility’ to alert the Plaintiff to its rights to exemption. From those premises, the plea concludes that the Defendant ‘breached the implied contract with its constituency’.
  2. The claim is misconceived.
  3. Firstly, nothing in the language of the statement, properly construed, was promissory.
  4. Secondly, the Plaintiff did not plead, nor did the evidence establish, any basis for a finding of any common law contractual relationship between the Defendant and the Plaintiff. Save for the payment of application and other administrative fees prescribed by the legislation, their dealings did not involve any offer or acceptance of goods or services for consideration. Their dealings, which did not include anything to do with the website statement, were solely the product of, and to give effect to, the statutory scheme.
  5. Thirdly, the Plaintiff relied on the decision in Commerce Commission v Fujitsu General New Zealand Ltd [2017] NZDC 21512, as support for the proposition that a commercial corporation is bound to its online representation. Understood in context, the proposition is unremarkable. In that case, Judge Mill was called upon to sentence Fujitsu for contraventions on the New Zealand Fair Trading Act 1986. The purpose of that Act is consumer protection. To that end, among other things, that Act prohibits certain unfair conduct and practices in relation to trade, promotes fair conduct and practices in relation to trade, provides for the disclosure of consumer information relating to the supply of goods and services and promotes safety in respect of goods and services. Fujitsu made claims on its website and in other advertising material as to the performance characteristics and energy efficiency of its heat pumps, which were inaccurate. In doing so, it contravened s.12A which prohibits a person, in trade, from making an unsubstantiated representation meaning one which a person does not have reasonable grounds for irrespective of whether it is false or misleading. It also contravened s.13(a) which prohibits a person, in trade, in connection with the supply of goods, from making a false or misleading representation that goods are of a particular kind, standard, quality, grade, quantity, composition, style, or model, or have had a particular history or particular previous use. His Honour found, inter alia, that the representations in question were designed to influence purchasing decisions and that the dissemination of information was significant and significantly inaccurate, and that consumers or potential consumers were unable, through any reasonable means to test the accuracy of these claims. He regarded the unsubstantiated unsubstantial as a case of exaggeration.
  6. In Tonga, the Consumer Protection Act, seeks to protect the interests of consumers and requires that manufacturers or traders be responsible for ensuring that goods offered to consumers meet certain reasonable demands of durability, utility and reliability and are suited for the purpose for which they are intended. A "consumer" is defined as a person who acquires goods or services from the manufacturer or trader. A "trader" is defined as any person carrying on business as an importer of goods for the purposes of sale or supply, an exporter of goods in pursuance of a contract of sale or supply, as well as a person who supplies services. Like its New Zealand counterpart, the Consumer Protection Act prohibits misleading or deceptive conduct,[16] or the making of false representations in relation to goods or services being of a particular standard, quality or grade.[17]
  7. Both Acts are concerned with consumer protection by proscribing certain conduct by traders or those carrying on business of selling goods or services to consumers. Therein lies the distinguishing feature which renders the Fujitsu decision of no assistance to the Plaintiff's claim.
  8. The Defendant is not a trader nor is it involved in carrying on a business. It is a statutory authority. It was created, empowered and is regulated by legislative enactment. Its only activity is to effect the objects and purposes of the Act. It does not sell goods or services. Its website does not advertise or promote any goods or services for sale.
  9. Fourthly, the next limb of the Plaintiff’s claim that its “unique status in Tonga as a university compelled to register as a ‘Tertiary Academy’ meant that the Defendant had a ‘special fiduciary responsibility’ to alert the Plaintiff to its rights to exemption” suffers from the same inherent logical and legal defect as the earlier limbs to this aspect of its claim. It proceeds from the erroneous premise that the Plaintiff had a right to exemption from the requirements of the Act. For the reasons stated above, the Plaintiff had no such right. Therefore, the Defendant was not under any obligation, legal or otherwise, to advise the Plaintiff that it had a right to something, to which, as a matter of law, it was not entitled. Conversely, if the Defendant was under an obligation to advise the Plaintiff, it could only have been to provide relevantly correct advice: that the Plaintiff was subject to the Act.
  10. An additional false premise afflicting the Plaintiff’s asserted rights argument is that because the Plaintiff considered itself a university, it cannot be subject to the Defendant’s authority which, it contends, was stated to be limited to non-university providers. Putting to one side for the moment the legal fallacy of the Defendant's limited authority, in order for this part of the Plaintiff's argument to gain any traction, it would necessarily have to demonstrate that it was a university registered as such under the Act. To be registered as a university under the Act, and thereby seek to avoid the authority of the Defendant (on the Plaintiff's hypothesis), a provider in the position of the Plaintiff would first have to submit to the jurisdiction of the Act to apply for and achieve that registration as a university. If not, then (again, on the Plaintiff’s hypothesis) any PCET provider could have called itself a university and claimed exemption from the Act during the currency of the Defendant’s website misstatement. Alternatively, if the Plaintiff had applied for, but was refused, registration as a university under the Act, then it would have come within the Defendant’s (erroneously limited) jurisdiction. The self-defeating circularity of that reasoning becomes apparent.
  11. It is unnecessary therefore to consider the Plaintiff's allegations of a "special fiduciary responsibility". Indeed, the Plaintiff did not make any submissions, opening or closing, to advance this part of its pleaded case. However, in the interests of completeness and finality in litigation, I make the following observations.
  12. The critical feature of a fiduciary relationship is that the fiduciary undertakes to act in the interests of another in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. A fiduciary relationship is one which gives the fiduciary a special opportunity to exercise that power or discretion to the detriment of that other person, who accordingly is vulnerable to abuse by the fiduciary. In equity, a fiduciary has a duty to act in good faith for the benefit of another. Persons subject to a fiduciary duty are not permitted to profit from their positions (other than where expressly permitted) or to put themselves in a position where the fiduciary duty and personal interest may conflict. The law has not yet been able to formulate any precise or comprehensive definition of the circumstances in which a person is constituted as a fiduciary in their relations with another, although there are accepted categories of fiduciary relationships such as that of solicitor/client and trustee/beneficiary: SB v State of New South Wales [2004] VSC 514 at [645] to [659], where Redlich J conducted an extensive review of the authorities in Australia, England, New Zealand and Canada, on the responsibility of a statutory authority for the protection of children and young persons in a guardian-ward relationship and the circumstances in which such a relationship might give rise to fiduciary duties.
  13. Other examples of the types of relationship which have been held to give rise to fiduciary duties may be found in:
    • (a) Public Service Association Incorporation v Kingdom of Tonga [2018] TOSC 41, involving monies held by government for the benefit of others; and
    • (b) Proprietors of Wakatū v Attorney-General [2017] NZSC 17; [2017] 1 NZLR 423, where the Crown owed fiduciary duties to reserve certain land for the benefit of the customary owners.
  14. Compare, however, Brennan CJ in Wik Peoples v Queensland ("Pastoral Leases case") (1996) 187 CLR 1, who opined that ‘the imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise.’
  15. In my researches, I have not found, nor, as I have said, did the Plaintiff refer to, any decision which might support the proposition that the Defendant here owed the Plaintiff any fiduciary duty, and certainly not a duty to alert the Plaintiff to a statement on the Defendant’s website (i.e. publicly available information) which was, at its highest for the Plaintiff, an erroneous description of the Defendant’s statutory responsibilities, or that therefore the Plaintiff could seek to take advantage of the error.
  16. Having regard to the features of a fiduciary relationship referred to above, and within the confines of the particular facts posited by the Plaintiff, I am unable to find any basis for finding that the Defendant owed the Plaintiff any fiduciary duty to act in the manner alleged.
  17. This aspect of the Plaintiff's claim fails.
  18. Accordingly, the Plaintiff’s subsidiary claim for damages alleged to have resulted from this cause of action also fails.

“Estoppel” claim

  1. The Plaintiff alleges that the Defendant's website statement “led the Plaintiff to reassess and change its position in respect of what it believed were its obligations under the Act” and the Defendant is thereby estopped and cannot now require the Plaintiff as a university to register or seek accreditation under the Act.
  2. In its written closing arguments,[18] the Plaintiff submitted:
“Had the Plaintiff not been coerced to renouncing its right to register as a university,[19] it would have retained sufficient standing to estop the Defendant for breach of implied contract. Waverley."
  1. Estoppel is defined in s.103 of the Evidence Act. It includes,[20] relevantly, where ‘a person, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented.’ That provision does not, of itself, create any private cause of action.
  2. Before turning to consider the Plaintiff's submission in detail and any evidence on this issue, an anterior question arises as to whether, as a matter of law, estoppel is available against a statutory authority. In his ruling on the Plaintiff’s injunction application, Paulsen LCJ noted [22] that the issue had been touched upon in lava v Minister of LandsLands [2015] Tonga LR 313. He also noted in that case, like the present, neither party made any submissions on this question. In Tapealava, the Presideated:
uote>
“Estoppels bind individuals on the ground that that it would be unconscionable for them to deny what they have represented or agreed. It is a concept of private law and does not extend to the performance of public duties. A public law authority, such as the Minister of Lands, cannot be estopped from exercising a public discretion or performing a public duty." (citations omitted)
  1. The estoppel alleged by the Plaintiff here does not seek to prevent the Defendant from exercising its duty or discretion. It seeks to deploy estoppel in a private law sense, that is, by preventing the Defendant from resiling from the statement which was on its website, which, as I have found, was a legally incorrect description of the ambit of the Defendant’s responsibilities under the Act.
  2. In Motor Vehicles Insurance Ltd v Woodlawn Capital Pty Ltd [2014] NSWSC 1503, Stevenson J considered various English and Australian authorities on this issue, from which the following may be distilled:
    • (a) Generally speaking, the operation of statute cannot be negated or constricted by estoppel. This means that, ordinarily, it is not possible for an estoppel to give validity to a transaction or state of affairs rendered invalid by statute. However, the application of this rule is premised on the statute conferring a public right or being otherwise in the public interest, and the principle that ‘an individual cannot waive a matter in which the public have an interest’: Young, Croft and Smith, On Equi>, (2009, Lawbookwbook Co) at [12.130].
    • (b) However, if the authority is entering into a contract, transferring property herwise conducting itself ielf in dealings that would ordinarily be governed by private law, the authority is said to be acting in a ‘proprietary’, ‘private’ or ‘operational’ capacity and an estoppel may arise: Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 160;(1990) 290) 21 FCR 193 at 21ere Gummow J said that that where a public body enters into contracts it will, “in general, be subject to the ordinary private law rules dealing withract, and propertyRy”.
    • (c) There is no reason why estoppel should not be argued against a government or government instrumentality when it engages in ordinary commercial or other conduct.”: Dr Seddon in Government Contracts: Federal, State and Local, (5th ed, 2013, The Federation ) ess) at [5.25] (citing authoriwhich included WaWaverley).
  3. A number of legal commentators have also writ written on the topic. In "Estoppel and Public Authorities - Examining the Case for an Equitable Remedy",[21] Greg Weeks wrote:
“Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority.” [emphasis added]
  1. In “Towards an Administrative Estoppel”,[22] Lucy Jackson opined:
“There should be no reason in principle nor in law why a substantive remedy cannot be granted in the circumstances where an individual has relied to his/her detriment upon a clear representation made by a public authority, provided that the public interest in holding the government to its word outweighs the competing public interest in the effect of departing from the representation.” [emphasis added]
  1. Insofar as the Plaintiff’s closing submissions called for the Defendant’s website statement to be restored (not pleaded), to do so would amount, in my view, to requiring it to act ultra vires or in direct conflict with the Act. Further, while it could not be said the website statement was made in any ‘proprietary’ or ‘private’ capacity, it may be arguable that it was made by the Defendant in its ‘operational’ capacity.
  2. However, it is not necessary for me to decide whether, in Tonga, administrative estoppel is available in the circumstances contended for by the Plaintiff. To establish any equitable estoppel, it is necessary for the Plaintiff to prove that:
    • (a) it assumed that a particular legal relationship then existed between it and the Defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the Defendant would not be free to withdraw from the expected legal relationship;
    • (b) the Defendant has induced the Plaintiff to adopt that assumption or expectation;
    • (c) the Plaintiff acted or abstained from acting in reliance on the assumption or expectation;
    • (d) the Defendant knew or intended the Plaintiff to do so;
    • (e) the Plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
    • (f) the Defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

The Commonwealth v Verwayen (1990) 170 CLR 312; Walt>Waltons Stores (Interstate) v Maher & Anor (1988) 164 CLR 387. 387.

These tests have been coently applied throughout Australia.[23]

    1. In New Zealand, the principles of equitable or promissory estoppel were articulated by the Court of Appeal in Burberry Mortgage Finance & Savings Ltd v Hindsbank Holdings Ltd [1988] NZCA 220; [1989] 1 NZLR 356. They are fundamentally similar in the requirements of a representation, reliance and detriment.In both jurisdictions, it is well acknowledged that the various manifestations of modern equitable estoppel are all outgrowths of the equitable prohibition on the unconscionable assertion of legal rights.[25]
    2. In the face of Paulsen LCJ’s observation on the injunction application, during the trial before me, the Plaintiff did not adduce any evidence that it relied upon the website statement, or, that it was induced thereby in acting to its detriment. The evidence in fact was that the Plaintiff’s board of directors was not even aware that the statement had been made until February 2018, some months after Mrs Moa had the error on the website corrected.
    3. There is therefore no basis upon which it would be open for the court to find that it would be unconscionable to permit the Defendant to correct the statement on the website, as it did.
    4. For those reasons, the Plaintiff’s estoppel claim fails.

    ARE THE COMPLIANCE NOTICES LAWFUL?

    1. On the basis, as I have found, that the Plaintiff is a PCET ‘provider’ and thus subject to the Act, I turn now to consider the Defendant’s compliance notices.
    2. The compliance notices declared that the Plaintiff was ‘non-compliant’ with the requirements of the Act and imposed conditions effectively banning the Plaintiff from further recruitment of new students while its courses remain unaccredited.

    Defendant’s powers of sanction?

    1. Before considering the terms and effect of the notices, a more basal question arises as to what, if any, sanctions for its non-compliance are provided by the Act, and whether the Defendant is conferred with any power to effect or enforce such sanctions.
    2. The Plaintiff submits there that the Act does not contain any sanctions for non-compliance with requirements concerning registration or accreditation. In terms of any express provisions, I agree.
    3. As noted above, s.10 requires all providers to apply for registration and accreditation.[26] A contravention of that requirement is not failing to be registered or accredited, but rather failing to apply for registration or accreditation. The section does not, nor does any other provision, prohibit a provider from offering PCET if the provider is not registered or its courses are unaccredited. Further, no sanction in the form for instance of a fine is prescribed for providers who do not apply for registration or accreditation or who operate without being registered or accredited.
    4. Section 11 empowers the Defendant to remove from the register of ‘approved’ providers, any provider whose registration is cancelled.
    5. Part IV provides for reviews of courses every two years, but only in respect of registered providers. It does not provide for the Defendant to conduct reviews of courses offered by providers who are not registered. Section 19(3) provides that where improvements recommended by the review team are not carried out by a subject (registered) provider within three months of notification, the Defendant shall cancel that provider’s registration for the relevant course of study or cancel the approval of that course; and by ss.(4), publish such cancellation. Sections 20 to 22 provide for an appeal process in respect of a decision of the Defendant under s.19.
    6. Section 26 permits the Minister, with the consent of Cabinet, to make regulations not inconsistent with the Act for carrying out or giving effect to the Act.[27] None of the examples given include or even suggest that the regulations could confer on the Defendant any powers of sanction against any unregistered or unaccredited provider, and none of the regulations themselves actually do so.
    7. If Parliament intended for sanctions to apply in the event of non-compliance with the Act, or for the Defendant to be empowered to impose such sanctions, it has not been expressed in any of the language or concepts employed in the Act or its Regulations. In my view, any remedial or facilitative rules of statutory interpretation (as discussed above on the first question for determination) do not permit the Court to create by implication (or “fill the gap”) such sanctions or powers.
    8. There may, however, not be any perceived need to strain the language or even seek to imply such sanctions into the Act.
    9. During the trial, Dr Horowitz explained, through the Plaintiff’s experience, that if there are any sanctions for non-compliance, they are, in practical terms, likely to be indirect and financial. There was no suggestion the Plaintiff’s experience in this regard is or would be unique in the PCET sector.
    10. The Defendant’s website lists those providers who are registered and whose courses of study have been accredited. It transpired that a screenshot of the relevant page showed the Plaintiff as registered at a time when its registration had lapsed but its application for renewal was (and still is) pending. Dr Horowitz stated that when one clicked on the Plaintiff’s name on that list, a window opened showing the word “pending”. Mrs Moa did not seem to be aware of that at first and said that the page needed updating in relation to the status of the Plaintiff’s registration and that of other providers.
    11. It may be accepted that when a prospective student is looking for a PCET provider, the information as to registration and accreditation published on the Defendant’s website was likely to be a significant consideration in a student’s decision of where to enrol. Undertaking an unaccredited course of study may well diminish the value of the achieved qualification in the eyes of potential employers or for applications for post graduate study, domestically or abroad. A reduction in the number, or even absence, of any new students for a provider who is not registered and/or whose courses are not accredited, for that reason, is likely to have adverse effects on that provider’s academic reputation, financial condition and resulting ability to continue operating.
    12. The consequences are more directly felt in the case of grants and similar financial assistance. One of the main drivers for the Plaintiff commencing the accreditation process for the first time in 2017, notwithstanding that the scheme has been in place since about 2009, was the loss of its grants and similar aid from bodies such as the New Zealand High Commission and the Tongan government because its courses were not accredited by the Defendant. That financial deficit has had a significant impact on the Plaintiff’s ability to continue operating, which has only been possible in recent years through the generosity of benefactors and teaching staff. A recent increase in the number of students was apparently due only to the demise of another university.
    13. Mrs Moa said that in the early stages of the Defendant’s operations, it took a soft approach by ‘encouraging’ providers to ‘come on board’ and apply for registration and accreditation. By 2017, however, the Board decided to take a harder line with those providers who, like the Plaintiff, had either not obtained registration or maintained it, and had not had their courses accredited. That harder approach saw the advent of tools such as the compliance notices.

    Defendant’s policy

    1. Neither the Act nor its Regulations provide for the issuing of compliance notices. Section 8 imposed on the Defendant a range of duties, including at (b) to establish policies, criteria, accreditation, monitoring, reviewing, and listing of providers of post compulsory education. When asked for the source of power or authority for issuing the compliance notices, Mr Tu'utafaiva specified solely clause 18 of the Defendant’s “Quality Assurance Policies” 2009 [Ex. D6] (“the policy”).
    2. The introduction section to the policy appears to draw on the Defendant’s duties under s.8 of the Act as the source of authority for the creation of its policies, among other things. I say ‘appears’ because s.8(b) actually says nothing of that for which such policies are to provide or their function.
    3. Parts 2 to 17 of the policy all more or less reflect the various concepts and requirements created by the Act and the Regulations. However, Part 18 does not.
    4. Part 18 of the policy provides:
    “18.1. The Board may issue a compliance notice to a Registered Provider requiring the Provider to take, or refrain from taking, a particular action in relation to its registration and/or accreditation status.
    18.2 Every compliance notice shall be in writing (a formal letter from The Board) and shall:
    • give the date on which it is issued;
    • specify a time on or before which, or a period within which, the provider must comply with the notice; and
    • state the consequences or possible consequences of non-compliance with the notice.
    18.3 A Provider that receives a compliance notice must comply with it within the time period specified, which will normally be between a minimum of ten and a maximum of twenty working days from the date of issue of the notice. The Board may extend the period of time for a provider to rectify compliance.
    18.4 The Board may publish any compliance notice, or a summary of the compliance notice, in a manner designed to inform the public of the compliance notice.
    18.5 If the Provider does not comply with the compliance notice, the Board may immediately impose new, amend or revoke any existing condition (s) on the Provider's registration and/or accreditation."
    1. A statutory power will be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself.[28] A similar principle is embodied in s.9 of the Interpretation Act, which provides that where an Act or regulation empowers a person to do or enforce the doing of any act or thing, all such powers shall be understood to be given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.
    2. A statutory decision-maker may develop a policy to guide the exercise of a discretionary power: Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175. However, a policy does not enjoy the status of legislation or regulations made under an Act.[29] Courts have always been able to declare a non-statutory instrument such as a guideline to be invalid for any one of a number of reasons, from conflict with implied or express limitations of statute law to more fundamental common law rights.[30]
    3. While the Act here enables the Defendant to make policies, the content of such policies can only extend to matters which may fairly be regarded as incidental or consequential to the exercise of those powers which the Act actually confers. The Defendant's policies cannot create or confer on itself any power which is not provided for by the Act. To the extent that they conflict with implied or express limitations in the Act or contravene fundamental rights such as natural justice or procedural fairness, such policies will be invalid.
    4. It may readily be accepted that s.8 of the Act permits the Defendant to create a policy which provides for issuing a notice to a PCET provider, who has not applied for registration or accreditation, which informs that provider that pursuant to s.10 of the Act, they are required to do so. Similarly, under s.19, the Defendant might issue a notice to a registered provider, who has failed to comply with recommendations for improvement by a review team within the requisite period, advising of the Defendant's intention to cancel that provider’s registration. In that situation, the Defendant would be required to observe and provide procedures for the protection of the provider’s rights referred to above, before any actual cancellation occurred.
    5. However, the principles referred to in paragraph 251 above do not operate to empower the Defendant to issue compliance notices with conditions such as hereunder consideration or otherwise to enforce non-compliance with the Act, because the Act itself does not contain any prohibitions or sanctions in relation to non-compliance with its requirements of applying for registration and accreditation.

    Illegality - ultra vires

    1. The only provision in the TNQA legislation which authorises the Defendant to impose conditions is regulation 18(5) which provides that where the Defendant grants accreditation for specified courses of study and short courses, that accreditation shall be subject to any conditions imposed by the Board.
    2. A decision maker must understand correctly the law that regulates his decision-making power and must give effect to it”: Pekipaki v Fifita, supra. To proceed otherwise is for the repository to proceed in contravention of a limitation on the decision-making authority impliedly imposed by the legislature, i.e. to commit a jurisdictional error: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [75] ff.
    3. Insofar as Part 18 of the Defendant’s Quality Assurance Policy purports to empower the Defendant to issue compliance notices which contain sanctions or seek to enforce the requirements of s.10 of the Act (whether they be erroneously understood as requiring registration and accreditation or correctly understood as requiring a provider to apply for registration and accreditation), it is, in my view, the product of an incorrect understanding of the law regulating the Defendant’s powers and duties. It exceeds the Defendant’s authority as provided by the Act. By issuing the subject compliance notices pursuant to the policy, the Defendant has committed jurisdictional error.
    4. The Defendant did not have power to impose the recruitment bans. Those conditions were ultra vires.

    Failure by Defendant to correctly apply its own policy

    1. Even if the above finding be considered incorrect, the actual terms of the subject notices are so inconsistent with the proper interpretation of s.10 of the Act and Part 18 of the Defendants’ policy itself as to constitute reviewable error.
    2. Firstly, clause 18.1 of the Defendant’s policy permitted it to issue a compliance notice to a “Registered Provider”. As at the dates of issue of the notices on it, the Plaintiff was not a registered provider.
    3. Secondly, the same clause permitted the Defendant, within the notice, to require the said Provider to take, or refrain from taking, a particular action in relation to its registration and/or accreditation status. At the relevant time, in addition to not being registered, none of the Plaintiff’s courses had accreditation status. Nothing in the Defendant’s policies or the legislation contemplates the status of either registration or accreditation as including ‘pending’. Rather, the scheme only contemplates a provider being either registered or unregistered and its courses either accredited or unaccredited. Therefore, the very object on which the Defendant purported to require the Plaintiff to take or refrain from taking action, did not exist.
    4. Thirdly, the purported statements of alleged non-compliance did not reflect the actual requirements of s.10. The notices recited the relevant parts of s.10, and then asserted that the Plaintiff was non-compliant by delivering unaccredited courses. The ‘Reason for non-compliance’ repeated ‘delivering unaccredited programmes’ and the requirements of s.10. As noted above, s.10 required a provider to apply for, relevantly here, accreditation of its courses of study. The Act does not prohibit a provider from delivering unaccredited courses, nor provide any other sanction for doing so. At the time of issue, the Plaintiff had applied for accreditation. It had therefore complied with the relevant requirement of s.10.
    5. Alternatively, if at the date of the notices, the Defendant considered that the Plaintiff had failed to apply for accreditation or that its application was incomplete or deficient, it was open to the Defendant to stipulate that in the notices. It did not do so.
    6. A good deal of the Plaintiff’s evidence at trial was devoted to demonstrating that it had provided all required documentation for its accreditation application including the ‘voluminous’ appendices 1a and 2b. According to Dr Horowitz, all that material had been electronically submitted by October 2017 (although according to Fololini’s email at that time, there had been a technical problem is accessing appendix 2) and hard copies were provided in April 2018.[31] Mrs Moa’s written evidence was that she was not able to confirm whether the Defendant had received those documents. It was revealed during cross-examination that she in fact had not made any enquiries of the Defendant’s staff before she made that statement. Against that, the Defendant’s register [Ex. P90] recorded that on 16 April 2018, Dr Horowitz delivered two folders of documents. He also escribed the appendices as voluminous, with the Plaintiff’s submitted ‘packet’ running to some 300 pages or more.
    7. In my view, it is more likely than not that those folders contained the hard copy appendices. For present purposes, and although the matter is not in my view directly relevant of any of the issues for determination, I am satisfied on the balance of probabilities that as at either late October 2017 or 16 April 2018, at the latest, the Plaintiff had submitted to the Defendant all documents required for its application for accreditation.
    8. There was no evidence that after that later date, the Defendant raised any complaint with the Plaintiff about the completeness or adequacy of its documentation, although as noted above, that was shortly before the Defendant was sued on this action. Even during the trial, the Defendant did not assert that the Plaintiff had failed to comply with the true requirement of s.10: to apply for accreditation of its courses.
    9. Fourthly, the first notice gave the Plaintiff 10 working days, the minimum period provided by clause 18.3 of the policy, to comply with it by responding with an ‘action plan’. The next section headed “Consequences of not responding to the compliance notice” mirrored clause 18.5 of the policy, by threatening the possibility of immediate conditions if the Plaintiff did not comply with the notice. However, notwithstanding the 10 working day period for compliance, the next section headed “Conditions imposed by the Board” set out what I have termed the recruitment ban. On a plain reading of that section, the purported conditions were imposed with immediate effect. Mrs Moa said that she thought the section was intended to indicate the conditions which would be imposed if the Plaintiff did not comply with the notice within the time stated, but conceded that the text used did not convey that, and that the conditions appeared to be imposed from the date of the notice.
    10. Fifthly, the Defendant’s purported imposition of conditions prohibiting the Plaintiff from recruiting students for its unaccredited courses, did not accord with clause 18.5 of its policy because that provision only permitted conditions to be imposed “on the Provider's registration and/or accreditation." The actual text of the conditions does not stipulate whether they are conditions on the Plaintiff’s registration and/or accreditation. The Plaintiff possessed neither. There was therefore nothing upon which the purported conditions could be imposed.

    Irrationality and unreasonableness

    1. Had the Defendant adopted a correct approach to the relevant requirements of s.10, then it could not rationally or reasonably have decided to the issue the compliance notices. At the expense of undue repetition, the relevant requirement was to apply for registration (or in the Plaintiff’s case, renewal) and accreditation. The Plaintiff had done both. Therefore, at the time the notices were issued, the Plaintiff had complied with s.10. That, together with the failure by the Defendant to have regard to the fact that the Plaintiff had applied, or to consider the status of any assessment its applications, rendered the decisions to issue the notices irrational and unreasonable in the Wednesbury sense.[32]

    Breach of natural justice and procedural fairness

    1. It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That ordinarily require tire the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adveaterial, or directing his mind to the critical issues or faor facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw. The ultimate touchstone is fairness: DHP19 v Secretary of the Department of Health [2019] FCA 1451. The more detrimental the potential effect of the decision, the fairer a decision-making process must be: Chen v Minister for Immigration and Ethnic Affairs (1/a>(1994) 48 FCR 591.
    2. [33] It could threaten that provider’s very future existence. Therefore, the Defendant here was required to undertake a fair decision-making process before deciding to issue the compliance notices. In my view, it failed to do so.
    3. Firstly, during cross examination, Mrs Moa said that she did not make any enquiries prior to sending the 22 February 2018 notice to ascertain the status of the Plaintiff’s applications or whether there were any outstanding requirements. The second notice, purportedly continuing the recruitment ban for 2019, was issued during the course of this litigation. There was no evidence that the Defendant then either gave any consideration to the status of the Plaintiff’s extant applications, or whether the Defendant itself had commenced or completed its assessment of the applications. In my view, they were highly relevant considerations in determining whether to issue the compliance notices, and whether to seek to impose recruitment bans particularly given that the Defendant had not sought to take any action against the Plaintiff during the many years it had been delivering, and continues to deliver, those courses.
    4. This error may also be expressed as the Defendant allowing its policy to dictate the manner of exercise of a discretionary power (if it validly possessed such power), thereby failing to give "proper, genuine and realistic consideration" to the merits of the issue and be ready in a proper case to depart from the policy: Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [223] to [226] and authorities cited therein.
    5. Secondly, the section in the notices headed “Recommended Steps for provider to take” did not inform the Plaintiff as to what the ‘action plan’ was to address, or, for instance, in what way its accreditation application was deficient, or what was required from the Defendant’s perspective to accredit the programs. It was impossible therefore for the Plaintiff to know, other than it was ‘delivering unaccredited programmes’, the particulars of the alleged non-compliance and what was required to remedy it. The notices made no reference to the Plaintiff’s extant applications nor did they provide any indication as to the Defendant’s assessment of them. Mrs Moa’s evidence was that she expected the Plaintiff to ask the Defendant what was required for the action plan. In my view, that was an unreasonable position to adopt, and not one supported even by the policy.
    6. Thirdly, Mrs Moa conceded that the Defendant had not afforded the Plaintiff any opportunity to be heard before she decided to issue the notices. Further, and as noted above, because the wording of the recruitment ban purportedly gave it immediate effect, contrary to the 10 working day period for responding, the Plaintiff was not provided any opportunity to be heard before the purported condition was imposed.
    7. For those reasons, the Defendant failed to observe the requirements of natural justice or procedural fairness.

    RESULT

    1. The Plaintiff has failed in its claims for a declaration that it is not subject to the Act.
    2. It has succeeded on its challenge to the lawfulness of the compliance notices, particularly insofar as they purported to ban the Plaintiff from recruiting students for its unaccredited programs, at a time when the Plaintiff’s application for accreditation of those programs was before (and remains before) the Defendant for assessment.

    Orders

    1. To give effect to the above findings, I make the following orders:
      • (a) The Plaintiff’s claims for declarations that it is not subject to the Tonga National Qualifications and Accreditation Board Act, and damages, are dismissed.
      • (b) The Defendant’s compliance notices dated 22 February 2018 and 21 February 2019 are:
        • (i) declared to be unlawful, invalid and of no effect; and
        • (ii) set aside.

    Costs

    1. In light of the number of issues raised in the proceeding, the parties agreed that any determination in relation to costs be deferred until they had an opportunity to consider these reasons for judgment.
    2. My preliminary view is that as each party has had some success on the principal issues, it is appropriate that there be no order as to costs, meaning each party is to bear its own costs of and incidental to the proceeding.
    3. If neither party applies for a different costs order within seven days hereof, in accordance with the directions in the following paragraph, there will be no order as to costs.
    4. Alternatively, if any party wishes to apply for costs:
      • (a) that party is to file submissions within seven days;
      • (b) any responsive submissions in opposition to be filed within a further seven days;
      • (c) any request for a hearing to be included in the submissions filed; and
      • (d) if neither party requires a hearing, any application/s for costs will be determined on the papers.

    2019_4500.png


    NUKU'ALOFA M.H. Whitten QC
    15 October 2019 LORD CHIEF JUSTICE


    [1] Tonga Government Gazette Supplement Extraordinary, 28 January 2008: Ex. D38. Compare Ex. P88 and the Plaintiff’s pleading amendment in closing submissions which became paragraph 3A alleging that “Up until 1 November 2018, the Attorney General did not post notice of the Act’s royal assent which occurred 18 January 2008.”
    [2] A party cannot tender his own self-serving, out of court statements as evidence of their truth unless some specific hearsay exception applies: Cross on Evidence Aust. Ed. para. 334f. para.para. 17335) cited in Singh v The Queen [2019] NTCCA 8 at [15].
    [3] Transcript day 7, 18/9/19, p.7.
    [4] Sections 3.1 and 3.4 of the Defendant’s Guidelines for Program Accreditation (December 2011) provides that such applications should be submitted in electronic format, when possible. Appendix 3 to the Guidelines, entitled Checklist for the Evaluation of a Qualification, (xviii) Formatting, refers to an application being submitted both in hard copy and in electronic format. The Defendant’s Application Form & Templates for Post Compulsory Education and Training (PCET) Provider Accreditation (June 2016), Part 5, Appendix 3, requires submission of applications in electronic format “(e.g. on disc or on a flash drive)”.

    [5] Of the same rank.
    [6] The handwritten entry date was actually “16/8/18”. However, the entries immediately before and after it were all marked as April. I infer therefore that the August date was an error and that in fact it was meant to be 16 April 2018. Neither party contended otherwise.
    [7] Referring to Halsbury’s Laws of England, vol 1(1), p.60.
    [8] Referring to Lord Diplock in Council of Service Unions&#160 vThe Minister foer for the Civil Service [1985] AC 374, br>[9] tenistitute Inc v Tonga National Qualifications and Acnd Accreditation Board     [2019] TOSC 8 (C 8 (8 February 2019)

    [10] For example, see in Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175.
    [11] For example, see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24&#t&#1at 39; PW Adams Pty LimitAu v Australian Fisheries Management Authority (1995) 60 FCR#160;at&#1at 402, affirmed on ap(1995) 695) 61 FCR 314; SavilHealth Care Complaimplaints Commission [ NSWC at [570;[
    [12] https://www./www.courtsofnz.govt.nz/speechpapers/Speech05-03.pdfrchte2filling%20the%20gaps%22

    [13] sup> ReferReferred to in Pearce and Geddes on “Statutory Interpretation in Australia” 6th edition, at [6.63], in which the learned authors noted that “(d)rafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation.”
    [14] No. 277, September 2015 - http://cdn.timetable.org.au/tabletalk201509issue.pdf


    [15] Paragraph 17 of its Second Amended Statement of Defence.
    [16] Section 22.
    [17] Section 23.
    [18] On 25 September 2019, after the end of the trial, Dr Horowitz sought, without leave, to clarify or correct a number of matters in his closing submissions by filing a “Memorandum of Plaintiff’s Counsel Regarding Two Omissions and Two Misleading Claims”.
    [19] Relying on Mrs Helu’s affidavit at [4] where she refers to the Defendant’s first compliance notice.
    [20] Subsection (3).
    [21] [2010] UNSWLRS 70
    [22] [2015] AIAdminLawF 18; (2015) 81 AIAL Forum 62

    [23] Kellow-Falkiners Motors Pty Ltd v Nimorakiotakis & Ors [2000] VSCA 1 at [32] referring to in Victoria, Metropolitan Transitorithority v. Waverley Transit Pty. Ltd.; The CommonwealtClarkk    ; in the Court of l of New Soew South Wales in tel Pty. Ltd. v. Franklianklins Self Serve Pty. Li>;and in the the Full Court of the Federal Court of Australia in Sp; E. P E. Promotions Pons Pty. Ltd. & Ors. v. Tobin Bry. Ltd (citations omittomitted).
    [24] Waltons Stores was approved in Marteel Ltd v The ship "Steel teel Navigator" [1992] 1 NZLR 77;ational Weal Westminster Finance NZ Ltd v National     Bank oLtd [1996[1996] 1 NZLR 548;&0;Mainzeal Property and Construction Ltd v Facility &[2000ZLR 595. 595. See alse also Wilson Parking New Zealand Limited v Fanshawe 136 >136 Limited [2014] NZCA 407 for a discussiso on the principles followed in the UK.
    [25] New Zealand Pelt, supra, at [92].
    [26] See also regulation 17 in relation to accreditation.
    [27] Consistent with s.10 of the Interpretation Act. See also Attorney General v Xi Yun Qian [2019] TOCA 20 at [32].

    [28] "Administrative Law", Wade & th, 7th edition, Oxford Press, page 245.
    [29] "Administrative Law", Douglas and Jones, 7th edition, Federation Press, page 382.
    [30] "Judicial Review of Administrative Action" by Aronson and Dyer, 2nd edition, LBC, page 107.
    [31] Compare clauses 3.1 and 3.4 of the Defendant’s “Guidelines for Programme Accreditation” which require applications for accreditation to be submitted, where possible, in electronic format.
    [32] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229–30.

    [33] The Plaintiff tendered a graph of its student population from 2008 to 2019 [Ex. P25]. It showed its largest number was in 2010 and between 2012 and 2014 there was a dramatic decline. From then until about 2017 there had been a slight increase in numbers followed by a drop again in 2018. Somewhat ironically however, as at May 2019, and notwithstanding the Defendant's purported recruitment ban, student numbers have increased markedly. Dr Horowitz suggested this may have been due to the demise of another university, resulting in some of those students migrating to 'Atenisi.

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