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'Atenisi Institute v Tonga National Qualifications and Accreditation Board [2021] TOSC 34; CV 23 of 2020 (8 March 2021)

IN THE SUPREME COURT OF TONGA

CIVIL JURISDICTION

NUKU'ALOFA REGISTRY


CV 23 of 2020


BETWEEN:


‘ATENISI INSTITUTE Plaintiff


-and-


TONGA NATIONAL QUALIFICATIONS

AND ACCREDITATION BOARD Defendant


REASONS FOR JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Dr Horowitz, counsel pro se, for the Plaintiff

Mr Tu'utafaiva with Mr Taione for the Defendant

Date of trial: 15, 16, 17 February 2021

Date of ex tempore judgment: 17 February 2021

Date of published reasons for judgment: 8 March 2021


CONTENTS


Introduction

  1. In this proceeding, the Plaintiff claims damages said to have been caused by the Defendant’s imposition of bans on the Plaintiff’s ability to recruit new students in 2018 and 2019.
  2. At the conclusion of the evidence and closing submissions, I delivered judgment ex tempore in favour of the Plaintiff in the sum of $5,000 with no order as to costs. This is the transcript of those reasons for judgment, edited only as to form and not substance.
  3. In proceedings CV 13 of 2018, the Plaintiff in this proceeding (“‘Atenisi”) sought judicial review by way of declarations to the effect that it was not subject to the National Accreditation and Qualification Act 2004 (“the Act”) and that certain non-compliance letters issued by the Defendant in 2018 and 2019 which included what may be briefly described as ‘recruitment bans’ were unlawful.
  4. On 15 October 2019, the Court declared that the Plaintiff is subject to the Act but that the recruitment bans were unlawful.[1] A damages claim which had been advanced through its pleading in that proceeding albeit on a wholly different legal basis - an implied contract – failed, and there were no other claims for damages in that proceeding. Dissatisfied with certain aspects of the judgment, the Plaintiff appealed, although naturally not in respect of the favorable decision declaring the recruitment bans unlawful. In ‘Atenisi Institute Incorporated v Tonga National Qualification and Accreditation Board [2020] TOCA 4, the Court of Appeal dismissed that appeal.

Pleadings

  1. On or about 22 April 2020, the Plaintiff commenced these proceedings in which it seeks damages essentially arising from the previous findings declaring the recruitment bans unlawful. For completeness, I will refer to a number of allegations set out in the Plaintiff’s Amended Statement of Claim filed on 7 July 2020.

Amended Statement of Claim

  1. At paragraph 1, the Plaintiff recites that on 22 February 2018 and extended on 21 February 2019, the Defendant banned the Plaintiff from recruiting new students through 2018 and 2019. In applications before the Court in CV 13 of 2018 the Defendant contended that the bans proscribed the enrollment of all students at the Plaintiff’s Institute.
  2. At paragraph 2, the Plaintiff alleged that on 15 October 2019, the Court declared the bans unlawful, set them aside and referred to them as being “...likely to be highly detrimental to the academic and financial operation of any education provider. It could threaten that provider’s very future existence”.[2]
  3. At paragraph 3, the Plaintiff alleges it, in fact, sustained injuries from the bans for which it claimed relief.
  4. At paragraph 4, the Plaintiff alleged that the Court found in CV 13 of 2018 that the Plaintiff suffered “natural injustice” from the time it submitted its complete application for accreditation until the service of its Statement of Claim therein on 20 May 2018 and the “the Court admitted the possibility the Plaintiff submitted by 25 October 2017”.
  5. At paragraph 5, it was alleged that until the Plaintiff’s application for accreditation is decided, the court cannot know whether the Plaintiff “ought to have enjoyed the benefits of accreditation from as early as spring 2017 had natural justice been afforded, accordingly, the Plaintiff reserves the right to calculate the damages of said injustice to pray appropriate relief if and when it is accredited by the Defendant”.
  6. I pause there to note that since the filing of the claim in its amended form in July last year, there has not been any further action taking in relation to any potential claim by the Plaintiff in respect of any decision or lack of decision by the Defendant on the Plaintiff’s application for accreditation of its courses. The background and dealings between the parties in relation to that issue were canvassed at length in the CV 13 judgment. During the course of this proceeding however the issue of that potential additional claim was discussed with the parties through their respective counsel. On 23 June 2020, in a ruling and set of directions issued by the Court that day, it was recorded at paragraph 6 as follows:
“Dr. Horowitz indicated that the allegations in the proposed statement of defense were half true. He volunteered that any claim in this proceeding in relation to the Defendant’s assessment of the Plaintiff’s accreditation application was, in the circumstances, premature. He proposed that part of the Plaintiff’s claim be stayed for 90 days. After further discussion and identification of the fact that at present there is no decision on the part of the Defendant in respect of which the Plaintiff could seek to apply for leave for judicial review, Dr. Horowitz agreed that any such claims should be excised from the proceedings and that it would only concern the Plaintiff’s claim for compensation which it alleges has been caused by the Defendant’s unlawful recruitment bans.”

  1. Returning to the Amended Statement of Claim, at paragraph 8, the Plaintiff alleged that the Constitution “effectively forbids any party from unlawfully diminishing the property of any other party”. Reference was also made to clause 14 of the Constitution.
  2. At paragraph 9, the Plaintiff referred to TNQAB regulation 4(a) which requires the Defendant to treat providers fairly and regulation 11 which, it was alleged, “infers liability if it fails to so treat”.
  3. At paragraph 10, the Plaintiff stipulated that a regulatory standard of the Defendant “may be sufficiently vague as to crimp a more focused claim on the Defendant in the event the Plaintiff holds adjudication may deploy a similar but more detailed standard:
  4. At paragraph 11, it was alleged that paragraph 5 of the Code of Ethics and Conduct for the public service requires Ministries of the Crown to, inter alia:
  5. At paragraph 12, it was alleged that “various jurisdictions under English common law typically authorized compensation to employees for humiliation, loss of dignity and injury to the feelings as well as loss of any benefits whether or not of any monetary kind of which said employee reasonably retained a legitimate expectation”. References were made, for example, to s.3 of the New Zealand Employment Relations Act 2000.
  6. Under the heading “Doctrinal basis for relief”, commencing paragraph 13, the Plaintiff alleged that under the ‘doctrine of third-party causation’, the Defendant can be held liable for “rendering deficient the academic environment of a provider’s employee”.
  7. At paragraph 14, the Plaintiff alleged that the Defendant requires academic freedom in its Guideline for Registration as a Provider of a University (“GRPU”) dated 10 October 2010. It also referred to the affidavit of Pauline Moa, sworn 20 May 2018, which was part of the evidence in CV 13 of 2018, to similar effect.
  8. At paragraph 15, it is alleged that “under the doctrine of academic freedoms recognized by various jurisdiction under English common law, an academic is entitled to at least operate free of unwilful coercion by Crown entities”. An example was said to be found in s.161 of the New Zealand Education Act 1989.
  9. At paragraph 16, the Plaintiff ‘holds’ that were the Defendant’s regulations are silent on the protection of the very academic freedom it requires in its GRPU or the conduct the Crown requires of its Ministries via the Public Service Commission ‘CECPS’, “adjudication may deploy the employee rights and protection of academic freedom recognized by various jurisdictions under English common law”.
  10. The next heading is “First injury - loss of key administrator in 2019 partly due to the belligerence of the Defendant in 2018 and 2019”. Under the subheading, “History”, paragraph 17 provides that “at 64 years old in November 2009 the Plaintiff’s university Dean Dr. Michael Horowitz began recruiting a successor a decade in advance spending the next seven years focusing on Dr. Lorenz Gonschor, a postgraduate teaching assistant, at the University of Hawai’i”.
  11. At paragraph 18, it was alleged that Dr Gonschor received his PhD in political science at the University of Hawai’i in December 2016 and contracted to become Dean of Faculty at the Plaintiff’s academy in May 2017. Dr Gonschor served from July 2017 until his resignation in November 2019.
  12. At paragraph 19, in September 2017, Dr Gonschor informed Dr Horowitz that the Defendant’s “reductionist assessment metric was inappropriate for an exploratory liberal arts academy”. His evaluation was promptly supported by the Plaintiff’s faculty senate university dean and board of directors.
  13. At paragraph 20, on 6 March 2018, Dr Gonschor learned of the (2018) ban and “was outraged by its unwarranted intrusion and callous timing”.
  14. At paragraph 21, on 17 August 2018, Dr Gonschor concluded that, rather than settle CV 13 of 2018, the Defendant intended to defend its assessment metric at trial.
  15. At paragraph 22, in August 2019, Dr Gonschor informed Dr Horowitz he would likely resign effective November 2019. During the trial of CV13 of 2018, Dr Gonshor testified that should he leave Tonga, the ban “would be partly to blame for his departure”.
  16. The Plaintiff therefore claims under that head or ‘first injury’ that:
  17. The next heading is “Second injury - loss of tuition revenue in 2019 due to the belligerence of the Defendant in 2018 and 2019”. At paragraph 23, the Plaintiff alleges that notwithstanding online posting of its course descriptions during the bans, the Plaintiff, “in perceived deference to the said bans, cancelled its recruitment visits to select secondary schools as well as its annual advertisement in a popular weekly newspaper”.
  18. At paragraph 24, the Plaintiff alleged that it is its practice to invite an elected representative of the associated students of ‘Atenisi University to sit as a non-voting member of its Faculty Senate and that at a Senate meeting on 14 March 2018, that representative learned of the ban and shared it with fellow students.
  19. At paragraph 25, Siosaia Langitoto Helu M Stat retains the position ‘Ulu Motu’a (head of the founding kāinga) at the Plaintiff’s academy, as well as coordinator of its mathematics program. As former president of the defunct Tonga International Academy (“TIA”) he enjoys the confidence of those students who migrated from TIA to the Plaintiff’s academy in February 2019. At a meeting of the Faculty Senate on 15 April 2019 he reported that most of said students were reluctant to pay tuition whilst the ban was in effect. I pause here to note that Mr. Helu was not called to give evidence in this proceeding nor was an affidavit by him filed. Dr. Horowitz explained that Mr. Helu is currently suffering serious medical problems.
  20. Returning to paragraph 26, the Plaintiff alleges that as a result of the events described in paragraphs 23 to 25, its annual tuition receipts in 2019 were substantially lower than in 2017. Reference was made to a second affidavit of ‘Ilaisaane Sisi’uno Helu, sworn 20 March 2019, filed in CV 13 of 2018 at paragraph 14. For that ‘second injury’, the Plaintiff claims that the Defendant’s belligerence hindered the Plaintiff from collecting tuition revenue in 2018 and 2019 it would otherwise have obtained.
  21. The third claim or ‘injury’ alleged is under the heading “The natural injustice the Plaintiff may have suffered from 6 December 2017 through 20 May 2018 may have excessive the impact of the ban”.
  22. At paragraph 27, the Plaintiff “stipulates that the Plaintiff’s status as unaccredited during this period may to some degree have played a role in the decisions of faculty, students and the sponsors of students regarding extension of services or confirmation of studentship”. Reference is made back to paragraph 5, which I have already addressed, and for the same reasons, relief was “reserved”.
  23. Under the sectional heading “Inventory of damage”, and in respect of the first injury or claim - the loss of Dr. Gonschor - at paragraph 29, the Plaintiff pleads that “Dr. Gonshor’s departure dealt a catastrophic blow to the Plaintiff’s prospects for consummate leadership after the university dean’s projected retirement in 2021. Given the Plaintiff’s impecunious condition, it is unlikely it can soon replace Dr. Gonschor with an academic of similar stature”.
  24. At paragraph 30, the Plaintiff alleges that Dr Gonschor “is one of the most accomplished scholars of his generation within the field of the social science of the Pacific Islands”.
  25. At paragraph 31, the Plaintiff alleges that its “loss of Dr. Gonschor’s talent is incalculable” and that “(I)n the interests of tangibility, the Plaintiff seeks only abridged relief per paragraph 34”.
  26. In respect of the second ‘injury’ - loss of tuition revenue in 2019 due to the belligerence of the Defendant in 2018 and 2019 – at paragraph 32, the Plaintiff alleges that its tuition revenue declined from $16,270 in 2017 to $11,250 in 2018 to a ‘paltry’ $4,580 in 2019. Accordingly, its total loss of tuition revenue during the tenure of the recruitment bans was $16,700.
  27. Under the heading “Relief”, at paragraph 33, the Plaintiff seeks orders for the Defendant to pay:
  28. Finally, at paragraph 34, the Plaintiff effectively provided particulars of the claim for “abridged relief” at paragraph 33, described as “following a standard cost of replacement model, its estimate for replacing Dr. Gonshor is as follows:”

Defence

  1. By its Defence filed 1 October 2020, the Defendant, in short, denies the claims in their entirety. Specifically, at paragraph 3, the Defendant says that neither the alleged loss of the services of Dr. Lorenz Gonschor nor the alleged loss of tuition revenue in 2018 and 2019 was caused by the Defendant. Further, in relation to the claims for costs, the Defendant says the Plaintiff is not represented by a lawyer who is entitled to claim costs and the Defendant is therefore not liable for the costs of prosecuting this action. The balance of the pleading repeats general denials, partly due to lack of knowledge, and expresses the standard requirement for the Plaintiff to prove its loss as alleged.
  2. In July 2020, directions were given for all preparatory steps for trial including the filing of evidence by way of affidavits, objections as to admissibility to any such evidence, a protocol for the resolution or determination of any such objections and the filing of a court book in accordance with detailed specifications. Part of the timetable directed that day was later amended and the trial commenced on 15 February 2021.

Legal principles: causation and remoteness

  1. That summary of the pleadings in this proceeding identifies that the key issue for determination is causation, namely, whether the unlawful recruitment bans caused any of the loss and damage claimed by the Plaintiff. No issue was raised as to whether, as a matter of law, the Defendant may be liable in damages for acting ultra vires or beyond its power.[3]
  2. While a claim for breach of statutory duty or an act in excess of statutory power is to be viewed as discrete from claims in negligence, as a matter of general principle, it is trite that the purpose of a damages award in the context of a tortious wrong, is to place the Plaintiff, as best money can achieve it, in the position it would have been had the wrong not been committed.
  3. A plaintiff’s entitlement to such compensation is subject to principles of causation and remoteness of damage. Neither party addressed those or any other legal principles applicable to the issues for determination.
  4. In March v. E. & M.H. Stramare Pty. Limited & Anor [1991] HCA 12; (1991) 171 CLR 506 at 522, Dean J said:
“For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the Defendant was so connected with the Plaintiff’s loss or injury that as a matter of ordinary common sense and experience it should be regarded as a cause of it”.

  1. I regard that statement of principle and the approach to the issue of causation as apposite to the present case.
  2. Further, the “but for” test, whilst was not an exclusive test, remains a relevant criterion for determining whether a demonstrated breach is a cause of the Plaintiff’s damage. Nor is it sufficient on its own to demonstrate the causal link for legal purposes. A sufficient causal connection will, generally speaking, be established if it appears that the Plaintiff would not have suffered the damage complained of but for the Defendant’s breach: Shire of Wakool v Walters [2005] VSCA 216.
  3. With regard to the test for remoteness,[4] the Privy Council in Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound)[5] laid down that the essential factor in determining liability for the consequences of a tortious act is whether the damage is of such a kind or genus[6] as the reasonable person should have foreseen and not whether the damage was the direct or natural consequence of the tortious act. The Privy Council elaborated this test as regards the degree of foreseeability required in the subsequent case of Overseas Tankship (UK) Ltd. v. The Miller Steamship Co. Pty[7] holding[8] that it was sufficient if there was "a real risk", that is, "one which would occur to the mind of a reasonable man in the position of the [defendant]". Foreseeability is not required of the precise manner in which the particular injury came about[9] or of its extent.[10]
  4. I now turn to deal with each of the two claims by the Plaintiff in the following order:

Gonschor claim

  1. In relation to the Gonschor claim, Dr. Horowitz provided the following written opening statement:
“In Judgment of CV13/2018, the Court supposed the Defendant’s recruitment bans of 2018 and 2019 were ‘likely to be highly detrimental to the academic and financial operation of any education provider. It could threaten that provider’s very future existence’[Judg. at paragraph 272].
Yet the Defendant disputes the realisation of the Court’s supposition, pleading, for example, that its Bans neither repelled the Plaintiff’s Dean of Faculty nor depressed the Plaintiff’s tuition revenue in 2018 and 2019. Accordingly, the Plaintiff shall present evidence this week that to a substantial degree said Bans indeed contributed to Dr. Gonschor’s resignation in November 2019 as well as to a reduction of the Plaintiff’s tuition revenue in 2018 and 2019.
DR. GONSHOR’S RESIGNATION (NOV. 2019)
The Plaintiff will this morning clarify the following evidence to prove a causal link between the Defendant’s recruitment bans and Dr. Gonshor’s resignation:
Clarification will be achieved through the remote viva voce testimony of Dr Gonshor from his home in Tahiti and summarized in closing argument.”

Evidence

  1. In his affidavit, sworn 6 July 2020, Dr Gonschor deposed to the following, in summary:
“It’s very uncomfortable to be in this situation where the university that I am teaching at is under this kind of constant attack from regulatory authority.”

  1. The court book comprised mostly documents included by the Plaintiff. None were the subject of any objection by the Defendant. Those documents included a copy of the employment agreement between the Plaintiff and Dr. Gonschor dated 21 July 2017. It provides, relevantly, that:
  2. Among the other documents of relevance in the court book were a number of emails passing through between Dr Gonschor and Dr Horowitz, the earliest being December 2009 through to the commencement of Dr Gonschor’s employment with the Plaintiff in 2017.
  3. On 23 June 2012, Dr. Gonschor wrote:
“Anyways I just wanted to tell you that I am now two years after I said in your offer ready to come to Tonga to undertake research there. My plan is to come to Tonga sometime in late July or early August this year. If you are still at ‘Atenisi I am wondering if there will be a possibility to host me there for about a week. Of course I am interested in giving a presentation on my research. The principal research goal of my trip to Tonga is to get access to the Tongan archives in order to have a look into pre-1900 government records documents, official correspondence, newspaper and other printed document survey records etc., basically everything available to document the formation and development of the Tongan Kingdom from George Tupou I first written records (1830-40s or so I would estimate) in the year 1900.”

  1. In July 2014, Dr Gonschor accepted Dr Horowitz’s offer of a position as historical coordinator at Inquiry Oceania.
  2. On 4 January 2017, Dr. Gonschor wrote to Dr Horowitz:
“As I told you during the phone conversation, both Veiongo and I are contemplating moving to Tonga sometime later this year, myself to teach at ‘Atenisi if that is still a possibility and Veiongo to take care of her Dad who is old and suffers from dementia. Since Veiongo and myself are involved in the Hawaiian political, cultural and academic restoration movement, we are also interested in establishing deeper contacts between Tongan and Hawaiian academic circles via ‘Atenisi.”

  1. On 1 May 2017, Dr. Horowitz responded:
“Send me an updated CV with both UH degrees, list of publications and papers and teaching career at EL&L (including brief descriptions of courses taught). ‘Atenisi would engage you with two courses in spring semester (Survey of the Pacific Islands; History of Tonga). Compensation is $600 per month per course. We prefer you teach the entire semester (i.e. 6 July-3 November) but if your heart is set on returning to Hawaii in September, we could work around that. There are several promising opportunities for ‘Atenisi at this juncture so you might additionally wind up directing the university (with concomitant compensation) whilst I leverage them. But with regards to this possibility no commitment is expected from you at this time and no pledge is extended by us. Our priority is to retain you during accreditation assessment (i.e. July – August). That’s why we’re not terribly keen on postponing your induction until February 2018.”

  1. On the same day, Dr. Gonschor replied, relevantly:
“Yes, I would like to take up your offer and accept the teaching position starting July 6, however, I would not be able to arrive in Tonga 2 or 3 days prior to that date because I’m presenting at a conference in Munich, Germany... Attached please find my current CV including the sought information about the classes I am currently teaching. The two classes you are offering me to teach would be wonderful. That is exactly what I would be looking for. Best wishes and looking forward to this exciting new job.”

  1. On 6 May 2017, Dr. Horowitz emailed Dr. Gonschor in the following terms:
“In the unlikely instance Professor Ian Campbell comes up to teach Tongan history this winter we might ask you to teach South Pacific Politics and Modern German Literature... hence the vague rubric of ‘Social Science and/or Humanities’ in your contract. Kindly sign the agreement, scan it and email it back to me...”

  1. On 17 December 2019, after Dr. Gonschor tendered his resignation, Dr. Horowitz wrote:
“I reckon ‘Atenisi would be able by March to reimburse your September return ticket Honolulu to Tonga to Honolulu. Please continue to retain receipt. ‘Atenisi would also of course be in the position to discuss your return to the Associate Deanship should you at the time be interested.

...

PS. Late last month radio New Zealand finally got around covering ‘Atenisi.”

A URL was provided to the RNZ website with the story titled “‘Atenisi University can now recruit students after ban lifted”.


  1. On 18 December 2019, Dr Gonschor replied, relevantly:
“Thank you for offering reimbursement for my flight tickets in the near future. Would appreciate it very much. Not having gotten a permanent position at UH, I got an offer to teach at UPF in Tahiti for one semester so I will be there together with Mililani, from January to June 2020. Beyond that we shall see.
Currently I am in Sydney doing research on the Hawaiian consular presence here that, as you know, played a crucial role in establishing pan-Oceanian connections in the second half of the 19th century”.

  1. Finally, in these email exchanges, on 27 March 2020, Dr Gonschor wrote to Dr Horowitz with a description of his experience at the University of French Polynesia at that time and the commencement of the Covid pandemic lockdown conditions. Nothing was mentioned about ‘Atenisi’s ongoing disputes with the Defendant or any further considerations post the lifting of the recruitment bans.
  2. Dr Gonschor appeared by video link at the commencement of the trial. Dr Horowitz elicited additional evidence in chief from Dr Gonschor partly by way of clarification of the contents of his affidavit and partly new evidence entirely. Relevantly, Dr Gonschor said that:
  3. From the Bench, Dr Gonschor was asked whether but for the bans, would he have stayed on with the Plaintiff. Dr Gonschor gave the following (what he described as a) qualified response:
“If the status of ‘Atenisi Institute as a recognized and accredited university was resolved or regularized quickly, I would have stayed.”

  1. During cross-examination, Dr Gonschor said:
  2. In re-examination, Dr Gonschor was asked about which part of the outcome of CV 13 caused him to leave. He recalled it was because ‘Atenisi was adjudged to be subject to the Act and the Defendant’s reductionist assessment method. He was asked by the Bench whether he knew that the issues of registration and accreditation, including the Defendant’s assessment method or metrics, were not being determined in CV 13 as was explained in the judgment. Dr Gonschor said that even though he had been involved in those proceedings from the start, he was not fully aware of that and he still hoped that those issues would be decided.
  3. He was again asked about the basis for his expectations that the enmity between the parties would continue after the October 2019 judgment. He said it was based on what Dr Horowitz had told him and an email he had showed him as mentioned earlier. He interpreted that as that the Defendant would not be co-operative on the outstanding issues. Dr Gonschor said he simply believed that the Defendant had not changed its attitude on accreditation.
  4. In relation to his new employment, Dr Gonschor said that earlier that year he applied to four other tertiary institutions for the purposes of ‘personal security’ and because ‘he did not want to end up in limbo’. He emphasized, however, that he did not finally make up his mind to leave ‘Atenisi anytime earlier that year. He received the offer from the University of French Polynesia sometime in November 2019. About a week later, he tendered his resignation with the Plaintiff.
  5. In respect of the Gonschor claim, the Plaintiff relied upon a number of other affidavits from other academics in the region which were submitted ostensibly as expert opinion evidence that Dr Gonschor’s decision to resign in the face of the recruitment bans, as part of the overall reasons for him resigning, was reasonable. Mr Tu'utafaiva did not object to any of that evidence, nor did he require any of those deponents for cross-examination.
  6. The first was from Paul Janman from the school of communication studies in Auckland. He recorded, under the heading “Settled facts”, that in November 2019, Dr Gonschor resigned as dean of faculty at the Plaintiff ‘university’ partly due to the Defendant’s ‘attack’ on the Plaintiff’s academy. Under the heading “Probative”, Mr Janman deposed that the Defendant’s ‘unlawful recruitment ban (February 2018 – October 2019) was sufficiently egregious as to impel a scrupulous academic to resign from any tertiary academy under the Defendant’s jurisdiction’. Under the heading ‘Expert opinion’, Mr Janman deposed that his ‘expert opinion’ was contained in an attached affidavit which he described as being supported by the affidavits of Professors Petra Butler and Jack Heinemann.
  7. The accompanying affidavit recited the background facts. He also referred to the American Association of University Professors and its website explaining why its members often decline employment in “rogue academic environment”, with such institutions being placed on a censure list. That behavior or conduct was described as infringing academic freedom.
  8. Mr Janman concluded by opining that:
“... Dr Lorenz Gonschor’s departure from Tongan academe was the proper response of a scrupulous global academic. Said response was not only the safest way to protect his own academic reputation but enabled the instant prosecution – a prosecution that, if successful, may very well dissuade the Defendant from egregious directive in the future.”

  1. In her brief affidavit, Dr Petra Butler, Professor of Law at Victoria University in Wellington, opined:
“Whether or not a university is permitted to recruit new students is one of the critical factors affecting whether or not an academic will remain on the faculty of said university.”

  1. Dr Heinemann, of the School of Biology at the University of Canterbury, opined:
  2. It is to be noted that the reasonableness or otherwise of Dr Gonschor’s resignation was never an issue in dispute. One of the reasons for reciting the pleadings in the details that I have was to identify what in fact was in dispute. The only fact or issue in dispute was causation. At no point in its Defence did the Defendant allege that Dr Gonschor’s resignation, on account of the recruitment bans, was unreasonable.
  3. Cornelius Velt has had a long association with the Plaintiff. Since April 2019, he has occupied the position of President and Chair of the Plaintiff’s Board of directors. At paragraphs 6 to 9 of his first affidavit,[12] Mr Velt deposed that:
  4. The balance of the documents in the court book, as supplemented by further documents filed by the Plaintiff shortly prior to trial, do not alter the assessment of this part of the claim.
  5. At the outset of the trial, I raised with Dr Horowitz the fact that according to the directions given last year, the documents in the court book were to include, inter alia, all the evidence for consideration at trial. With the exception of page 59, there did not appear to be any evidence to support the quantum of $50,000 in respect of the Gonschor claim. Page 59 of the court book was a copy of part of a website from the Chronicle of Higher Education in the United States containing print advertising rates.[13]
  6. Dr Horowitz explained that he had assumed that the trial would be split between liability and quantum. That was the case in the previous proceeding, but it was the subject of an order of the Court after the issues had been ventilated, debated and determined and the preparatory steps for trial reflected that ruling. No such issue was ever raised in this proceeding. There was no indication in the pleadings or any statement during any of the mentions or directions hearings during the course of proceeding that the Plaintiff even contemplated, let alone desired, a split trial.
  7. In an endeavour to address that deficiency in the evidence, on the morning of day 2, the Plaintiff was granted leave to file a second affidavit by Mr Velt. Again, for completeness, I will recite the relevant parts of that affidavit and an outline of the supporting documents exhibited thereto. Mr Velt deposed:
  8. Exhibited to Mr Velt’s affidavit were:
  9. Mr Velt had not been required for cross-examination on his first affidavit but he was for his second. Dr Horowitz took the opportunity to adduce further evidence. Mr Velt explained that the claim for two display advertisements in the Chronicle of Higher Education and the obvious increased expense associated with that compared to the $2,000 estimate in the Amended Statement of Claim was because, he said, ‘a picture is worth a thousand words’. He also gave additional evidence about the dean’s responsibilities including keeping the books, starting up fundraising campaigns and teaching one or two classes.
  10. Under cross-examination, Mr Tu’utafaiva referred Mr Velt to page 79 of the court book which was an exhibit to the second affidavit of Lose Helu affirmed 10 May 2019 in the first proceeding entitled ‘University student population in 2008 to 2019’. It set out in graph format the different student populations through those years and was also denoted by reference in colour to periods in which different deans were in office. For instance, between 2008 and 2010, the dean was Dr Horowitz. In 2011 to 2012, the dean was Robert Beck. In 2013 to 2014, the dean was ‘Opeti Taliai. In 2015 to present, Dr Horowitz returned as dean.
  11. The graph clearly depicts that in around 2008 through to 2010 there was a marked increase in the number of students at the Plaintiff’s institute. Then, by 2012 to 2014, there was a dramatic decline down to about five students. Thereafter, between 2015 to 2017, there was a modest increase up to 10 students followed by a decrease in 2018 to (a number which was not clear in the quality of the copy before me) somewhere between 5 and 10 students. Then, somewhat quizzically, bearing in mind the bans were in force from 2018 to 2019, the graph depicted a rise in the number of students to some 15. When asked for some explanation as to the fairly dramatic fluctuations in the numbers of students, including before the bans were imposed, Dr Horowitz said from the Bar table that, in his view, it depended on ‘who was the dean at the time’.
  12. Mr Velt’s cross-examination then turned to the amounts claimed for the process of replacing Dr Gonschor. He gave the following evidence:

Submissions

  1. Following the close of the Plaintiff’s case, Mr Tu’utafaiva confirmed that the Defendant did not intend to call any evidence.
  2. In respect of the Gonschor claim, Dr Horowitz submitted:
“The Defendant argues its recruitment bans had nothing to do with Gonschor’s resignation. Against that is the following evidence:
a) Upon learning of the initial ban in March 2018 Dr Gonschor deposed he was ‘stunned’. Moreover, he found the official timing of the said ban to be ‘venomous’ because of the natural disaster with which the Plaintiff was coping on that day.
b) He assumed the stigma of non-compliance contained in said ban was based on what he regarded as the Plaintiff’s thankful inability to satisfy the Defendant’s reductionist assessment metric and inability confirmed in Dr Gonschor’s very presence by the Defendant’s own principal accreditation officer in October 2017 and remotely by sole expert testimony in CV13/2018.
c) In March 2018, Gonschor additionally learned that said ban ought to be found unlawful.
d) Settlement negotiations between the parties collapsed 2018, Gonschor became disheartened by the Defendant’s zealous determination over the next 12 months to litigate the validity of its inappropriate assessment metric and unlawful recruitment bans.
e) Relentless litigation required him to serve as clerk pro se and conduct tedious historical research regarding the Plaintiff’s history. Moreover, the acrimony between the parties distracted him from his academic pursuits.
f) At the trial of CV13/2018, he testified he reckoned at the outset of his tenure that Tongan democracy had sufficiently developed such that he could expect ‘academic freedom’ at the Plaintiff’s academy. But as a result of the Defendant’s relentless belligerence, he had become ‘very uncomfortable to be in the situation where the university that I’m teaching at is under this kind of constant attack from regulatory authority’. Moreover, this discomfort impelled him to apply to overseas universities, a development he supposed might very well lead to his resignation.
g) Although the disposition of CV13 in October 2019 lifted the Defendant’s recruitment bans, it left the authority to accredit the Plaintiff in the Defendant’s hands. By the end of November, Gonschor came to believe the parties would continue to contend over the issue of accreditation perhaps for another two years.
h) Faced with the prospect of extended acrimony between the parties, Dr Gonschor on 14 December 2019 signed the year contract with the University of French Polynesia.”

  1. Mr Tu’utafaiva submitted that it was clear from the evidence of Dr Gonschor, when examined closely, that the bans were not the cause for his resignation. In cross-examination, it became clear that Dr Gonschor decided to leave because ‘Atenisi was not registered as a university and the accreditation metrics being used by the Defendant were disputed by ‘Atenisi.
  2. In relation to quantum, Mr Tu’utafaiva submitted that the second Velt affidavit had, for all intents and purposes, been prepared by Dr Horowitz. He noted that the claimed recruitment process had never been used before and there had been no decision of the Board to adopt the process claimed. Further, the Gonschor contract had expired in May 2019 and Dr Gonschor stayed on to help Dr Horowitz with proceedings CV 13/2018. Dr Gonschor applied for positions elsewhere and, in November that year, after this court had determined the recruitment bans to be unlawful, Dr Gonschor then decided to leave.
  3. In reply, Dr Horowitz denied that he had effectively written the second Velt affidavit.

Consideration

  1. Having considered the pleadings, evidence and submissions in relation to this part of the Plaintiff’s claim, I accept, at the outset, that the recruitment bans were a cause, not for his ultimate resignation, but for Dr Gonschor’s decision to start looking for other employment earlier in 2019. As noted, he applied to four other institutions from about mid-2019.
  2. It is important to keep clearly in mind the basis for the Plaintiff’s claim in this case. It is not a claim based on the disputes then and, as I understand it, now, between the parties in relation to ‘Atenisi’s claimed entitlement to registration as a university or for accreditation by the Defendant of ‘Atenisi’s courses. Those disputes have been a constant before and during what have become three legal proceedings. The significance of the registration and accreditation disputes needs to be kept keenly in mind.
  3. The first recruitment ban was imposed approximately seven months after those disputes arose. The Plaintiff issued proceedings CV 13/2018 purportedly in relation to those disputes, including the recruitment bans.
  4. It is also important to note, as identified during the course of cross-examination, that Dr Gonschor’s employment contract with the Plaintiff ended in May 2019. It was not renewed nor was a fresh contract offered to him. It is significant, in my view, that his role changed markedly from that date until his resignation. He was required to dedicate himself solely to supporting Dr Horowitz in representing ‘Atenisi as counsel pro se in CV 13/18. That presumably followed a decision by ‘Atenisi’s Board that it either could not or did not wish to engage professional counsel to represent it. That meant that Dr Gonschor’s experience at ‘Atenisi changed significantly. He no longer taught or conducted his normal research. He was unhappy about that; understandably so. Notwithstanding, throughout that period, based on legal advice received, he believed that the bans were unlawful, and they were ultimately found to be so.
  5. Until October 2019, the combination of the underlying disputes in relation to registration and accreditation compounded, no doubt, by the recruitment bans issued in early 2018 and repeated in 2019, were operative factors in Dr Gonschor’s plans to look for other employment and, if offered, to leave ‘Atenisi.
  6. However, in my view, the judgment of this court on 15 October 2019 declaring the recruitment bans unlawful, and thereby lifting them, was a break in the chain of causation, or, in the parlance of tort law a novus actus interveniens. That is, the bans no longer operated as an infringement on any academic freedom which was the basis for Dr Gonschor’s concerns as echoed by the other academics who provided affidavits in support of the Plaintiff’s claim in this regard. Therefore, as at 15 October 2019, it could not be said that the bans were an operative cause of Dr Gonschor’s resignation.
  7. At that time, there remained ongoing uncertainty about the Defendant’s attitude to the registration and accreditation issues. Dr Gonschor feared that that ‘war’ would continue. I do not accept the proposition that Dr Gonschor did not know what the Defendant might effectively ‘throw at’ ‘Atenisi thereafter by way of further obstacles. That is a subjective characterization of what was in fact going on. The Defendant was endeavouring to give effect to and enforce its statutory mandate when in 2017 it required ‘Atenisi to have its courses accredited. For several years prior to that, the TNQAB took a ‘soft approach’ with all providers before more recently taking a firmer position in requiring all providers to have their courses accredited. The issue of registration as a university was in one sense a non-issue because, as was explored in the first proceeding, there was in fact no formal application before the Defendant for that status in 2017. There had been a dispute between the parties as early as 2009 or 2010 which led to litigation commenced by ‘Atenisi and which was ultimately settled on terms by which it agreed to adopt the title ‘Institute’ rather than ‘University’.
  8. On the accreditation issue, the judgment in CV 13 also identified that, on the evidence presented, ‘Atenisi provided the Defendant with all the information required including the completion of the templates about which ‘Atenisi had previously complained. The only real issue in my view which lingers, as it were, is the time the Defendant is taking to complete its assessment of that application. That is something which was referred to in the primary judgment and which the Court of Appeal noted when considering the relevant regulation requiring the Defendant to complete its work in this regard ‘promptly’. But this is not an occasion to revisit those underlying issues.
  9. Therefore, on the Gonschor claim, for the reasons outlined, I am not satisfied that the Plaintiff has demonstrated a sufficient causal nexus between the unlawful recruitment bans and Dr Gonshor’s resignation.
  10. However, if I am wrong about, that I will turn now to consider the evidence in support of the damages claim in respect of replacing Dr Gonschor.
  11. At the outset, I find that the basis of the claim is misconceived.
  12. Dr Gonschor, like any other member of a tertiary institution, or any other employee of an organization for that matter, would, in the ordinary course at some point in the future, have to be replaced, due to natural attrition, early retirement (even though Dr Gonschor’s contract had already expired), or possibly even death. Institutions such as the Plaintiff have to provision for the expenses of replacing staff from time to time if they wish to incur them.
  13. What in fact occurred here was nothing more than an acceleration or bringing forward of the time when ‘Atenisi would be faced with deciding whether, and if so, how it was going to go about replacing Dr Gonschor. As Mr Velt explained, nothing has been done to date in that regard. There are some likely and obvious reasons for that. In addition to ‘Atenisi’s admitted parlous financial condition, 2020 has been dominated by the disruptions of a pandemic. Be that as it may, there is no evidence that ‘Atenisi presently has the wherewithal to undertake a recruitment process such as that claimed in this proceeding.
  14. Further, by reference to Mr Velt’s evidence, I make the following findings:
  15. Accordingly, on the Gonshor claim, I am not satisfied on the evidence, that the Plaintiff has established any actual or prospective loss of the kind or amount claimed, or at all.

Tuition claim

  1. I turn now to the tuition claim.
  2. In his second opening statement, Dr Horowitz wrote:
“REDUCTION OF TUITION REVENUE (2018-19)
Regardless of whether the Defendant intended to enforce its Bans, violation of a directive from a Crown Entity was never a viable option for the Plaintiff. Although the Plaintiff has at key moments since 1992 opposed various policies of the Crown and its entities, its Board of Directors has never permitted the University to starkly disobey a key government directive.
Accordingly, from March 2018 to October 2019 the University - in an effort to comply with the Bans - terminated its recruitment promotion and advertising in the print media as well as its recruitment presentations at local high schools. Said withdrawal was exacerbated by prominent coverage of the Bans in the very print media the Plaintiff had previously deployed for promotion and recruitment. The Plaintiff expects witness Mary Lyn Fonua on Tuesday morning to furnish the reason - and assess the effect - of said coverage.
DEFENDANT’S INTENTIONALITY
In pleading, the Defendant is unable to imagine how its Bans might have repelled Dr Gonschor or reduced the Plaintiff’s tuition revenue. On Tuesday morning the Plaintiff expects the Court will learn from witnesses Pauliasi Fifita and Siniva Samani to what extent the Defendant anticipated its Bans would injure the Plaintiff. Should the witnesses testify injuries were foreseen, that would challenge the Defendant’s pleading that alleged injuries are inconceivable.
QUANTIFICATION
Plaintiff’s losses regarding Dr Gonschor’s departure and reduced tuition revenue will be enumerated in its closing argument.”

Evidence

  1. The principle evidence relied upon by ‘Atenisi on this part of its claim was the first affidavit of Cornelius Velt. Under the heading “Loss of tuition revenue”, Mr Velt deposed, relevantly:
“4. From 2015 through 2017, our university dean D. Michael Horowitz reported that upon annual invitation he had endeavored to recruit students at Tonga High and Ocean of Light secondary schools at their respective campuses. In deference to the Ban, however, he thereafter cancelled recruitment advertising and visits to secondary schools.
5. I have compared the Plaintiff’s tuition ledgers of 2017, 2018, 2019 [Att. A][15] with its local bank statements at ANZ and BSP and confirm compatibility. Accordingly, I warrant said revenue declined from $31,695 in 2017 to $5,300 in 2019.”

  1. In addition to the affidavit evidence upon which it relied, the Plaintiff called viva voce evidence from three witnesses who appeared pursuant to subpoena.
  2. Mary Lyn Fonua is a director of Vava’u Press Limited. Since 1980, she has been the staff manager and editor of the Matangi Tonga online news service, being one of the media outlets owned by the said company. She gave evidence, in summary, that:
  3. Mrs Fonua was not cross-examined.
  4. Pauliasi Fifita gave evidence in the trial of CV 13/18. He returned to give evidence in this proceeding under subpoena by the Plaintiff. When he last appeared, he was in charge of quality assurance at the Defendant. Mr Fifita is now the Defendant’s head of policy division. He was asked by Dr Horowitz to explain the circumstances which led to his change of position within the Defendant. Mr Fifita explained that there had been a conflict of interest in relation to his role at the Defendant in relation to a different case or matter. He said he still retained his old title in relation to quality assurance but that he was now overseeing the policy division. Mr Fifita denied any suggestion by Dr Horowitz that he had been adversely treated by the Defendant as a result of his evidence at the first trial supporting Dr Eubanks’ criticism of the Defendant’s accreditation assessment metrics. He denied that he had been demoted and emphasized that he had in fact been given the opportunity to accept or decline the current position. He obviously accepted it.
  5. Mr Fifita was asked about the recruitment bans. He said the first he heard of them was in preparation for the CV 13 court case. He was aware of compliance letters being sent to providers, including ‘Atenisi, but he was not aware of the bans in those letters or at least in the letter to ‘Atenisi. When asked whether he knew who worked on the letters, Mr Fifita said he believed they were prepared by risk analysts within the Defendant. It was evident from the face of the compliance letters, that ultimately, it was the Defendant’s then Acting CEO who signed them.[17]
  6. Mr. Fifita was not cross-examined.
  7. Siniva Samani gave evidence that, since July 2016, she has been employed as the Defendant’s senior risk analyst. In January 2019, she left to study in Australia and only returned this year. She did not recall the recruitment bans that were issued in March 2018.
  8. Ms Samani did recall discussions around that time with Dr Horowitz and others regarding possible settlement of the disputes between the parties. Dr Horowitz visited her in March or April 2018 but not about any complaints in relation to the recruitment bans. The meeting was about the accreditation process and ‘Atenisi’s complaint about payment being required of it for part of that process.
  9. In relation to the first non-compliance letter dated 22 February 2018, Ms Samani said that even though she was the senior risk analyst, she was not involved in the preparation of the letter. She was, however, involved in collecting evidence or data for further settlement discussions in July 2018. She was never asked to assess the risk of the bans before they were issued. She agreed that with the benefit of hindsight, and the October 2019 judgment, there were risks in issuing the bans.
  10. Ms Samani was not cross-examined.
  11. The other documentary evidence relied upon by the Plaintiff, in Part C of the court book, included various historical references or copies of articles and publications which Dr Horowitz described as evidence of how the Plaintiff had published “lively statements” in the press from time to time before the bans. He said that, by comparison, after the bans were imposed, ‘Atenisi “went silent”.
  12. The actual response by ‘Atenisi to the recruitment bans requires scrutiny. As confirmed by Dr Horowitz, ‘Atenisi resolved not to continue its usual activities of visits to certain high schools or any print media advertisements for enrolment, although its website continued to welcome new enrolments. Dr Horowitz described that as “an oversight”.
  13. I should pause and observe, once again, as I was compelled to do in the October 2019 judgment, that the Plaintiff’s decision to have Dr Horowitz represent it as counsel pro se caused significant difficulties in terms of fairness and the integrity of evidence available to the court in that proceeding and now this one. The reason was as alluded to by Mr Velt when being cross-examined about his second affidavit containing much information which had in fact come from Dr Horowitz. Dr Horowitz was never a witness in this proceeding nor was he in the previous. No affidavit has ever been sworn by Dr Horowitz deposing to any evidence upon which the court could consider the issues for determination. It follows that anything said by Dr Horowitz from the Bar table as purported evidence was unfair to the Defendant not least for the obvious reason that it was not capable of being tested. Dr Horowitz was never cross-examined upon any of the assertions of fact he uttered from the Bar table. All the other witnesses who appeared were cross-examined, including Mr Velt who, in my view and with respect to him, was used largely to convey information known mostly to Dr Horowitz.

Submissions

  1. In his closing submissions on this part of the Plaintiff's claim, Dr Horowitz wrote:
"The Defendant pleaded that its recruitment ban had nothing to do with the Plaintiff's decline of tuition revenue in 2018 and 2019. Against that is the following unchallenged evidence:
a. Shortly after receiving notice of the initial recruitment ban in March 2018, the Plaintiff through the duration of the bans ceased promotion and recruitment advertising, as well as recruitment visits to high schools;
b. On 13 February 2019, Matangi Tonga prominently reported that, as of February 2018, the Defendant had banned the recruitment of new students by the Plaintiff's academy. In affirmed affidavit in CV 13/2018, the Plaintiff's (now former) President deposed that ‘partly as a result of negative publicity in Matangi Tonga, it has proven awkward for the Plaintiff’s university to collect tuition.’
c. In affirmed and unchallenged affidavit, the Plaintiff's current president deposes that tuition revenue dropped from $31,695 in 2017 to $5,300 in 2019.
Alas, circumstantial evidence suggests the decline of tuition revenue from $31,695 in 2017 to $5,300 in 2019 was due to the Plaintiff's intended compliance with the recruitment ban.”

  1. During his oral submissions, Dr Horowitz demanded that:
“A link must be made between the bans and decline in revenue”.

  1. He described the Plaintiff’s case as circumstantial. When asked to identify that circumstantial evidence within the evidence before the Court, Dr Horowitz simply repeated the formula for the claim, namely, the bans equalled reduction in revenue.
  2. Mr Tu’utafaiva submitted that there was no evidence that the bans caused the decline in revenue. He characterized the first Velt affidavit as nothing more than a comparison of revenue between 2017 and 2019. It showed, self-evidently, a significant decline in those receipts but nothing more in terms of causation. In other words, there was no admissible evidence by the Plaintiff which could explain if or how the bans caused the decline in revenue.

Consideration

  1. The articulation of this claim as presented by Mr Velt in his first affidavit was, again, fundamentally flawed. The simplistic approach of comparing revenues in 2017, before the bans were imposed, to revenues in 2018 and ultimately 2019, to conclude that the bans caused the decline in revenue was misguided.
  2. The bans by themselves could not necessarily produce a decline in revenue. The bans could by themselves result in a reduction in the number of students enrolled at ‘Atenisi during that period. There is a difference. That difference is borne out by the tables in Mr Velt’s Annexure A. One can see immediately that some students enrolled for either a number of courses or subjects or components of a course with their own corresponding tuition fees whereas others enrolled for only one.
  3. So, the starting point ought to have be any differences in the numbers of students during the period of the bans. How many courses and what they paid is secondary. Whether they enrolled or remained at ‘Atenisi during the bans is the important forensic enquiry.
  4. To illustrate, at each end of the spectrum, the students are identified in the Velt tables simply by a number. Dr Horowitz explained that the identities of students was concealed for reasons of confidentiality. That decision is also important later on in this analysis, because as Dr Horowitz further explained, the Board of ‘Atenisi decided that no student or prospective student or any family member of either would be approached for the purposes of giving evidence in this proceeding.
  5. Student number 1 was recorded in 2017 as having paid $21,080 in tuition fees. By comparison, in that same year, students 3 and 4 (who were coupled together for reasons which were not explained in the evidence) paid $600 on one date and $600 on another for that year’s enrollment. That is an example where two students paid just over $1,000 whereas another student paid over $21,000. No explanation was given in the evidence for the $21,000 paid by student 1.
  6. Further, the amount paid by student 1 is to be contrasted with the average amounts paid by all other students through the three years relied upon which range from $200 to $3,332, with the median very roughly being around the $1,000 mark. As a matter of simple and more accurate comparative analysis, if student 1’s fees were standardized to the median of all others for the three years, or even to say $3,000, the resulting adjustment reduction of some $18,000 would produce revenues for 2017 of between $13,000 and $14,000. That would then be compared to 2018, the first year of the bans, at $18,702. Hence, it may be seen there is no automatic or necessary correlation between the bans and revenues; rather it is the bans and the numbers of students which is to be considered.
  7. The issue of the numbers of students, how they changed and whether such changes can be attributed to the bans also requires consideration of the other elements of ‘Atenisi’s response to the recruitment bans referred to above. The terms of the bans imposed by the Defendant required the Plaintiff to “cease the recruitment of new students in 2018 for all unaccredited programs”. The 2019 compliance letter was in identical terms in banning recruitment during 2019. Dr Horowitz explained ‘Atenisi’s interpretation of the bans as prohibiting it from advertising for new students but that it was permitted to receive and enroll any new students who came along during the relevant period. It is unnecessary to determine whether that interpretation was appropriate. Ultimately, of course, the bans were declared unlawful. But for the purpose of this proceeding, it is relevant, in my view, to at least appreciate what was done or not done and upon what understanding or interpretation of the bans when they were in purported effect. The accepting of new enrolments takes on added importance when returning to the tables to trace through the movement of numbers of students; not numbers of dollars in tuition fees.
  8. In 2017, the table recorded a total of eight students by their consecutive numbers. In 2018, students 1 to 5 disappeared. Again, there was no evidence to explain that. Dr Horowitz proffered a number of possibilities. All were fairly obvious. None were elevated to probabilities by any evidence. Without some evidence to explain why a student in 2017 did not return in 2018, and whether that had anything to do with the bans, the fact per se of that student no longer attending ‘Atenisi was of limited to no value in the Court trying to ascertain or understand any causal connection between the bans and the movement of students.
  9. Students 6, 7, 8 all returned in 2018, took various courses and paid various amounts in tuition fees. For instance, student 7 paid on four different occasions for presumably four different courses or components of courses for that year. There were three new students recorded: numbers 9, 10 and 11 (10 and 11 being combined). There was no attempt in the evidence to explain the circumstances which led to those new students enrolling in ‘Atenisi at a time when the bans were in place. There was also no evidence of any student who actually enrolled as to whether they were, for example, aware of the bans; and, if so, whether that played any part in their decision to enroll. Similarly, there was no evidence of any prospective new students who intended to enroll but decided not to because of the bans.
  10. In 2019, the second year of the bans, students 1 to 11 disappeared entirely from the ledger and five new students appeared. There was no evidence to explain why five new students decided to enroll in 2019 in the face of the bans. Moreover, there was no evidence to explain why others, some of whom had only enrolled in 2018, did not continue in 2019, and whether it had anything to do with the bans.
  11. There was evidence through the 2019 Matangi Tonga article, at least, of publication of the fact that ‘Atenisi was not registered and its courses were unaccredited. I am also reminded of the Defendant’s website, which was referred to in the previous proceeding, and how it displayed various providers and their status.
  12. Further, by way of comparative analysis, there was no evidence before the Court which sought to establish any base line reference using any survey data from pre-ban years which might have identified the numbers or percentages of students who enrolled in ‘Atenisi because of its website or high school visits or print media advertising. That is important because the change in recruitment activity by ‘Atenisi was limited to print media advertising and visits to schools. Without being able to identify which, if any, of those recruitment measures may have secured or procured enrollment of certain numbers of students in a given year, it is impossible to link or connect the cessation of those activities with any subsequent change in the number of students. Again, that is an indirect product of the Plaintiff’s decision not to call any such students.
  13. The changes in student numbers depicted by the tables in the tuition ledgers are also difficult to reconcile with the graph of student population found at court book page 79. For instance, the graph shows that in 2019 there were 15 students at ‘Atenisi, whereas the tuition ledger for 2019 shows there were five students. Again, from the Bar table, Dr Horowitz sought to explain that by reference to a ‘migration’ of students from another institute which had ‘collapsed’ to ‘Atenisi. Those students were not identified in the Velt table for 2019.
  14. Dr Horowitz added, again from the Bar table, that apparently some of those students refused to pay tuition to ‘Atenisi out of fear that if they did so in the face of the recruitment bans, they might be doing something illegal. There was no evidence in admissible form to support any of that as submission explanation for the discrepancies between the graph populations and the Velt tables. Self-evidently, if there were students who did not pay tuition, but ‘Atenisi was nonetheless prepared to let them study there, they would not be included in the ledger of students who paid tuition fees (without at least some indication that those fees were chargeable but had, for instance, been waived). That state of the evidence, or lack of it, again invited impermissible speculation about what actually occurred.
  15. It should also be observed that Dr Horowitz’s explanation has a certain illogicality to it. The Plaintiff adduced evidence, through Dr Gonschor, that it received legal advice that the bans were most likely unlawful. That evidence was significant in the stance that ‘Atenisi took to the bans and its challenge to them in CV 13. However, if one were to adopt ‘Atenisi’s interpretation of the bans as prohibiting advertising and high school visits for new students but otherwise permitting new enrollments, it is difficult to understand how any of those students who refused to pay tuition could have been doing anything illegal because the recruitment bans, according to ‘Atenisi, were only aimed at advertising for new students, not enrolling them.
  16. There is also no evidence whatsoever of the effect, if any, on prospective students or enrolled students, during the relevant period, from the public fact that ‘Atenisi’s courses were not accredited with the Defendant. In my view, there can be no doubt, particularly once the Matangi Tonga article was published in early 2019, that that would be a significant consideration for any prospective student considering whether to undertake a course of study at ‘Atenisi. Dr Horowitz sought to rebut that observation by explaining that, at that time, ‘Atenisi was offering courses which could be used by students to pursue overseas postgraduate work and qualifications. However, he conceded that while ‘Atenisi’s courses remain unaccredited, there is a real likelihood that the qualifications resulting from those courses may not be of any value here in Tonga, particularly with the largest single employer being the Tongan government.
  17. Notwithstanding the fundamental deficiencies in the evidence adduced by the Plaintiff on its tuition claim, upon the application of common sense and experience and foreseeability as prescribed by the authorities, I am prepared to accept that it is more likely than not that the recruitment bans had some adverse effect on the Plaintiff’s student numbers and therefore, indirectly, its tuition revenue.
  18. However, for the reasons given, I am unable to calculate, or even estimate, by reference to the evidence before the Court any particular measure of what those damages might be. Therefore, because all courts must do the best they can with the evidence before them, whether by way of a:

I consider that, in all the circumstances, a fair and reasonable award on the tuition claim is $5,000.

Result

  1. Accordingly, there is judgment for the Plaintiff in the sum of $5,000.
  2. After hearing from the parties on the question of costs,[18] and whether any offer of compromise by the Defendant could be regarded as effective, as well as the limited success enjoyed by the Plaintiff, I consider it appropriate to make no order as to costs, meaning each party is to bear its own.
NUKU’ALOFA
M. H. Whitten QC
8 March 2021
LORD CHIEF JUSTICE

[1] ‘Atenisi Institute Incorporated v Tonga National Qualification and Accreditation Board [2019] TOSC 45.

[2] Judgment at [272].

[3] Compare “Administrative Law” by Wade & Forsyth, Oxford, 7th edition, page 795.

[4] Chapman v. Hearse [1961] HCA 46; (1961) 106 C.L.R. 112 at 122.

[5] [1961] UKPC 1; [1961] A.C. 388 ("The Wagon Mound No.1").

[6] Jolley v. Sutton London Borough Council [2000] UKHL 31; [2000] 1 W.L.R. 1082 at 1091 per Lord Hoffmann.

[7] [1966] UKPC 1; [1967] 1 A.C. 617 ("The Wagon Mound No.2").

[8] At 643.

[9] Hughes v. Lord Advocate [1963] UKHL 1; [1963] A.C. 837.

[10] See generally Fleming, The Law of Torts, 9th edn., 240-245. See also National Australia Bank Ltd v Nemur Varity Pty Ltd [2002] VSCA 18.

[11] Referring to UNESCO recommendations 1997 concerning the status of higher education teaching personnel.

[12] Affirmed 4 November 2020.

[13] For example, a line advertisement cost $43 plus $2 per word; a ‘line ad plus’ which was $636 plus $2 per word and a ‘display ad’ involving images was said to be based on size.

[14] CB 31.

[15] Page 60 of the court book contained a corrected ledger for 2019, although upon review, the bottom line total tuition received for that year remained at $5,300.

[16] CB, p.57.

[17] CB pages 90 to 93.

[18] Excluding any previous costs orders already made in the proceeding.

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